2000SCMR39 (PLP)

IRSHAD HASAN KHAN, ACTG. C.J.

Through this common order we propose to dispose of Civil Petitions for leave to Appeals Nos. 1112-L of 1999 and 1169-L to 1173-L of 1999, which are directed against the consolidated judgment dated 28-6-1999, passed by a learned Division Bench of the Lahore High Court in I.C.A. No. 257 of 1993, whereby I.C.As. Nos. 354, 257, 475, 476, 477, and 642 have been decided and the judgment of the learned Single Judge dated 16-6-1993 passed in Writ petition No. 5972 of 1989 alongwith other writ petitions, has been set aside by accepting the Intra-Court Appeals.

2. The petitioner is a Cooperative Society duly registered under the Cooperative Societies Act, 1925. It is pleaded that the petitioner moved District Collector, Lahore, to acquire the land measuring 2194 Kanals, 8 Marlas, 1814 Kanals, 3 Marlas and 468 Kanals, situate in villages Malikpur, Shevpur and Sehjppal, Tehsil Cantt. Lahore, totaling 4476 Kanals and 11 Marlas for a residential Colony to meet the chronic shortage of houses in Lahore District for its members. The District Collector, Lahore, issued a preliminary notification under section 4 of the Land Acquisition Act, 1894 (hereinafter called the Act), on 30th August, 1988 and corrigendum dated 22-3-1989 forwarded estimated cost of the land to the tune of Rs.8,90,92,250 including the compulsory acquisition charges by the approval of the Board of Revenue, Punjab, Lahore. The total area was 3506 Kanals and 12 Marlas. However, land measuring 345 Kanals and 3 Marlas belonging to the Central Government was deleted. The Society purchased 268 Kanals and 5 Marlas. Hence the total area finally acquired was 2533 Kanals and 4 Marlas.

3. It is claimed that after observing due formalities, the final award was announced on 27-5-1990 in respect of 2533 Kanals and 4 Marlae. In addition to this compensation of standing crops and delivery of possession of land, a sum of about Rs. 10 trillion was paid to the landowners.

4. It is further claimed that the petitioner Society deposited a sum of Rs.7,32,99,201 towards total price of the land acquired under the notification. Most of the landowners have received amount and no appeal or further proceedings, were taken against the Award.

5. Being aggrieved, respondents Nos. 1 to 10 filed Constitutional petitions, challenging the acquisition proceedings but all the writ petitions in regard thereto, were dismissed vide order dated 16-6-1993. Six Intra-Court Appeals filed against the said order were accepted vide impugned order dated 28-6-1999 whereby the order, of the learned Single Judge was set abide and acquisition notification was declared as without lawful authority, The petitioner now seeks leave to appeal.

6. Raja Muhammad Anwar, Senior Advocate Supreme Court for the petitioner Society contends that under section 15 of the Act, an appeal has been provided against the original order, therefore; Intra.-Court Appeal was not competent. In consequence, the impugned order dated.28-6-1999 is a nullity in the eye of law and the proceedings taken therein were coram non judice. He conceded that this question was not raised before the Division Bench. Nevertheless, being a question of law, going to the very root of the case and concerning jurisdiction of the Court, it could be raised at any time. He argued that the petitioner-Society deposited a sum of Rs.7,32,99,201 towards total price of the land acquired under the notification. The writ petitioners have taken out the money, therefore, they could not challenge the order of acquisition before the High Court. The learned Intra-Court Appellate Bench has not even taken notice of it. Thus visualized, the I.C.A. Bench should not have interfered in the matter being a transaction past and closed. He next argued that the learned Division Bench of the High Court has set aside the acquisition of 2533 Kanals and 4 Marlas, which was in excess of the land involved in the I.C.As. pending before it and that the impugned order was beyond the pleadings of the parties, therefore, wholly without jurisdictional. He argued that the I.C.A. Bench had fallen into error in holding that one member has been allotted more than 10 plots. In fact, the record shows that no member has been allotted more than one plot. The members purchased the plots from the allotees and they have become transferees. He further argued that the I.C.A. Bench had made out a new case for the owners and set aside the acquisition proceedings, which were legally carried out and an amount of Rs.7,32,99,201 had been deposited with the Collector. It was contended that the acquisition proceedings were started by the Collector and the Commissioner was appointed Inquiry Officer under section 4 of the Act, who was Additional Deputy Commissioner General of Lahore Cantt, who gave the report to the effect that to meet the shortage of houses in Lahore the Committee has undertaken to allot plots for construction to its members to overcome the shortage, therefore, this acquisition was for different purpose, which can be allowed. The Commissioner issued notification under section 17(4) of the Act fulfiling all formalities. Learned counsel lastly contended that an appeal before this Court is competent as a matter of right under Article 185 (2)(d) of the Constitution, inasmuch as, the mount/value of the subject-matter of the land, in dispute, in the writ petitions, which was also in dispute in Intra --Court Appeals, was not less than Rs.50,000 each and the final order passed by the learned Single Judge appealed from has been set aside by the judgment passed in I.C.A.

7. At the outset, we are inclined to agree with Mr. Aitzaz Ahsan, learned counsel for the respondents caveators in Civil Petition No. 1173-L of 1999, that Article 185(2)(d) of the Constitution is not applicable in this matter, inasmuch as, the above clause applies -only to those matters, which were in the form of suits petitions and arising out of judgments, decrees or final orders of the court immediately below the Court of appeal and the amount or value of the subject matter of the dispute in the Court of first instance as well as in dispute in appeal, was not less than Rs.50,

000. Here, the impugned order having been passed by the Intra-Court Appellate Bench of the High Court and the order impugned before said Bench being not an order passed by the Court immediately below it. The contention raised by Raja Muhammad Anwar, in this behalf is therefore, repelled.

8. Mr Aitzaz Ahsan controverting the submissions made by Raja Muhammad Anwar, vehemently argued that repeated directions/exclusions made by the Land Acquisition Authorities proved that no proper and dispassionate mind had been applied while acquiring the land, in dispute: Strong reliance was also placed on the inquiry report submitted by Assistant Registrar, Cooperative Societies (Housing-I), Lahore, under section 43 of the Cooperative Societies Act, 1925 (Pages 5 to 27, containing in Article II of additional documents in .C.P No 1172-L/1999), wherein it was, inter alia observed that" the society has collected Rs.9,27,28,216 from the members in the name of development of the land and there is no development work except water tank." He further submitted that while the petitioner-Society sought the acquisition of 1385 Kanals of land, as much as (also in original Notification under section 4), the Collector inquired about land as much as 4326 Kanals, the Agreement under sections 40 and 41 was for 3994 Kanals, the declaration under section 6 for 3506 Kanals, when the, award was for 2533 Kanals. It was submitted that all this was way beyond the express requirement and the original notification. There was no nexus between any statutory step. He contended that the above action was the product of vagueness and uncertainty, therefore, the petitioner is not entitled to any equitable discretionary relief.

9. Mr. Aitzaz Ahsan reiterated that the entire proceedings were mala fide, inasmuch as, the petitioner society was established about nine years ago and not a single brick was fixed accept a water tank, which too was inoperative. He emphasised that the, petitioner-Society acquired more land than its original requirement of 1385 Kanals. He further contended that the market value of the land, in question, was Rs. 1.5 million per Kanal whereas only Rs.20,000 were offered to the landowners by the Society. In this behalf, he referred to application form for membership, Phase-I (Pages-194-195 of the Paper Book, C.P. No. 1112-L of 1999). To support his contentions Mr. Aitzez Ahsan referred to details of the acquisition proceedings date-wise and page-wise as follows:-- (i) 16-12-1987: Request to Collector for acquisition (Malikpur: 4682 K.O Total: 6312 Kanals. [p. 144]. (ii) 21-8-1988: Park View Society reduces requirement to Total: 1385 K. [p. 61]. (iii) 30-8-1988: Notification under section 4 for Total: 1385 K [pp. 146 to 149]. (iv) 22-2-1989: Modification (Malikpur: 1543 Kanals added) p.150 Total: 3092 K [at pp. 153-156]. (v) 22-3-1989 Price/Cost estimated: Total: 4476 K. [pp. 200 & 240]. (vi) 5-4-1989: Order for publication of Modification. [p. 68]. (vii) 6-4-1989: Further Modification (201 Kanals in Malikpur added) [p. 157]. (viii)18-4-1989: Collector seeks appointment of Inquiry Officer under section 40, (2221 Kanals in Malikpur) Total: 4326 K. [p. 64]. (ix) 26-7-1989: Further Modification (two Khasra Nos. substituted) [p. 163]. (x) 27-7-1989: Agreement under section 41 and 42(2057 Kanals in Malikpur) Total: 3994 K at p.218 [pp. 203 to 218]. (xi) 19-8-1989: Further Modification (474 Kanals of Malikpur excluded as favour) [p. 164]. (xii) 28-8-1989: notification under section 17(4) "urgent requirement' (Malikpur: 1583 K) Total: 3506 k [p.166]. (xiii) 5-9-1989: Declaration under section 6, (Malikpur 1583) Total: 3506 K [p. 175]. (xiv) 28-2-1990: Modification (exclusion of 345 Kanals Central Government land) [p. 306-A]. (xv) 6-5-1990; Modification (92 Kanals of Malikpur excluded) [pp, 219 to 221]. (xvi) 27-5-1990; Award (Malikpur: 1491 Kanals) Total:2533 K (at 226 & 246) (pp,222 to 247).

10. Mr. Aitzaz Ahsan further argued that the Award took no notice of the varying extent of the land required and particularly of items (ii) and (iii) above. Hence there has been no dispassionate application of mind. He vehemently argued that the respondents/landowners cannot be deprived of their properties in the manner in which the acquisition authorities acted. The precise submissions of Mr. Aitzaz Ahsan may be summed up as under:-.

2. Section 54 of the Land Acquisition Act, 1894 applies to an appeal against an award. Here, writ petitions were filed against the proceedings before the award and no appeal lay against It under the law, Lt.A., therefore, was competent. Secondly, this issue was trot taken up before I. C.A.

3. Land measuring far beyond the declared requirement of the Society, has been acquired, inasmuch as, the Society sought acquisition of 1385 Kanals only as their requirement and the original notification under section 4 of the Act was for the same area of land but when the cost was being estimated the area was increased to 4476 Kanals and then after some modifications the Collector sought the appointment of an Inquiry Officer.

11. After hearing Raja Muhammad Anwar, learned Senior Advocate Supreme Court for the petitioners, Ch. Aitzaz Ahsan, learned counsel for the respondents/Caveators in Civil Petition No. 1173-L of 1999 and Mr. Saeedur Rehman Farrukh, learned Advocate Supreme Court for the respondents in Civil Petitions Nos. 1169-L and 1172-L of 1999, who adopted the submissions made by Ch. Aitzaz Ahsan, we are inclined to grant leave to examine the above points and also to examine whether in the facts and circumstances of the case the learned I.C.A. Bench was justified to pass the impugned order. Meanwhile, status quo shall be maintained till the final disposal of the appeals.

12. Office is directed to fix these appeals during the month of February, ,2000.

13. Needless to point out that this order shall not prejudice litigation between the parties, pending in different Courts, detail whereof has been given at pages 15-17- in the supplementary Paper Book filed on behalf of respondents in C.P 1112-L of 1999. These matters shall be decided on their own merits and in accordance with law without being prejudiced by any observation made in this order. MBA/L 17/S Leave granted.