1980 PLP 1900 (CLC)

After the order of the Tribunal, the vendees sent a registered notice on 24-3-1979 repeating their request for exemption but no reply, statedly, has been sent to them. In Writ Petition No. 2363/79, the vendees therefore, have prayed that "necessary writ or order be issued to the respondent that he should act according to law and exempt the two plots of 10 marlas each for the petitioners to which the petitioners are entitled as of right."

7. The Authority, in Writ Petition No. 6774179 has assailed the order of the Tribunal dated 6-7-1979 to the extent that it could not recognize the vendees' right as "owner" so as to entitle them to apply for exemption. Learned counsel however has, and quite fairly so, conceded that the authority has no objection if the cash compensation for the disputed land is paid to the vendees as even the vendor had not objected to it.

8. The only question, therefore, that calls for decision in both these petitions is as to whether under the circumstances, the vendees are entitled to the exemption of developed plot in their favour in lieu of the compensation payable to them.

9. Learned counsel for the vendees argued that as embodied in section 26 of the Lahore Development Authority Act, 1975, the provisions of sections 4 to 20 (wrongly printed in P L D 1975 Punjab Statutes 212 as sub. section 4 of section 20) of the Punjab Acquisition of Land (Housing) Act, 1973 with all necessary adaptations, mutatis mutandis, have become part of the Lahore Development Authority Act,

105. Section 11 of the Punjab Acquisition of Land (Housing) Act, provides that compensation can be paid in the form of . . . . . . developed sites. Proviso to this section embodies that a "land owner" whose land acquired does not exceed 8 kanals. has the right to opt to select the form of compensation. The vendees having been found entitled to receive full compensation, are entitled as of right to ask for the exemption of a developed plot in lieu of the compensation payable to them for the disputed land. It was emphasised that as provided in section 48 of the Lahore Development Authority Act, 1975, after the Town Improvement Act, ceases to apply in the area on the promulgation of this Act, all rules, regulations and orders made, notifications issued, 'and acquired, schemes prepared or executed . . . . . . . . . . . . . . . . . . . . . .shall so far as they are consistent with the provisions of this Act, continue in force and be deemed to have been made, imposed, levied, entered into, instituted, prepared, executed, accrued or incurred, under this Act. The vendees therefore, as of right could ask for the exemption of the developed plot in lieu of the compensation for the land acquired. Such a right could not .be denied on the plea, such as that the application for exemption was not made in time. The Act not having prescribed the limitation within which this option could be mode, the: authority is not empowered to prescribe time limit by executive letters. In any case, the vendees having got their right to receive compensation established by order of the President Lahore Development Authority (Tribunal dated 6-7-1979) could apply for the exemption of the plot in their favour, thereafter.

10. Learned counsel for the Authority, on the other hand, argue.: that the award having been issued under the Land Acquisition Act, the vendee-, could not ask for the exemption of the plot in their favour as of right. Section 11 of the Punjab Acquisition of Land (Housing) Act, does not apply to the cases in which the land had been acquired under thq Land Acquisition Act. In such cases only a "land owner" could apply for exemption as provided in the policy decision of the Authority dated 3-8-1975 which was made to apply in the execution of the second phase vide approval letter of the Government dated ?-7-1976. The vendees on the basis of the sale agreement in their favour, may be awarded cash compen sation as "persons interested" but could not ask for exemption of the plots ors the basis of the policy decision, The term "persons interested" used in section 3(b) of the Land Acquisition Act, is not interchangeable with the word "land owner" used therein.

11. I have considered the lengthy arguments addressed by both sides; perused the provisions of various relevant statutes referred to during the arguments and have gone through the case-law cited. 1ht host question to be examined in the case is whether the vendees became owner of the land in dispute on the basis of the two documents relied upon by them, i.e. agreement of sale dated 27.-121974 and the sale-deed as registered on 10-8-1977.

12. Word "owner" is not defined in the Land Acquisition Act or any other collateral Statutes such as the Punjab Acquisition of Land (Housing) Act, 1973, 'Town Improvement Act, 1922 or the Lahore, Development Authority Act, 1975. Learned counsel for the vendees relying on the dictionary meaning of the word "owner" attempted to argue that it also means an occupier. I am afraid this meaning of the word "owner" cannot he accepted universally. An owner may also be an occupier but every occupier cannot be said to be owner in the legal sense of the word. Roman Law crakes a clear-cut distinction between dominium and possessio, much clearer than is the case in English Law. The Greek took a relative view similar to English Law

he was owner who could prove a bitter right to possession than any one else. (Vinogradoff, Historical Jurisprudence, ii 198). Modern Jurists have tried to define full rights of an owner thus (a) the power of enjoyment (eg. the determination of the use to which the res is to be put, the power to deal with produce as he pleases, the power to destroy); (b) possession which includes the right to exclude others ; (c) power to alienate inter vivos, or to charge as security; (a`) power to leave the res by will. (A Text-Book of Jurisprudence, Second Edition by G. W. Paton). In this sense of the word a person who enters upon the land in pursuance of a contract of sale is not an owner as he does not possess power alienate.

13. Sale of Immovable Property is defined in section 54 of the Transfer of Property Act. In the case of tangible immovable property of the value of one hundred rupees or upward it can be made only by a registered instrument. Contract of sale is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. The vendees, therefore, relying simply on the agreement dated 27-12-1974 cannot claim themselves to be the owners of the site in dispute. Learned counsel for the vendees when confronted with this, pleaded the doctrine of part performance. Reference was made to section 53-A of the Transfer of Property Act. He, also, referred me to the finding of the Tribunal that possession of the land was delivered to the vendees by the vendor in furtherance of the contract of sale. Under section 53-A, if a person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which' the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property . .. . . . . . . and is willing to perform his part of the contract, then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any rights in respect of the property of which the transferee has taken or continued in possession . . . . . . . . . . . . . . This section, too, is of no avail to the vendees. Section 16 of the Land Acquisition Act embodies: "When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest .. . . free from all encumbrances. " It therefore, follows that when the Government takes possession of the land under the Land Acquisition Act, it takes it as its absolute property free from all encumbrances or in other words the vesting of the Government operates to divest the property from all encumbrances. The word encumbrance is sufficiently wide so as to include a right in land created under section 53-A of the 'Transfer of Property Act, in favour of the vendees in possession. The ordinary dictionary meaning of the word `encumbrance' means "that which encumbers or hinders a legal claim on an estate." In Managing Committee George High School v. Abdul Karim Khan (A I R 1935 All. 895), the word encumbrance with reference to customary rights was interpreted thus "The word `encumbrance' is sufficiently wide to cover a customary right; for if rights of way and other customary rights are not destroyed by acquisition, it would often be impossible for the Govern Government to acquire and use land in such way as might be necessary." I have therefore, no doubt in my mind that the vendees, in the instant case, cannot claim any benefit of section 55-A of the Transfer of Property Act.

14. The authority does not dispute the right of the petitioners to receive money compensation and therefore, this aspect does not detain me any more. Even otherwise there is abundant case-law that a person who has entered into an -agreement for the purchase of land is person interested within clause (b) of section 3 of the Land Acquisition Act. Where the owner of' he land, intended to be acquired agreed to convey the same to before any notice of intention to acquire issued and A alone (as in the instant case the vendors did not question the vendees right to get full compensation) appeared before the Collector to contest in pursuance of a notice served on him among others; held A was entitled to ask for a reference and to appear in support of it. Ref. J. C. Galstaun v. Secretary of State for India-in-Council (10 C W N 195). Cases have also been referred in the order of the Tribunal dated 6-7-1978.

15. Learned counsel for the vendees attempted to argue that vendees' right to receive money compensation being not in dispute and the land involved being less than eight kanals, they can as of right select the form of payment of compensation. Reference, as already noticed, was made to section 11 of the Punjab Acquisition of Land (Housing) Act, 1973. Sub section (1) of this section embodies that the payment of compensation may be made in the form of cash, bonds, debentures, annuities over a g period not exceeding 20 years or in the form of developed sites or in a combination of such forms in such manner as may be prescribed. Proviso to subsection (1) then enacts :- "Provided further that a landowner whose total land acquired does not exceed eight kanals shall have the option to select the form of payment of compensation." In elaborating this argument, learned counsel contended that the word "land owner" should be interpreted to include a person entitled to receive full compensation.

16. The argument raised in its first impression was quite alluring. A closer examination however, of the provision of the Punjab Acquisition of Land (Housing) Act, 1973, would show that section 11 cannot be attracted to the acquisitions completed under Land Acquisition Act. Subsection (3) of section 48 of the Lahore Development Authority Act, 1975, was substituted by Act VI of 1976. It reads thus :- "(3) Notwithstanding the repeal of the Lahore Water and Sewerage Authority Act, 1975 and fact of the Town Improvement Act, 1922, ceasing to apply to the Area- (i) All rules, regulations and orders made, notifications issued, land acquired, schemes prepared or executed, rates and fees imposed, penalties or other charges levied, contracts entered into, suits instituted by or against Lahore Water and Sewerage Authority or the Lahore Improvement Trust or any other right accrued, or liability incurred or action taken, or proceedings initiated, shall so far as they are consistent with the provisions of this Act continue in force and be deemed to have been made,, imposed, levied; entered into, instituted prepared, executed or incurred, taken and initiated under this Act; (ii) the provisions of sections 45, 56, 57, 58, 59, 60, 61, 62, 63, 64 and 65 of the Town Improvement Act, 1922, shall continue to apply in so far as the acquisitions made under the Land Acquisition Act, 1894, are concerned and shall be deemed to have always applied." It is thus obvious that by virtue of the addition of clause (u) to sub section (3) of section 48 of the Lahore Development Authority Act, 1975, the acquisition proceedings initiated under the Land Acquisition Act, are to be completed under that Act or the Town Improvement Act, 1922. Section 11 of the Punjab Acquisition of Land (Housing) Act, 1973, therefore; cannot be applied to the proceeding initiated under the Land Acquisition Act. Under the Land Acquisition Act, there is no concept of the allotment of developed sites in lieu of the' compensation awarded.

17. In the circumstances, the vendees could be granted exemption in lieu of the compensation if their case was covered by the policy letter dated 3-8-1976. Under this policy letter, exemption of plots can be made only to the "owners of the land". I have already taken the view that the vendees in the case cannot be treated as owners of the sites in dispute. Therefore, their case is not covered by the policy hater dated 3-8-1976. The vendees accordingly, cannot be granted the relief prayed for. Writ Petition No. 2363/19 fails and is dismissed as such. Writ Petition No. 6774/79 succeeds to the extent that the vendees on the basis of the decision of the Tribunal dated 6-7-1979, cannot claim exemption of the plot as of right. It is however, made clear that they are entitled to receive cash compensation in terms of this order of the Tribunal.

18. There will be no order as to costs. M. A. K. Order accordingly.