2001 PLP 767 (CLC)

Syed Muhammad Khurshid Abbas Gardezi's case PLD 1983 SC 151; Abdul Ghani's case PLD 1982 Quetta 63; The Province of Punjab and 2 others v. Zahoor Elahi and 3 others PLD 1981 Lah. 696; Haji Hashmatullah and others v. Karachi Municipal Corporation and others PLD 1971 Kar. 514; Col. Bashir Hussain and others v. Land Acquisition Collector and others PLD 1970 Lah. 320; Mst. Sardar Begum v. Lahore Improvement Trust, Lahore PLD 1972 Lah. 452 arid Mst. Maryam Bibi v. The Lahore Improvement Trust 1973 Law Notes 178 ref. M.. Saeed Ahmad for Petitioners. , Malik Akhtar H. Awan, A.A.‑G. and Mian Muzaffar Hussain for Respondents. Date of hearing: 13th December, 2000. The brief facts out of which the present writ petition arises are that the respondents acquired the land of the petitioners under the provisions of the Punjab Acquisition of Land (Housing) Act, 1973 and rules framed thereunder. The respondents issued notification under section 4 of the aforesaid Act on 18‑11‑1981 which was published in the official Gazette on 27‑5‑1982. Notices were issued to the petitioners. The notification was issued in public notice in Daily Mashtaq, dated 9‑6‑1982. The petitioners being aggrieved filed application before the Director‑General, L.D.A., painted out the alternate land for the said purpose, through their application. The respondents issued the notification under section 13 of the aforesaid Act on 6‑2‑1983. The petitioners being aggrieved filed this writ petition.

2. The learned counsel of the petitioners submits that the land in question is being acquired only for graveyard and not Housing Scheme. The Act of 1973 will not apply. He further submits that provisions of the L.D.A. Act and Acquisition of Land Housing Act, 1973 did not contain any provision of law which authorises respondents to acquire the land of the petitioners to frame any scheme exclusively for, graveyard. He further submits that aforesaid Act was declared ultra vires by the Honourable Supreme Court in Syed Muhammad Khurshid Abbas Gardezi's case PLD 1983 SC

151. He further submits that petitioners did not receive any notice from the respondents under sections 4 and 5 of the aforesaid Act, therefore, action of the respondents is without lawful authority. In support of his contention he relied upon the following judgments:‑‑ Mst. Sardar Begum v. Lahore Improvement Trust PLD 1972 Lah 458 and Abdul Ghani's case PLD 1982 Quetta

63. He further submits that respondents have no authority to issue notification under section 13 of the aforesaid Act without deciding the objections of the petitioners. In support of his contentions he relied upon the following judgments:‑‑ The Province of Punjab and 2 others v. Zahoor Elahi and 3 others PLD 1981 Lah. 696 and Haji Hashmatullah etc. v. Karachi Municipal Corporation etc. PLD 1971 Kar. 514. position to deny this ground reality that the petitioners have constructed the houses over the disputed land.

3. The learned Legal Advisor of the respondents submits that action of the respondents is in accordance with law. The respondents have issued proper notification under the provisions of the aforesaid Act. He further submits that specifically does not mention in the provisions of L.D.A. Act, 1975 and Punjab Acquisition of Land (Housing) Act, 1973 that respondents have authority to frame scheme for graveyard but respondents have authority to frame such type of schemes in public interest in their inherent power.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that parties were directed to maintain status quo vide order, dated 9‑3‑1983. During the pendency of the writ petition tile petitioners had constructed 50 per cent. houses over the land in question. This Court has ample power to look into the subsequent events as per principle laid down by the Division Bench of the Karachi High Court in Nasir Jamal's case 1990 CLC 1069 coupled with the fact that the Act has already declared ultra vires by the Honourable Supreme Court in Syed Muhammad Khurshid Abbas Gardezi's case PLD 1983 SC

151. The learned counsel of the respondents is not in a position to refer to any provision which permits framing of any, scheme exclusively for graveyard under the provisions of aforesaid laws i.e. L.D.A. Act, 1975 and Punjab Acquisition Land (Housing) Act, 1973. The petitioners have taken a specific stand that petitioners were not personally served the notice nor cared to be served particularly under sections 4, 5, 6 and 7 of the Punjab Acquisition of Land (Housing) Act, 1973 read with Rule 3 framed under the Act, which was not specifically denied by the respondents in the report and parawise comments. As regards the fact of non‑service of the statutory notice the law is well‑settled that the omission to serve such a notice renders the proceedings as invalid, more so, in a case relating to compulsory acquisition of property. If any authority is needed reference may be made to Col. Bashir Hussain and others v. Land Acquisition Collector etc. PLD 1970 Lah. 320; Mst. Sardar Begum v. Lahore Improvement Trust Lahore PLD 1972 Lah. 452 and Mst. Maryam Bibi v. The Lahore Improvement Trust 1973 Law Notes

178. In this view of the matter the action of the respondents is without lawful authority and is in violation of the law laid down by the Honourable Supreme Court in Syed Muhammad Khurshid Abbas Gardezi's case. In view of what has been discussed above this writ petition is accepted with no order as to costs. Q.M.H./M.A.K./M‑430/L Petition allowed.