1994 PLP 465 (SCMR)

Ch. Qamar‑ud‑Din Khan Meo, Advocate Supreme Court instructed by Ijaz Ahmed Khan, Advocate‑on‑Record for Respondents Nos. 1 to

3. Date of hearing: 20th November, 1991. ABDUL SHAKURUL SALAM, J.‑‑‑This appeal by leave arises in the following circumstances. Land vesting in the father of the appellants Haji Fateh Khan situated in Village Uttra, Tehsil and District Khushab was acquired by the Government of the Punjab vide Notification No.1514/TH dated 13‑7‑1953 in order to provide shelter belts alongwith the channel by the Thai Development Authority. Vide letter No.3399/5/3310 TH dated 10th November, 1954 the Deputy Secretary to the Government of the Punjab, State land was placed at the disposal of the Thal Development Authority for management and development purposes on the conditions laid down in Punjab Government Memo. No. 195/TH dated 14th May, 1952, one of which was that no permanent or temporary alienation of the Government lands under the management of the Authority shall take place without the previous sanction of the Government. However, the appellant, like others, in lieu of the land acquired from him was given State land in dispute and this was recognized in the award given by the Land Acquisition Collector, Thal, Mianwali dated 19‑5‑1955. In course of time, the Thal Development Authority, however, wanted to take back the disputed land and give to others on tenders. The appellant filed a civil suit challenging this, impleading the Thal Development Authority and the Government. Finally, the High Court vide judgment in RSA 145 of 1962 dated 1‑2‑1967 held that on principles embodied in section 55(2) of the Transfer of Property Act read with section 43 thereof the Thal Development Authority was debarred from resiling from its own commitments towards the appellant and the latter was entitled to permanent injunction against the Authority restraining it from interfering in his possession. To this extent suit was decreed. As regards the Government of the Punjab it was observed that it was not bound by the unauthorized act of the Authority so the ‑ suit against it was dismissed. The appellant appears to have continued his efforts to retain the land and approached the relevant authorities. Shorn. of details and correspondence, Deputy Secretary (Colonies), Board of Revenue, Punjab vide Memo. No. 622/76/4460/TH II dated 15‑11‑1976 issued the following Memorandum: "The land in dispute may be allowed to remain with M/s Alam Sher and others sons of Haji Fateh Khan provided they agree to pay the difference of price between the value of State land presently with them and compensation amount awarded to them or the land acquired from them. The value of State land with them in this case shall be assessed at the rates prevailing at the time of their taking over its possession. In case they neither shift to other TDA land nor agree to pay such difference in price they may be ejected and the land disposed of under the relevant rules/policy." Before the matter was finalized, Secretary (Colonies), Board of Revenue, Punjab issued another Memo. No. 2057‑82/1397‑96 (TH II) dated 4‑10‑1982 as follows: "After the due consideration of the facts of the case, it has been decided that as the petitioners have already lost their case from Civil Court/High Court, the land may therefore be resumed forthwith and the petitioners be directed to collect compensation of land acquired from them which is already lying under head Revenue Deposit with Khushab Treasury." Review application was dismissed vide Memo. dated 8‑12‑1982. The last two Memos. were challenged through a writ petition which was dismissed by a learned Judge of the Lahore High Court vide order dated 28‑12‑1982. At the leave stage it was argued on behalf of the appellant that after the High Court decision, "the Government subsequently by letter dated 15‑11‑1976 decided to allow the petitioner to remain in (to retain) the land on payment of the difference of the price to which the petitioner agreed but the Board of Revenue by its order dated 4‑10‑1982 decided to eject them from the disputed land." Leave was granted to examine the question vide order dated 9‑6‑1985. In support of the appeal, learned counsel for the appellants has submitted that in the circumstances of the case when the appellants' land was acquired by the Government in 1953 and the appellant was given in lieu of his land, the land in dispute in the year 1955, the Board of Revenue decided in 1976 to allow the appellant to retain the land on payment of the difference in price between the land acquired and the land given in exchange. At one stage, it was decided that the land in dispute be assessed at the current rate of Rs.2,500 per acre. The appellant is prepared to pay at this rate though he was liable to pay at the prevalent rate in 1955. He is also prepared to have the price of his land at the time of acquisition Notification in 1953. Learned counsel for the respondents 1 to 3 has submitted that the appellant has no right to retain the land. Learned counsel appearing for the newly‑impleaded respondents submitted that the land in dispute is Government land which has been given to his clients but he has got no further instructions in spite of asking. He submitted that the Government has not been impleaded as a party in these proceedings. Taking the last bit of the argument it is to be noticed that under the Delegation of Powers Board of Revenue is the authority to deal with State land. It was the Board of Revenue which had allowed the appellant vide Memo referred to above dated 15‑i1‑1976 to retain the land on payment of difference of the price. The question is: Whether the Board of Revenue can resile? It has done so because of the High Court order. But a perusal thereof and the extracts quoted above will show that though no mandatory injunction was issued against the Government, but by no means it was disallowed to exercise its own authority which it did in issuing the afore-mentioned Memo dated 15‑11‑1976. Therefore the subsequent Memorandums impugned were the result of misconception. Hence, these are declared to be without lawful authority. The appellants may be charged the difference in price according to his offer recorded above. The appeal is thus allowed with costs. A.A./A‑1059/S Appeal accepted,