1994 PLP 1471 (CLC)

MUNIR A. SHAIKH, J.‑‑‑This appeal is directed against judgment and decree dated 16‑2‑1993 by which the suit filed by the appellants for recovery of vacant possession of property in dispute and Rs.9,59,88,94435 has been dismissed.

2. The facts of the case are that the land in dispute bearing Khasra Nos. 210, 211, 212 and 334 measuring 21.05 Kanals situated at Kot Kamboh commonly known as Bakkar Mandi (Cattle Market), Lahore is owned by the appellants. Through a notification issued in 1973 this land was. acquired temporarily for establishment of Bakkar Mandi and possession taken over by the respondents. In the year 1979 at the instance of respondent No. 1 Municipal Corporation i.e. the Acquiring Department a notification under section 4 of Land Acquisition Act, 1894 was issued for the permanent acquisition of this land for the same purpose. It appears that before the request of Municipal Corporation by the Commissioner was accepted for acquisition of this land permanently, the Municipal Corporation was directed to deposit the probably price of the land with him which was 'deposited by the respondent after which the said notification was issued. No further steps were taken in pursuance of the said notification to complete the process of acquisition i.e. no notifications under sections 5, 5‑A, 9, 16 and 17 as also section 9 of Land Acquisition Act, were issued. No award was given by the Collector regarding compensation to be paid to. the appellants. The respondent‑Corporation continued to be in possession of the land. The appellants filed suit for the recovery of possession of the same as also the mesne profits to the tune of Rs.9,59,88,944.35 which was contested by the respondents on various grounds.

3. The controversy arising from the pleadings of the parties was reflected in the following issues framed by the trial Court:‑‑ (1) Whether the plaintiff has no cause of action and locus standi to bring the suit? OPD (2) Whether the plaintiff is estopped by his word and conduct to bring this suit? OPD (3) Whether this Court lacks jurisdiction to try this suit? OPD (4) Whether the suit is bad for misjoinder of causes of action? OPD (5) Whether the suit is premature? OPD (6) Whether the plaintiff is entitled to recover Rs.9,59,88,944.35 alongwith interest? OPP (6‑A) Whether the plaintiffs are entitk.d to possession of the suit property?. OPP (7) Relief. After recording evidence it was held under issue No. 1 that the appellants had cause of action and locus standi to bring the suit, as the plaint reflected the same. Issue No. 2 was answered in favour of the respondent on the ground that it was established on record that the Municipal Corporation deposited the price of the land after approval of Member, Board of Revenue the correctness of which was not questioned in the cross‑examination, as such, the appellants were estopped from filing the suit. Under issue No. 3 it was held that the property stood acquired vide notification (Exh. P.3) and since no prayer had been made for release of the property, therefore, the Civil Court lacked jurisdiction as the remedy of the appellants was to get dispute regarding measurements of land as also its price settled through reference to the Court. Issue No. 4 was answered in favour of the plaintiff. It was held that the suit was not bad for misjoinder of cause of action. Issue No. 5 was also answered against the defendant and it was held that the suit was not premature. Under issue No. 6 it was held that since the respondent had deposited the price of the land with the approval of Board of Revenue the appellants are at liberty to receive the same and they could not claim any compensation for the use of the land by the respondent during all the period for which they remained in possession thereof. Under issue No. 6‑A it was held that in view of the findings on issue No. 6 the appellants were not entitled to recover possession of the land which stood acquired permanently. As a consequence of these findings the suit was dismissed through judgment dated 16‑2‑1993 which has been assailed in this appeal.

4. Learned counsel for the respondent during arguments placed on record a fresh notification issued under section 4 of the Land Acquisition Act on 8‑8‑1993 for acquisition of the same land.

5. No evidence was produced on record that after issuance of initial notification under section 4 of the Land Acquisition Act, any declaration was made as required under section 6 of the said Act and any notice was issued as required by section 9 thereof and the Collector made any award determining the compensation to be awarded to the appellants i.e. the owners of the land and that the possession was taken over thereafter under section 16 of the said Act, as such, the trial Court acted on absolutely erroneous assumption as by mere issuance of notification under section 4 of the Act, the process of acquisition of land permanently had been completed and the appellants were .divested of their rights of ownership in the land and the respondent for whom the land was acquired had become its owner and could retain the possession thereof, as such. Since the Collector did not deliver any award regarding compensation to be paid to the owner, therefore, there was no question of making any reference through the Collector to the Civil Court at the instance of the owner of the land, as such, the view taken by the trial Court that the jurisdiction of the Civil Court in the matter was barred has no merits. The deposit of any amount by the respondent with the Commissioner before issuance of notification under section 4 of th e Land Acquisition Act, could not in any manner be considered to be the compensation determined under the said Act for payment to the owner of the land which as observed above was to be determined by the Collector through an award. The said deposit also did not detract from the ownership rights of the appellants regarding the land in dispute.

6. Under section 16 of the Land Acquisition Act, the ownership of the land was to vest in the respondent only after the possession of the same had been formally taken over after the announcement of the award by the Collector or if the possession of the same had been formally taken over under section 17 of the said Act. Since neither any award was delivered by the Collector nor possession of the land formally was taken over either under section 16 or 17 of the said Act, therefore, notification under section 4 did not have the effect of extinguishment of the ownership rights of the appellants nor did it have the effect of creating rights in favour of the respondent nor a right to possess the same, as such, the appellants had a right to maintain the suit for the recovery of the possession of the land so long as he was the owner and also to claim compensation for use and occupation of the 'same till such time the possession of the same was taken over formally as observed above under the said provisions of the Act.

7. Issuance of fresh notification on 8‑8‑1993 under section 4 of the Land Acquisition Act, itself is an admission on the part of the respondent that the previous notification had lapsed because no further steps were taken under the Act for acquisition of the land.

8. For the foregoing reasons the findings recorded by the trial Court against the abovementioned issues against the appellants are not sustainable, the same are reversed and the said issues are decided in favour of the appellants. The upshot of the above discussion is that the appeal is accepted with costs throughout, judgment and decree dated 16‑2‑1993 passed by the trial Court is set aside and the suit remanded for decision on merits on issues Nos. 6 and 6‑A. A.A./Q‑22/L Case remanded