P L D 1977 Lahore 665 (PLP)

3. The learned trial Court framed the following issues ; (1) Whether this Court is not competent to try this suit? (2) Whether section 97 of Improvement Trust Act and section 56 of the Specific Relief Act and section 18 of the Land Acquisition Act bar this suit? (3) Whether the suit is time-barred? (4) Whether the scheme in question being sanctioned by the Government is unassailable? (5) What is the value of the suit for purposes of court-fee and jurisdiction? (6) Whether the acquisition of the disputed property suffers from legal defect and the defendant ca-riot tote possession of the dispute property? (7) Relief.

4. Issues Nos. 1 and 2 were decided against the defendant. The Court was held to have jurisdiction to go into the question whether the acquisition was not in order. Issue No 3 was found against the plaintiffs appellants. It was found that the scheme having bean sanctioned by the Government on the 20th December 1963, the suit as instituted on the 26th September 1964, was barred by six months' limitation under section 98 (3) of the Punjab Town Improvements Act. Similarly, issue No. 4 was also decided in favour of the defendant. In view of the provisions of section 42 which provide that a notification under subsection (1) in respect of any scheme shall be conclusive evidence that the scheme had been duly framed and sanctioned, the valuation of the suit was found to be correct and issue No. 5 was answered accordingly. Issue No. 6 was decided against the plaintiffs-appellants on two grounds Firstly, it was held that they had failed to prove that the acquisition of the property in dispute suffered from any legal defect. Secondly, reliance was placed upon section 42 (2) and a conclusive presumption was drawn in favour of the scheme being infra vires. Having held that in view of the findings the acquisition proceedings were not illegal the learned Judge proceeded to find that in view of this the jurisdiction of the civil Court was barred. But since there was no other forum where the plaint could be presented the plaintiff's suit was dismissed with costs, on the 21st October 1965.

5. The appellants' appeal was dismissed by Mr. Sadiq Ali G. Khoja, Additional District Judge, Multan on the 21st November 1966. The learned Additional District Judge also found the suit to be barred by time and on merits relied upon the conclusive presumption of section 42 (2) of the Act.

6. Hence this appeal.

7. The learned counsel for the appellants argued that section 42 (2) did not apply to a case where the provisions of section 36 or 38 had not been complied with On merits he submitted that the defendant ought to have proved to the satisfaction of the Court that legal provisions were duly satisfied even though the burden of proof of issue No. 6 was not discharged by the appellants since the entire record to prove this was in possession of the respondent. He further argued that the suit was liable to be decreed in favour of the appellants simply on the ground that though submitted within the period of 60 days from the service of the notice under section 38 the scheme was confirmed by the improvement Trust without considering those objections and in fact on a misreading of the record that no objections had been filed. It was also argued though halfheartedly that 'Rehbar-e-Dehat' was not a newspaper at all and as such the publication of the notice under section 36 in it was not compliance of the provisions of that section. On the other hand it was suggested as pleaded in the plaint that a newspaper of a limited sale and limited repute was chosen with a view to keep the appellants in dark about the notice under section

36. Lastly, it was urged that no effect was given to the provisions of section 27 to compensate the appellants by the allotment of property.

8. I agree with the arguments of the learned counsel that if it its proved, that the provisions of sections 36 and 38 were not complied with, no conclusive presumption can be drawn under section 42 (2) in favour of the validity of the scheme. One of the established principles of law is that an act, must be done in the manner provided by the law or not at all. Nazir Ahmad v. King-Emperor A1R1936PC

253. It is also established that if there is any violation of a specific mandatory provision of law, about notice and not merely a violation of the principle of audi alteram pgrtem, the order passed or. action taken is a nullity. Atta Muhammad Qureshi v. The Settlement Commissioner PLD1971 SC61, Mansab Ali v. Amir P L D 1971 S C 124 and Allah Ditta v. Member, Board of Revenue (Consolidation) P L D 1976 Lah.

897. Sections 36 and 38 are mandatory in character and non-compliance with these provisions would render the scheme even if it is sanctioned by the; Government as a nullity. Section 42 makes the sanctioned scheme to bed .conclusive evidence of its having been duly framed and sanctioned but cannon, be treated as providing for a conclusive presumption in favour of a scheme'. which is a nullity. Section 42 provides for a conclusive presumption in favours of something which is not a nullity. In Lahore Improvement Trust v i Custodian of Evacuee Property PLD 1971 S C 811, it was held that: "Under the Schedule to the Town Improvement Act notices under sections 36 and 42 have the same effect as notices under sections 4 and 6 of the Land Acquisition Act, 1894. It is well established that a material defect in a notice issued under either section renders the entire acquisition proceedings illegal." In view of this I agree with the interpretation placed by the learned counsel on the words of subsection (2) of section 42 of the Act. The emphasis of the learned Additional District Judge on this provision was not, therefore, correct. The learned Judge should have considered the evidence also and given a finding on merits.

9. I have gone through the evidence in order to find out whether the appellants had been able to prove issue No. 6 but I find that the burden of this issue was not discharged by them although the onus was, and correctly so, placed upon them. No documentary evidence on this question was produced by the plaintiffs-appellants. In support of the issue, only one witnesses Lal Muhammad, Mukhtar-e-Khas of the appellants appeared as P. W.

2. In examination-in-chief he stated that no notice under section 36 was pasted on the board of the respondent's office nor was it published for three consecutive weeks in the newspaper, nor were its copies sent to the Chairman, Municipal Committee or Health Officer. On receipt of notices under section 38 the appellants filed objections which were sent Dasti as well as by registered post. In cross-examination he stated that he had seen the board of the office of the respondent in April 1962, in the fourth or fifth month of 1963 but had not found the notice. This did not prove that the notice was not posted on 10-2-1962 when it was issued. When he was questioned about the manner he received information about the fact that the .copies were not sent to the Chairman of the Committee or tithe Health ,Officer, he stated that "MUJHE APNI AKAL SAI PATA LAG GIA HAI Clearly, therefore this is no evidence. The appellants should have summoned the respondent's record to discharge this onus but this was not done. The witness could also not prove legally the objections filed by him. He admitted that the appellants .had not obtained certified copies of these objections as Exh. P.

7. He could not prove that it was sent by registered post or that it was the true copy of the objections so sent. On the other hand, according to him Exh. P. 7 was the copy of the copy maintained by the counsel. Clearly this ,is not primary evidence. I am, therefore, in full agreement with the finding of the learned trial Court that the appellants had failed to prove issue No. 6.

10. It was not disputed by the learned counsel also that the appellants) .did not adduce any legal proof of their objections against the scheme. He, however, argued that notwithstanding the onus of issue No. 6 being upon the appellants, the issue should have been proved by the respondent who had all the record in their possession. This argument is without force since it was not necessary for the respondent to produce any evidence unless there was evidence to shift the onus which there was none.

11. In order to establish that objections had been filed by the appellants within 60 days from the service of notice under section 38 of the Act the learned counsel relied upon paragraph No. 4 of the plaint in which it is, stated that on receipt of the notice under section 38 on the 16th April 1962,. the appellants sent their objections by registered post. He then referred to corresponding paragraph of written statement and argued that the allegation, made in the above paragraph about the date when the notices were sent has, not been specifically denied in the written-statement and as such should be taken to have been admitted. Once it is so admitted, he argued, the inference will be clear that the resolution passed on the 6th June 1962 (Exh. P. 13) approving the scheme for sending it to the Government under section 40 of the Act was passed prior to the expiry of 60 days from the date of service of notice and as such the non-compliance with the provisions of section 38 was duly proved. This objection overlooks the language of the corresponding: paragraph of the written-statement by which paragraph No. 4 of the plaint was specifically denied. It was, therefore, necessary for the plaintiffs to prove that any objections were filed within the period of limitation as, required by section

38. I have already held that there is no such proof. On the other hand, it appears from the copy Exh. P. 7 that notice dated l5th June 1962., which means that !f at all it was sent, it was sent after the passing of the resolution. The date in paragraph No. 4 about the date on which the notice was alleged to have been sent is contradicted by, Exh. P. 7.

13. In view of this finding it is unnecessary to consider the question. whether the suit was barred by time. I am, however. of the opinion that this question was rightly decided against the appellants. Section 98 (3) of the, Act provides that: "No action such as is described in subsection (1) shall unless it is an action for the recovery of immovable property or for a declaration of the title thereto, be commenced otherwise than within six months next after the accrual of the cause of action" In order to escape the applicability of this period of limitation the learned counsel argued that the suit envisages declaration of title to the property.. He also relied upon Muhammad Sharif v. Lahore Improvement Trust PLD1971SC

460. The facts of that case are, however, distinguishable. In that case the plaintiff asked for a direction to the Improvement Trust to specifically perform the contract of sale and to do all acts necessary to put him in full possession of the plots in suit. It was, therefore, held that this was not only a suit for specific performance but also a suit for recovery of compensation of the suit: plots on the basis of title flowing from the performance of the contract of sale and as such was governed by the general law of limitation and not by the limitation provided by section 98 (3). In the present case, however, the suit is only to challenge the legality and effectiveness against the appellants of the scheme as sanctioned under section 42 by the Provincial Government. Although on the face of it the suit is not suit for a declaration of title but I would be prepared to stretch it to that extent, if it is proved that by the sanction of the scheme the appellant's title was lost and the property stood vested in the Improvement Trust. But on this point the answer should clearly be ins the negative. There is no specific provision in the Punjab Town Improvement Act mentioning the point of time when actually the title of the property in dispute stands vested in the respondent. Such & provision has been added to the Land Acquisition Act and extended to the Town Improvement Act; Section 16 of the Land Acquisition Act provides that "when the Collector has made an award under section 11, he may take possession of the lands which shall thereupon vest absolutely in the Government, free from au, encumbrances". Under that provision, therefore, the vesting of the land m the Government would be after the possession is taken and not before. Section 59 of the Punjab Town Improvement Act applies to the Land Acquisi tion Act, 1894 subject to the modification enacted in the Schedule. Paragraph No. 6 of the Schedule provides that after section 17 of the Land Acquisition Act the following section 17-A shall be deemed to be inserted : "In every case referred to in section 16 or section 17, the Collector shall.' upon payment of the cost of acquisition, make over charge of the land to the trust ; and the land shall thereupon vest in the trust subject to the liability of the trust to pay any further costs which may be incurred on account of its acquisition." The property, therefore, would vest in the Trust only after its possession is delivered to it. Now in the present case it is admitted that the possession of the area in dispute was taken by the Trust after the dismissal of the appellants' appeal. Clearly, therefore, on the date of filing of the suit the appellants were still vested with this property and no occasion arose for declaration of their title to it.

13. I have considered in this connection the dictum laid down by the Supreme Court in Association Hotels of India Ltd. etc. v. Jodha Mal Kothalia to the effect that once a notice under section 36 of the Punjab Town Improve ment Act was issued that cast a cloud on title. But it was held in Lahore Improvement Trust v. Custodian of Evacuee Property that a notice under section 36 did not create a detect in the title of owners. Its intention is only to notify to the owners of the land that their land is proposed to be included in a scheme and if so advised they may file objections to the proposed scheme. On no account, therefore, can it be said that any need for declaration of title could arise before the taking over of possession by the respondent. The suit cannot, therefore, be considered to be a suit for such declaration and is not, within the exception created by subsection (3) off section

98. The cause of action having arisen on the 20th December 1963, it was clearly barred by time since it was filed more than nine months later.

14. In support of the argument that weekly 'Rehbar-e-Dehat' is not a newspaper, the learned counsel relied upon the meaning of the 'news' as a report of a recent event and 'newspaper' meaning a periodical publication for circulating news. Ha referred to the definition of 'newspaper' in the West Pakistan Press and Publications Ordinance, 1963, as a periodical work for publishing news or comments from published news. Referring to 'Rehbar-e -Dehat' dated the 8th February 1967, the learned counsel argued that it does not publish any news and as such is not a newspaper. This argument is without force for several reasons. Firstly, this point was not taken or urged at any stage. Secondly, the newspaper in which the notice under section 36 was published has not been placed on the record. There is no evidence on the point raised by the learned counsel. Even the issue dated the 8th February 1967, contains certain news. It cannot, therefore, be said that it is a document which does not contain such material or comments on news. This objection is, therefore, repelled.

15. I find no merit in this appeal and dismiss it with costs. S. A. H. Appeal dismissed.