1990 PLP 807 (MLD)

Under section 27(1), for the purpose of considering any objection or representation received in connection with the scheme, a hearing in person or through a representative of the objector is to be given by the Trust and, consequently, the Trust will either abandon the scheme or apply to Government for sanctioning the scheme with such modifications as the Trust may deem necessary to make. In this process, under subsection (2) of section 27 every application submitted in this regard received under section 23 or representation from the Local Body under section 24 shall be sent, alongwith the scheme and a list of names of objectors under clause (b) of subsection (2) of section 25 to the proposed acquisition of their property and the statement and the reasons given for such objections. Under subsection (3) of section 27, the Trust is imperatively required to cause notice of this fact to the public for two consecutive weeks in the official Gazette and in newspapers. After this process is over, under section 29 of the Ordinance, Government shall notify the sanction of every such scheme and such notification shall be conclusive evidence that the scheme has been duly framed and sanctioned. Section 43 of the Ordinance mentions a schedule wherein, for the purpose of compulsory acquisition of land by the Trust, the Land Acquisition Act, 1894 has been suitably amended: Under section 46, however, while Government, by notification, is to declare any area for the purposes enumerated in section 151 the Trust may apply to the Collector, who after giving such reasonable notice to the owners‑occupiers to deliver the possession of any land in the area to the Trust. Section 45 of the Ordinance envisages setting up of a Tribunal to perform the function of the Court in reference to the acquisition of land for the Trust under Land Acquisition Act and Tribunal is to give award which shall be deemed to be an award of the Court. Under section 46 right of appeal to the High Court is conferred on the aggrieved person and is deemed to be an appeal under the Code of Civil Procedure.

3. On factual premises, it appears that the Trust, in order to develop the area, decided to prepare a Master Plan of Thandiani. Before launching the plan, however, they deemed it advisable to invite claims from the persons claiming any interest in the property situated in Thandiani. In this behalf they advertised the matter in a vernacular Newspaper "Daily Mashriq" sometime in 1977 which contemplated that failure of making such claim shall be presumed that there is no such claimant and the Trust would carry out the scheme.

4. It transpires that the petitioner Mrs. Sheela Joseph could not come across this advertisement and did not participate therein. However, it was sometimes in 1981 that in the matters of payment of yearly ground‑rent for the premises and house known as Ingle Wood, in Thandiani, the petitioner tried, as before, to pay the same; that a question of ownership of the premises arose and finally came the impugned Notice No. HT/IT‑534/855/1982, dated 17‑4‑1982 (Annexure `L') from the Chairman Hazara Hill Tract Improvement Trust to the petitioner, as well as two other claimants, whereby she was informed that if failed to produce any legal proof of her title of the lease of the land, as claimed by her in Thandiani "it has been decided in the High Level Meeting held under the Chairmanship of Governor of N.‑W.F.P. that the land may be resumed without farther notice by the Trust". She was also directed "to produce cogent documentary proof of the ownership of the superstructure within 15 days of the receipt of the notice so that she may be allowed to remove the superstructure from the Trust land, failing which it shall be considered to be the property of the Government". She was also warned that "the Trust will take possession of the premises, if no documentary evidence is given before the expiry of the notice". It is this notice which gave a cause of action to the petitioner and by this writ petition she has impugned the same and has sought a declaration that the said action of respondent No.1 be declared as illegal without lawful authority and of no legal effect on her rights.

5. We have heard Abdullah Jan Mirza, Adv, cafe learned counsel for the petitioner and Ghulam Mustafa Advocate learned counsel for respondent No.1 as also Mohammad Aslam Khan learned Assistant Advocate‑General for respondents 2 to 4 at length and also perused the record placed on the file.

6. The case of the petitioner is that the land premises known as Ingle Wood, as per Forest Manual Annexure 'A', prepared soon after the demarcation of the Forest Reserves, during first regular Settlement of erstwhile Hazard District in 1872, formed part of Thandiani. The building with land attached thereto had been transferred from time to time till it fell into the hands of one Dr. Dick Snow, who by virtue of transfer became a perpetual lessee of the land covered by the building of Ingle Wood and appurtenant thereto. The husband of the petitioner Dr. Paul Joseph came into contact with Dr. Dick Snow in Bahrain sometime in 1958 and through his attorney one Mr. Donial, Dr.Dick Snow transferred the rights in the premises to the petitioner which was duly approved by the then Commissioner Peshawar vide his No. 46446/XXI‑J‑8‑IG dated 10‑6?1959 (Annexure B) and consequently was mutated in the name of the petitioner in the register of mutations of Thandiani Hill Location, Hazara on 3‑7‑1959 (Annexure C). Since then, she has been in peaceful possession and enjoyment of the said property without interruption and objection from any quarter whatsoever. It is also averred in the petition that a sum of Rs. 234/62 had fallen into arrears on account of ground rent in respect of the area of building afore?named which was demanded by the Deputy Commissioner Hazard vide his letter No.1216‑LF/7027 dated 27‑5‑1974 (Anmexure `D') and was paid by the petitioner vide Treasury Challan No. 25 dated 26‑8‑1974 (Annexure `E').

7. According. to the petitioner, later, when she attempted to deposit the Annual Ground Rent with the Deputy Commissioner, Hazard, she was informed that the entire record pertaining to Thandiani Hill Tract had been handed over to Hazara Hill Tract Improvement Trust and that when tendered, the Chairman of the Trust, respondent No.1 declined to accept the same initially but accepted the payment of Rs. 78/18 vide their receipt dated 3‑3‑1980 (Annexure I) sent by the letter No. HT/IT/Thandiani/385 dated 3‑5‑1980 (Annexure `H').

8. It is further stated by the petitioner that, apparently, the Trust decided to launch a Scheme for Township in Thandiani and demarcated some area for the purpose falling within their campus and included the premises Ingle Wood. It was almost contemperaneous when respondent No.1 refused to accept the ground rent from the petitioner amounting to Rs. 130/30 vide their letter No./HT/IT/PLOT/Thandiani/4270/1981 dated 27‑12‑1981 (Annexure `J') on the ground that the Trust has referred the cases of Thandiani to Law Department for taking legal advice. A lot of correspondence seems to have taken place in between, which, however, culminated into the impugned notice bearing No. HT/IT/534/855/1982 dated 17‑4‑1982 (Annexure `L') whereby she was informed of the decision arrived at in a High Level Meeting held on 3‑3‑1982 chaired by the Governor N.‑W.F.P. to resume the land without further notice by the Trust and asking her again to produce documentary evidence of her ownership within 15 days of the receipt thereof failing which even the superstructure will be considered to be the property of the Government and the Trust will take possession thereof.

9. It is thus contended on behalf of the petitioner that in the fore‑going background of legal and factual aspects of the case, the impugned order of respondent No.1 dated 17‑4‑1982 is liable to be struck down inter alia on the ground:‑‑ (i) That the petitioner, as successor‑in‑interest of Dr. Dick Snow, is holding the right of perpetual lessee of the land premises and a transferee by sale of the building covering the land and appurtenant thereto by virtue of mutation Annexure `C' on the strength of the memo, issued by the Commissioner Peshawar Division dated 3‑7‑1959 (Annexure B'); and (ii) that the notice issued by respondent No.1 to the petitioner dated 17‑4‑1982, besides being arbitrary and mala fide, is illegal, without any lawful authority and of no legal effect on the rights of the petitioner for the reasons; (a) that the Trust has no authority whatsoever to resume the land in question save in accordance with the provisions of the Ordinance; (b) that neither the High Level Committee chaired by the Governor figures anywhere in the Scheme of the Ordinance nor does its decision to resume the property is sustainable in law, and (c) that the Trust is vested with no power to resume the super‑structure belonging to and owned by the petitioner under any provision of the Ordinance.

10. As against this the learned counsel for the respondent No.1 submitted that the petitioner could not specifically prove her rights either in the land premises of the property known as Ingle Wood or in the superstructure thereon inasmuch as all the documents she has relied upon are either the private correspondence or copies of the so‑called official record which cannot be relied upon without proof according to law. He further contended that a scheme of the proposed Thandiani Town has already been prepared and due notice was given to all the persons interested by way of advertisement in the media obviously in compliance of section 23 of the Ordinance. According to him it was in response to this advertisement that the petitioner put up her claim but miserably failed to establish it. According to the learned counsel for the respondent the petitioner having failed to establish any right or interest of her's in the disputed property, cannot be held as an aggrieved person within the meaning of Article 199 and as such this writ petition suffers from incompetency and the only remedy for the petitioner was to file a civil suit. As a last resort, the learned counsel submitted that, even if she is presumed to be the lessee of the land‑premises known as Ingle Wood, under section 106 of the Transfer of Property Act, the leases are either one yearly or month to month basis and even without service of the impugned notice, it stands terminated.

11. We have given our serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.

12. Let it be stated at this stage that no doubt there are available comments of respondent No.1 on the petition, though in the same routine bureaucratic manner as is the usual practice, but there is not filed by or on behalf of respondent No.1, any written statement, after the admission of the writ petition to full hearing, in accordance with the provisions of Order VIII CPC; supported with a counter‑affidavit as to controvert or, strictly speaking, to deny specifically what is averred in the writ petition particularly on the factual aspect of the case including the petitioner's rights and interest in the property in question. Although we have no intention to give any finding on the authenticity or otherwise of the documents annexed to the writ petition and relied upon by the petitioner, yet we cannot help proceeding in the matter before us, on the assumption that the petition contains and is, based prima facie, upon a correct narration of facts.

13. Therefore, from the documents appended with the petition, or added thereto later on, irrespective of the question of their admissibility in evidence or lacking the requisite proof thereof; after having gone through them, we are of the opinion that the petitioner's interest in the property in question is not so ill?-founded as respondent No.1 treated it. In this context of the matter, we are clear in our minds that the petitioner is an aggrieved person and as such can invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution and accordingly this petition does not suffer from any incompetency.

14. The basic question, however, in the matter before us is not as to whether there is sufficient proof to hold the petitioner as the lessee of the land‑premises or/and owner of the superstructure covering the same but, as contended by the learned counsel for the petitioner, whether the impugned notice No.HT/IT/ 534/855/1982 dated 17‑4‑1982 issued to the petitioner by respondent No.1 has any legal basis and if not so, with what effect.

15. While examining this aspect of the case, we have to find out as to under what provision of the Ordinance, the Trust is authorised to resume the land, or where does this High Level Committee figure in the scheme of the Ordinance and, wherefrom its decision, as contained in the impugned notice, receives the sanction of law, or conversely speaking, for the purpose of resumption of land, is there some mechanism provided in the Ordinance itself whereby; (i) a scheme is initially framed; (ii) it is approved by way of publishing it in Gazette notification as also in a Newspaper for the information of the public at large every week for consecutive three weeks inviting objections thereon; (iii) a notice is served on owners/occupiers of the immovable property inviting objections, if any, therefrom; or (iv) after giving due hearing to the objectors, abandon the scheme or forward it to the Government for approval and to accord sanction with such modification as may be deemed necessary and when doing so the Trust shall cause it to public for two consecutive weeks in the official Gazette as also in the Newspapers; (v) and, last but foremostly, there is complete and comprehensive procedure prescribed for the acquisition of such land, or building covering the same, in lieu of compensation assessed by the Land Acquisition Collector with a right of appeal against his award to the High Court.

16. It is now established proposition that in doing of an act under a law, its performance shall be strictly in accordance with the manner as prescribed by the law and in no way else. It is also well‑settled that all such laws as are likely to deprive a citizen from his/her right/interest in property shall be construed strictly.

17. We regretfully observe, that the learned counsel for respondent could not point out even a single provision of the Ordinance which vested in the Trust such power of assumption of land itself or mode of exercising the same, as is adopted by it in the instant case vide the impugned notice.

18. This being so, we are constrained to find that instead of adopting all the legal measures provided in, and available to respondent No.1 under the very Ordinance of which the Trust itself is the creature, such executive and administrative measures in the form of impugned notice have been resorted to as are not founded on any legal basis and finding the same violative of the meticulously detailed procedure prescribed by the Ordinance, the same cannot be sustained.

19. We are, therefore, of the considered opinion that is only after a scheme is framed and notified in the official Gazette and after undergoing all the stages of receiving and deciding the objections raised thereto and receiving the approval of the Government that the Trust is empowered to take over the land or superstructure standing thereon in accordance with the detailed mechanism D provided in the Ordinance itself relating to the acquisition proceedings and compensating suitably the persons who could establish their claims before the competent forum. The petitioner shall not be an exception to this process or procedure and respondent No.1 shall be at liberty, if so advised, to follow this lawful course, in respect of property called Ingle Wood, as and when the need arises.

20. Viewed the matter in the perspective of the foregoing discussion, we have no hesitation in declaring the impugned notice dated 17‑4‑1982 of respondent No.1 issued to the petitioner as without lawful authority and of no legal effect on the rights and interest of the petitioner in the land‑premises known as Ingle Wood, Thandiani as also the superstructure thereon. 20‑A.?? Resultantly this writ petition is allowed, the impugned notice is struck down and the declaration sought for is hereby granted. The respondent No‑1 shall pay Rs. 1,000 (one thousand) as special cost to the petitioner. M.BA./959/P ????????????????????????????????????????????????????????????????????????????????????? Petition allowed.