2011 MLD 278 (PLP)

IJAZ AHMAD, J.

Land measuring 08 kanals, 03 marlas belonging to the petitioners, besides several hundreds of kanals of land of other owners, was acquired through a Notification in the year, 1965 for Civil Aviation Authority to be utilized for construction of an Air Port which is a public purpose. A part of the said land was used by the Civil Aviation Authority for the purpose mentioned in the Notification. It is averred that after the utilization of the land specified in the Notification, hundreds of kanals of the surplus land is lying unutilized in the possession of the respondent authority. The respondents transferred a big chunk of land to Rawalpindi Development Authority (RDA) for construction of road linking the newly constructed airport" to Murree road. The road has been constructed. Some pieces of land on the other side of the road that fall in Khasras Nos.1010, 1011, 541, 542, 543 in village Tahlian Dehati Tehsil and District Rawalpindi are lying unutilized. The said pieces cannot possibly be utilized for the purpose specified in the Notification. Some of the land has been leased out for establishment of the CNG Station. Haji Pervaiz Khan and 3 other land owners submitted an application under Rules 14 and 15 of the Punjab Land Acquisition Rules, 1983 before the Board of Revenue, Punjab, for restoration of the land in question. The Board of Revenue Punjab, Lahore, vide order dated 11-2-2006 turned down the application of the land owners.

2. It is contended by the learned counsel for the petitioners that the land was acquired for utilization by the Civil Aviation Authority. After utilization of the land for the specified purpose, the remaining land has to be returned to its original owners who in the instant case are the petitioners. It is contended that the land acquired for specific purpose cannot be utilized for any other purpose even if the same is a public purpose; that the petitioners being the original owners are entitled to the return of the land, specially those pieces which are lying on the other side of the road.

3. The claim of the petitioners is resisted by the learned counsel appearing on behalf of the respondents. It is contended that the land acquired for some public purpose may be utilized for other public purpose, the law does not restrict the utilization of the land only to the purpose specified in the Notification; that the land having been transferred to the respondent authority, the original land owners are now strangers to the land in question and they have no locus standi to institute this petition for return of the land. The learned counsel for the respondents relies on the judgments cited as "2010 SCMR 480" titled Mst. Asmat-un-Nisa and another v. Government of N.-W.F.P, "2004 MLD 1604" titled Mst. Kishwar Sultana and others v. Province of Punjab and others and "1996 MLD 731" titled Syed Zainuddin and 9 others v. Assistant Commissioner-Cum-Collector, Quetta and 2 others". It is argued that the land acquired for one public purpose could be utilized for any other public purpose as well. He further relies on PLD 1983 Kar. 602 titled Mullah Ghulam Ali and others v. Commissioner of Karachi and 2 others, and 2001 MLD 295 Supreme Court (AJ&K) titled Ali Shan v. Mirpur Development Authority and 6 others, to argue that the land acquired by the Government to its entirety vests in the Government who can use it in any manner in conformity with the declared intention and purpose and it is only the Government who can dispose the land found in excess in any manner opted by it.

4. I have heard the learned counsel for the petitioners, for the respondents and have also gone through the comments submitted by the respondents.

5. It is averred in the comments submitted by the Civil Aviation Authority, the respondent is at liberty under sections 4 and 5(4)(v) of the Civil Aviation Authority Ordinance, 1982 to pledge any property vested in it to raise finances and that the Government may on its option sell the excessive land. The land in question was acquired vide Notification in the year, 1965. The purpose as mentioned in the Notification was the utilization of the land by Civil Aviation Authority. A major part of the land acquired having been utilized by the Civil Aviation Authority for the construction of the Airport and the allied facilities. Some land has been left unused. As per the comments submitted by the Civil Aviation Authority, it has the right to utilize the acquired property for the purpose of raising the finances. It is not denied by the respondents that a piece of land has been transferred to Rawalpindi Development Authority for construction of a road and 2 or 3 small pieces of land remain unused on the other side of the road. The stand taken by the Civil Aviation Authority is, that it has the legal right to utilize the remaining land according to its option. Rule 14 of the Punjab Land Acquisition Rule, 1983 is as follows: "14" (1) Where any land has been acquired for any Department of the Government or a local authority for a public purpose and it is proposed to abandon the same, it shall be handed over to the Collector who shall be responsible for the disposal of the same in accordance with the orders of Government. (2) The disposal of land under sub-rule (1) shall be made by Government in its discretion, and its possession restored to the persons from whom it was acquired or to their heirs as under: (i) Free of cost to the original owners of their heirs if compensation for the acquisition of land has not been paid. (ii) On refunding the amount paid as compensation less the 15 percent granted for compulsory acquisition, if the original landowners or their heirs have already received cash compensation in respect of their land. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by the use to which Government has put it. (3) Where the original land-owners or their heirs were provided alternate land in lieu of their acquired land, such land shall not be restored to them, but shall be utilized or disposed of by the Board of Revenue in accordance with the policy of the Government regarding disposal and alienation of lands."

6. The land in question was acquired for utilization by the Civil Aviation Authority. The said authority has constructed the Airport and the allied facilities. A fence has been laid and a wall constructed circumscribing the limits of the Airport. The surplus land specially the piece of land lying on the other side of the 2-way carriage road has neither been nor is proposed to be utilized for any other public purpose allied with the purpose specified in the Notification. The respondents or the Government has no plan to put the same land for any other public purpose. In such a situation, the land mentioned in Paragraph No.2 of the petition measuring 8 kanals 3 marlas lying on the other side of the Airport and the road constructed by the Rawalpindi Development Authority, cannot be retained by the Civil Aviation Authority for an undefined purpose. The land has become surplus and shall be returned to the original owner. In my view, I seek support from the judgment cited as 2010 YLR 1212 titled Rana Ziladar Khan v. Province of Punjab through Collector Silakot and others, "PLD 1993 Supreme Court 455" titled Province of Punjab through Collector, Lahore and another v. Saeed Ahmad and 4 others 2000 MLD 322 Lahore" titled Nazir Ahmad and 8 others v. Commissioner, Lahore 'Division, Lahore and 3 others", and 1990 ALD 658" titled Province of Punjab and others v. Mian Saeed Ahmad.

7. With all deference to the judgments cited by the learned counsel for the respondents, I would like to opine that the said judgments are not attracted in the instant case. The question in hand is not that the land acquired for the notified purpose cannot be used for any other public purpose, therefore, the first three judgments cited by the learned counsel for the respondents are not attracted in this case. The left over land is neither utilized nor is intended to be utilized for any public purpose. The latter two judgments referred by the respondents have a great pursuable value but are not applicable in this case. The Government being a Custodian of property of the people can only deprive the citizens of their right to own and possess the land if the same is required for the public purpose and for the benefit of public at large. Since the remaining land has neither been utilized for any other public purpose nor it is intended to be utilized for any such purpose, therefore, the petitioners as per the judgments relied by me, are entitled for the return of the land. Now the question arises what should be the quantum of money that is to be returned by the petitioners to the respondent authority. As per the award, the petitioners were paid the compensation for the land besides the compensation for compulsory acquisition at the rate of 15 percent. All the amount has been received by the petitioners. The construction of the Airport the allied facilities and the road leading thereto have attracted the Estate developers. Many housing schemes have erupted there resulting in manifold increase in value and price of the property in question. The petitioners should return twice the original amount of compensation received by them to the Civil Aviation Authority less the 15 percent of the original amount of compensation received by them for the compulsory acquisition. For the determination of this amount, I rely on the Provisions of section 14(2)(ii) of the Punjab Land Acquisition Rules, 1983 and the judgment cited as "2007 CLC 811" titled Sajjad Amad and another v. Secretary Government of the Punjab, Revenue Department/ Member Board of Revenue and 2 others. This petition is accepted. S.A.K./P-31/L Petition accepted.