Malik Ijaz Ahmad Khan Versus Federation of Pakistan
Order
Rasaal Hassan Syed, J .--- This order will dispose of Writ Petitions Nos.28176, 28879 and 29463 of 2020 as the same raise common questions of law and fact.
2. The petitioners in these Constitutional petitions have challenged notices/letters dated 16.05.2020 issued by the respondents for payment of occupancy charges by the occupants of Pakistan Railways properties. A direction is sought for disposal of the applications for the grant of First Right of Refusal and also for the annulment of demand notice dated 16.05.2020. Perusal of the documents annexed with these petitions, reveals that previously certain writ petitions were filed raising similar demand as also challenging the intended auction by the Railway authorities. In this round of litigation a direction was issued to the respondents vide Order dated 04.12.2019 to pass a speaking order. It is discernable from the file that the order to this effect in terms of response dated 04.03.2020 was issued by the Director/Property and Land, which is annexed with the petitions and reads as follows:-
"In compliance to the orders of Honorable Lahore High Court, Lahore, dated 04.12.2019 Writ Petitions Nos. 72341/2019, 72342/2019 and 73615/2019, petitioners were called for personal hearing on 29.01.2020. The petitioners/ representatives of petitioners attended the office of Director/Property and Land Pakistan Railways, Headquarters Office, Lahore on the above mentioned date and submitted grievances in writing.
All the aspects of the case were examined and discussed with the petitioners/representatives in detail in accordance with the existing rules and policies regarding leasing/licensing of Railways land. During scrutiny of record, it is found that the lease/license period of the petitioners regarding the land possessed by them had already expired and as such no agreement exists between Pakistan Railways and petitioners at present. Central Government Land and Buildings (Recovery of Possession), Ordinance, 1965 is applicable on the disputed property. In reported judgment 2014 MLD 1186 and 2010 MLD 1471, in which Honorable High Courts, hold that every lessee or licensee who remained in occupation of the land or building after the determination of lease or license, became "unauthorized occupant" in respect of suit premises.
Furthermore, Honorable Supreme Court of Pakistan in Crl/OP Petition No.120/2016 on orders dated 04.01.2019, directed Pakistan Railways not to lease any property for more than five years.
Therefore, the cases of petitioners will be dealt strictly in accordance with the existing rules and policies of Pakistan Railways. It is also observed that the possession of the land is still under the occupation of the petitioners without any agreement which should be got vacated from petitioners by Divisional Superintendent, Pakistan Railways Lahore and they should participate in upcoming auction proceedings.
Keeping in view the above position, I am of the view that their claim/representations are not justified/maintainable under the law and the same is regretted.
Moreover, after expiry of lease period of the appellants over the land in question is only that of illegal encroacher/occupant who has not vested right to claim retention of possession. Reliance in this regard can be placed on the cases reported as Muhammad Aslam v. Muhammad Ismail and others (1999 SCMR 1331), Ismail Ahmad and 11 others v. Federation of Pakistan through Secretary Ministry of Religious and Minority Affairs, Islamabad and 9 others (2016 MLD 114), Malik Muhammad Riaz and others v. Mrs. Farhat Imran and another (2015 MLD 1191), Ghulam Hussain v. Chairman/Secretary S&GAD, Housing Allotment Committee, Quetta and 2 others (2014 PLC (C.S.) 2019 and Mst. Nazir Mai v. Additional Secretary and 5 others (2011 YLR 972).
It is further advised to all the petitioners to participate in the upcoming auction proceedings. The grievances of the petitioners regarding "First Right of Refusal" are limited to bona fide lessees/licensees only and should not benefit illegal occupants as per Central Government land and Building Recovery of Possession Ordinance, 1965".
3. It is evident from the said response that the respondents, in principal, agreed that the cases of the writ petitioners will be treated strictly in accordance with the rules and policy of Pakistan Railways and that the possession of the land under occupation of the writ petitioners would be got vacated and that they will be allowed to participate in the upcoming auction proceedings. The writ petitioners' claim for challenging the auction was regretted while advising them to participate in the intended auction. It was clarified that the First Right of Refusal shall be limited to bona fide lessees which should not benefit illegal occupants as per provisions of Central Government Land and Buildings (Recovery of Possession) Ordinance, 1965. It was further explained that as per order of the honourable Supreme Court of Pakistan dated 04.01.2019, the respondents could not lease any property of Pakistan Railways for more than five (5) years.
4. In the instant case, the petitioners now claim that respondent No.3/Divisional Superintendent (DS) Pakistan Railways by issuing notice for recovery was bent upon expelling them to accommodate some blue-eyed persons, which if not checked, will result in unfair treatment. The other grievance is that the respondents were intended to decline the First Right of Refusal to the occupants of the expired lease and that the claim for payment for occupancy charges was extremely excessive.
5. Having heard the arguments by learned counsel from both sides and considering the same, it is observed that the objections expressed by the petitioners are not well-founded. As noted supra the respondent-department has already clarified in response dated 04.03.2020 that the respondents were proceeding in accordance with the observation made by the honourable Supreme Court of Pakistan that they could not lease the property for more than five (5) years. As to the status of the occupants in the expired lease areas, it was clarified that the same was that of illegal occupants, in terms of the provisions of the Central Government Land and Buildings (Recovery of Possession) Ordinance, 1965. All claimants were allowed to participate in the open auction while the claim of First Right of Refusal was made limited to the bona fide lessees/licensees, which could not extend any benefit to the illegal occupants.
6. It is discernable from the letter dated 16.5.2020 that the addressees were simply required to deposit outstanding occupancy charges from 01.7.2019 to 30.6.2020. Bare reading of the letter does not give even remote impression or warrant inference of any unfair treatment to the claimants of First Right of Refusal which would, of course, be limited to the bona fide lessees. The respondent-department having already declared the policy in the earlier response and committed to follow the rules and policy, there does not appear to be any reason to infer that the order was untenable, as in principal no one has been given any exception and rather in a fair manner and following the rules, the department agreed to allow everyone a fair opportunity to participate in the auction of the leased rights; while committing to entertain the First Right of Refusal of the bona fide lessees only. The said decision does not suffer from any error of law.
7. As to the claim of the occupancy rights, the occupants of expired lease cannot escape their legal responsibility to pay for the use and occupation of the property till their eviction. Being so, the impugned letter requiring the payment of occupancy charges was lawfully issued. The petitioners' plea of having made certain payments cannot possibly be settled in the present summary proceedings. They shall, however, be at liberty to claim adjustment of the payment, if earlier made, by providing all supporting material before the authorities concerned. The matter being factual can be properly resolved by the concerned authorities after consulting the record and duly considering the material, if any, as may be made available by the petitioners. The petitioners, if so advised, can approach the respondents for the settlement of their claims of alleged earlier payment and also in respect of the quantum of the amount due.
8. It is observed that petitioners claim in these petitions of having submitted certain applications to the respondents already in this regard, which if pending, will be disposed of by the authorities concerned in accordance with law and on their own merits and also keeping in view the policy and rules in vogue.
9. With these observations the writ petitions are disposed of.
UN/I-11/L Order accordingly.