P L D 2006 Lahore 247 (PLP)

ALI NAWAZ CHOWHAN, J.

This judgment shall dispose of the following Civil Revisions bearing No.821 of 1999 and 820 of 1999, being connected matters and involving similar question.

2. These arise because of findings which are at variance. The learned Civil Judge, Lahore, vide his judgment dated 16-6-1996 decreed the suit in favour of the plaintiff/petitioner The judgment of the learned Civil Judge was reversed by the Court of learned Additional District Judge, Lahore, vide his judgment dated 15-10-1998 and hence these Civil Revisions.

3. Precisely the facts are as follows: This was a suit for declaration and consequential relief through mandatory injunction. According to the plaintiff, he was owner of land located in Khasra No.7803 situated at Mauza Niaz Baig, Tehsil and District Lahore, which he had purchased through a Sale Deed in the year 1979 and this became the subject matter of the consolidation proceedings and the Khasra number was altered to 12504 through a Mutation No. 12035 which was sanctioned on 30-12-1979.

4. Later on, this land was acquired by the Lahore Development Authority for its housing scheme known as Muhammad Ali, Johar Town Scheme. A Notification of the Punjab Government dated 28-10-1982 declared the scheme as such.

5. A policy was laid for compensating the owners and according to that policy 30% of the acquired land was to be exempted to a private owner.

6. Later on, it transpired that this Khasra number had been deleted from the said Muhammad Ali Johar Scheme. Subsequently, this land was acquired for the Abdalians' Cooperative Housing Society and was included in the area measuring 968 Kanals' land for this purpose at the Hanjarwal and Niaz Baig Mauzas of Lahore through a Notification bearing No. LAC/ 17987 dated 6-12-1982 published in Punjab Gazette of 6-12-1982.

7. This Society entered into an agreement with the Government of Punjab and in the said agreement undertook to abide by the rules and regulations framed by the Government in respect of acquisition of the land.

8. This agreement was also published in the Punjab Gazette of 8-10-1985 etc. and the Collector was authorized to take over possession of the land under section 6 of the Land Acquisition Act, 1894.

9. It is said that the policy with respect to acquisition of land from private owners having been laid by the Government of Punjab, was also extendable to the present acquisition. The plaintiff, therefore, asked for the exemption allowed under that policy and served them with a notice. But no exemption was granted and, therefore, a suit was filed for declaration and injunction.

10. The case of the defendant side was that the property had not been acquired for an Official Development Agency or for public purpose. The said exemption policy was not extendable to the present acquisition being a private and not a Public Housing Scheme.

11. The Notifications with respect to the acquisition of land were never disputed but it was only stated that the Martial Law Instruction No.23 of 17-8-1979 which laid this policy of exemption of 30% to the landowners, was not applicable to the present case.

12. The learned trial Court had framed four issues on the subject and came to the conclusion on the basis of the evidence recorded that the relief sought was justified and it decreed the suit in favour of the plaintiff and against the defendant.

13. The learned Additional District Judge in appeal was of a different view. In paragraph Nos. 10 to 13 of the judgment, the view taken by the learned Additional District Judge was that the agreement (Exh. P.13) inter se the owners and the Government does not lay a stipulation for the exemption being asked. He referred to an excerpt from Exh.P-13 which reads as follows:-- "That the society shall abide by the rules and regulations framed by the Government or any other authority as may be legally applicable." And in paragraph No.13 he concluded his arguments by saying:

"This clause, therefore, does not contain any condition binding the appellant to grant exemption of residential plots to the extent of 30% to the owners of land whose land is acquired. It requires the applicant only to abide by rules and regulations issued by the Government or any authority in this regard. In this context reliance was made on Martial Law Instruction No.23."

14. The learned Additional District Judge was also of the view that the Martial Law Instruction No.23 which stated as follows:-- "

12. In future scheme all owners will be exempted 30% of the land acquired from them in the form of developed plots, on payment of development charges only unless the land acquired is less than 10 Marlas. This exemption policy will also apply to such on going schemes' in which possession of land had not been taken over by acquiring agencies before 17th August, 1977, but will not apply to the schemes including Faisal Town, Model Town Extension, Band Road, Allama Iqbal Scheme for which exemption policy have already been announced or finalized," did not bring within its ambit the private schemes and was applicable only to the schemes as envisaged in paragraph (a) to (d) of paragraph No.1. It was his view that the learned trial Court had misread the instructions.

15. In paragraph 17 of the judgment, however, the learned Additional District Judge referred. to Exh. P.11 which reflects an offer to the landowners to contact the Secretary of the Society for exemption purposes. But he concludes by stating that this offer was never meant to be so serious as to oblige the Secretary to grant the exemption.

16. It is the case of the petitioner before this Court that the learned Additional District Judge fell in error in holding the views aforementioned and that these views were not based on the factual position.

17. A reference has been made to an advertisement which has been published as a general notice by the Abdalians' Cooperative Housing Society Ltd., in a newspaper and this is Exh.P.11 on the file of Writ Petition No.821 of 1999 at page

103. The relevant excerpt from which reads as follows:-- "Some of the landowners have already approached the Society for allotment of exempted plots equivalent to 30 per cent of their land holdings. The land owners interested in exempted plots may immediately contract the Secretary of the Society of the following address along with ownership documents????"??????????

18. Reference is also made to Exh.P-12 which is said to be a Notification of the Punjab Government dated 23rd October, 1985, under Section 4 of the Land Acquisition Act and the following excerpt from the same being relevant is re-produced blow:-- "????..is required. to be taken by the Abdalians' Cooperative Housing Society Limited, Lahore, which has been declared as Official Development Agency for public purpose for the construction of residential colony for its members at Niaz Beg/Hanjarwal, Tehsil/City Lahore."

19. The next reference is made Exh.P.13, copy of which is on the file of Writ Petition No.821 of 1999 at page 109, wherein the following stipulation is made:-- "And whereas, the Government has required the Society under the provisions of sections 41 and 42 of the Act to enter into agreement with the Government hereinafter contained."

20. Reference is also made to a verbal testimony of Muhammad Sharif who is the estate Officer and Attorney. In his cross-examination he had made the following statement.:-- It is, therefore, on the basis of this material contended that as the 30% land was exempted for the land owners by the Society admittedly and a notice to that effect was also given, the petitioner was allowed to take benefit of the exemption if he did not choose to take the compensation as determined by the award of the Land Acquisition Collector.

21. The learned counsel appearing on behalf of the respondent side while referring to the following case-law: (1) PLD 1983 Lah. 552, 2003 YLR 1032 and also a Writ Petition decided by a Bench of this Court on 16-11-2001, contended that the Abdalians' Cooperative Housing Society Ltd. has already been declared by a learned Single Bench of this Court to be a society acquiring land for private purposes and not for public purposes. It is, therefore, stated that as the exemption scheme as it then was related only to the society where the land was acquired for public purposes, this will come out\of the ambit of the policy of the relevant time. That merely because some persons were offered exempted plots instead of the price, it would not have a binding effect for following the same policy for others.

22. In the case of Abdalians' Cooperative Housing Society Ltd. v. Muhammad Bilal Anwar 2003 YLR 1032, the learned Single Bench of this Court in a Civil Revision had observed as follows:-- "

3. I have gone through the copies of the record appended with this Civil Revision, with the assistance of the learned counsel for the parties. Exh.D-I is the award. According to this document 733 Kanals, 3 Marlas of land was notified for acquisition under section 4 of the Land Acquisition Act, 1894 which notification was published in the official Gazette on 8-8-1985. Provisions of section 17(4) of the said Act was involved. After issuance of notification under section 6 proceedings commenced. A total sum of Rs.91,64,375 was assessed as compensation as also 25% compulsory acquisition charges. This amount was deposited and possession was delivered vide Exh.D-2. Thus the land came to vest in the petitioner subject to the provisions of the said Land Acquisition Act, 1894. Now the respondents demanded that a plot be allocated to him from the said land admittedly- vested in the petitioner. Now an owner of a land cannot be divested of the same otherwise than in accordance with law. Both the learned Courts have virtually conceded that there is no legal provision obliging the petitioner to allocate the land, as claimed by the respondent, to him. However, both the learned Courts below have relied upon Exhs.P-4 and P-5 in support of their respective judgments. There are letters issued by the petitioner to some of the landowners asking them that if they wished to negotiate with the petitioner for exemption of plot equal of 30% of holding they may enter into an agreement with the petitioner. Now to my mind in case the petitioner had agreed to exempt the plots after negotiations with some landowners, the same does not at all mean that they were under a legal obligation to allot the land to respondent No.1 as well. Both the learned Courts below have also acted under the impression that the Rules and Regulations of the LDA would be binding upon the petitioner in the matter of acquisition of the said land. It may be stated that the provision for 30% exemption was contained in Martial Law Instruction No.23 issued on 17-8-1977. Para. 12 of the said MLI provided that 30% of the acquired land is to be exempted in favour of the landowners. This MLI stood withdrawn upon lifting of the Martial Law in the year 1985. This Court in the case of Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. PLD 1983 Lah. 552 has held that the said provisions would not at all be applicable to acquisition of land by a Housing Society as the petitioner is.

4. For all that has been discussed above I do agree with the learned counsel for the petitioner that the impugned judgments and decrees have been passed, without lawful authority and cannot be sustained. This Civil Revision accordingly is allowed. Both the impugned judgments and decrees are set aside and the suit filed by respondent No.1 is dismissed without any orders as to costs."

23. In rebuttal, the learned counsel for the petitioner stated that the decision in the case of the Abdalians' Cooperative Housing Society Ltd. (ibid), would not be applicable in the present case for inter alia the following reasons. That in that case, the learned Judge was not provided with proper assistance inasmuch as that all the documents which have been now placed before this Court were not available to the said learned Judge, especially the agreement under sections 41/42 (Exh.P13), the notice (Exh.P-11 and the statement of the Estate Officer (DW-1).

24. The learned counsel once more placed reliance on the .Notification under section 6 of the Land Acquisition Act (Exh. P.12) and states that the purpose is made absolutely clear for which the acquisition is to be made and the Notification being published in the official Gazette II was meant for public notice and information and the public understood the purpose as was given in the notice and now ascribing a different intention to the scheme itself contrary to what was said in the Notification under section 6, will be against the public policy.

25. Learned counsel went on to further state that the case of Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. and others PLD 1983 Lahore 552, will also not be attracted because it pertains to a different set of circumstances quite distinct and separate form the facts and circumstances of this particular case. Nevertheless, the learned counsel stated that in that judgment as well, the apex Court has given a verdict stating that "public purpose does not cease to be so simply because incidental benefit will inure to private individuals".

26. Besides what has been stated by the learned counsel for the petitioners and keeping in view the public notice already given and the intention of the Collector referred to in the notice under section 6 of the J Land Acquisition Act and also the notice given by the Abdalians' Cooperative Housing Society Ltd. itself attract the principle of estoppel in pais.

27. Of course, the Martial Law Instruction No.23 was meant for acquisition of lands for Government societies but this was the policy during the said period which was being followed and we find that certain steps were admittedly taken by the Society and by the Punjab Government in providing such a benefit and this is clear from the Notification under section 6, the advertisement given and the statement of the Estate Officer although as is stated by the learned counsel for the respondent's side, that no specific case has been mentioned where this exemption may have been allowed. But we find that D.W.1 was also not re-examined by the respondent's side for any further elucidation or clarification.

28. The case in hand, therefore, has, in evidence, facts which were not in evidence before another learned Single Bench of this Court and in that eventuality this Court has to give its decision on the basis of what is available on the file and in that connection, I may have to respectfully differ with the dictum laid by the said learned Single Bench of this Court because obviously it's the facts before a Court which build a case one way or the other and we have to see what is before us at the relevant time.

29. Really the problem is with respect to compensation. The compensation can be given in accordance with the award which is later challengeable under section 18 of the Land Acquisition Act as a reference or the compensation can be given through exemption the 30% of land within a particular scheme.

30. When compulsory acquisitions are made by the Government, such acquisitions ought to be firstly for the welfare of the people and secondly Government should also keep in mind the welfare of the affectees. The Governments are also supposed to follow policies based on fairness and it has to avoid credibility gaps. When Government takes a stand as we have seen herein the case of Notification under section 6 of the Land Acquisition Act then withdrawing from that stand or taking aberration lateron, would certainly amount to widening the credibility gap between Government and public.

31. The Secretary of the Government in this case, it is said, did invite people to appear before him pursuant to the offer made in the public notice given by the Society itself. The allegation is that in some cases the relief was given and in some not. Which means that the discretion in respect of some was followed in one way and in respect of others it was followed in a different way. Can a Government be allowed to acquire compulsorily the property of someone and then to dispose it of the way it likes. When Government exercises discretions, these are exercisable according to the policies laid and if the discretions are not properly exercised and used then these discretions, I am sorry to say, mislead the public and this has to be checked by Courts.

32. In case the Government thinks that as a matter of fact the land was actually meant for a private scheme and what was stated in the Notification under section 6 of the Land Acquisition Act was on account of some inadvertence or mistake, it always has the choice of restoring back the land to the owners and cancelling the agreement instead of giving different meanings at different times to definitions of words relating to private ownership and property.

33. This Court, therefore, feels that the decision of the learned Additional District Judge, Lahore, is not based on correct consideration nor on correct appreciation of law, and, therefore, it is set aside and subject to the observations which are made above, the decision of the learned Civil Judge is upheld. S.A.K./A-34/L???????????????????????????????????????????????????????????????????????????????????? Revision accepted.