2018 PLP 12 (YLRN)

SADAQAT HUSSAIN RAJA, J.

Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following relief is prayed for:-- "It is, therefore, very humbly prayed that by accepting writ petition non-petitioners may kindly be directed to de-notify the said land in favour of the petitioners in light of the orders of the worthy Prime Minister of AJ&K dated 20.03.2012 after receiving amount of award from the petitioners by canceling the award No. 19/98 dated 17.09.1998 to the extent of above mentioned land. Any other relief which deem fit may kindly also be granted to the petitioners in interest of justice." Precise stated facts of the case are that petitioners are first class State Subjects of the Azad Jammu and Kashmir and hails from District Hattian Bala. It was contented that land comprising survey No. 133 measuring 5 Kanals situated in Mozia Bani Chakan Tehsil and District Hattian Bala was awarded vide Award No. 19/98 dated 17.09.1998 for the construction of Govt. Boys Middle School Bandi Chakan. It was submitted that due to land sliding the building of school stood damaged and the land has become roar. It was submitted that Collector Land Acquisition has acquired another land comprising survey No. 110,20,16 for construction of said school vide Award No. 09/2012 dated 23.02.2012 and the school is functioning now in the new building. It was stated that land survey No. 133 is no more required for the public purpose for which the same was acquired. It was submitted that on the application of the petitioners officials of Education Department submitted report for de-notification of the said land and Chief Executive has also directed the concerned authorities for de-notification of Award No. 19/98 dated 17.09.1998. It was further submitted that the land is still in possession of the petitioner No.2 and he has made a huge improvement on the same land. It is contended that respondents are duty bound to implement the order of the Prime Minister in letter and spirit. Respondents have contested the petition by filing comments wherein, it is stated that the building of school stood damaged in the earth-quake of 8th October 2005, however, the land is useable and is being used as playground. The other claims of the petitioners have also been refuted. The parties have filed written arguments in light of the order of the Court. In the written arguments filed on behalf of the petitioners it was submitted that land comprising survey No.133 measuring 5 kanal situated in village Bandi Chakan was in the ownership of the petitioners which was awarded through award No. 19/98 for construction of Govt. Boys Middle School Bandi Chakan. It is further contended that the said land due to land sliding became roar and on the assurance of Head Master of the school that the land comprising survey No.133 shall be de-awarded, the petitioners gave another land for construction of the school. It was further submitted that land comprising survey No. 110,20,16 has been awarded for construction of the school vide award No.09/12 and after construction of the building the school is functioning on the said land. It was further submitted that petitioners applied to the concerned authorities for de-notification of award No. 19/98 whereupon, the Chief Executive passed the favourabe order. It is contended that as the land is not being used for the purpose for which the same was acquired hence the same shall be de-awarded in favour of the original owners/petitioners. In support of his submission, the learned counsel placed reliance on 2017 YLR

746. In the written arguments filed on behalf of respondents it is stated that land has been awarded for Govt. Boys Middle School Bandi Chakan and the same is being used for the students as playground, hence, question of de-notification does not arise. It is further contended that the writ petition has been filed with mala fide intension. It is also stated that proceedings for up gradation of Govt. Boys Middle School Bandi Chakan, are in process and for that purpose there should require some extra land therefore, it cannot be said that land may be de-notified on the ground that the same is not being used for the purpose for which the same was acquired. In the written arguments filed on behalf of the Management School Committee, intervener, herein, it is submitted that though the building of school stood damaged in the earthquake of 2005, however, the land is useable and being used as playground for the students and is also required for other school activities. It is also submitted that the petitioners try to obtain possession of the land however, the education department is continuously in possession of the land as per revenue record. I have heard the learned counsel for the parties and gone through the record of the case with utmost care. The claim of the petitioners is that the land has become roar and is not useable whereas, respondents in their comments have submitted that the land is being used as playground and is useable. On this issue Civil Judge Jhelum Valley was appointed as commission vide order dated 02.12.2016 and was directed to make spot inspection and submit report by mentioning as to whether the land in dispute is being used for school purpose or not and as to whether, at present, the land is useable or has become roar. In compliance of Court order Civil Judge Jhelum Valley visited the spot in presence of the parties along with the Tehsildar Hattian Bala as well as Patwari. It is reported by commission that the land in dispute is useable and at present is in possession of the petitioners. It is further reported that the land can be used for the purpose of school activities. It is also reported that the land is now in good condition and can be used for curriculum activities hence, it became clear that land can be used as playground for the students and for other school activities, however, at present, petitioners are in possession of said land. It is admitted position that the land was in ownership and possession of the petitioner when the same was awarded for construction of Govt. Boys Middle School Bandi Chakan, vide award No.19/98 dated 17.09.1998. It is also admitted position that petitioners have obtained the compensation of the same land. The land was acquired for the construction of school building and after the earthquake of 2005 another land comprising survey No. 120,16,10 has been acquired for construction of school and after the award the building of school has been constructed and school is functioning at present. The petitioners have also received the compensation of land acquired vide award No. 09/12. It is correct that if the acquired land is not required for the public purpose or for the purpose for which it was acquired, the same shall be resumed and restored to the original owners or their heirs from whom, it was acquired and if there is no such eventuality the land shall be utilized or disposed of by the Board of Revenue in accordance with the policy of Government regarding disposal of land, as has been held in case titled "Ghulam Rasool and another v. Said Ahmed and others" 2012 CLC 1655. The relevant observation has been recorded in para No. 10 of the report as under:- "The third condition is that if at all, the acquired property is not required for the public purpose or for the purpose for which it is acquired, the same shall be resumed and restored to the original owners or their heirs from whom, it was acquired and if there is no such eventuality, the land shall be utilized or disposed of by Board of Revenue, in accordance with the policy of Government regarding disposal of the land. The contention of the petitioner that as the land is not being used for the purpose for which the same was acquired hence, the land should be restored to the original owners is devoid of any force because the law is well settled that there is no prohibition for the government to utilize the acquired land for any purpose other than the purpose for which the same was acquired. This proposition has been considered by the Supreme Court of Pakistan in case titled "Province of Punjab through Collector Lahore and others v. Saeed Ahmed 4 others" (PLD 1993 SC 455), wherein, in Para No. 12 of the report it was observed as under:-- "The above statement is contrary to the above averment in the written statements made in para

4. Additionally, no material was brought on record to indicate that there was factually any sanctioned scheme for which the suit land was to be utilized. Sh. Abdul Majid, learned counsel for the appellants, has also submitted that there is no prohibition in law for the Government to utilize the acquired land for any public purpose for which the same is acquired. Reliance has been placed by him on the case of Secretary of State v. Amulya Charan Banerjee and others (AIR 1927 Calcutta 874). There seems to be no prohibition in law for the Government to utilize land for any other purpose than for which originally it was intended, so long as the action is bona fide." The contention of the learned counsel for the petitioners that Prime Minister has passed the order for de-notification of award No.19/98, hence, respondents are duty bound to implement the order of the Prime Minister in letter and spirit, has also no substance in it in the circumstances of this case. The similar proposition came under the consideration of the apex Court in case titled "Administrator Municipal Committee Kotli and others v. Muhammad Abdullah and 3 others [2001 YLR 3367], wherein, it was observed that notification issued under section 4 of the Land Acquisition Act can only be canceled by notification as contemplated by section 21 of the General Clause Act, 1897 and mere order on an application is not sufficient to stop the acquisition proceedings. The relevant observation has been recorded in para No.7 as under: - "From the survey of the case law, referred to above, we have reached the conclusion that the respondent who alleged the mala fides on the part of appellants failed not only to allege the same specifically but also failed to prove the same. Thus the notification issued by the Collector Land Acquisition under section 4 of the Land Acquisition Act couldn't be cancelled by the Prime Minister by passing an order on the application of respondent that the land may be defendant-awarded. In a case reported as Government of Punjab v. Sikandar Khan and others [PLD 1987 Peshawar 68] it was observed that in acquisition cases notification issued under section 4 of the Land Acquisition Act could be cancelled only by a notification as contemplated by section 21 of the General Clauses Act, 1897. Thus, the mere order on the application submitted by the respondent to Prime Minister that the land may be de-awarded is not sufficient in the eye of law to stop the acquisition proceedings initiated by the Collector Land acquisition." In case titled "Sajida Maqsood v. Azad Govt. and others" [2012 YLR 1713] the apex Court while relying upon 2001 YLR 3367 supra, it was observed that mere order passed by the Prime Minister for de-awarding the land on sample application cannot carry the weight of Govt. order/notification. It was further observed that notification issued by Collector Land Acquisition cannot be cancelled by Prime Minister by passing order on the application that the land may be de-awarded. In view of the case law referred to hereinabove, it has become clear that the land acquired for public purpose can be used for other public purpose by the Government and order of the Prime Minister mere on the application for de-notification of the award issued by the Collector Land Acquisition does not carry the weight of Govt. notification/ order until it is cancelled by notification as contemplated by Section 21 of the General Clauses Act, 1897. Before parting with the case it may be stated that an application on behalf of Muhammad Shafiat Gellani and others for impleading them in line of the petitioners and another application on behalf of School Management Committee for impleading them in line of the respondents have been filed. No orders for their impleadment have been passed, however, the applicants have been heard under Rule 37 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984. The land in dispute has been acquired for public purpose and is useable as playground for the students, therefore, no writ can be issued for de-notify the same land. As per report of the commission the petitioners are in possession of the same land, therefore, the Collector Land Acquisition Hattian Bala shall take possession of the land and hand over the same to the school authorities. The petition stands disposed of in the manners indicated above. ZC/21/HC(AJ&K) Order accordingly.