P L D 1967 Lahore 452 (PLP)

It was in October, 1956, that the petitioner firm was put in possession of the land after payment of Rs. 10,367‑8‑0 towards its advance price, in token of its acceptance of the terms and conditions on which possession was delivered to the petitioner. The letter executed a so‑called agreement in Urdu (Annexure B) through its Director Muhammad Faruq, on 7th of May, 1957, undertaking to vacate the land without claiming any compen sation in case the requisite sanction of the Central Government was not forthcoming.

3. It would be pertinent to mention at this stage that since the petitioner obtained the possession of the land in question it constructed a boundary wall around it, and started construction of the building. It was still incomplete when on 29th November, 1956, it was stayed by an order passed by the Deputy Rehabilita tion Commissioner (Lands) Multan and a part of the land which was lying vacant measuring 48 Kanals, 17 Marlas was in turn allotted to Amir Hamza respondent No. 2, by the Assistant Rehabilitation Commissioner (Lands) vide his order dated the 20th February, 1959. Feeling aggrieved the petitioner filed an appeal before the Deputy Rehabilitation Commissioner. In the meantime the petitioner's case was referred on their application to a scrutiny committee appointed by General Muhammad Azam Khan, the then Rehabilitation Minister, to report, as to whether the new factory owners including the petitioner had grabbed evacuee area in excess of their actual requirements. It was contended by the petitioner, who the appellant before the Deputy Rehabilitation Commissioner that the report of the scrutiny committee was not in their favour, and that the entire area of 60 Kanals 10 Marlas given to them in the first instance was considered to be just enough for their requirements and not in excess of it. The learned Deputy Rehabilitation Commissioner while accepting the petitioner's appeal vide his order dated the 14th of May; 1960, directed "that khasra Nos. 1692, 1693, 1700, 1705, to 1744, 1755 and 1757 to 1759, involved in appeal should not be allotted to any body (whether respondents or other claimants) till the final decision of the acquisition case". It appears that the acquisition proceedings did not make any head way except occasional exchange of communications on the subject between the Rehabilitation. Department, department of industries and the Deputy Commissioner, Multan. In fact, it never materialized and just ended in smoke, as no notification was ever published under section 4 of the Land Acquisition Act of 1894. In the meantime, the petitioner bad installed some oil expellers and some machinery. It may be re‑called that the Collector had to assess the rough estimate of the price of the entire land measuring 63 Kanals 16 Marlas, handed over to the petitioner in the first instance to be worked out on the basis of the quinquennial average sale price subject to adjustment at the time of ultimate award by the Collector in terms of the Rehabilitation Commissioner's letter Annexure `A' to which reference has already been made in an earlier part of the judg ment. The Deputy Commissioner vide his letter dated the 27th of December, 1960, addressed to the Commissioner, Multan Division Annexure 'D', while considering the requirements of the petitioner that the concern really needed 63 Kanals, 16 Marlas of land. As regards the assessment of the price it was observed as follows: "In this case although no notification under section 4 of the Land Acquisition Act; 1894 was issued, yet the possession of the evacuee land in question was delivered to, the. Concern in the year, 1956. As a matter pf fact the average sale price should have to be determined on the basis of five years average sale price counted backward from the date of possession. This average sale price comes to Rs. 1,300 P. A. as already reported by this office vide memorandum No. 1622/LAC, dated 6‑8‑60. (2) The relevant acquisition file is forwarded herewith for favour of onward transmission to the Secretary (Urban) to the Chief Settlement and Rehabilitation Commissioner as desired by him."

4. It is pertinent to mention that this time two important developments which have a direct bearing on the case had taken place. Firstly, the Provincial Government vide Notification No. R‑5‑1/60(1462) dated the 8th of June, 1960 had acquired under section 4 of the Displaced Persons (Lands Settlement) Act, all agricultural evacuee lands on behalf of the Central Govern ment and the lands so acquired formed a part of the compen sation pool under section 5 of the same Act. Secondly in March, 1960, the land in question had been included within the Municipal Limits of Multan, and as such, its price shot up. The acquisition of all agricultural evacuee land by the Government had the effect of putting a stop once for all to the acquisition proceedings in hand, which had thus reached a blind alley. From henceforth, it was the Chief Settlement Commissioner who could transfer or dispose of the land by sale through auction or otherwise under section 12 (b) of the Land Settlement Act. Even the availability of the alternative remedy of moving the Central Government to accord ex-post facto sanction under section 25 (2) (s) of the Pakistan Administration of Evacuee Property Act, 1957 had become doubtful. It was in these circumstances that ultimately the Chief Settlement Commissioner notified to the petitioner vide his impugned order (Annexure 'E'), his agreement to sell three acres of the evacuee land in possession of the petitioner at the rate of Rs. 36,424‑9‑6 per acre which was the correct market value assessed by the Commissioner on the basis of last five years sales as against Rs. 1300 per Kanal recommended by the Collector. As stated earlier a petition for review of this order was also rejected vide Annexure `F' giving rise to the present writ petition.

5. It was contended by the learned counsel for the petitioner: (i) "That the Chief Settlement Commissioner was not com petent to curtail the area after the scrutiny committee appointed by General Muhammad Azam Khan, the then Rehabilitation Minister had supported the petitioner's claim to the entire area of 63 Kanals 16 Marlas taking into considera tion the petitioner's requirement after the inspection of spot, (ii) that the price demanded at Rs. 36,424‑9‑6 was not justified as it had to be determined on the basis of the quinquennial average sale‑ price dating back from 5th of September, 1956 i.e. the date on which the possession was delivered to the petitioner, and that it was on this basis that the assessment of Rs. 1,300 per acre was recommended by the Collector in the first instance, (iii) that the Chief Settlement Commissioner had assessed the price in an arbitrary manner behind the back of the peti tioner and without giving it a hearing, (iv) that prior to the enforcement of the Land Settlement Act of 1958, the character of the land had already been changed, and it was no longer an agricultural evacuee land to be treated under that Act, (v) lastly, that the allotment of land was made to the petitioner under the Pakistan Rehabilitation Act of 1956,' and that the case of the petitioner, who was a local firm was covered by Part 111, Para. 13(2) of the schedule to the Dis placed Persons (Compensation and Rehabilitation) Act, 1958, for the purposes of disposal of applications under the heading building sites'.

6. As against this, the position taken up by Major Ishaq Muhammad, the representative of the department was that the property was agricultural evacuee property and it could only be acquired by the provincial Government "with and only with the previous permission of the Central Government under section '16(3) (b) of the Pakistan Administration of Evacuee Property Act X11 of 1957", and since no permission of the Central Government has been taken all proceedings taken by the Industries Department in anticipation of the Central Gov ernment had no legal basis and was a nullity in the eye of law, and that even otherwise, the department of Industries had made it abundantly clear to the petitioner that in case the Central Government's permission were not forthcoming ail con structions raised by the petitioner and expenditure incurred would be at his own risk and he shall have to vacate the premises without claiming any compensation. It was next argued that the position was entirely changed when on 8th June, 1960, all agricultural evacuee lands including the land in question was acquired by the Provincial Government on behalf ' of the Central Government under section 4 of the Displaced Person's (Land Settlement) Act of 1958, which put a stop to all acquisition proceedings as the land in question formed a part of the compensation pool it could be disposed of by the Chief Settle ment Commissioner under section 12(6) of the Act, who hence forth was the sole arbiter in such matter. It was argued that in this view of the matter any reference to Part III, Para. 13(2) to the Schedule of the Displaced Persons (Compensation and Rehabilitation) Act would be irrelevant as the pool envisaged by section 3 of that Act related to the acquisition of the evacuee property, other than the agricultural land. In the alter native, it was argued that assuming that the Displaced Persons (Compensation and Rehabilitation) Act, did apply to the acqui sition in the instant case, the petitioner never applied under Settlement Scheme VI which laid down a procedure for doing so on a prescribed application form to be submitted before a certain date. Lastly, it was argued that it being a case of sale under section 12(6) of the Land Acquisition Act, as distinguish able from a case under the Land Acquisition Act or one under section 16(3) (b) of the Administration of Evacuee Property Act, the Chief Settlement Commissioner could in his discretion decline to sell the land in favour of the petitioner or agree to sell it or may be prepared to sell it on a price of his own choice, the petitioner having no vested rights to purchase the same. Furthermore, the impugned order was an executive order passed by him in his administrative capacity and not in the course of quasi judicial proceedings.

7. The position taken up by Amir Hamza respondent No. 2, who was not impleaded by the petitioner in the first instance, but was allowed to be impleaded as a respondent on an application made by him, was that when the Deputy Reha bilitation Commissioner (Lands), Multan had while accepting the petitioner's appeal vide his order dated 14th May, 1960, can celled his allotment he bad successfully challenged his order in revision in the Court of Khan Saeed‑ud‑Din Khan, Additional Rehabilitation Commissioner, Multan, who accepted the revision petition vide his order dated the 5th June, 1962 (Annexure R/?), restoring to him his entire allotment minus eight kanals, which was allowed to be retained by the petitioner‑firm, who never challenged this order which had attained finality for all purposes. It was next argued that that revisional order of Khan Saeed-ud‑Din Khan, to which the petitioner was also a party had not been challenged even in the present writ petition. On the legal aspect of the case, the learned counsel for Amir Hamza respondent No. 1 fully supported the position taken up by Major Muhammad Ishaq by stating that it was a case of sale by the department, and that the impugned order was an executive order passed by the Chief Settlement Commissioner, in his administrative capacity under the Land Settlement Act, which governed the case, and the petitioner, having no vested right to purchase the property no infringement could be alleged calling for the interference of this Court in its writ jurisdic tion.

8. The position of respondent No. 2 seems to be unassail able for the reason that his allotment was restored by Khan Saeed‑ud‑Din Khan, Additional Settlement Commissioner, vide his order dated 5th June, 1962 to the extent of 40 odd kanals in a revisional order passed in the presence of the parties. This order was never challenged by the petitioner, and as such attained finality. No grievance of the same has even been made in the present writ petition and to that extent the petition should straightaway fail.

9. The next point that falls to be determined is the correct nature or character of the land in question or to put it otherwise whether this land which at the time of partition was admittedly a piece of agricultural evacuee land is to be dealt with as such or has to be treated differently in view of the fact that an industrial unit has been set up on a part of the same. This would determine as to whether it is to be governed by the provisions of the Land Settlement Act or those of Displaced Persons (Compensation and Rehabilitation) Act. The answer is not far to seek. It is not disputed that at the time of partition, it was an agricultural evacuee land. It is claimed by respondent No. 2, and admitted by the petitioner that the portion allotted to the former is even today cultivated by him through his tenants and is assessed to land revenue. Its character is thus even today predominantly agricultural, although in fact it is the nature of the land at the time of partition which would be relevant for the purposes of disposal as was l8 held in Syed Shaukat Hussain Rizvi v. Khan Bahadur Doctor Yar Muhammad Khan (P L D 1964 Lah. 469). From this, it would be clear that for the purposes of allotment to claimants, the case was to be governed by para. 29 of the Rehabilitation Settlement Scheme in accord ance with the entries of the special Jamabandi. For the Pur poses of the acquisition for the setting up of industrial units, the Rehabilitation Commissioner could allot or deliver the property to locals only after the sanction of the Central Gov ernment had been obtained. That having not been done, the land could only be disposed of by the Chief Settlement Commissioner under section 12 after it had been acquired under section 4 of the Displaced Persons (Land Settlement) Act, when the Rehabilitation Commissioner ceased to have any jurisdiction in the matter, and had become functus officio. In this case, as perhaps in several other cases, what happened is that with a view to give a fillip to industrialization, particularly to fill the gap created by the migration of the Hindu Industria lists, the department of Industries, started sponsoring schemes of prospective investors and initiated proceedings of acquisi tion of lands for them in anticipation of the sanction of the Central Government. The same mistake seems to have been made here by the Rehabilitation Department who for similar reasons delivered possession in anticipation of the Central Government's approval though accepting no responsibility for the same, as would be clear from Annexure `A', page

57. It is this innocent and innocuous irregularity which has created all the complications in this case. It may; however, be pointed out that the industries department held out no false hopes to the petitioner, and on the contrary made the position abundantly clear to him, that its sympathetic attitude may not be so con strued as to amount to a definite commitment or acceptance of an obligation. The petitioner made the investment purely at his own risk. In this view of the matter, since the com mitments made by the Rehabilitation Commissioner for the acquisition of the property were contingent upon the Central Government's approval, which was never accorded, these had no legal basic and consequently no legal right vested in the petitioner whose infringement might be alleged, by him. It may appear to be a case of hardship but the petitioner should have been alive to this possible risk however remote. They took the risk and have now to suffer the consequences. There is no gain saying the fact that it is no longer a question of acquisition of property but one of sale which the Chief Settlement Commissioner is competent to enter into having un fettered discretion to, negotiate on terms of his choice.

10. It was argued by the learned counsel for the petitioner that since the two different functionaries, namely, the Rehabilitation Commissioner and the Chief Settlement Commissioner created under two different statutes have been combined in one person and the Chief Settlement Commissioner is also the Rehabilitation Commissioner, as such, it did not behove the Government to play jekyll and Hyde with its own citizens by taking shelter behind mere technicalities particularly when the whole scheme of acquisition fell through on account of redtapism for which the petitioner was not to blame. . Be that as it may, having already given by finding on the correct legal position, such considera tions are outside the scope of the legal Issue involved whose determination is the sole concern of this Court which is entrusted with the functions of dispensation of justice according to law. Even if it may be considered a case of hardship, to the petitioner, this Court is, unable to help him, as he is on the wrong side of the law. I am definitely of the view that the petitioner had no vested right and as such there is no illegality in the impugned orders passed by the Chief Settlement Commissioner, refusing to part with more than three acres of lands or demand a price of Rs. 36, 424‑9‑6 per acre.

11. The matter could also be considered from yet another point of view leading, however, to the same conclusion. The grievance of the petitioner is two‑fold, firstly; that respondent No. 1 offered to sell him only three acres of land against his demand and requirement for about eight acres. Secondly, that in respect of the three acres. so offered, the price assessed is excessive and exhorbitant. The question of actual require ment of the petitioner and the reasonable price to be assessed are undoubtedly disputed questions of fact which it has not been the policy of this Court to determine by embarking on fresh investigation and for these reasons also the petitioner is on a weak wicket.

12. For the foregoing reasons, I see no merit in this peti tion which is dismissed. The parties are, however, left to bear their own costs. K. M. A. Petition dismissed.