1988 PLP 76 (SCMR)

NASIM HASAN SHAH, J.-- These seven appeals, five of which have been preferred by the Thal Development Authority, now under the Administrative charge of the Chief Secretary to the Province of Punjab, and the other two by the Government of the Punjab, call in question the correctness of the decision of the High Court of Lahore, whereby writ petitions filed by the respective respondents were allowed and certain orders passed by the Authority under section 21(2) of the Thal Development Act, 1949 were declared illegal. The question of law which arises for consideration is common in all these appeals and it arises in the following circumstances: Between the 4th of April, 1951, and the 15th of January, 1955, the Authority acquired under section 36 of the Act of 1949 large areas of land in the Thal area from the recorded owners. The latter had, it appears, from time to time sold some of their lands to the respondents herein but these transfers were not mutated in the record of rights. At the time of the acquisition, section 21 of the Act had no subsection (2) and to the extent relevant it reads as follows:- "

21. Scheme for development.-- The Authority may frame a scheme or schemes or the development of any local area or part thereof providing for all or any of the following matters. (i) to (xvii) . . . . . . . . . But on the 7th of May, 1952, the Government had issued a Press Communique laying down a modified policy with regard to the acquisition. Under this modified policy certain exemptions and concessions were allowed to the owners from whom lands were acquired. The policy of this Press Communique was implemented by the Thal Development Act (Amendment) Ordinance, 1955, which added a subsection (2) to section 21 giving statutory effect to the policy statement. This Ordinance was later adopted as an Act of the Provincial Legislature on the 25th of April, 1955, by the Thal Development (Amendment) Act XX of 1955. Subsection (2) so introduced reads as follows:- "(2) Every provision made in a scheme for acquisition of land under clause (i) of subsection (1) after the coming into force of the Thal Development Act (Amendment) Ordinance, 1955, shall be subject to the following limitations and conditions: (i) The land which is outside the irrigation boundaries of the Thal Canal or is already irrigated by means of a well or any other means of irrigation other than the Thal Canal or which was not shown as Banjar Jadid, Banjar Qadim or Ghair Mumkin in the Khasra Girdawari of Rabi 1951 shall not be acquired. (ii) If a person owns less than 15 acres of land within the irrigation boundaries it shall not be acquired. (iii) If a person owns more than 15 but not more than 100 acres of land within the irrigation boundaries, not more than 50 per cent of land in excess of 15 acres shall be liable to be acquired. (iv) If a person owns more than 100 acres of land within the irrigation boundaries, not more than 75 per cent of the land in excess of 100 acres shall be liable to be acquired in addition to the land acquired under clause (iii) above in respect of the first 100 acres. Explanation.-- 'Irrigation Boundaries' means the boundaries determined by the Provincial Government to which irrigation by the Thal Canal has been extended or is likely to be extended." The respondents in these appeals claimed the exemptions given by this subsection on the strength of their respective purchases from the original owners but as the Authority did not accede to this request the respondents filed writ petitions in the High Court seeking redress. The High Court took the view that the order of the Authority giving the benefits to the original owners was wrong as it had been made without giving any notice to the present respondents and it was the said respondents who were entitled to the said benefits as they had become owners by virtue of their respective purchases in the meanwhile. The further contention of the Authority that the rights given by the amendment could not be enforced with retrospective effect was also repelled by the High Court and the matter was remanded to the Authority 'for being disposed of as if section 21(1) and (2) as they existed immediately after the enforcement of the Thal Development Act (XX of 1955) was still in force'. Leave was granted by this Court to consider the question as to whether the purchasers from the originally recorded owners subsequent to the issuance of the notification for acquisition can claim the benefit of the provisions introduced into the statute by subsequent amendments? Learned counsel for the parties have been heard. The Act of 1949 contemplates acquisition in two ways: (i) Under section 21 where under the Authority may frame a Scheme for the development of any local area providing for the matters specified in clause (1) thereof; and (ii) Under section 36 the Provincial Government may acquire land in case of urgency and direct the Authority to undertake in respect of such locality all or any such matters as may be included in a Scheme under section

21. Thus, the existence of a Scheme, in both the cases, is essential. It is an admitted position that no Scheme as contemplated by section 21(1) of the Act was framed before the promulgation of the Thal Development (Amendment) Act (XX of 1955). Thus, the acquisitions made before the promulgation of the said Act were without any legal sanction. Validity to the earlier acquisitions was conferred by adding subsection (6) to section 36 by the amending Act of 1955 (Act XX of 1955) which provided:- "S. 36(6). The limitations and conditions contained in subsection (2) section 21 shall apply to a locality in respect of which a notification is issued under subsection (1) of this section as if the said locality were the land in respect of which provision is to be made in a scheme for its acquisition." It may be mentioned that in none of the notifications issued till then under section 36(1) was any direction contained to the Authority to undertake in respect of the locality wherein land was being acquired 'all or any such matters as may be included in a Scheme under section 21' which was imperative. It was to cure this defect that the above deeming words were provided in subsection (6), which subsection was added by Act XX of 1955 to section

36. The position which emerges is that the acquisitions made before the amending Ordinance of 1955 (later replaced by Act XX of 1955) were themselves not valid and they became valid acquisitions only on the promulgation of the Ordinance of 1955 (subsequently replaced by Act XX of 1955). Thus, both the acquisitions as also the provisions of the Act came into effect at the same time. There is, therefore, no force in the plea raised by the appellant that the purchasers from the originally recorded owners subsequent to the issuance of the notifications for acquisition (under section 36(1) of the Act) could not avail of the benefit of the provisions which were introduced into the statute by subsequent amendments. As observed already, the earlier notifications of acquisitions were also validated by these very amendments and both had acquired legal force at one and the same time. No question of giving retrospective effect to the subsequent amendments, in the circumstances of these cases, therefore, arises. The upshot is that all these appeals are dismissed. M.I. /G-48/S Appeals dismissed