P L D 1961 (W (PLP)

SHABIR AHMAD, J.--‑The West Pakistan Provincial 'government issued notifications under the land Acquisition Act for acquisition of land for the purpose of building `D' type quarters in an area known as Rahmanpura near Ichhra, a suburb of Lahore. The first of these notifications was issued on the 28th‑of May 1956, as notification No. 2363‑UDD‑36/2986, dated the 28th of May, 1956, which appeared at pages 592 and 593 of Part III of the West Pakistan Government Gazette. The second notification was issued on the 15th of August 1956 and appeared in the Gazette of West Pakistan, Part III, dated the 24th of August 1956, at page 827 as notification No. 4690‑URD‑56/5658, while, the third one No. 8257‑URD‑56/9127. was issued on the 13th of November 1956 and appeared in the Gazette of West Pakistan, Part III, dated the 16th of November 1956, .at page 1182. As the land, which was intended to be acquired, consisted partly of evacuee property, which could not be acquired without the sanction of the Central Government of Pakistan because of the provisions of clause (b) of subsection (2) of section 16 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), the Provincial Government applied for that sanction which was conveyed by means of letter No. F. 16 {102)/57‑P. 11, dated the 21st of December 1957, sent by the officer on special duty in the Central Ministry of Rehabilita tion to the Secretary of the West Pakistan Rehabilitation Depart ment. The contents of this letter were as follows :‑ "Subject:‑Acquisition of evacuee land for construction of C and D type quarters in Rahmanpura and Sodhiwal, Lahore. "With reference to your letter No. R‑6/45‑47-6539‑1 R, dated the 13th September 1957, I am directed to say that in exercise of the powers conferred by section 16 (3) (b) of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII, of 1957), the Central Government are pleased to accord approval to the acquisition by the Government of West Pakistan under the provisions of Land Acquisition Act, 1894,, as modified and amended by Town Improvement Acts, 1922 and 1952, of evacuee land measuring 70 acres and 48.15 acres as per details shown in the attached schedule situated in village Ichhra, Nawakot and Pakki, District Lahore, for Rahmanpura Colony Scheme and Sodhiwal Quarters Scheme respectively on the condition that fair compensation in accordance with the principles laid down in the said Act will be assessed in consultation with the Custo dian of Evacuee Property, Lahore, and paid to that officer for credit to the evacuee owners' account and that the displaced persons if any, settled thereon will be provided‑ with alternative land.." It appears that the construction of the quarters started soon after the last of three abovementioned notifications and before the sanction of the Central Government was given on the 21st of December 1957. When all the `D' type quarters which the Provincial Government wanted to build had finished, the Provin cial Government found that some of the land which had been acquired for the purposes of building quarters remained unutilised, whereupon some of the land, which was formerly evacuee property, was given to some of the local inhabitants whose land had been acquired. Upon this writ petition No. 352 was brought by Iqbal Din seeking the ‑issue of a writ so that the evacuee land which he claimed had been allotted to him in lieu of the property left by him in Jullunder, which is now a part of East Punjab, should remain in his possession. It was said in the petition, inter alias that the action of the Provincial Government in compensating the local inhabitants whose land had been acquired for the pur poses of building `D' type quarters in Rahmanpura by giving them evacuee land which had been acquired but had remained unutiliaed for the purpose for which it purported to have been acquired was against law and, therefore, an appropriate writ should issue so that the petitioner may not be deprived of the la‑d allotted to him which he claimed was still in his possession. Ill his petition Iqbal Din impleaded the West Pakistan Government and the Collector of the Lahore District as the only respondents. Subsequently, however, an application was made by some of the local inhabitants of Lahore to whom some of the evacuee land had been given as compensation for the land acquired from them or to whom it was, intended to give the land, for being impleaded as parties and 'as their interests were likely to be affected if the decision of the writ petition were to be, in favour of Iqbal Din petitioner, the application was granted.

2. Two other writ petitions, which sought substantially the same relief which was sought in Writ Petition No. 352 of 1959, were also presented These Writ Petitions were Nos. 377 of 1959 and .591 of 1959 in the former of which the petitioners .were Allah Bakhsh and some others and in the latter Mirza Muhammad Hussain Beg and some others. In both these petitions also local inhabitants, who were likely to be‑ affected in the event of the order being in favour of the persons who had put in the writ petitions, applied to be impleaded as parties and their applications being accepted they were impleaded as respondents in the petitions, Both these petitions were directed to be heard with Writ Petition No. 352 of, 1959. Some time later, Mst. Zarian Begum presented Writ Petition No. 306 of 1960 against the Collector, Lahore, in which she alleged that a piece of land, measuring 13 marlas‑and 50 square feet, which she had bought from one Salah‑ud‑Din in 1943, had been acquired by the Provincial Government for the purpose of constructing `D' type quarters in Rahmanpura and that though she had been deprived of her land long ago, she had not been granted compensation to which she was entitled on account of the acquisition of the property. Her prayer was that a writ should be issued so that she may be given compensation; for the land of which she had been deprived, either in cash or by giving her some other land. As some questions that were likely to arise in this Writ Petition were the same as arose in Writ Petition No. 352 of 1959 and Writ Petitions. Nos. 377 and 391 of 1959, Writ Petition No. 306 of 1960 was directed to be heard along with those writ petitions. This order will govern all the four petitions.

3. The facts are not in dispute in Writ Petitions Nos. 352, 377 and 391 of 1959 because all the material allegations of fact in these writ petitions were either accepted as correct or their correctness was not denied in the replies put in on behalf of the respondents. In Writ Petition No. 306 of 1960, it was pleaded by the Collector, Lahore, the sole respondent in that writ petition, that proceedings with regard to the fixation of the amount pay able as compensation to the private owners whose land had been acquired had. been completed and Mst. Zarina Bagum would soon be given the amount to which she was entitled. One of the main differences between the petitioners in the first three petitions and the respondents in those petitions was with regard to the powers of the Provincial Government to give away the surplus left out of land acquired by it for the purpose of building `D' type quarters as compensation to those of the local inhabitants of Lahore whose land had been acquired for that purpose. Arguments on the questions which arose in writ petitions. Nos. 352, 377 and 391 of 1959 were addressed by Mr. A. S; Salam, Advocate, who appeared for the petitioners in Writ Petition No. 391 of,1959. and the learned counsel who represented the petitioners in Writ Petitions Nos. 352 and 377 of 1959 adopted these arguments.

4. The first contention of Mr. A. S. Salam, Advocate, was that when any property was acquired by the Government under the provisions of the Land Acquisition Act that property could be put only to the purpose for which it had been stated to have been acquired and to no other purpose and that if any property remained unut;lised, it had to go to the persons from whom it had been acquired, and that person had to return the compensation paid to him at the time of the acquisition. Learned counsel could not point to any provision in the Land Acquisition Act which would support his above mentioned contention but relied on general principles and on some decisions of the Courts in England. With regard to the decisions of Courts in England., which were JA relied upon by Mr. A. S. Salam, I need only say that as the law under which those decisions were given is materially different from that contained in the Land Acquisition Act, these decisions can have little, if any, bearing The arguments addressed by Mr. A. S. Salam on the basis of general principles were something to this effect : Property acquired under the provisions of the Land Acquisition Act was taken by Government by holding out a representation that it was required for a particular purpose, and it was, therefore, the bounden duty of Government to put the property to that use and to no other, and if the property were put to some other use, it could be said that the Provincial Government had committed a fraud on the statute and as no fraud, much less a fraud on a statute could be countenanced by law, the result had to be that property which remained unutilised for the purpose for which the Government had purported to make the acquisition, must be returned to its original owners if they wanted to take it. That this argument is specious can hardly be doubted, but the mere fact that .tt has that merit, does not necessarily make it sound in law. The rights of Government in the property acquired under the Land Acquisition Act are specified in that Act and I am clearly of the view that if that Act or any other binding provision of law does not contemplate the results which Mr. A. S. Salam would have the Court hold to be unavoidable, the contention of the learned counsel cannot meet with success.

5. Subsection (3) of section 6 of the Land Acquisition Act makes it clear that the assertion of G3verammt that land was required for a public purpose was conclusive with regard to the necessity and the Courts could not enter on the determination of the question whether the purpose which was stated to exist was such as to 'deserve the title "public purpose". Section 16 and subsection (t) of section 17 of the Land Acquisition Act are some of the other provisions of Law which require consideration for determining the soundness or otherwise of the contention raised by Mr. A. S. Salam. They run as follows: "

16. When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the State, free from all encumbrances. 17. (1) In cases of urgency,' whenever the Provincial Govern ment so directs, Collector, though no such award has been made, may, on the expiration of fifteen days from the publi cation of the notice mentioned in section 9, subsection (1), take possession of any waste or, arable land needed for public purposes or for a company. Such land shall thereupon vest absolutely in the State, free from all encumbrances." Now the above‑reproduced provisions of law, which are binding on parties as well as the Courts, make it clear that the Provincial Government becomes owner of the property which has come to it by means of acquisition effected under the provisions of the Land Acquisition Act, 1894, and gets absolute title in the property which thenceforth vests in the Government free of all encum brances. In the presence of these provisions, it is not possible to hold, in the absence of any other binding provision of law, that the rights of Government in land acquired under the Land Acquisition Act,' 1894, are subject to an unwritten condition that the whole of the property of which the Government has become absolute owner is to be put to the use for which it was sought to be acquired, and the result has to be that if a part of the, acquired property were not put to that purpose because the purpose had been carried out, the person from whom the property was acquired gets the option to get back the property. It may be that if the Government has acquired property by alleging that it was required for a public purpose and no part of the property is put to that purpose, or it can be conclusively proved that the mention of that purpose was H merely a cloak to enable Government to deprive a person of his property, it will be open to Courts to set aside the acquisition, but 1 am clear in my mind that if the public purpose for which any property was acquired did, not actually exist and only some part of the property acquired remained unutilised the provisions of section 16 as those of subsection (1) of section 17 of the Land Acquisition Act will have full application, and the property which was surplus will remain the property of Govern ment and subject to all the rights which any other property of Government is subject to. It need hardly be said that when a person is owner of any property, be that person a natural person like a man, a woman, or a child or a juristic person like a Govern ment, the right to deal with the property in any manner that the owner likes, subject to conditions imposed by law, vests, in the owner and no one else can claim any rights in the property if the owner does not want to part with those rights.

6. The second main contention of Mr. A. S. Salam, Advocate, was based on the provisions of clause (b) of sub section (2) of section 16 of Act XII of 1957. Before dealing with the argument raised. I might mention that the Provincial Government had paid compensation for the evacuee property acquired to the Custodian of Evacuee Property, West Pakistan, as the payment of the compensation had been made a condition precedent by the Central Government in their letter of the 21st of December 1957 whereby the Provincial Government had been allow ed to buy the evacuee land for the purpose of building `D' type quarters in Rehmanpura. The contention of Mr. A. S. Salam was that the action of the Provincial Government erred in two respects. One being that possession of evacuee land had been taken before permission of the Central Government had been received, and the second that that part of the letter of the Central Government wherein it was provided that if any evacuee land intended to be acquired was in possession of a displaced person he shall not be evicted till he had been given alternative accommodation, had not been complied with. Assuming that erection of quarters had started before the Central Government had given their consent for the acquisition of evacuee land, my opinion is that it would not be open to anyone except the Central Government to object that what was done before its sanction had been obtained had no validity, The Central Government not having objected to the building of C quarters before they had granted sanction‑assuming that the building of quarters had begun before the sanction was granted the irregularity, if any, can be deemed to have been condoned and cannot be .used by the petitioners for attacking the rights that vested in the Provincial Government on the acquisition.

7. The second of the contentions of Mr. Salam based on the provisions of section 16 of Act XII of 1957 may now be taken up. He contended that as persons in possession of the evacuee property had not been given alternative accommodation, the orders of the Central Government had not been complied with and there had, in the eye of law, been no, acquisition of evacuee land by the Provincial Government. The assertion that evacuee property had been taken possession of before the sanction of the Central Government was given on the 21st of December 1957, contradicts the assertion in Writ Petitions No. 352, 377 and 391 of 1959 that the petitioners were in possession of the evacuee land that had been alloted to them in lieu of the property claimed to have been left by them in East Punjab, but I will deal with the question as if this manifest contradiction did not exist. It appears to me that section 16 and subsection (1) of section 17 of the Land Acquisi tion Act will come to the aid of the Provincial Government and consequently title in the land would be passed to the Provincial Government when the compensation was deposited with the Custodian of Evacuee Property.

8. I might mention another important circumstance which is not without relevancy. During the hearing the learned Advocates who appeared for the Provincial Government were asked to con tact the relevant authorities so that the petitioners in Writ Petitions Nos. 352, 377 and 391 of 1959 may be granted alternative accom modation, and they agreed to do so. Time was, therefore, granted to the parties and the petitioners were directed to make applications to the Urban Rehabilitation Department, West. Pakistan., for providirg them with alternative accommodation. At the next date of hearing, it was reported by the counsel who appeared for Government that alternative accommodation had been offered butthe petitioners in all the three writ petitions had declined to accept it. The refusal to accept alternative accommodation was not denied by the learned counsel for the petitioners, who, justified the action of their clients by saying that the property which had been offered was much inferior to do which the petitioners were being, called upon to vacate and, therefore, the petitioners had refused to, accept the property offered. Another reason for refusal to accept the land offered was stated to be that by so doing the petitioners would have deprived themselves of the right to get the land in dispute under the provisions of the Displaced Persons (Land Settlement) Act (XLVII of 1958). It is not necessary to determine whether the petitioners would have had a right to get the land in dispute under the provisions of that Act if it had not been acquired by the Provincial Government, because the land in dispute having become the property of the Provincial Government that Act will have no application to it. It appears to me that the conduct of the petitioners in refusing to accept alternative accommodation would have disentitled them to any writ even if had been held that the other circumstances of the case demanded that it should issue the petitioners conduct themselves in a manner which shows that they had no intention of leaving the land which they claimed to be in their possession, which possession is denied by the respondents, they cannot be allowed to do so especially as that property has vasted in the Provincial Government by reason of the acquisition made by it under the provisions of the Land Acquisi tion Act as applicable to the pieces of land which were the subject of acquisition. For the reasons that I have given above, I hold that the petitioners in Writ Petitions Nos. 352, 377 and 391 of 1959 are not entitled to get any writs issued. These three petitions must, therefore, be dismissed, but in the circumstances that obtain, I would direct that, the parties shall bear their own costs.

9. I will now take up Writ Petition No. 306 of 1960.in which the prayer, as already mentioned, was that Mst. Zarina Bugum, whose property has been acquired for the purpose of building `D' type quarters at Rahmanpura, should be given compensation either in the form of land or in the form of money. A Court can not force the Government to compensate a person whose land has' been acquired by giving some other land and, therefore, the prayer of Mst. Zarina Begum that the Collector or the Provincial Govern ment should be directed to give her land in lieu of the land taken away from her cannot be accepted. With regard to the second of her prayers, however I am of the view that the issuance of a writ is justified. The learned counsel who appeared for the respondent in this case said that the compensation proceedings had been completed and Mst. Zarina Begum would be given the amount that she found entitled on her making an application in that behalf to the Collector. If this assertion is correct, then the issue of a writ in favour of Mst. Zarina Begum cannot adversely affect the respondent. The petition of test. Zarina Begum is accepted to the extent indicated above, but the parties are left to bear their own costs.

10. The result, therefore, is that while the parties in all the four writ petitions disposed of by this order are left to bear their own costs, writ petition No. 306 of 1960 is accepted to the extent that writ is granted that compensation for her' land which was acquired by the Provincial Government be given to Mst. Zarina Begum at as early a date as possible; but the other three writ petitions are dismissed in their entirety. SAJJAD AHMAD, J.--‑I agree. A. H