Chapter – XIX) Local Government Properties #
93. Local government properties.– #
(1) Subject to any conditions imposed by the Government, all properties whether movable or immovable specified hereunder, and all interests of whatsoever nature or kind therein, shall vest in a local government:
(a) all lands, buildings or other properties which were vested in any defunct local government of which the local government is the successor under section 4 of this Act;
(b) all lands or other properties transferred to the local government or acquired by gift, purchase or otherwise for the purposes of this Act;
(c) all public and other buildings of every description and all works, materials and things appertaining thereto which are maintained by the local government in relation to its functions under this Act;
(d) all lands, open spaces, play grounds, gardens, parks and other places of public resort transferred to the local government with the title, by gift, purchase or otherwise for the purposes of this Act;
(e) all public streets, roads, bridges and other means of public communication which are transferred to the local government and the pavements, stone and other material thereof and trees growing on, and erections, materials, implements and things provided with them;
(f) all public sewers and drains except those owned and maintained under the Canal and Drainage Act, 1873 (VIII of 1873) or any other law on the subject of the Act ibid, and all sewers, culverts and other channels for sullage in or under any public street, or constructed by or for the local government in the respective local area and all works, materials and things appertaining thereto;
(g) all works for the disposal of refuse and night soil maintained by the local government;
(h) all public lamps, lamp posts and other appliances for street lighting maintained by the local government;
(i) all public streams, springs and works for supply, storage and distribution of drinking water for public purposes maintained by the local government and all buildings, machines, materials and things or land, not being privately owned land, appertaining thereto;
(j) all trees, plants and flowers on roadsides and other places maintained by the local government; and
(k) any other property which may vest in the local government under any law for the time being in force or under an order of the Government.
(2) Every local government shall maintain a register of all properties along with a map of all immovable properties of which it is the proprietor or which vests in it or which it holds in trust for the Government or any other authority or person.
Explanation:
For the purpose of this section, a building map shall include any location maps as well as a map indicating the layout of the building.
(3) The Government shall not, except with the prior consent of the local government concerned, reallocate or in any other manner divest title of properties vested in that local government under this Act.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| 127 | 150 | 93 | 102 | 93 |
Comments
This section provides a complete list of properties which are owned or otherwise vest in a local government. A local government is under a legal obligation to maintain a register of all properties alongwith a map of immovable properties. There is a specific bar on the Government to reallocate or in any other manner divest title of properties vested in a local government. The Hon’ble Lahore High Court in the judgment reported as 2008 CLC 1437 titled “Saeed Ahmad v. Executive District officer (Revenue), Multan and 5 others”, in view of the succession of properties of defunct local government under the Punjab Local Government Ordinance, 1979 by the local government established under the Punjab Local Government Ordinance, 2001 held that:
“8. Undoubtedly, the property in dispute is “Nazool” land and is being used by respondent No.5 since 1948 for different purposes; at one point of time it was used as a “Tanga Stand” for decades .and thereafter it was converted to a market in the year 1982 which now stands demolished and a new market/plaza is scheduled to be erected. This property of the Government is undoubtedly in possession and use of the Local Council since 1948. Under subsection (2) of section 121 of properties of the Government in possession of the Local Councils established under the Punjab Local Government Ordinance, 1979 shall pass on to the successor i.e. the present Local Governments, therefore, under subsection (4) of section 121 if the Government wants to reallocate some property then it is mandatory that it shall have prior consent of the Local Government concerned. As is disclosed by the learned Law Officer, the site in dispute is required to be re-allocated for the establishment of a Girls Degree College then instead of going into controversy with respondent No.5, it should have sought consent of respondent No.5 for the purpose for which it is being planned.”
| RELEVANT RULES | |
| 1. | The Punjab Local Governments (Property) Rules, 2018. |
| 2. | The Punjab Local Government (Property) Rules, 2013. |
| RELEVANT NOTIFICATION | |
| 1. | Notification regarding “Conversion of Guest/Rest Houses into Resorts Belong to Local Governments in the Punjab”. |
94. Use and disposal of properties of local governments.– #
(1) The properties of local governments shall be used only for public purposes.
(2) The immovable properties of local governments shall not be sold or permanently alienated without prior approval of the Government:
provided that in case title of an immoveable property is transferred to a Government department, authority, or agency, the price of property not less than the amount assessed by District Price Assessment Committee shall be transferred to such local government.
(3) The properties of the local government may be given on lease through competitive bidding by public auction.
(4) The local government may through a written agreement, lease a property to a Government department, authority or agency, without public auction on a rent approved by the Council.
(5) The local government may constitute a Committee headed by the Head of the local government to identify encroached or redundant properties that may be sold in the prescribed manner with the approval of the Government, and the funds generated from the sale of such properties shall be kept in a separate head of account and be used only for development purposes.
(6) Where a lease of immoveable property of a local government under a valid lease agreement has expired or is about to expire and it does not contain any condition for extension of lease period, the period of lease may be extended upto ten years after fresh assessment by Rent Assessment Committee on a rate not below the rate assessed by it with an annual increase of ten percent, consisting of following members:
(a) Head of the local government as convenor;
(b) Assistant Commissioner concerned or his nominee;
(c) Chief Officer of the local government;
(d) Incharge of Finance Wing of the local government as Secretary of Committee;
(e) Incharge of Regulation Wing of the local government; and
(f) District Excise and Taxation Officer or his nominee not below the rank of BS-16.
(7) Where no written lease agreement is available but the occupant of immoveable property has been paying rent to the local government for at least last five years, the local government may enter into written agreement with the occupant for a period of five years after fresh assessment by Rent Assessment Committee on a rate not below the rate assessed by it with an annual increase of ten percent.
(8) In case of failure to enter into written agreement under subsection (6) or (7), the local government shall, within one month, take over the possession of the immoveable property and shall proceed in accordance with subsection (3).
(9) The movable property of a local government including all articles declared unserviceable which are required to be disposed of, shall be sold through competitive bidding by public auction.
(10) A local government shall inspect, manage, maintain and whenever so required develop or improve any property which is owned by or vested in it or which is otherwise placed under its charge.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| 130 | 151,152 | 94 | 103 | 94 |
| RELEVANT INSTRUCTIONS / ADVICE | |
| 1. | Letter No. SOTAX (LG) 4-1/2017, Govt. of the Punjab, LG&CD Department dated 21.03.2017 regarding “Maintenance of General Bus Stand Maintained by MCs”. |
95. Acquisition of immovable property.– #
Whenever any local government considers it necessary or expedient, it may acquire or purchase any immovable property for public purposes, with the prior permission of the Government:
provided that in case of purchase of property, the agreement of purchase shall be in writing:
provided further that the development authorities entrusted to local governments, may acquire land for development purposes and may sell or dispose of thereafter in accordance with the existing laws and the rules made thereunder.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| 131 | – | 95 | 104 | 95 |
96. Loss of property of local government.– #
In case of any loss of property of the local government, the responsibility for such loss shall be fixed by the concerned local government and the amount of the loss shall be recovered from the defaulting person and a report to this effect shall forthwith be submitted to the concerned Council in the meeting next following.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| – | – | 96 | 105 | 96 |
97. Annual stock of local government properties.– #
Every local government shall, in the prescribed manner, at least once in every financial year, take the physical stock of movable and immovable properties of the concerned local government, submit a report to the concerned Council and shall publish the same.
| NOTES: | ||||
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| 129 | 154 | 97 | 106 | 97 |
98. Insurance of certain local government properties.– #
A local government may, subject to the rules and any other relevant law for the time being in force, insure any property, whether moveable or immoveable in which it has an insurable interest, against any contingency which may result in the imposition of any liability or loss to the local government.
| PARI MATERIA PROVISIONS | ||||
| PLGA 2013 | PLGA 2019 | PLGO 2021 | PLGA 2022 (Act No. XIII of 2022) | PLGA 2022 (Act No. XXXIII of 2022) |
| s. | s. | s. | s. | s. |
| – | 155 | 98 | 107 | 98 |
Comments
This chapter provides the properties of the local governments either movable or immovable shall only be used for public purpose. The Hon’ble Supreme Court of Pakistan in the judgment reported as 2021 SCMR 201 in the case titled “Federal Government Employees Housing Scheme (FGEFH), Islamabad and others vs. Malik Ghulam Mustafa and others observed that public purpose” includes any purpose wherein even a fraction of community may be interested or by which it may be benefited. The term “public purpose” has been defined in the Black’s Law Dictionary, Eight Edition as “An action by or at the direction of the Government for the benefit of the community as a whole.” The immovable properties given on lease by a local government for the purpose of establishment of shops, patrol pumps, restaurants, clinics, educational and health institutions, service stations, cultivation of land, etc. are all public purposes. This section bars sale of immovable properties of the local government except with the approval of the Government and only those properties identified as encroached and redundant can be sold. For the purpose of lease of the immovable properties of the local governments as well sale of the redundant and encroached properties, the Government has notified the Punjab Local Governments (Property) Rules, 2016 under section 144 of the Punjab Local Government Act, 2013 which are still in force being saved under section 204 of the Act. The provisions relating to the properties of local governments in this chapter are almost the same as provided in the previous local governments but the major change brought about in this section are the provisions of sub-sections (6), (7) and (8) of section 94 which resolve the issues pending resolution since long. Sub-section (6) deals with the cases where lease of immovable property under a valid lease agreement has expired or is about to expire and there is no express condition for further extension of lease period. The said sub-section enables the local government to extend lease upto ten years after fresh assessment of rent. The purpose of this provision of law is to safeguard the business / subsistence of a legal lessee. Sub-section (7) deals with the matter where there is no written lease agreement but the local government has been regularly receiving rent from the occupant for at least last five years. In such case, a written agreement may be entered between the two for a period of five years after fresh assessment by Rent Assessment Committee. Provisions of sub-section (8) come into operation only when the occupant of the properties fails to enter agreement under sub-section (6) or sub-section (7). In such eventuality, he shall be disposed and the property shall be put to auction under sub-section (3). The above provisions of law in fact indicate towards “right of first refusal” envisaged in rule 11 of the Punjab Local Governments (Property) Rules, 2018. Similar provisions existed in rule 16(c) of the Punjab Local Governments (Property) Rules, 2003. The Hon’ble Lahore High Court in a judgment reported as 2013 YLR 2376 in the case titled “Roshan Ara v. Government of the Punjab through Secretary Local Government and 5 others”, while dealing with the matter of lease of immovable property discussed the “right of first refusal” in the following terms:
“The Punjab Local Government (Property) Rules, 2003 would become fully applicable on expiry of the fixed period of lease on 31-8-2012. The property was put to auction. An offer was made for payment of the lease money @ Rs.2,05,000. The respondent No.4 with all fairness offered the petitioner to accept this rate or to vacate it. She accepted it under protest and paid the rent at the same rate. The learned counsel for the petitioner has contended that this rate is highly oppressive. Under rule 16(c) of the Rules ibid, the petitioner being legal occupant has the right of first refusal of the highest bid. Now, it is for her to decide whether this rate is acceptable to her or not. If she opts to retain the lease on this rate, the respondent No.4 would be under obligation to execute the fresh lease deed, for a period of five years w.e.f. 1-3-2013 and in case she opts to vacate the premises, she will do so till 31-3-2013 after adjustment of the rent in view of the above rate for each year w.e.f. 1-9-2007. The parties would be under obligation to adjust or pay/receive the rent, if paid more or less than the actual rent due, as the case may be. The petition stands disposed of in above terms.”
The Hon’ble High Court in paragraph 26 of the judgment reported as 2012 CLC 1236 Lahore in the case titled “Shabbir Ahmad v. Kiran Khurshid” discussed the importance of issuance of reason notice for enhancement of rent to the tenant who was not paying the rent according the market rate and adherence to the prescribed procedure for taking action against the tenant in case of default, in the following terms:
26. In essence, the correspondence between TMA and the DRAC referred to earlier in the judgment and the repeated insistence of the learned counsel for TMA that petitioners were not paying rent according to the market rate made out a case for enhancement of rent against the petitioners. Hence, PSO/Shabbir Ahmed were entitled to a “reasonable notice” for enhancement of rent (variation in the terms of the lease) and in case of their non-acceptability, for cancellation of their lease. It appears that TMA, woke up (it is not clear whether TMA woke up on its own motion or was driven by some other vested interests) from a long slumber with a shuddering realization to immediately protect and safeguard the interest of TMA and the public exchequer but in their overzealousness, insensitively trampled upon due process and rule of law guaranteed to the petitioners under the Constitution. As a result, TMA has unashamedly offended the fundamental and constitutional rights of the petitioners, bypassing the process provided under section 195 and the Schedule to PLGO and violating the protections guaranteed to the petitioners under Articles 4, 10A, 18 and 23 of the Constitution. Article 4 carries two protections in one breath: (i) to enjoy the protection of law and (ii) to be treated in accordance with law is an inalienable right of every citizen. It further states: “In particular no action detrimental to property of any person shall be taken except in accordance with law.” The first part of article 4 constitutionally entitles the petitioners to enjoy the protection of law. In this case section 195 read with Item 64 of the 6th Schedule to PLGO provides that protection. Under the said protection unless a “reasonable notice” is issued to the petitioners their terms and conditions of lease cannot be altered. This requirement of law by virtue of Article 4 is an inalienable right of the petitioners. Under the second part, i.e., to be treated in accordance with law, the very law which protects the petitioners provides for a procedure to be adopted in case respondent wish to proceed against the petitioners. In this case the only way to proceed against the petitioners was by of issuance of a “reasonable notice” to vary the terms and conditions of the lease. None of these constitutional protections were considered by respondent TMA. The impugned auction also offends the newly incorporated fundamental right under Article 10-A of the Constitution, which mandates that civil rights and obligations of the petitioners can only be determined through fair trial and due process. Article 10-A, morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that “each person shall be accorded certain “process” if they are deprived of life, liberty or property .The question then focuses on the nature of the “process” that is “due.” The government always has the obligation of providing a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome.”14 Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles.15 Article 10-A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person. In this case the haughty indifference of TMA to ignore the petitioners and their existing tenancy and to smugly proceed directly with auction of the lease hold right does not pass the test of fairness or due process under Article 10-A. In addition, Articles 18, 23 and 24 of the Constitution are also offended as right to do business and right to enjoy property have also been impaired. Hence, rushing directly to auction the leasehold rights without giving notice to the existing tenants (petitioners) in terms of the Schedule (which enjoys a higher legislative status than the Rules), is unabashedly unconstitutional and a blatant violation of PLGO.”
In another judgment reported as 2007 MLD 1133 in the case titled “Mian Javed Ibrar ul Haq v. Province of Punjab through Secretary Local Government”, the Hon’ble Court observed that immovable property of a local government shall be given on lease through a competitive bidding only in the following terms:
3. We have considered the said submissions of the learned counsel and the learned Law Officer. Section 124 of the Punjab Local Government Ordinance, 2001 lays down in mandatory terms that immovable properties of local Governments shall not be sold or permanently alienated. However, an exception has been made in the proviso to the effect that such properties may be given on lease through competitive bidding by public auction. Rule 16 of the Punjab Local Government (Property) Rules, 2003, provides that the immovable property of a local Government shall be given on lease through a competitive bidding and procedure prescribed in Rule 9 (2) has been made applicable mutatis mutandis in the matter of the giving on lease of the property of the local Government.”
