IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
 
 
 
Present: 
Mr. Justice Nasir-ul-Mulk, HCJ 
Mr. Justice Gulzar Ahmed 
Mr. Justice Mushir Alam  
 
 
Civil Petitions No.1700 & 1701 of 2011 
Against judgment dated 28.09.2011 of Lahore High 
Court, Lahore, passed in Intra Court Appeals No.154 & 
155 of 2009. 
  
American International School System 
 
Petitioner (in both cases)  
 
VERSUS 
Mian Muhammad Ramzan & others   
 
Respondents (in CP#1700/11) 
Sakina Bibi & others  
 
 
 
 
Respondents (in CP#1701/11) 
 
 
For the Petitioner(s): 
 
Mr. Rashid A Rizvi, Sr.ASC 
 
For the Respondent(s):  
Ch. Amir Hussain, Sr.ASC 
 
 
 
 
 
#1-3 in CP#1700 & #1-2 in CP#1701/11 
 
 
 
 
 
Rana Shamshad Khan, AAG, Pb. 
 
 
 
 
 
#4-8 in CP#1700 & #3-7 in CP#1701/11 
 
Date of Hearing:  
 
09.12.2014 
 
 
 
 
  
JUDGMENT  
 
 
 
Mushir Alam, J-. Through this single judgment, we 
propose to decide Civil Petitions No.1700 & 1701 of 2011, filed by the 
petitioner-American International School System, arising out of a 
common judgment of Lahore High Court, Lahore, dated 28.09.2011, 
rendered in Intra Court Appeals No.154 and 155 of 2009. 
  
2. 
 
Facts, in brief, appear to be that each set of private 
respondents’ refugee claimants asserted their rights in respect of  
subject property in their respective possession (total land measuring 
59 Kanals 2 marlas, situated at Harbanspura, Tehsil Lahore Cantt, 
District Lahore) to claim subject land against their purported rights 
as occupancy tenant and transferee from Settlement Department 
under the residual property scheme through legal proceedings, 
which culminated in the judgment cited as Muhammad Ramzan v. 
Member (Rev.)CSS (1997 SCMR 1635).  It was held that after the 
issuance of “Scheme for Management and Disposal of Available 
Civil Petitions No.1700 & 1701 of 2011 
2
Urban Properties, 1977” dated 16.5.1977 issued under Section 3 of 
the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 
as prepared by the Government of Punjab (hereinafter referred to as 
‘Scheme, 1977’) and consequent  upon issuance of Notification 
No.1697-73/1567-R(L), dated 16.5.1973, issued by the Chief 
Settlement Commissioner, subject agricultural land was declared as 
‘Building Site’ and could not be allotted or transferred against 
unsatisfied claims. They were, however, given liberty to assert their 
rights in accordance with law, if so available.    
 
3. 
 
The private set of respondents in each of the Petition 
herein, however, retained their possession and never availed the 
benefit of Scheme, 1977. It also appears that subject property on the 
direction of the then Chief Minister was allotted to the Petitioner-
School through allotment order dated 10.05.2007 made by the 
Member 
(Colonies), 
Board 
of 
Revenue, 
Punjab, 
Lahore. 
Consequently, each set of private Respondents herein were forcefully 
dispossessed by the Executive District Officer, Government of the 
Punjab, Lahore, from the subject property and possession was 
handed over to the Petitioner-School.  
 
4. 
 
Both sets of the private respondents challenged their 
respective dispossessions and allotment of the subject land to the 
petitioner-School through two different constitution petitions (Writ 
Petitions No.5939 & 5940 of 2007) claiming their right, title and 
interest in the land as against the petitioner-School. Both the Writ 
Petitions were heard together and dismissed through a common 
judgment dated 19.02.2009, whereby a learned Single Judge in 
Chambers in the Lahore High Court held that the petitioners therein 
(private respondents herein) have no locus standi to file the 
petitions and at the same time, the allotment made in favour of the 
petitioner-School was found to be in order. It was, however, 
observed that the price at which the property was allotted to the 
Petitioner-School was on the lower side and they were directed to 
pay the amount of the subject property as per evaluation to be 
carried out by the Government of Punjab. The judgment of the 
learned Single Judge was challenged by each set of the private 
respondents herein, through Intra Court Appeals No.154 and 155 of 
2009. A learned Division Bench of the High Court vide judgment 
Civil Petitions No.1700 & 1701 of 2011 
3
dated 19.09.2009 maintained the finding against the private 
respondents herein, for the reasons as stated therein, that they have 
no locus standi to claim subject property. However, allotment order 
dated 10.05.2007 whereby the subject land was allotted to the 
petitioner-School by way of private treaty at a throwaway price of 
Rs.600,000/- per kanals was held to be illegal and without lawful 
authority; it was further held that Colonies Department, Government 
of the Punjab had no jurisdiction to deal with subject Evacuee 
Property, and authority vests with Member (Residual Properties), 
Board of Revenue, Punjab as per clause 30 of Scheme for the 
Management & Disposal of Available Urban Properties, 1977. 
5. 
 
It appears that the Judgment dated 28.9.2011 rendered 
in Inter Court Appeals was challenged by the private set of 
Respondents herein, through Civil Petitions No.27 & 28 of 2012 
before this Court, which however, were dismissed being barred by 
time. Same judgment dated 28.09.2011 has been challenged by the 
petitioner-School through Civil Petitions No.1700 & 1701 of 2011 
which, are being decided through this common judgment.  
6. 
 
Mr. Rashid A. Rizvi, learned Sr.ASC for the petitioner-
School has contended that there were two contenders of the subject 
property; one is private sets of respondents in each of the two 
petitions and other is the petitioner-School. It was urged that since 
the private respondents have lost their claim up to this Court, and 
their Petitions for Leave to Appeal have since been dismissed, the 
subject property in terms of the allotment order dated 10.05.2007, 
referred to in the narrative above, was validly allotted by the 
Provincial Government and the petitioner-School had acquired the 
same through a private treaty and a sale deed to such an effect was 
also executed in favour of the petitioner-School in terms of the 
decision of the Provincial Cabinet dated 05.01.2007 authorizing sale 
of 57 kanals of State land in their favour at the rate of Rs.600,000/- 
per Kanal. It was further urged that pursuant to another decision of 
the District Price Assessment Committee another piece of land 
measuring 40 Kanals was approved in their favour on 14.04.2007.  
7. 
 
Mr. Rizvi, learned ASC for the Petitioner-School, has 
further contended that since there is no contest, no exception could 
be taken to the disposal of the land by the Provincial Government by 
Civil Petitions No.1700 & 1701 of 2011 
4
way of a private treaty with the petitioner-School and a number of 
other institutions were also granted such land in the similar manner. 
When attention of the learned counsel was drawn to order of this 
Court passed on 26.02.2013, which clinches to the main issue 
whereby he was required to satisfy the Court as to the proprietary 
and legality of the transfer made in favour of the petitioner-School 
and also as to the Authority of the Member (Colonies) Board of 
Revenue, Punjab. The said order reads as under:- 
“After hearing learned counsel for the parties, we 
would like to issue notice to the Advocate General 
(Punjab) to assist us generally in the matter and 
particularly in interpretation of Section 11 & 12 read 
with Section 30 of the Scheme for the Management 
and Disposal of Available Urban Properties situated in 
the Province of the Punjab dated 13.01.1977, as to 
whether the power of the Member Board of Revenue 
(Residual Properties) under Section 30 to transfer 
public lands is unfettered and whether such properties 
can be transferred only through public auction under 
Sections 10 & 11 of the Scheme.” 
 
8. 
 
Mr. Rizvi, learned ASC for the Petitioner-School in 
response and in support of his assertion placed heavy reliance on 
paragraph 30 as amended by Notification dated 18.10.1977 read with 
paragraph 12 of Scheme, 1977 as framed under Section 3(1) read with 
Section 1 of the Evacuee Property and Displaced Persons Laws 
(Repeal) Act, 1975 [hereinafter referred to as ‘Act, 1975’].  It was 
contended that in terms of the powers vested in the Government, 
subject property was transferred to the petitioner-School in the 
‘public interest’ and no exception to the exercise of such authority by 
the Government could be taken.  It was urged that as per Para 12 
read with para 30 of the Scheme 1977, the Government of Punjab, 
had the authority to sell the subject property through private 
negotiation, which powers were rightly exercised in the public 
interest as the Petitioner-School has been imparting education and 
the Government of Punjab, lays much emphasis on education.  
 
9. 
 
Learned Assistant Advocate General, Punjab has 
contended that the petitioner-School was conveyed 84 Kanals of 
Evacuee Property on political considerations at a throw away price of 
Rs.600,000 per Kanal. It is stated that the subject Evacuee Property 
is situated within the heart of the Municipal Limits of Lahore, and 
the Settlement Commissioner, Punjab, through Notification dated 
16.5.1973 issued under Section 13 of the Displaced Person (land 
Civil Petitions No.1700 & 1701 of 2011 
5
Settlement Act, 1958 declared all the agricultural lands within the 
Municipal Limits of Lahore as ‘Building Site’. It was urged that all 
the Settlement Laws were repealed by virtue of Displaced Persons 
Laws (Repeal) Act, 1975, with effect from 1.7.1974. All the Evacuee 
Properties were transferred to the Provincial Government for their 
disposal in accordance with the Scheme, 1977 prepared under 
Section 3 of the Act of 1975. 
 
10. 
 
It was next urged that subject land was not the ‘State 
Land’ but the ‘residual evacuee property’ under the Act of 1975, and 
could be disposed off strictly in accordance with the Scheme, 1977 
framed for the purpose under Section 3 of the Act, 1975. It was 
further urged that such Scheme, 1977 for the disposal of residual 
evacuee property was prepared in the year 1997, which has received 
approval in the case reported as Muhammad Ramzan (supra) and 
so also in the case of Member, Board of Revenue v. Rafaqat Ali 
(1998 SCMR 2596). It was, therefore, urged that the land could 
not have been dished out to the petitioner-School by the Member 
(Colonies), Board of Revenue, Punjab at a throw away price. 
According to him, per Scheme 1977, the competent authority is 
‘Member, Board of Revenue (Residual Properties)’ appointed by the 
Government of Punjab. It was urged that the Petitioner-School did 
not qualify the criteria as laid down under the Scheme, 1977, 
therefore, was and is not entitled to be doled out State property for a 
song. It was contended that subject property is a valuable piece of 
land falling within the Municipal Limits of Lahore and under the 
Scheme, 1977 it could only be sold out through an open auction 
under Para 11, thereof.  
 
11. 
 
We have heard the learned counsel for the petitioner-
School as well as the learned Assistant Advocate General, Punjab and 
perused the record.  In order to appreciate the contentions of 
respective parties it would be beneficial to glance at Paragraphs 11, 
12 and 30 as amended of the Scheme, 1977, which read as follows:- 
 
11. 
Sale by auction.-- A house, shop or a building 
site having permanent construction for the transfer of 
which no application is received and every property 
that is cancelled from the name of a defaulter and a 
vacant 
building 
site 
shall 
be 
deposed 
of 
by 
unrestricted public auction.  
 
Civil Petitions No.1700 & 1701 of 2011 
6
12. 
Disposal of houses, shops or building sites by 
negotiation.—If a house, a shop or a building site 
having been put to auction twice fetches no bid or 
fetches a bid short of the reserve price, it shall be 
disposed of by negotiation by inviting sealed tenders 
which shall be opened by the Deputy Administrator 
(Residual Properties) of the area concerned in the 
presence of the tenderers. If the highest offer made 
for such a house, a shop or a building site is equal to 
or exceeds 75% of its reserve price, it may be 
accepted by the Deputy Administrator (Residual 
Properties) and where the highest offer made is 
below 75% of the reserve price but not less than 50%, 
it may be accepted by the Administrator (Residual 
Properties), of the area or where the highest offer 
made is below 50%, it may be accepted by the 
Member, Board of Revenue (Residual Properties) 
(underlined to add emphasis)”. 
 
“Un-amended para 30.  
 
30. Powers to transfer properties in public 
interest. The Member, Board of Revenue (Residual 
Properties), may transfer, in public interest any 
available property in such manner and on such price as 
he may deem proper. 
 
13.  
 
Paragraph 30 of the Scheme 1977 was amended through 
Notification dated 18.10.1977, whereby the words “Public Interest” in 
Clause (1) were deleted and sub paragraph (2) was added; after the 
amendment it reads as follows; 
30 .Powers to transfer properties.(1) The Member, 
Board of  Revenue (Residual Properties), may transfer, 
in public interest, any available property in such 
manner and on such price as he may deem proper. 
 
s (2) “Where a property is partly available property and 
partly owned by any person, the Member of Revenue 
(Residual 
Properties) 
may 
transfer 
the 
available 
property on application to such person on payment of 
transfer price.” 
 
14. 
 
As noted in the narrative above, the status of the subject 
property was already determined by this Court in the case of 
Muhammad Ramzan (ibid), as ‘residual evacuee property’ and a 
“building site”. Building Site, Government, and Member Board of 
Revenue (Residual Properties) are defined in the Chapter I, 
definition Paragraph 1, of the Scheme, 1977 as follows:-  
(d)  “Building Site” means any plot of land which is 
not with in a well-defined compound of a 
 permanent building and includes:- 
(i) A site on which the permanent construction, 
if any does not exceed in area by 1/8th of the 
site. 
(ii) Any site on which any building existed but 
completely 
demolished 
by 
flood, 
fire, 
incendiary or by any natural clammily. 
 
(g)  “Government” means the Government of Punjab;  
 
Civil Petitions No.1700 & 1701 of 2011 
7
(h) 
 “Member” 
Board 
of 
Revenues 
(Residual 
Properties) means the Member, Board of 
Revenue appointed under the Board of Revenue 
Act/Rules” 
15. 
 
When Mr. Rizvi, learned ASC was confronted that the 
allotment relied upon by him does not speak of any ‘public interest’, 
he promptly responded that ‘public interest’ which was mentioned in 
paragraph 30, of the un-amended provision of the Scheme, 1977 was 
deleted through Notification dated 18.10.1977, therefore, it cannot be 
pressed into service now. Contentions of the learned counsel are 
fallacious for more than one reason. Firstly, Mr. Rizvi, learned ASC 
for the Petitioner-School, was not able to controvert that the status 
of the subject property is ‘residual evacuee property’. Secondly, 
heading of any provision does not govern or control the substantive 
provision; it may be used in case of an ambiguity to understand the 
purport and object of any provision and or enactment thereof. 
Thirdly deletion of ‘public interest’ in the title of para 30, through 
amending Notification is purposive and understandable as, by 
addition of subsection (2) thereof, another class of the property was 
added viz ‘where a property is partly owned by a person”. Under 
the added sub paragraph (2) to Paragraph 30 of Scheme, 1977,  a 
part owner was given an option to acquire such property on 
payment of transfer price’ in which case obviously no public interest 
would be attracted, which option could not be extended to any other 
class of persons. Where the property as a whole is available, as 
“Building Site” as is in the instant cases, its transfer is to be made in 
the public interest, as is clearly specified in the substantive part of 
sub paragraph (1) of Paragraph 30 ibid; which remained un-
amended. Fourthly, paragraph 30 is not to be read in isolation but, is 
to be read with Sections 11 & 12 of the Scheme, 1977, which read as 
follows:- 
“11. 
Sale by auction.-- A house, shop or a building 
site having permanent construction for the transfer of 
which no application is received and every property 
that is cancelled from the name of a defaulter and a 
vacant 
building 
site 
shall 
be 
deposed 
of 
by 
unrestricted public auction.  
 
12. 
Disposal of houses, shops or building sites by 
negotiation.—If a house, a shop or a building site 
having been put to auction twice fetches no bid or 
fetches a bid short of the reserve price, it shall be 
disposed of by negotiation by inviting sealed tenders 
which shall be opened by the Deputy Administrator 
(Residual Properties) of the area concerned in the 
presence of the tenderers. emphasis If the highest offer 
made for such a house, a shop or a building site is 
Civil Petitions No.1700 & 1701 of 2011 
8
equal to or exceeds 75% of its reserve price, it may be 
accepted by the Deputy Administrator (Residual 
Properties) and where the highest offer made is below 
75% of the reserve price but not less than 50%, it may 
be 
accepted 
by 
the 
Administrator 
(Residual 
Properties), of the area or where the highest offer 
made is below 50%, it may be accepted by the 
Member, Board of Revenue (Residual Properties) 
(underlined to add)”. 
 
16. 
 
Admittedly, the land subject matter of the present 
proceedings is a ‘building site’ within the contemplation of definition 
of Paragraph 1(d) of the Scheme, 1977 which is as follows:- 
“(d) ‘Building Site’ means any vacant plot of land which 
is not within a well defined compound of a permanent 
building and includes  
 
(i) 
a site on which the permanent construction, if 
any, does not exceed in area by 1/8th of the site;  
 
(ii) 
 any site on which any building existed but was 
completely demolished by floods, fire, incendiary 
or by any natural calamity.” 
  
17. 
 
Paragraph 12 of the Scheme, 1977 as reproduced above 
is not attracted for the simple reason that subject property was never 
“put to auction twice” before invoking “negotiation.” Even 
negotiation, within the contemplation of Paragraph 12 ibid is not 
negotiation with one person of any body’s choice, but very intent of 
Paragraph 12 thereof; is vividly clear that such negotiation is to be 
carried out “by inviting sealed tenders, which shall be opened by the 
Deputy Administrator (Residual Properties) of the area concerned 
in the presence of the tenderers.”  In event, highest offer received for 
such a property is equal to or exceeds 75% of its reserve price, 
authority vests in the Deputy Administrator (Residual Properties) to 
accept it and where the highest offer received  is below 75% of the 
reserve price but not less than 50%, authority to accept vests in the 
Administrator (Residual Properties), of the area or where the 
highest offer received is below 50%, the authority vests in the 
Member, Board of Revenue (Residual Properties) to accept the bid, 
but before accepting bid of highest bidder it is incumbent on the 
designated authority to negotiate with the highest bidder whosoever 
it may be to obtain best possible value for the property put to 
auction. Admittedly, in instant case no sealed tenders or bids from 
any interested contenders were ever invited, but subject valuable 
commercial “Building Site” was quietly doled out to the Petitioner-
School on the directions of the then Chief Minister, at the rate of 
Civil Petitions No.1700 & 1701 of 2011 
9
agricultural property. Therefore, Mr. Rizvi, learned ASC for the 
petitioner-School was not able to persuade us to agree with him that 
the subject property was sold in exercise of power conferred under 
Paragraph 12 read with paragraph 30, of the Scheme, 1977. Even 
otherwise record shows that subject property was not sold out to the 
petitioner-School by the  Member, Board of Revenue (Residual 
Properties), who for the purposes of  disposing off  the residual 
evacuee property is the competent authority under the Scheme, 1977.  
 
18. 
 
It was next argued by Mr. Rizvi, learned Sr.ASC for the 
petitioner-School that framing of Scheme by the Government is to be 
considered as in line with the concept of Principal and Agent. The 
Government of Punjab acts as a Principal through its agents and in 
this case by framing the ‘Scheme, 1977’ it did not divest itself from 
the ownership of the State land, and retained all the plenary and 
ancillary authority and jurisdiction to deal with its property together 
with the “Member, Board of Revenue (Residual Properties)”. To 
support his contention, he has placed reliance on Abdur Rahim v. 
Federation of Pakistan (PLD 1988 Supreme Court 670). 
Reliance on cited case is totally misplaced. Contentions are ill-
founded. In cited case, the Government in exercise of powers 
conferred on it under clause 18 (2) of the Customs Act, 1969 imposed 
regulatory duty, which was sustained by this Court.  
 
19. 
 
Any Government under the constitutional dispensation 
derives power and authority under the constitution itself and or 
under the legislative instrumentalities as may be conferred by the 
competent legislature. Any public functionary, how high so ever it 
may be, is  subservient to the Constitution and law and has to act 
within the boundaries assigned by the Constitution and law framed 
thereunder. It is now a well entrenched in administrative 
jurisprudence of Pakistan that all the public functionaries including 
the Chief Minister is bound to deal with the public property strictly 
in accordance with the parameters laid by the law, rules and 
regulation framed thereunder. In a number of cases including in the 
cases of Abdul Haq Indher v. Province of Sindh (2000 SCMR 907) 
and Iqbal Hussain v. Province of Sindh (2008 SCMR 105), where 
the plot of land was allotted on the direction of the Chief Minister, 
against the law and the scheme, was struck down by the High Court, 
Civil Petitions No.1700 & 1701 of 2011 
10
which was maintained by this Court and it was categorically held by 
this Court that the public functionaries are not bound to follow 
illegal orders even of the Chief Minister. In the instant cases, as 
record shows that on mere desire of the then Chief Minister of 
Punjab, the Member (Colonies) BOR, Punjab doled out valuable 
“residual evacuee property” at a throw away price to the petitioner-
School, knowing fully well that the subject property is not the State 
land and that the subject evacuee land could only be disposed off 
through open auction in terms of the Scheme, 1977 and otherwise, he 
was not at all competent to undertake such exercise, which authority 
under the Scheme, 1977 vested in the Member, Board of Revenue 
(Residual Properties).    
 
20. 
 
The 
Chief 
Minister, 
under 
the 
constitutional 
dispensation is neither the King nor Monarch but, is in the domain 
of trust and under Article 5 of the Constitution of Pakistan he is 
obligated to obey the Constitution and law like any other ordinary 
citizen, though he exercises the executive authority as Head of the 
Provincial Government either directly and or through the Provincial 
Ministers, in the name of Governor, but exercise of such authority is 
not brazen or arbitrary but subject to the Constitution, as he has 
taken oath to “discharge his duties and perform” his functions, 
honestly, to the best of his ability, faithfully  in accordance with 
constitution of the Islamic Republic of Pakistan and the law”. His 
desire and direction, how admirable or praiseworthy it may be 
cannot be implemented by the subordinate formation in utter 
disregard and breach of law, and or rules and or regulation framed 
hereunder. All executive orders emanating from highest of the 
authority must be backed by law. It may be observed that the 
Government has no unfettered authority to dole out any property in 
any manner on its own whims and fancy. Indeed, the Government 
functions and operates through different instrumentality under well 
guarded rules and procedures and in accordance with law. This 
Court, at page 1661 in the case of Muhammad Ramzan (ibid) held as 
under:- 
“8. 
With the repeal of the Evacuee Laws in 1975, the 
unalloted agricultural land vested in the Provincial 
Government against price paid for it. Thereafter, its 
disposal had to take place according to the Scheme to be 
framed by the Provincial Government. The Scheme 
framed by the Provincial Government made no 
Civil Petitions No.1700 & 1701 of 2011 
11
provision for allotments to be made against the pending 
verified produce index units. For this reason the 
allotment made after 1975 in favour of the persons from 
whom the appellant was claiming was wholly without 
jurisdiction and lacking in authority. Notwithstanding 
that it was made on the direction of the Board of 
Revenue, it could not be recognized in law nor could it 
be allowed to stand on record. It was void ab initio. 
Consequently, its removal even by an illegal order 
would not suffer from any infirmity but would rather 
re-establish the legal and the correct status of the 
property. On this view of the matter the decree of the 
Civil Court could also not remain intact.” 
21. 
 
As discussed above, the petitioner-School was not 
eligible to be allotted evacuee land under the Scheme, 1977. There is 
nothing on record to substantiate the claim of the petitioner-School 
that it was allotted subject land in the public interest. The Chief 
Minister does not possess any plenary authority and or jurisdiction 
to allot any land as a matter of grace or favour at his whims and 
fancy, but in accordance with law. The public functionaries are the 
custodians of the public/State land, which could only be disposed of 
in accordance with law. For reference, one may see the cases 
reported as Union Council Dhabeji v. Al-Noor Textile Mills Ltd 
(1993 SCMR 7) and Multiline Associates v. Ardeshir Cowasjee 
(PLD 1995 SC 423), Abdul Haq Indher v. Province of Sindh 
(2000 SCMR 907), Al-Shafique Housing Society v P.M.A (PLD 
1992 SC 113), Taj Muhammad v. Town Committee (1994 CLC 
2214) and Sindh Peoples Welfare Trust v. Government of Sindh  
(2005 CLC 713).  
22. 
 
For the foregoing discussion, we do not find any reason 
nor could the learned counsel point out any to interfere with the 
impugned judgment. Accordingly, leave is declined and the petitions 
having no merits are dismissed.      
 
Chief Justice  
 
 
Judge  
 
 
Judge  
 
 
ISLAMABAD, THE   
9th of December, 2014 
Zubair  
 
Not Approved For Reporting