2008 PLP 200 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

This judgment proposes to decide three constitutional petitions (Writ Petition 8931 of 1992, Writ Petition 146 of 1993 and Writ Petition 20727 of 1997), as all these raise similar questions of law/facts; require alike determination and are between the same parties. Writ Petition No.8931 of 1992 assailed the notification under section 4 of the Punjab Acquisition of Land (Housing) Act, 1973 (Notification No.1AC.1492 dated 6-11-1980) published in the official gazette on. 10-11-1980 and prayed that acquisition proceedings may be declared to be ultra vires of the Constitution and thus, void. Writ Petition No.146 of 1993 also challenged the above referred Notification, dated 10-11-1980 but it was filed on behalf of Noor Avenue Cooperative Housing Society whereas the earlier petition was filed on behalf of Dr. Iqbal Ahmad Chaudhary etc. who had allegedly constructed their houses prior to initiation of the acquisition proceedings by the, respondents. The third Writ petition No.20727 of 1997 was also filed on behalf of Noor Avenue Cooperative Housing Society, attacking corrigendum Notification, dated 23-1-1982 (Notification No.1AC.102) acquiring rest of the land of the petitioner-Society.

2. Succinctly, relevant facts are that land in the vicinity of Mauza Niaz Baig along with some other villages of Lahore was acquired for laying a housing scheme known as "Maulana Muhammad Ali Johar Town" Lahore under section 4(1) of the Punjab Acquisition of Land (Housing) Act, 1973 vide Gazette Notification No.1AC/1492, dated 6-11-1980, published in the Punjab Gazette on 10-11-1980 by the then Deputy Commissioner/Collector/respondent No.2. The land so proposed to be acquired "inter alia" included the land of the petitioners bearing Khasra Nos.13039/1, 13039/2, 13053, 13055, 13058, 13370, 13324, 13362 and 13041 of Mauza Niaz Baig, Lahore. Land Acquisition Collector announced his award on 22-12-1983 regarding Khasra Nos.13039, 13041 and 13045 of Mauza Niaz Baig in the names of Messrs Noor Jahan, Noor Muhammad, Muhammad Tufail etc. whereas Award of Khasra No.13324 of the same Mauza was announced on 9-10-1982 in the names of Messrs Mst. Parvaiz Ishrat etc. and award of a small part of the land of the petitioners was not announced due to dispute under Consolidation of Holding Ordinance, 1960 in the revenue hierarchy. The Land Acquisition Collector took over physical possession of land of the petitioners between the 20th to 25th of June, 1981 whereas symbolic possession of petitioner's land was resumed on 17-8-1981.

3. Petitioner-Society was registered under the Cooperative Societies Act, 1925 with the object to provide developed residential plots to its members. The initial land of the petitioner society was spread over an area measuring 20 Kanals, 15 Marlas with Khasra numbers above noted. Petitioners in Writ petition 8931 of 1992 claimed that Pacca Constructions had been raised earlier to the acquisition proceedings wherein different utility connections were also obtained by the members of the society but these facts were denied by the respondents whose stance was that the petitioners raised illegal constructions after the issuance of notification under section 4 of the Punjab Acquisition of Land (Housing) Act, 1973. In view of factual controversy between the parties, petitioners filed a suit for declaration against the respondents on. 26-4-1984, challenging the acquisition notification, as well as proceedings thereunder. Petitioners also moved an application under Order XXXIX, rules 1 and 2, C.P.C. praying ad interim injunction restraining the respondents to interfere in their claimed possession.

4. Respondents being defendants in the suit filed by the petitioner-Society, contested the same and opposed the issuance of temporary injunction by filing their written statement/written reply. The learned Civil Judge seized of this suit initially issued a temporary injunction but subsequently on 15-12-1987 the interim injunction was vacated. Petitioner-Society filed an appeal before the learned Additional District Judge but the same was dismissed on 13-10-1988. Suit for declaration filed by the petitioner-Society was ultimately dismissed on 23-2-1992 on account of its non-prosecution. Petitioner-Society filed an application for restoration of the suit but the same was declined and against this order, appeal was taken to the Court of the learned Additional District Judge, Kasur. Pending this appeal, petitioner-Society filed Writ Petition No.146 of 1993 with the relief noted above, besides Writ Petition No.8931 of 1992 which had been filed by Dr. Iqbal Ahmad Chaudhary etc. challenging the acquisition notification dated 10-11-1980. Dr. Iqbal Ahmad Chaudhary etc. petitioners of Writ petition No.8931 of 1992 had earlier filed a suit for permanent injunction against the respondents to permanently refrain them from demolishing their three houses constructed on an area of 24 Kanals, 7 Marlas. This suit was decreed by the trial Court on 14-10-1985 and appeal filed by respondent No.1 was dismissed on 20-2-1988. Dr. Iqbal Ahmad Chaudhary etc. instead of challenging notification under section 4(1) of the Punjab Acquisition of Land (Housing) Act, 1973 issued on 10-11-1980, in their suit for permanent injunction already pending at that time, opted to file Writ Petition No.8931 of 1992. These constitutional petitions were admitted to regular hearing on 16-1-1993 and after completion of record, have now been placed for final determination. Respondents in response to notice by this Court have appeared and were represented through their counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, land of the petitioners was acquired under the Punjab Acquisition of Land (Housing) Act, 1973 which was repealed in 1985 and after this repeal, acquisition proceedings were completed under the Land Acquisition Act, 1894. The main stress of the petitioners was that respondents were bound by Rule 7 of the Punjab Acquisition Rules, 1983 to complete the acquisition proceedings within one year from the date of Repealing Act No.XII of 1985 but all these petitions were 'filed with inordinate/unexplained lathes, running into decades. Their first petition was filed on 17-9-1992; second petition was filed on 4-1-1993 and the third petition was filed on 15-9-1997. Besides the factual controversy regarding acquisition of petitioner's land being constructed site and as to when possession of the land under the Award given bf L.A.C. was taken over by the respondents, stood concluded by dismissal of their suit on 23-2-1992 and they after deserting those proceedings, could not invoke constitutional jurisdiction of this Court.' Suit of the petitioners was dismissed under Order 'IX, rule 8, C.P.C. and its Rule 9 bars fresh suit/writ on the same cause of action.

6. No doubt, these petitions cannot be thrown out on the sole ground of being bad on account of lathes but the petitioners had availed the alternative remedies of filing suits against the complained action of the respondents regarding acquisition of their property where the matter stood concluded. Respondents had taken specific stance in their report/parawise comments and while arguing the case that they took over the possession of land subject of Award, free from all encumbrances and the petitioners are left with the only option of claiming compensation under the award. Under law, the petitioners, if not satisfied with the compensation awarded by the Land Acquisition Collector, can file reference under section 18 of the Land Acquisition Act, 1894 but at such a bleated stage, they cannot attack the acquisition proceedings after loosing their cases before the Civil Court. Corrigendum notification is in continuation of the original and cannot be challenged separately, having been issued regarding left out small part of land which earlier could not be included in the afore-mentioned notification. Law regarding competence of a constitutional petition, pending civil suit is firmly settled by this time to the effect that it will not be maintainable to pre-empt the jurisdiction of a competent forum or to sit in appeal against the decision rendered by the Civil Court, in collateral proceedings, like the one in hand. Reference in this behalf can be made to the judgments in the cage of Haji Dosa Limited and others v. The Federal Government of Pakistan through the Secretary to the Government of Pakistan, Ministry of Food and (Agrarian Management), Islamabad and another 1986 CLC 1193, Brig. Shahibdad Khan v. Secretary, Colonies, Board of Revenue, Government of the Punjab, Lahore and 5 others PLD 2000 Lah. 244, Haji Muhammad Ashraf v. The District Magistrate, Quetta and 3 others 2000 SCMR 238.

7. Since suit by the petitioner-Society was dismissed in presence of the respondents/defendants, second suit or writ petition shall be barred under Order IX, rule 9 of C.P.C. which envisages that where a suit is wholly or partly dismissed, the plaintiff shall be precluded from bringing a fresh suit in respect of same cause of action. This Rule provides that plaintiff can have the order of dismissal set aside after satisfying the Court about sufficient cause for his non-appearance. Honourable Supreme Court in the case of Haji Muhammad Ashraf (supra) held that writ petitioner, pending his suit cannot file constitutional petition hi the High Court to contend that suit was not adequate remedy and he cannot be permitted to shift forum at his choice/convenience. Restoration of suit, prayed by the petitioner-Society was refused by the trial Court, which order was maintained in appeal. In this manner, as well, tilted petitions cannot proceed.

8. Scheme of acquisition law propounded by Punjab Acquisition of Land Housing Act, 1973 and the Land Acquisition Act, 1894 is complete and exhaustive. Apart from mode of acquisition, above referred Act provided a systematic scheme containing machinery for taking measurements of the property; assessment of its value and payment of compensation to the persons interested besides remedy for adjudication of rights of aggrieved persons in accordance with well-known norms of administration of justice. In the case involving any dispute of measurement of property; its value of appointment etc. Act provided a remedy through a reference by the Collector to the Civil Court for settlement of these disputes where parties can lead evidence in support of their stance. Disputed factual questions regarding non-fulfillment of conditions precedent for issuance of notification under the Act (ibid) can only be put to naught by the Civil Courts. Similarly question as to whether acquisition is for public purpose or not, can be determined by the Civil Court. In the instance case, prima facie laying of Housing Scheme for the utility/use of public-at-large, as compared to some individuals, is a public purpose within the meaning of section 4 of the said Act which was published in official gazette and copies thereof were affixed at conspicuous places at the land under acquisition, thus, the requirements of law were sufficiently met. The Land Acquisition Collector having already announced the award and took over the possession of the land, which absolutely vests in respondent No.1, leaving no room for interference in constitutional jurisdiction of this Court. Scan of record revealed that no case for interference in constitutional jurisdiction of this Court was made out.

9. For the reasons noted above, all the three writ petitions being devoid of any merit, are dismissed with no order as to costs. S.A.K./N-96/L Petition dismissed.