P L D 2004 Lahore 270 (PLP)

The appellant (LDA), had planned to establish a Housing Scheme known as "Jubilee Town", for the purposes of which, the land was needed and thus, for the acquisition of such land, a notification under section 4 of the Land Acquisition Act, 1894 was issued by the L.A.C. on 27‑2‑1988. As per the said notification, inter alia, the land in question measuring 42 Kanals and 16 Marlas was also intended to be acquired. However, before any further step/proceedings could be taken by the L.A.C. the respondent, which is a registered Trust, purchased the aforesaid land i.e. 20 Kanals, 1 Marla and 22 Kanals, 15 Marlas, through two sale‑deeds dated 25‑3‑1998 registered on 31‑3‑1998 from its owners. The sales were also given effect in the Revenue Record on 12-4-1998.

2. Thereafter, the appellant issued the notification under section 17(4) of the Act, 1894 and took over the possession of the acquired land by virtue of the notification under section 16, dated 27‑11‑1998. It may be pertinent to state here that, before the possession could be taken, the respondent Trust had already constructed the boundary wall around the said land and also obtained the sanction of the site plan from the Union Council for the purposes of accomplishing the objects of the Trust, which primarily is for creating and establishing a school for the disabled children. Thus, aggrieved of the aforesaid acquisition, the respondent Trust preferred a Writ Petition No.25263 of 1998, seeking a direction from the Court that, the acquisition is illegal and that the respondent Trust is entitled to be exempted from the acquisition. This petition has been allowed by the learned Single Judge in Chambers vide judgment dated 26‑11‑2001. The reasons, which have primarily prevailed with the learned Single Judge in Chambers are reflected in the following part of the judgment:‑‑ "Therefore, as per prudence as also the law applicable thereto the process of acquisition for a residential colony could not have been completed and should have been stalled for the purpose of God had intervened in the meanwhile. It is common knowledge and even backed by the various provisions of the Land Acquisition Act that acquisition of land could be made for public purpose, but the fact remains that the purpose of God is holier, nobler, greater and higher than the public purpose. Need it be stated here that no public purpose, howhighsoever, could match with the purpose of God." It is further observed that:‑‑ "It is again common knowledge that while acquiring a chunk of land for the purpose of any housing society the Waqf properties such as graveyard, mosque and Imambargah are always adjusted) in the overall layout of a site development scheme and roads are laid in a manner that such places are not interfered with. In spite of this fact that this factual position was reported to the functionaries of the L.D.A. they did not care and proceeded to take possession of the land thus they had interfered in (ﷲﺍﻖﻭﻗﺤ), therefore, the total proceedings of acquisition in regard to the land forming subject‑matter of Trust/Waqf deed are not only illegal but also irreligious. Since the land was dedicated for charitable, religious and pious purpose and was a Waqf property, therefore, the acquisition of the same under the Land Acquisition Act for a housing society or for any other purpose was void and ineffective as regards the land forming subject‑matter of the Waqf." Thus, on the basis of the above and also by relying upon the judgment reported as Sahibzada Mansoor Ahmad v. Chief Administrator, Auqaf and others 1993 MLD 2529, the learned. Single Judge in Chambers, allowed the writ petition and declared that, the acquisition by the L.D.A./L.A.C. of the land belonging to the respondent Trust was illegal and void. Aggrieved of the above, the present appeal has been filed.

3. Learned counsel for the appellants contends that, the establishment of the so‑called trust and purchase of the property by the said Trust for the purposes of establishing a school for the disabled children, is mala fide and colourable in nature, because the owners of the property intended to save their land from being acquired and thus, they chalked out the above device; once the Notification under section 4 of the Land Acquisition Act was issued, no subsequent alienation of the land, intended to be acquired, can validly and legally be made; the possession of the property in question had been taker, over and this has completed the process of acquisition; the .land had absolutely and exclusively vested in the L.D.A., free from all encumbrances, therefore, the learned Single Judge in Chambers, could not legally pass the impugned, judgment nullifying the acquisition and rendering the provisions of section 16 of the Land Acquisition Act, ineffective.

4. We have heard the learned counsel for, the parties, and absolutely agree with the learned Single Judge in Chambers, that the property in question, though forms part of the Trust, but for all intents and purposes, is Waqf property vested in the God Almighty. The L.D.A./L.A.C. under the law, could not acquire the property belonging to Allah. We also agree with the learned Single Judge in Chambers that there could be no better public purpose than the establishment of a charitable school for the disabled children, who are most neglected faction of our society. For their welfare, the respondent trust has undertaken this noble task and a bank certificate issued by the Bolan Bank Limited, Lahore has been placed on the record by the respondent's counsel, envisaging that an amount of more than two Crores rupees has been allocated for this venture. The trustees of the respondent have also given their affidavits not to ever alienate the land in question in any manner whatsoever, and have promised that, it shall always be used for the purpose of said school. In the light of above, the argument of, the appellants' counsel that, the property had been purchased by the Trust with mala‑fide intention and for colourable object, to save the property from being acquired by the L.D.A., has no basis, which is hereby repelled.

5. We are also not impressed by the argument of the learned counsel for the appellants that, after issuance of the notification under section 4, no transfer or alienation of the land intended to be acquired, could validly and legally be made. If any judgment contrary to this contention is required, reference can be made to F.K. Abbasi v. M.I. Malik 1985 CLC 1603 and Administrator, Thal Development v. Muhammada and others 1995 MLD 794.

6. We would like to reiterate that, before the land could finally vest in the LDA, the respondent Trust had been created and the property was purchased by the Trust and had become part of the Waqf, therefore, such Waqf property being already dedicated for pious and charitable, purpose, which vested in God Almighty, could not be acquired and the L.D.A./L.A.C. was bound to exempt/adjust such land. Therefore, irrespective that the sales by the respondent Trust are after the notification under section 4, has no material effect on their validity.

7. Before parting, we may like to mention, that on one of the last dates of hearing, the learned Legal Advisor of the L.D.A., has expressed his serious concern/apprehension that the respondent shall sell the property, because there is a clause in the trust deed enabling the trustees to make the alienation, including the sale etc. Facing the above, learned counsel for the respondent today, has placed on record the affidavits of all the trustees, who in unequivocal term have undertaken, never to alienate the property and always to use if for same charitable purpose. Moreover, as mentioned earlier, a Certificate of the Bank showing the funds, which have been contributed by the trustees for establishing a school, has also been placed on the record. We feel satisfied that the above material is sufficient to settle the concern of L.D.A. However, still if any alienation is ever, intended by the respondent, that shall not be made without the permission of the District Judge, who is a "Qazi" in the matters of Waqf property and any alienation, made without the appropriate permission, shall be null and void, besides the action shall be taken against the trustees, who have given a solemn undertaking this Court. In order to bind the subsequent trustees of the respondent we direct that this judgment shall form part of the trust documents the respondent. In the light of above, we do not find any justification to interfere in the impugned judgment. This Intra‑Court Appeal thus, has no force and is hereby dismissed. S.A.K./L‑91/L Appeal dismissed.