1997 PLP 466 (MLD)

3. Vide order, dated 31‑1‑1996 passed in C.M. No.3532 of 1995, Ch. Muhammad Wasi Zafar, Advocate, Mozang Road, Lahore, was impleaded as party. This party actually supports the case of the petitioners, inasmuch as, it is his case that under some arrangements with the petitioners, the added party, had acquired some interest in the suit land. Ch. Qadir Bakhsh, Advocate, appeared for this added party and supported the case of restoration of land.

4. In support of the petitioners' claim, Dr. A. Basit, Advocate, learned counsel for the petitioners has heavily relied on rule 14 of the Punjab Land Acquisition Rules, 1983, which for convenience of reference, is reproduced below: 14(l) Where any land has been acquired for any Department of the Government or local authority for a public purpose and it is proposed to abandon the same, it shall be handed over to the Collector who shall be responsible for the disposal of the same in accordance with the orders of Government. (2) The disposal of land under sub‑Rule (1) shall be made by Government in its discretion, and its possession restored to the persons from whom it was acquired or to their heirs as under:‑‑ (i) Free of cost to the original owners or their heirs, if compensation for the acquisition of land has not been paid. (ii) On refunding the amount paid as compensation less the 15 per cent. granted for compulsory acquisition, if the original land owners or their heirs have already received cash compensation in respect of their land. 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. (3) Where the original landowners or their heirs were provided alternate land in lieu of their acquired land, such land shall not be restored to them, but shall be utilized or disposed of by the Board of Revenue in accordance with the policy of the Government regarding disposal and alienation of lands. " He has further pointed out that earlier to these rules, the situation was governed by para. 100 of the Financial Commissioner's Order No.28, which stands reproduced in para. 8 of the judgment of the Supreme Court a copy of which appears at page 27 of the record. To substantiate the plea of abandonment, Dr. A. Basit has heavily relied on the minutes of the meeting of the Board of Directors held in July, 1980, a copy of which appears at page 19 o1 the record. According to the learned counsel, after the abolition of the Receiving Centre at Lahore, the real State property was decided to be disposed of in the "usual manner". The usual manner, learned counsel insists, would include and would have reference to Rule 14 ibid. As regards the latest decision of the Board of Directors, dated 14‑3‑1996, learned counsel has asked this Court not to pay any heed to the same, inasmuch as, the same has been taken during the hearing of this petition and in the possible light of the arguments addressed and observation of the Court. It is also the case of Dr. A. Basit that the Board o Directors cannot resile from the earlier position taken by them in 1980.

5. Syed Niaz Ali Shah, Advocate, appearing for the respondent Corporation, has opposed the petition on the ground that it is highly belated and must be dismissed as barred by laches. According to Mr. Niaz Ali, the transaction became past and closed and unless the Corporation itself was willing to give up the land, it cannot be reopened. It is also maintained that with the passage of time and change of international situation the needs also acquire new dimensions and the Receiving Centre once established and undone, can again be re‑established. In fact, during the course of arguments, he submitted that installation of fresh Receiving Centre on the acquired land is contemplated in view of the highly inimical broadcast from across the neighbouring countries. He has relied on a Single Bench Judgment of this Court reported as Bashir Ahmad Akhgar and another v. Collector, Land Acquisition, Sadiqabad and 2 others 1992 MLD 2364 in support of the contention that once land has been finally acquired, it becomes the property of the acquiring department and no restraint can be placed on its use and disposal. It has also been argued by Mr. Niaz Ali Shah that Rule 14 can have no retroactive operation so as to undo the past and closed transaction. According to the learned counsel, Rule 14 will apply to the acquisition taking place after enforcement of the Rules.

6. The examination of the language used in Rule 14(1) shows that the other provisions of the rule become operative when "it is proposed to abandon the land". The words used are not "when the land is abandoned". The question arises as to who will propose the abandonment and secondly whether the abandonment should be undisputed or can the Courts interfere and cull an abandonment. In my opinion the words used in Rule 14(1) do not admit of the application of the adjudicatory power of the Court to cull an abandonment. The proposal has to be unqualified and unambiguous and must come from the beneficiary of the acquisition. It is for the beneficiary to say that this land is now not needed and it is he/it who has to hand it over to the Collector. No abandonment can be thrust or compelled. In the present case, as the reproduced facts show, the abandonment is sought to be inferred solely from the Minutes of the Meeting of the Board of Directors held in July, 1980, wherein the Board of Directors decided the abolition of the Receiving Centre and further resolved to dispose of the real State property in the "usual manner". In my considered view, even if the question of abandonment could be adjudicated on the strength of the above decision of the Board of Directors, a "proposal" to abandon the land within the meaning of Rule 14(1) cannot be inferred. Abolition of Receiving Centre and disposal of real state in the usual manner does not amount to saying That the land acquired way back in 1960 for the purposes of establishing a Receiving Centre is proposed to be given back to the original owners. A careful reading of the provisions of the Act and the Rules also lead to the inference that there is no bar in the acquiring agency for deviating from the original purposes for some time and reverting to the sale. It is common‑knowledge that with the passage of time the situation changes and things do not remain static. It is too much to hold that for all times to come and till eternity, the acquiring agency must adhere to the original purpose and as soon as it deviates, the land ought to revert to the original owners.

7. Rule 16 of the Rules of 1983 confirms the above conclusion. Under this t rule if the land is used for a purpose other than the one for which it was got acquired by the acquiring agency, the same shall be resumed immediately by Government without any compensation and the acquiring agency shall also pay a penalty which may extend to Rs.50,000 depending upon the nature of each case. In this rule the law given is very clear and, according to the mandate itself, if the land is used for a purpose other than the one for which it was got acquired by the acquiring agency, the same shall be resumed immediately by Government without any compensation. If the intention was that land in such a case (deviation of purpose) should go to the original owners, this intention is not inferable from rule

16. And as seen rule 14 makes the delivery of land to Collector and its reversion to the original owners dependent upon the proposal to abandon which, as seen, has to emanate from the acquiring agency or the beneficiary of the acquisition.

8. Bashir Ahmad Akhgar's case (supra) cited by Syed Niaz Ali Shah, learned counsel for respondent‑Corporation, does support the contention raised by him. As has been held therein, once the chapter of acquisition has been closed years ago, landowners cannot reclaim the same on the ground that the purpose for which the land was acquired failed. In the case the land was acquired for establishment of a cantonment but the same could not be done due to lack of resources and budget constraints.

9. The reliance on para. 100 of the Financial Commissioner's Order No.28 and the judgment of the Supreme Court does not help the petitioners, inasmuch as, in the Supreme Court case, the abandonment was not in dispute and it was clear that in fact the land had been proposed to be abandoned.

10. It is highly doubtful if rule 14 of the Punjab Rules, 1983, will have retrospective operation and that it will give authority to re‑open and undo past and closed transactions. The judgment of this Court in Bashir Ahmad Akhgar's case (supra) relied upon by Syed Niaz Ali Shah repels the argument of Dr. A. Basit that on the strength of rule 14, the transaction which came to an end in 1962, should be re‑opened. Since I am holding that there is no proposal to abandon in this case, I need not adjudicate this question of retrospectivity.

11. There is considerable force in the objection of Syed Niaz Ali Shah, Advocate, that the petition suffers from grave laches. According to the petitioners, the acquisition was complete way back in 1962. Petitioners were deprived of the possession and they received the amount awarded to them. From 1962 till 1986 for full 24 years, the petitioners did not take any action for restoration of the land. It was in 1986 that they moved the Board of Revenue for the purpose. Their application was declined in 1989 when they deemed it appropriate to approach the Wafaqi Mohtasib. It was thereafter in 1994 that this petition was instituted. The petitioners want this Court to hold abandonment on the basis of the minutes of the meeting of the Board of Directors held in July, 1980. During the course of arguments it was stressed that the Receiving Operatus had been removed from the land much earlier and the land was lying vacant. It is reasonable to hold that the removal of the operatus and non‑use of the land would have given sufficient notice to the petitioners that the original purpose has been abandoned. It is petitioners' own case that at that time para. 100 of the Financial Commissioner's Order No.28 was in force and it is this para. which is the predecessor legislation on the subject. In spite of their claim of abandonment and the existence of para. 100, the petitioners did not agitate for restoration. The minutes of the Board of Directors, the foundation of petitioners' case for abandonment are dated July 1980. Even if some allowance is made to the petitioners' claim that they remained unaware of the decision of the Board of Directors, it was not until 1986 that they filed an application in the Board of Revenue for restoration. Had they approached this Court at that time, the objection of laches may not have been there. It has not been shown as to under what provision of law the petition was maintainable in the Board of Revenue. Their approach to Wafaqi Mohtasib also seems an exercise in futility. In these circumstances, it is clear that the petitioners have been proceeding in the matter in tardy, leisurely and careless manner, in the fervent hope that by a possible stroke of luck they may be able to get back the land. I uphold the objection of the respondents and hold that this petition is liable to dismissal on the ground of gross laches also.

12. Syed Niaz Ali Shah, Advocate, also pointed out that the questions, subject‑matter of decision in this Constitutional petition are also involved in a priorly instituted suit, copy of which has been placed on record. The examination of the plaint shows that although the controversy may be over lapping but the parties and the relief sought is not the same as in this Constitutional petition. This objection is, therefore, repelled. For the reasons stated above, this petition is dismissed, leaving the parties to bear their own costs. A.A./M‑128/L Petition dismissed.