Haji LASHKAR KHAN Versus PROVINCE OF PUNJAB

JAWAD HASSAN, J.--- This Intra Court Appeal was filed under Section 3 of the Law Reforms Ordinance, 1972 (the "Ordinance") by the Appellants challenging the validity of impugned order dated 17.12.2020 (the "impugned order") passed in Writ Petition No.1752 of 2011 by the learned Single Judge whereby the constitutional petition filed by the Appellants was dismissed with the following observations:

"Policy matters of the government cannot be interfered with, unless the policy is in clear violation of express provision of law or against a Statutory or vested right. Policy matter, reproduced above, appears to be reasonable that an area, already having two BHUS, cannot be allowed another BHU merely for the reason that residents of the village have transferred land to the government. Any government's establishment like BHU needs continuous supply of funds and resources, therefore, government is the best judge to decide the number and place of the BHUs. In this Court's opinion, mere transfer of land to respondent department does not create any right for establishment of BHU in the village".

2. Learned counsel for the Appellants inter alia argued that after approval from the Chief Minister, Punjab in year 2006, the Appellants surrendered their 10-kanals land in favour of the government for the sole purpose of establishing BHU-Uthawal: that the Respondent Department neither initiated this project nor the said piece of land was utilized in any project or purpose; that as the respondent department is not willing to establish the BHU, the said land be returned to the appellants.

3. On the contrary, learned Law Officer supported the impugned order by arguing that in view of prevailing policy, a third BHU cannot be established in the area as two BHU were already operative.

4. We have heard the arguments advanced by the learned counsel for the parties and perused the record made available.

5. The sequence of events commenced when a joint application was submitted by the inhabitants of Uthwal in June 2006 to the then Chief Minister of Punjab, seeking establishment of a Basic Health Unit (BHU) in their locality. In response, the Chief Minister issued the first directive on 14.07.2006, calling for comments from the Secretary Health and the District Coordination Officer (DCO), Chakwal. Thereafter, a second application, on the same subject, was submitted on 03.08.2006, whereupon the Chief Minister issued a second directive dated 15.08.2006, whereby the establishment of the BHU at Uthwal was approved, subject to the requisite feasibility. Subsequently, a third application was moved on 28.06.2006, in response to which the Chief Minister issued a third directive dated 12.10.2006, granting unconditional approval for the establishment of the said BHU. Pursuant to these approvals, the appellants voluntarily transferred and duly mutated land measuring 10 kanals in favour of the respondent department for the specified purpose. Following the Chief Minister's approval and the preparation of the PC-I, the matter was submitted before the Provincial Cabinet for final approval; however, the same was declined on the ground that two BHUs were already operational in the said vicinity.

6. The record reflects that despite the approval of the then Chief Minister, Punjab and preparation of the PC-I, the matter was subsequently presented before the Cabinet, which declined the establishment of BHU on the ground that two other BHUs were already operational in the vicinity. Admittedly 10-kanals of land was transferred in favour of the respondent department specifically for the establishment of BHU for the benefit of local vicinity but the Government's decision to abandon such project after the lapse of more than nineteen years amounts to failure of the basic condition upon which the land was transferred. The "doctrine of resulting trust" is attracted in such situations, where the land should revert to the original owners to prevent unjust enrichment by the State. The Government has taken no steps for the implementation of the proposed project, and the subject land remains unutilized as is evident from fresh report sought by this Court in terms of order dated 04.11.2024. Learned counsel for the appellant stated that when the Government no longer intends to establish "BHU" then the land transferred specifically for the establishment of a BHU, should be returned to the appellants. It is evident that land was admittedly transferred to the Respondent department for specific purpose that was not fulfilled till date. It is settled principle that when property is transferred to the Government for a specific purpose and that purpose is not fulfilled, the transaction stands frustrated, and the Government cannot retain such property for indefinite or alternative use without the consent of the donors. It is not permissible for the Government to retain the land as the underlying intention of the transfer no longer subsists and this aspect of the matter has totally been ignored by learned Single Judge, while passing the impugned order.

7. It is also worth mentioning that it is inalienable right of every citizen to be treated in accordance with law as envisaged by Article 4 of the "Constitution". Hence, it is the duty and obligation of every public functionary, including the Respondents, to act within the four corners of the mandate of the "Constitution". We are thus of the considered view that this important aspect even escaped the notice of learned Single Judge.

8. For the forgoing reason, we thus allow this appeal and set aside the impugned order. As a sequel thereof, the respondent department (concerned) shall return the subject land to the appellants by reversing the relevant mutations and restoring the ownership to the original owner/owners or his/their legal heirs.

MQ/L-2/L Appeal allowed.