2006 PLP 188 (SCMR)

KARAMAT NAZIR BHANDARI, J.

The relevant facts as culled from the voluminous record are that the respondent herein was the owner of land measuring 335 Kanals, 19 Marlas in Mauza Jajja Kalan, Tehsil Pattoki, District Kasur; out of which about 38 Kanals was utilized by the officials of the Irrigation Department of the Province of Punjab for constructing a Bund to protect the lands of the then Chief Minister of Punjab and his relatives without formally acquiring the land and without permission from the owner. The respondent challenged the appropriation of his property in Constitutional Petition No.4243 of 1996 in the Lahore High Court. This petition was accepted on 8-5-1997. The judgment of the Lahore High Court was challenged by the Province of Punjab in Civil Petition for Leave to Appeal No.854-L of 1997 in this Court. The leave was refused and petition was dismissed on 5-8-1998. The direction given by the High Court for compensating the respondent by granting alternative land was also approved. In the events that followed the Province as well as its officials failed to comply with the direction of the High Court as approved by this Court. This led the respondent to file a contempt application (Criminal Original No. 1488/W of 2002) in the Lahore High Court. The contempt petition seems to have been vehemently opposed mainly on the ground of some opinion of the Law Department dated 9-4-2004. The High Court declared the opinion of the Law Department as without lawful authority and again directed the Province/its officials "to hand over possession of land measuring 200 Kanals in village Bhoniki Tehsil Pattoki, District Kasur in lieu of the land of the petitioner..." It was directed that this would be done within one month of receiving the judgment. It was further directed that the compliance report shall be submitted to the High Court through its Deputy Registrar, (Judicial). This time it is the District Officer Revenue, Kasur who feels aggrieved and has filed this petition for leave to appeal against the judgment of the High Court, dated 9-4-2004.

2. It is relevant to note that on 19-8-2005 this Court directed the caveator-respondent "to file the concise statement highlighting as to how in lieu of property owned by respondent measuring 38 Kanals he has been given property measuring about 200 Kanals. He would specifically mention about the value of the property taken by the Irrigation Department for the purpose of construction of the Bund and give the previous and present value of the property which now has been given to the respondent".

3. In compliance thereof respondent has placed on record the concise statement. On 11-11-2005, when this petition came up for hearing, we also directed the personal appearance of the Member Colonies or Secretary Colonies Department, District Officer Revenue, Kasur and Tehsildar Pattoki. Member Colonies has also placed on record a summary of facts which includes the comparative value of land utilized and the land allotted.

4. We have heard the learned counsel for the parties and the learned Member, Board of Revenue who was assisted by the Revenue officials of the concerned area.

5. Admittedly, the land of the respondent was utilized without recourse to lawful procedure. This act was not only illegal but highly immoral and reprehensible since the Province/State and its functionaries are supposed to protect the life, liberty and the property of citizen rather than forcibly using it for the benefit of the man in power. The petition filed by the petitioner to question the legality of take over was allowed by the Lahore High Court on 8-5-1997 on the statement of the then Advocate-General, with direction to the Punjab Government to allot 25 acres of agricultural land to the respondent. The judgment dated 8-5-1997 of the Lahore High Court was upheld by this Court when C.P. No.854/L of 1997 filed by the Punjab Government was dismissed. For almost five years the petitioner and other functionaries of the Province dragged their feet and did not implement the direction of the Court. Respondent was compelled to file contempt application in the Lahore High Court on 9-6-2004. Instead of punishing the delinquent officials the High Court considered it expedient to once again direct such officials to implement the direction within one month of receipt of judgment. It is regrettable that once again they did not comply with the directions and instead filed the present petition for leave to appeal. This Court took notice of non-compliance on 10-8-2005 and it was on 15-8-2005 that (sensing the mood of the Court`?) the Chief Secretary of the Province appeared and stated that "the compact piece of 25 acres agricultural land is being mutated and handed over to respondent today". The matter was adjourned to 19-8-2005. We are informed that consequent to the undertaking of the Chief Secretary the land measuring 200 Kanals has been mutated in favour of respondent in village Rakh Bhoniki Ottar Tehsil Pattoki, District Kasur and its possession delivered.

6. It is clear that not only the petitioner but all the concerned officials of the Punjab Government have been guilty of the non-compliance of not only the judgment and direction of the High Court dated 8-5-1997 but even of this Court since the said order of the High Court has been upheld by this Court. Even the initiation of contempt proceedings did not spur the officials to do that which they were legally bound to do. In its wisdom the High Court did not take the penal action and instead gave these officials another opportunity to comply with the direction. The officials were still not moved and they chose to challenge the direction of the High Court by filing the present petition for leave to appeal. It is crystal clear that had this Court not shown its displeasure, the petitioner and other officials had no intention to implement the direction of the High Court. It only reflects an extremely unsatisfactory state of affairs.

7. Vide order, dated 19-8-2005 this Court directed the respondent to justify the allotment of 200 Kanals as against 38 Kanals approximately utilized for the purpose of raising the spur. The respondent has filed the reply. He has explained that the land now given to the respondent in Rakh Bhoniki Tehsil Pattoki, District Kasur is uncultivated and part of abandoned watercourse which is much below the ground level. It is claimed that the lease amount of this suit-land per acre is about Rs.92/60. As against that the land of the respondent forcibly appropriated was a kino garden and its lease value at the relevant time was between Rs.6500 to Rs.7500 per acre. In addition the respondent has requested the Court to keep in view the following facts as well for determining the justness or otherwise of the transfer of land: "(i) Whole land remained in illegal possession of Government functionaries while constructing `Bund'. (ii) The Bund was constructed in the middle of the garden and in this process garden was uprooted and fertile surface of land was dug and used to raise the Bund. The net result was that one part was rendered sandy, unfertile and full of pits and uneven. It was rendered uncultivable while the land on other side of Bund became part of river bed besides suffering from damages pointed in respect of the other part. (iii) Loss of income for 10 years. (iv) Compensation of garden. (v) Compensation for illegal occupation. (vi) Compensation for removal of earth and damage to remaining land. (vii) In case of acquisition, besides compensation on above counts under section 23, the award was to 15% as compulsory acquisition charges and interest at the rate of 8% under section 28 of Land Acquisition Act."

8. The Member, Board of Revenue on the other hand has put the value of used land at Rs.17,72,020 and that of the allotted land at Rs.59,92,

227. The learned Member, however, has not indicated the basis of arriving at the comparative value of the land. Considering all the material and circumstances we are inclined to hold that respondent cannot be said to have enriched himself at the cost of the public interest. Even if it could be said that respondent has taken little more' than what he deserved, it is the officials who have to take the blame for this. They have committed not only an illegal, inequitable and immoral but a criminal act in forcibly utilizing the land of the respondent in order to please the Chief Minister and his relatives. Respondent is to be compensated not only for the land actually taken but for the long suffering and agony for about a decade. We hold that no further action in pursuance to the order of this Court, dated 19-8-2005 is required to be taken, as we are satisfied with the explanation of the respondent.

9. For what has been stated above this petition is devoid of merit and is dismissed. Leave is refused.

10. Before parting we cannot but record our displeasure over the conduct of the concerned officials involved in the episode. If we are not directing penal action against them, it is with the hope that in future orders of Courts will be shown due respect and duly complied with.

11. We direct that the copy of this judgment will be sent to the Chief Minister and the Governor of the Province of Punjab. M.B.A./D-27/S??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.