P L D 1993 Supreme Court 455 (PLP)

AJMAL MIAN, J.‑‑The above appeals are with the leave of this Court against a common judgment dated 25‑6‑1990 passed by a learned Single Judge of the Lahore High Court, dismissing appellants' Civil Revisions and affirming the judgments and decrees dated 17‑5‑1989 passed by the learned Additional District Judge, Lahore, in Civil Appeals filed by the appellants against the judgments and decrees dated 9‑9‑1996 (sic) passed by the learned Civil Judge, Ist Class, Lahore, in civil suits filed by the private respondents. Leave to appeal was granted to consider, whether the Courts below were justified in pressing into service Paragraph 100 of the Financial Commissioner's Order No.28, hereinafter referred to as the Order, for decreeing the private respondents' above suits for restoration of the land purchased by the Land Acquisition Collector for the construction of the link road, New Ravi Bridge, Lahore, hereinafter referred to as the road.

2. The brief facts are that the Land Acquisition Collector issued a notification under section 4 of the Land Acquisition Act, 1894, hereinafter referred to as the Act, for acquiring the land specified therein measuring 54 Kanals for the construction of 'the road, which notification was gazetted on 13‑10‑1967. It seems that instead of going through the process of making an award, the Land Acquisition Collector through negotiations, settled the price of the land which was intended to be acquired and purchased the same through the sale deeds executed and registered on various dates commencing from 29th March, 1969. It further seems that after the completion of the construction of the road, 30 Kanals out of the above 54 Kanals, remained unutilized. It appears that the department in terms of Paragraph 100 of the Order, decided to restore the unutilized land to its previous owners upon the refund of the amount calculated by it. It further appears that pursuant to the above decision, the private respondents were issued notice on 4‑1‑1971 under above paragraph 100 of the Order, calling upon them to refund the amounts mentioned in order to get back the land mentioned therein. It was the case of the private respondents that this notice was not served by the department upon them but when they discovered about the above non‑utilization of the land in 1979, they approached the department with the request to accept the refund of the amount. Upon its failure, suits were filed for the following reliefs:‑‑ "It is, therefore, prayed that a decree for a declaration may kindly be passed in favour of the plaintiff and against the defendants to the effect that he is entitled to get back the proprietary rights in the land referred to above on refunding the sale price. A consequential relief may also be granted in the form of an order, directing the defendants to accept the amount received by the plaintiff. The costs be also awarded. "

3. The above suits were resisted by the appellants inasmuch as written statements were filed, in which preliminary objections were raised as to the maintainability of the suits. On merits, it was admitted that in the year 1971, it was decided that the land in dispute was no longer required for the defendants' proposed project, but it was further pleaded that the same was needed for the purpose of extending its project i.e. construction of road. It was also denied that Paragraph 100 of the Order was mandatory and that the land was neither agricultural nor pastoral. It was further pleaded that after the receipt of the notice dated 5‑4‑1971 for the return of the land, the plaintiffs did not approach the defendants. On the basis of pleadings of the parties, the learned trial Court framed the following ten Issues:‑‑ (1)Whether the suit is not maintainable in the present form? OPD. (2)Whether the suit is properly valued for the purposes of court‑fee and jurisdiction? (3) If .not, what is the proper valuation and its effect? OPD. (4)Whether the plaintiff has got no cause of action? OPD. (5) Whether the Court lacks the jurisdiction to adjudicate upon the matter in the case? OPD. (6) Whether the suit has been filed with mala fide intentions. If so, to what effect? OPD. (7) Whether a notice under para. 100 of the Financial Commissioner's Order 28 was issued to the plaintiff and duly served? OPD. (8) Whether the defendants are entitled to compensatory costs in case the suit fails. If so, of what amount? OPD. (9) Whether the plaintiff is entitled to the relief prayed for? OPP. (10) Relief.

4. After recording evidence and hearing the parties, the learned trial Court took up Issues Nos.1 to 3 together and decided the same against the appeflants defendants. Whereas, on Issue No.4 it was held that in view of the finding on Issue No.9, the private respondents/plaintiffs had cause of action to bring the suits. Under Issue No.5, it was held that Court had the jurisdiction. As regards Issues Nos. 6 and 8, it was held that the suits were neither mala fide nor the defendants were entitled to any special costs. Whereas, on Issue No.7 it was held that the defendants failed to prove the service of the notice under Paragraph 100 of the Order upon, the plaintiffs. On Issue No.9, the following finding was recorded:‑‑ 'The learned counsel for the defendants have argued that the sale deed itself shows that the land in dispute was not acquired but it was made by private negotiations. Therefore, it cannot be reverted to the plaintiffs. But this contention does not carry weight because Standing Order No.28 deals with the acquisition of land for public purposes, whether the land be taken up by private negotiations or in accordance with‑the provisions of the Land Acquisition Act, I of 1894." Consequently, the suits were decreed with no order as to costs.

5. There upon, the appellants filed Civil Appeals, which were dismissed with the following observations‑ "In view of the above findings the appeal fails and is dismissed with the observation that the plaintiff i.e. the predecessor‑in‑interest of the present respondents was entitled to get so much of the land in dispute which remains unutilized and which has not been actually used for the purpose for which it was acquired, purchased and returning the aforesaid land to the respondents the appellants are to follow the procedure laid down in the relevant rules. The parties, however, are left to bear their own costs.‑ Against the above appellate judgments/decrees, the appellants filed Civil Revisions before the Lahore High Court, which were also dismissed through the judgment under appeal. After that the appellants filed petitions for leave to appeal, which were granted to consider the above question.

7. In support of the above appeals, Sh. Abdul Majid, learned ASC appearing for the appellants, has vehemently urged as follows:‑‑ (i) That since the land was purchased through private negotiation, Paragraph 100 of the Order was not applicable; (ii) that paragraph 100 of the Order is not applicable when a part of the acquired land remains unutilized; (iii) that even otherwise. under Paragraph 100 of the Order, the Government has the discretion either to restore the land to the original owner or to dispose of the same through auction; and (iv) That the land was neither agricultural nor pastoral and, therefore, Paragraph 100 of the Order was not attracted to. On the other hand, Syed Najmul Hassan Kazmi, learned counsel appearing for the respondents, has contended that once a competent authority has decided under Paragraph 100 of the Order to restore the unutilized land to the original owners and pursuant whereof survey was carried out in order to determine the unutilized area of each of the previous owners and the amounts were calculated, it was not open to the appellants to have acted in deviation of the above decision in the absence of any evidence that the competent authority had rescinded the above decision. It has been further urged by him that no material was brought on record to indicate any such decision or to show that the land would be utilized for any other Scheme duly sanctioned by the competent authority.

8. In order to appreciate the above contentions of the learned counsel for the parties, it may be advantageous to reproduce Paragraph 100 of the Order, which reads as follows:‑‑ "

100. When agricultural or pastoral land ha* been permanently acquired for public purpose by any department of Government and is no longer required for such purpose, the disposal of it shall be guided by the general considerations mentioned in paragraphs 493 to 495 of the Land Administration Manual which are reproduced:‑‑ "

493. Where land in the permanent occupation of any department of the Punjab Government is no longer required it should be handed over to the Deputy Commissioner of the district, who becomes responsible for the disposal of it under the order of the Commissioner. It may not however, be permanently alienated without the previous sanction of Government. There is no legal bar to its being put up to auction. But, as a matter of grace, Government is usually willing to restore agricultural and pastoral land to the persons from whom it acquired it or to their heirs on their refunding the amount paid as compensation less the 15 per cent. granted for compulsory acquisition. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by the use to which Government has put it. The improvement must be one affecting the quality of the land. The fact that land which was unirrigated at the time of acquisition can, when relinquished, be watered by a canal is not an improvement of this sort. Considering how great the rise in the market value of land has been, the terms stated above are very liberal. It is not necessary to adopt them in their entirety where the persons concerned are remote descendants or relations of the original holders. And, where the circumstances of the case are at all out of the common, when, for example, no price, or merely a nominal price, was n the first instance, or when the rise in the value of land in the neighbourhood has been exceptionally large, these facts should be pointed out when referring such cases for orders so that Government may have sufficient material before it to decide whether to offer any special terms of the heirs of the persons from whom that land was acquired. In the case of rendition of land under kassies and abandoned water channels such as those in Multan and Shuiabad canal divisions which came under the possession of the Irrigation Department free of cost, the land should be restored to the original owners or their heirs free of charge.

494. In the case of plots which from their size or shape are practically of no value to any one, but the owners of the adjoining fields, Government will be prepared to consider proposals for giving these owners the option of purchasing at the market value. The mere fact that an outsider is prepared to outbid them should not deter the Deputy Commissioner from recommending to Government the acceptance of any fair offer which they may make.

495. If the heirs of the original owners cannot be traced or if they or the proprietors with a claim on the ground of vicinage decline to accept the terms offered to them by the Deputy Commissioner, the land may be put up to auction or dealt with as may appear advisable under the order of the Commissioner. These orders apply equally to all lands taken up at any time for State purposes, whether by private purchase or compulsory acquisition, under any Act or procedure at any time in force. When a building and site are sold together, the sale should be conducted in consultation with the Deputy Commissioner of the district, though the actual sale may be effected by the Public Works Department (or the departmental officer concerned). In case of all property, whether land or buildings, relinquished from occupation by the railway Department, the property will be sold through the local civil authorities, and in case there be any reason to object to the sale the local officers can do so on receipt of the documents. it will be observed that the principles set forth in the Land Administration Manual apply to agricultural. and pastoral lands only, and not to building sites or town lands." A perusal of the above‑quoted para. indicates that when agricultural or pastoral land has been permanently acquired for public purposes by any department of Government and is no longer required for such purposes, the disposal of the same shall be guided by the general considerations mentioned in paragraphs 493 to 495 of the Land Administration Manual, hereinafter referred to as the Manual. It may further be noticed that paragraph 493 of the Manual has two parts; the first part envisages that the land permanently acquired, which is no longer, required is to be handed over to the Deputy Commissioner of the district for disposal under the orders of the Commissioner, whereas, the second part of it lays down that as a matter of grace, Government is usually willing to restore agricultural and pastoral land to the persons from whom it acquired it or to their heirs on their refunding the amount paid as compensation less 15 per cent. granted for compulsory acquisition. It further provides that the price may be lowered, if necessary, on account of deterioration or enhanced in the rare cases of land having been improved by the use to which Government has put it, and that the above improvement must be one affecting the quality of the land. It also lays down the criterion for determining the question of improvement. Whereas, paragraphs 494 and 495 of the Manual deal with the case of plots which from their size or shape are practically of no value to any one and in case where the heirs of the original owners cannot be traced out etc., respectively. it may further be pointed out that the proviso to the above Paragraph 100 of the Order lays down that the above orders apply equally to all lands taken up at any time for State purposes, whether by private purchase or compulsory acquisition under any Act or procedure at any time in force. It further deals with the question, how to dispose of when a building or site are sold together or when the land or building are relinquished from occupation by the Railways Department.

9. Adverting to the above first submission of Sh. Abdul Majid, learned counsel for the appellants, it will suffice to observe that the answer of the above contention has been provided in the above proviso to Paragraph 100 of the Order, which inter alia lays down that those orders apply equally to all lands taken up at any time for State purposes, whether by private purchase or compulsory acquisition under any Act or procedure at any time in force, as already observed herein above and relied upon by Courts below.

10. As regards the above second submission of the learned counsel for the appellants, it may be observed that it is true that Paragraph 100 of the Order does not specifically refer to the unutilized portion of the land acquired but there is no prohibition provided for applying the principle of above Paragraph 100 of the Order. If the competent authority decides to give the option to the previous owner of the land to have a portion of unutilized acquired land, it will not violate the language or spirit of the above paragraph. On the contrary, it will be equitable and just to give preference to the previous owners as compared to the strangers who may be interested in purchase of the above portion of unutilized land.

11. Reverting to the third submission of the learned counsel, it may be stated that there is no doubt that the Government has the option either to put the land to auction or as a matter of grace, restore the same to the previous owner in terms of paragraph 100 of the Order. It, therefore, must follow that a previous owner cannot compel the Government to restore the unutilized land as a matter of right. However, we may observe that the discretion vested in the Government under the above paragraph is to be exercised fairly and reasonably, and not arbitrarily or capriciously. The present case stands entirely on different footing inasmuch as the competent authority decided to restore the unutilized land to the previous owners, so much so the survey was carried out; the amounts refundable by the previous owners were calculated and the notices were issued under above Paragraph 100 of the Order to the previous owners, though they were not served. The appellants failed to bring on record any material to indicate that the above decision of restoring the unutilized land to the previous owners was rescinded by the competent authority. As pointed out herein above, in the written statement plea taken was that the unutilized land was now required for the purpose of extending its project i.e. construction of road etc., but the appellants' witness D.W.1 Roshan Din, S.D.O. Highways, in his cross‑examination at page 38 of the paper book in Civil Appeal No.1504 of 1990 has stated as follows:‑

12. The above statement is contrary to the above averment in the written statement made in para.4. Additionaly, no material was brought on record to indicate that there was factually any sanctioned Scheme for which the suit land was to be utilized. Sh. Abdul Majid, learned counsel for the appellants, has also submitted that there is no prohibition in law for the Government to utilize the acquired land for any public purpose other than the public purpose for which the same is acquired. Reliance has been placed by him on the case of Secretary of State v. Amulya Charan Banerjee and others (AIR 1927 Calcutta 874). There seems to be no prohibition in law for the Government to utilize land for any other public purpose than for which originally it was intended, so long as the action is bona fide. But in the present case, as pointed out hereinabove, the appellants failed to demonstrate that they in fact needed the suit land for any other Scheme duly approved by the competent authority.

13. This leads us to the last submission of Sh. Abdul Majid, learned counsel for the appellants. In this regard, it will suffice to quote the following portion from the impugned judgment of the High Court:‑‑ "No doubt, they mentioned in the written statement that the land was neither agricultural nor pastoral. However, the revenue‑ record shows that the disputed land was situated in village Fateh Puri, Tehsil and District Lahore and was an agricultural land. In their evidence the respondents had placed copies of the Jamabandis as Exh. PI to Exh.P5 to show that the land was agricultural. A copy of the notice said to have been issued by the Land Acquisition Collector (appellant No.2) to the respondents clearly shows that the appellant treated the land to be agricultural and offered it back on the basis of para. 100 of Standing Order No.28. Moreover, no evidence was led to prove that the land was not agricultural or that the same was situated within the municipal limits." There seems to be no infirmity in the above reasoning of the High Court.

14. The upshot of the above discussion is that the above appeals have no merits and, therefore, they are dismissed. However, there will be no order as to costs. Appeals dismissed. AA./P‑206/S