P L D 2004 Lahore 815 (PLP)

We do not find any substance in the arguments inasmuch as it is admitted that the land of the respondent has been acquired and no compensation has been given to him in lieu of the said land. The aforesaid order of the High Court is just, fair and proper. We agree with the view taken by the High Court that the act of the petitioner in acquiring the land of the respondent without giving him the compensation is in violation of Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973. No question of Law of public importance has been raised by the learned counsel of the petitioner in these proceedings. This being so, there is no substance in this petition, which is dismissed and leave to appeal is refused." (3) The respondent failed to comply with the order of the .Apex Court as well as of this Court. The petitioner being aggrieved filed this contempt petition. (4) Statement of Mr. Muhammad Sharif D.O.(R), Kasur: Former D.O. (R) Kasur has sent a report/proposal vide Letter No.DRA-2003/1938 dated 25-9-2003 to the Board of Revenue Punjab through the Executive District Officer (Rev.) Kasur for approval of the land measuring 200-Kanals out of 335 Kanals, 12 Marlas owned by the Provincial Government under the possession of the Irrigation Department so as to comply with the direction of this Honourable Court. Accordingly the E.D.O.(R) Kasur requested the Secretary Colonies Board of Revenue Punjab, for approval of the same vide Letter No.HC(R) 2003/2095 dated 3-11-2003. Under the direction of this Honourable Court, on 8-5-2004 Mr. Muhammad Shehzad Shaukat, Advocate visited the office of the under singed and told that the proposal sent by the former D.O.(R)/E.D.O.R. Kasur to the Secretary Colonies Board of Revenue Punjab, was acceptable to him. Further an advice of the Law Department in the matter has been received from the Secretary Colonies Board of Revenue Punjab vide Letter No.536-2004/284-C-IV dated 24-4-2004 with the advice to proceed further in the light of the advice by the Law Department so as to comply with the order of the Honourable Lahore High Court. The D.D.O.(R) Pattoki, has since been requested to proceed further in the matter accordingly and send a report to the office of the undersigned immediately for further necessary action in the matter vide Letter No.DRA 2004/ 1631 dated 28-4-2004. " (5) Letter from D.O.(R) Kasur to the E.D.O. (R), Kasur No.DRA 2003/1938 dated 25-9-2003" A number of meetings were convened but the Irrigation Department did not attend meetings. In the meanwhile the petitioner filed another Crl. Org. No.1488/W/2002 (contempt application) against the undersigned. On 9-8-2003 Sardar Muhammad Akram Javed, Executive Engineer, (Revenue) Kasur (In Chair), Mr. Muhammad Akbar, Executive Engineer, Irrigation DOC, Kasur Syed Mehmood ul Hassan, Executive

Engineer, Irrigation, Lahore Division, Lahore, Mr. Rashid Minhas, SDO Balloki, Sh. Muhammad Waseem, Naib Teshildar, Pattoki, Mr. Shahzad Shaukat Counsel Abdul Rehman Shaukat, Mr. Tahir Munir Malik Advocate, Supreme Court counsel Abdul Rehman Shaukat and Mr. Muhammad Yaqoob Bhatti representative Abdul Rehman Shaukat attended the meeting and the petitioner selected land situated in Rakh Bhoniki and Behar Wal Kalan. It was decided that the details of land i.e. copy of Jamabandi Aks Shajra and present use/position be obtained from the Revenue Field Staff. In the meanwhile the Executive Engineer, Irrigation, Lahore Division, Lahore may also forward his departmental views about land proposed by Mr. Shehzad Shaukat Counsel and 30-8-2003 was fixed for meeting (copy of the minutes of meeting is enclosed). The Deputy District Officer (Revenue). Pattoki has submitted his report vide his No.CC/245 dated 2-9-2003 (copy enclosed) about both the pieces of land proposed by Mr. Shahzad Shaukat Counsel. Whereas, the Executive Engineer, Lahore Division, Lahore neither attended the meeting on 30-8-2003 and 6-9-2003 nor submitted departmental views about the land proposed. Under the circumstances, it is proposed that the Board of Revenue, Punjab, Lahore may please be moved for seeking approval of land measuring 200 Kanals out of 335 Kanals, 12 Marlas owned by the Provincial Government under the possession of Irrigation so as to comply with the directions of Honourable High Court. (6) The E.D.O. (R) Kasur vide letter dated 3-11-2003 requested the Secretary Colonies, Board of Revenue, Punjab, Lahore in the following terms:- It is requested that approval of land measuring 200 Kanals out of 335 Kanals, 12 Marlas owned by the Provincial Government under the possession of Irrigation Department may be accorded for alternate allotment to the petitioner to comply with the directions of Honourable Lahore High Court, Lahore as proposed by the District Officer, (Rev), Kasur." (7) Letter dated 9-4-2004 to the Secretary Colonies, Board of Revenue, Punjab Lahore by the Section Officer (Opinion):- The Law Department has examined the matter and is of the opinion that it is for the Board of Revenue to determine the location and the nature of the land to be allotted to Abdur Rehman Shaukat in lieu of the land which was taken from him without undertaking the proceedings under the Land Acquisition Act, 1894. However, the Board of Revenue may take into consideration the following points while making the allotment of the alternate land:- (i) It has to be agricultural land measuring 25 Acres. (ii) The nature and value of the land should as far as be comparable with the land of the petitioner whereupon spur was constructed by the Irrigation Department without undertaking the proceedings under the Land Acquisition Act, 1894." (8) The letter dated 28-4-2004 from D.6. (R) Kasur to the D.D.O. (R), Pattoki:-- You are requested to proceed further in the matter in the light of the above referred letter/advice and send a report to this office immediately for further necessary action in the matter. " In case the aforesaid facts are put in juxta-position then it is crystal clear that respondents are not willing to implement the judgment of this Court as well as of the Honourable Supreme Court and the opinion of the Law Department is also not in consonance with the parameters prescribed by this Court as well as by the Honourable Supreme Court in the aforesaid judgment/order. The Law Department has given opinion without considering the contents of the judgments between the same parties qua the land in-question, which was taken by the respondents without acquiring the same and without permission of the petitioner utilized the same for construction of BUND to protect the land of the then Chief Minister of the Province and his relations. In case the respondents have to pay compensation of the land measuring 335 Kanals, 19 Marlas of the petitioner utilized by the respondents then according to the provisions of the Land Acquisition Act, the respondents have to pay the compensation along with 8 % compound interest till realization of the compensation, which would be compensation at the market value of the land in-question at the time of taking possession of the land in-question by the respondents along with 15% compulsory charges. The respondents have not paid a single penny to the petitioner, therefore, petitioner can claim the compound interest at the rate of 15 % per annum minimum as the law laid down by the Division Bench of this Court in Raja Nasir Khan v. Abdul Stattar Khan and another (PLD 1998 Lahore 20). The issue has been settled between the parties up to the apex Court, therefore, it is binding upon the parties as the law laid down by the Honourable Supreme Court in Pir Bakhsh v. The Chairman, Allotment Committee and others (PLD 1987 SC 145). It is also settled principle of law that nobody should be penalized by the inaction of the public A functionaries as the law laid down by this Court in Ahmad Latif Qureshi v. Controller of Examination Board of Intermediate and Secondary Education, Lahore (PLD 1994 Lahore 3). It is settled principle of law that every body is bound to obey the command of the Constitution in view of Article 5(2) of the Constitution as the law laid down by the Honourable Supreme Court in Ch. Zahoor Elahi's case (PLD 1975 SC 383). The public functionaries are also duty bound to act in accordance with law in view of Article 4 read with Articles 189, 190 and 201 of the Constitution. Meaning thereby to act within the framework of Law and Constitution. Laws are made not to make them merely on the Statute Book which are framed to act upon them, which is in consonance with the Holy Qur an as enshrined in Surah Baqra. The question of law has been examined by this Court in M/s. Nishat Mills Limited v. Government of Pakistan and others (1989 CLC 1692) and laid down the following principle:-- "Before concluding, I would like to mention that the manner in which the Central Board of Revenue has flouted the law declared by the Supreme Court, leaves much to be desired, under Article 5(2) of the Pakistan Constitution, 1973, obedience to the Constitution and the law is the inviolable obligation of every citizen and every other person resident in Pakistan. I am not aware that the departments of the State are exempt from such obligation. Since under Article 189 of the Constitution, the law declared by the Supreme Court of Pakistan is binding on all Courts in Pakistan and under Article 190 of the Constitution, all executive and judicial authorities throughout Pakistan are bound to act in aid of the Supreme Court, one would assume that all organs of the State are duty bound to act in aid of the law declared by the Supreme Court and not flout it. One would expect that the Central Board of Revenue, with its full-fledged legal cell, is aware of all laws declared by the superior Courts of Pakistan relating to the subjects within their jurisdiction and does not ignore these declarations when framing or amending the law, rules, and notifications on the subject. It appears that the Central Board of Revenue was aware of the rulings of the Supreme Court, Peshawar High Court and the Lahore High Court. This is apparent from the Federal Government's Notification S.R.O.489/I)/87, dated 13th June, 1987 which exempted cotton yarn from export duties if letters of credit had been opened before 12th June, 1987. However, contumacious disregard of the law declared, the said notification was withdrawn within less than three weeks, vide Notification S.R.O.546(I)/87, dated 1st July, 1987, leaving the petitioners with the unpleasant duty of having to knock at the doors of this Court. When on 27th January, 1988, the learned counsel for the respondents was directed to discuss all these cases with the Customs Authorities and to bring to their notice the law declared on the subject, so that they could process these cases by the next date of hearing, in accordance with the law declared, the learned counsel was not able to receive any co-operation from the Customs Authorities and I had to fix these cases for arguments. My oral warning that I would impose compensatory costs on the if I found later that they were deliberately not applying the law declared, fell on the deaf ears. Contumacious disrespect by the respondents of the law declared by the highest Court of the land deserves to note of The heavy costs to compensate for the demurrage suffered by the petitioners by the action of the respondents and the heavy financial losses suffered by them in locking up their capital in order to furnish bank guarantees to get their shipments released for export. Unlike the respondents, who are none too lenient with their transgressors, I would, without being hard, impose nominal compensatory costs on the respondents at the rate of rupees one thousand (Rs.1,000) for each shipment in respect of which the petitioners were compelled to furnish bank guarantees to secure release of their goods, pursuant to interim orders issued by this Court; such compensatory costs to be payable by the respondents to the petitioners in all the six cases on all the consignments in respect of which bank guarantees were filed by them. " The aforesaid proposition of law was examined by the Honourable Supreme Court in Works Co-operative Housing Society and another v. The Karachi Development Authority (PLD 1969 SC 430) and laid down the following principle:-- "In the present case, the main question, in my view is as to what was the intent of this Court when it said that the Development Authority could not depart from the direction contained in the notification of the 9th of June 1964 " so long as it stands intact". Did it contemplate that the withdrawal of the notification by the Provincial Government at a subsequent stage would defeat the right of the appellant-Society? Was this Court thereby only declaring a right contingently? I think not. It is now well-settled that a Notification cannot be made to operate retrospectively and I think that there can be no manner of doubt that a judgment of Court declaring a right cannot be nullified by executive action. I cannot, therefore, persuade myself to impute to this Court any intention of authorizing an illegality. This Court does not also as a rule deal with hypothetical cases. Where no existing right is established no question of granting any relief by this Court can arise particularly, in proceedings initiate under Article 98 of the Constitution. It is difficult, therefore, to appreciate as to how this Court could be said to have declared in the appeal, from which the present application arises, only a contingent right defeatable at the will of the Provincial Government. In my view the words "so long as it stands" occurring in the last paragraph of the judgment in the appeal mean no more than this that since the relevant provisions of the notification dated 9-6-1964 had been altered till then the commitment subsisted and the appellant-Society was entitled to the allotment. It could never have been the intention of this Court to give to the Provincial Government a right to amend the notification in such a way as to nullify its own judgment. I am, therefore, of the view that the construction sought to be placed by the Development Authority on this portion of the judgment of this Court is wholly unjustified and unwarranted. With these observations I would send back the case to the High Court to deal with it under :order LXV, rule 15 read with section 151 of the Code of Civil Procedure. The costs of these proceedings in this Court will abide the result of the proceedings in High Court." The Honourable Supreme Court again considered the question of law in Capt. (Retd.) Abdul Qayyum Executive Engineer v. Muhammad Iqbal Khokhar and 4 others (PLD 1992 SC 184) and laid down the following principle:- "The Supreme Court held in Works Co-operative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430 that a judgment of the Supreme Court, a right declared thereunder, cannot be overridden or nullified by an executive order, a rule or a dispensation short of legislative will." The aforesaid correspondence between the respondents clearly reveals that the respondents have committed contempt of this Court much less than the Law Department, which is not, as mentioned above, in consonance with the judgment of this Court as well as of the superior Courts. In fact it is clearly in derogation of the Judgment of this Court as well as of the Honourable Supreme Court, which tantamounts to interference in the Judgment of the Courts and falls within the scope of contempt of Court. The judgment of Courts could not be modified/erased out by subsequent letters as the law laid down by the Honourable Supreme Court in N.E.D University of Engineering and Technology v. Imtiaz Ali (2001 SCMR 832). Non-observance of the orders of the superior Courts would create a chaos, which brings a situation to minimize the State concept of sovereign Islamic State minus a strong and independent judiciary is unimaginable if the judiciary of the country is stripped off, its power, the country would cease to exist as free nation as the law laid down by the Honourable Supreme Court in State v. Tariq Aziz and 6 others (2000 SCMR 751). Mr. Vijay Kumar Dewan in his Book prosecuting system in (Practice and Procedure). The relevant observation is as follows:- The works of Judiciary however worked systematically in view of considerable importance attached by Akbar and his successors and Akbar had definite zeal to administer justice impartially and he had once remarked. If I were guilty of an unjust act I would rise in judgment against myself. What shall I say then of my sons, my kindred and others. This principle is specifically contained in our Constitution by virtue of preamble, Article 2-A, 4, 5(2), 23, 24, 25, 37 and

38. In the present case land of the petitioner was taken without acquiring under the Land Acquisition. Act, without consent and without payment of single penny simple to save/protect the land of the then Chief Minister and his relations that is why this Court and the Apex Court directed the respondents to provide alternative land to the petitioner, which is not obeyed by the respondents till today. In case, we want to live as independent nation, then everybody has to work within the command of the Constitution and law and should not hesitate to discharge his duties in accordance with law and Constitution otherwise the rule of Jungal will prevail which is not in the interest of country and nation. People of Pakistan must provide justice by all the organs of the State. Everybody has to work honestly, fairly and justly as held to M/s. Airport Support Service v. The Airport Manager Karachi (1998 SCMR 2268) for the purpose of building national character as is highlighted by Lord Wavel about Founder of Pakistan, which is reproduced hereunder:-- "He (Founder of Pakistan) is not only honest but .he is also intellectually honest" The Honourable Supreme Court has laid following principle in Shaukat Ali and others v. Government of Pakistan Ministry of Railways and others (PLD 1997 SC 342). The relevant observation is as reproduced hereunder:- "We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society, based on Islamic Concept of fairplay and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner, which should not give to anyone any cause of complaint on account of discriminatory treatment of otherwise. While discharging official functions, efforts should be made to ensure that no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary. It is hoped that the petitioner who had been earning livelihood for considerable long period on the basis of licences granted by the Railways, will be treated fairly." The judgment of this Court as well as of the Honourable Supreme Court did nor mention a single word qua-the nature and value of the land should as far as be comparable with the land of the petitioner whereupon the spur was constructed by the Irrigation Department without undertaking the proceedings under the Land Acquisition Act, 1894. It is admitted fact and not denied even today that the land of the petitioner was utilized by the respondents without acquiring the same under the provisions of the Land Acquisition Act, 1894 and did not pay a single penny to the petitioner till date, which is not in accordance with Article 23 and 24 of the Constitution as the law laid down by the Honourable Supreme Court in Jibendra Kishore Achharyya Chowdhury and 58 others. The Province of East Pakistan and Secretary Finance and Revenue (Revenue) Department Government of East Pakistan (PLD 1957 SC 9) coupled with the fact that the land of the petitioner was utilized by the respondent in the year 1996. Constitutional petition filed by the petitioner was accepted by this Court on 8-5-1997 whereas the C.P.S.L.A filed by the Province of Punjab was refused by the Honourable Supreme Court vide order dated 5-8-1998 and the respondents failed to pay a single penny to the petitioner and did not implement the judgment of this Court as well as of the Honourable Supreme Court on the one pretext or the other without any justification. The correspondence between the respondents themselves would clearly G show that respondents have committed contempt of this Court as well as of the Honourable Supreme Court not less than even by the Law Department, Which of course, wear the laws of the country on the sleeves of its robe as the law laid down by the Honourable Supreme Court in Muhammad Sarwar v. The State (PLD 1969 SC 278). The petitioner did not receive a single penny of compensation qua the land secured by the respondents without his permission since 1996 till date. Keeping in view the stand taken by the Advocate-General Punjab, as mentioned above, I have taken a lenient view not to proceed against the respondents under Contempt proceedings as the law laid down by the Honourable Supreme Court in Supreme Court Bar Association of Pakistan v. Federation of Pakistan and others (PLD 2003 SC 82). It is also settled principle of law that this Court has discretion to proceed against the respondents or not. In view of the aforesaid circumstances, I am not inclined to proceed against the respondents as the law laid down by the Honourable Supreme Court in Mst.Safia Bibi v. Mst. Aisha Bibi (PLD 1982 PSC Cases 304). The question of law was also considered by the Calcutta High Court in Tarit Kanti Biswas' case reported in (AIR 1918 Cal. 988). The relevant observation is as follows:- "The Court has in respect of a contempt of Court should be exercised with great care and it should only be exercised when the case is beyond all reasonable doubt, and this should especially be the case when the proceedings are at the instance of the Court itself."

7. In view of what has been discussed above, the opinion rendered by the Law Department dated 9-4-2004 is without lawful authority and this Court has ample jurisdiction to look into the subsequent events at the time of deciding the cases as the law laid down by the Honourable Supreme Court in Mst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220) and this Court has ample jurisdiction to convert the proceedings of one nature into another nature. However, respondents are directed to hand over possession of land measuring 200 Kanals in village Bhoniki Tehsil Pattoki, District Kasur in lieu of the land of the petitioner measuring 335 Kanals, 19 Marlas, as mentioned in letter dated 25-9-2003 of the District Officer (Revenue), Kasur through the Executive District Officer (Revenue), Kasur to the Secretary I Colonies, Board of Revenue, Punjab Lahore and also necessary proprietary rights qua the land be issued and mutation in the Revenue Record be also entered and sanctioned in favour of the petitioner and all the formalities shall be completed within one month after receiving the judgment. Respondents are further directed to send report to the Deputy Registrar (Judicial) of this Court within the stipulated period. With these observations, this petition is disposed of. Copy Dasti on payment of usual charges. N.H.Q/A-194/L Order accordingly