1989 PLP 3011 (MLD)

(5) Whether the suit is time-barred ? (6) Whether the suit bind was permanently acquired by the defendants. If so, its effect? (7) Whether the suit land still continues to be subject to requisition ? (8) Whether the appointment of arbitrator, arbitration proceedings, and the award is without jurisdiction, illegal, ultra vires and void ? (9) Whether the compensation given by the impugned award is inadequate, unfair and against the principles of natural justice ? (10) Whether the plaintiffs are entitled to the injunction as prayed for ? (11) Whether the suit has been wrongly valued for purposes of court-fee and jurisdiction. If so, what is the correct valuation ? (12) Relief. In support of his case Awais Khan one of the plaintiffs examined himself as P.W.

1. He also produced copy of Register Haqdaran 1906-67 as Ex. P1, copy of order dated 21-2-1947 passed by the Collector Shahpur Ex. P.2 and copy of award dated 30-5-1971 Ex. P3 `and closed his affirmative evidence. The defendants produced no evidence. Their learned counsel made -a statement on 17-4-1973 that defendants did not want to produce any evidence. The learned trial Court through judgment dated 30-6-1973 dismissed the suit. Issues 1 and 3 were decided together and answered in favour of the petitioners. Under issue No. 2, it was held that the suit to the extent of prayer for issuance of mandatory injunction was not maintainable. Under issue No. 4, it was held that Collector was at least a proper party therefore rightly impleaded as one of the defendants. Under issue No. 5 it was held that property was admittedly a requisitioned property under Defence of India Act, 1939. It was also held that if it was to be permanently acquired after 1-10-1946 the same was to be acquired according to the requisitioned land (Continuance of Powers) Ordinance XIX of 1940 and before that through a public notice to be given at convenient place on or near the land according to rule 4 of the Punjab Land Acquisition (Defence of India) Rules, 1943 as amended in 1944. It was held that in both the cases the procedure for granting the compensation to the owners of the land acquired was to be followed as enacted in section 19 of Defence of India Act, 1939. It was held that the land had been acquired prior to 21-2-1947 for which notice was issued: It was also held that from Ext. P.3 i.e. the award dated 30-5-1971 it was apparent that notice was issued for acquisition of this land therefore the same being an official act was to be presumed to have been regularly done. Learned trial Court went on holding that the said notice was either issued under rule 4 of the Punjab Land Acquisition (Defence of India Rules) 1943 or was issued under section 5 of the Requisitioned Land (Continuance of Powers) Ordinance XIX of 1946, therefore, it was held that suit land was rightly acquired and this act of acquisition having come into existence in the year 1946 it should have been challenged as illegal and without jurisdiction within six years under Article 120 of the Limitation Act therefore tile suit to the extent of challenging the act of acquisition of land was barred by time and so far as it related to tile subsequent proceedings i.e. act of appointment of arbitrator and award dated 30-5-1971 the suit was within limitation according to the said Article of Limitation Act therefore issue No. 5 was answered accordingly. Under issues 6 and 7 it was held that land having been rightly acquired by the Government, therefore, appointment of arbitrator under section 19 of the Defence of India Act 1939 was legally done because the petitioners refused to accept the compensation assessed by the Collector, these issues, therefore, were answered accordingly. Issue No. 8 for the same reasoning was also answered against the petitioners. Under the issue No. 9 it was held that award of the arbitrator could only be challenged before the High Court through an appeal, therefore, the Civil Court had no jurisdiction to interfere in that and the issue was accordingly answered against the petitioners. Issue No. 10 was also decided against tile petitioners, in view of findings oil issucs'6 to

9. Issue No.11 was not pressed 'therefore the learned trial Court answered this issue against tile respondents. In the result, the suit was dismissed. The petitioners challenged the said judgment and decree before learned District Judge, Sargodha through an appeal which too, has been dismissed through judgment dated 31-3-1976. Both these judgment and decrees have been assailed in this revision petition.

3. Learned counsel for the petitioners argued, that the record of the case and the evidence produced has been grossly misread and misconstrued and that the case of the petitioners has also not received consideration in its true perspective but on the other hand the Courts below misapprehended all important part of the case pleaded by the petitioners.

4. I have examined tile record with the assistance of the learned counsel for the parties. The case of the petitioners in substance as made out in the plaint was that the land ill dispute which wits requisitioned continued to be so as it was never permanently acquired. The very fact of acquisition of properly was disputed. Issue No. 6 was (rallied on this plea of fact which was denied by the respondents who alleged that the land had been acquired according to law. The onus of proof of this issue was placed on the respondents. Unfortunately the respondents did not produce any evidence. Muhammad Awais Khan, one of the petitioners when appeared as P.W.1 unambiguously deposed that tile respondents did not issue any notice or general proclamation about the acquisition of land nor such a notice was published in any official Gazette therefore the Government had no authority to assess tile price of the kind. He also deposed that they had been continuously paid compensation of the land as requisitioned land till 1940-47 by the Government and thereafter it unilaterally stopped paying the same. He further deposed that in the year 19:17 without issuing notice to the petitioners they were informed through patwari to attend D.C. Office in connection with the; compensation and since previously also Government used to call them, therefore, they attended the office of Deputy Commissioner, when they were asked to accept the price of tile land at the rate of Rs. 325.00 per acre which they refused to accept its tile price of the land wits much more. Thereafter, the Collector told them that he would write to the Government about their refusal to accept price as "such whatever the Government would decide, he would act upon it and it was after 24 or 25 years i.e. in the year 1971 that they were again called by the Government and an arbitrator wits appointed by it who came to them but they did not appear before him. He went oil to say that they informed the arbitrator that they did not recognise him its arbitrator because the land had not been permanently acquired by tile Government and that it had been requisitioned temporarily, therefore, there was no question of assessment of its price. In the cross-examination the correctness of these depositions have not been challenged. Ext. P2 is order dated 21-2-1947 passed by Collector Shahpur, according to which the compensation of the land proposed by Naib-Tehsildar was held to have been correctly worked out and as the owners were not agreeable to accept it therefore the case was referred to Commissioner Rawalpindi Division, Rawalpindi for appointment of arbitrator tinder section 19(b) of the Defence of India Act, 1939. Ext. P3 is the award dated 30-5-1071 made by the Arbitrator. It is manifest from this award that the parties interested refrained from participating in the arbitration proceedings. According to observation made by arbitrator tile parties refrained as a measure of dilatory tactics. According to tile finding in the award, on behalf of tile State. Chaudhary Muhammad Nazir P.C.S. Grade-1, Sargodha testified that a notice Ex. P1 wits issued by the District Collector Shahpur for the permanent acquisition of this land which its per findings of arbitrator relied upon by the Courts below was served through proclamation by beat of drum as per Ext. Pl. No independent evidence has been produced by the' respondents to prove 'IS to on which date, the land was permanently acquired in order to ascertain whether to this acquisition the provisions of Requisitioned Land (Continuance of Powers) Ordinance XIX of 194(6 or tile Defence of India Rules were applicable because according to findings of the learned trial Court if it was made after 1-10-1946, tile procedure enacted in 19-16 Ordinance was to be followed otherwise the procedure as laid down in Defence of India Rules was applicable. Since onus of proof of issue No.6 was on the respondents, therefore, it was imperative for them to have brought on record clear evidence in this respect. There is nothing in Exs. P2 and P.3 to establish as to on which particular date permanent acquisition of land wits made. According to Section 5(1) of Requisitioned Land (Continuance of Powers) Ordinance XIX of 1946, the requisitioned land if intended to be acquired, the same could only be acquired through publication in the Official Gazette a notice to tile effect that tile Government had decided to acquire such land. Subsection (2) of Section 5 of Requisitioned Land (Continuance of Powers) Ordinance XIX of 1946 reads as follows:- "5(2) When a notice as aforesaid is published in the Official Gazette, the requisitioned land, shall on and front the beginning of tile day on which tile notice is so published, vest absolutely in tile appropriate Government free from all encumbrances and the period of requisition of such land shall end." As has been mentioned above, according to this provision of law no permanent acquisition of requisitioned property could be made without publishing a notice in the Official Gazette and it wits only on the publication of such a notice in tile Official Gazette that the property wits to vest absolutely in tile Government free from encumbrances and tile period of requisition of such land was to end. The findings of the learned trial Court that even if the land wits acquired under section 5 of this Act tile same shall be presumed to have been regularly done being official act, cannot be sustained. In such it situation where the law prescribes it mandatory procedure for doing an act and thereafter certain legal consequences arc to ensue affecting rights of a person in the property, it is necessary that the act is done strictly in accordance with the said procedure, and such an act could not be presumed to have been correctly done once the doing of that act was denied and challenged in a Court of law and an issue was framed and onus was placed on such party who had to perform the act. Apart from this the finding of the learned Courts below is that according to Exh. P3 the notice of permanent acquisition was served through proclamation by beat of drum as observed by Collector in the award dated 30-5-1971 therefore no presumption that such official act was regularly done could be raised in its favour qua acquisition of land, if the provisions of Section 5 of Requisitioned Land (Continuance of Powers) Ordinance, 19.10 are held to be applicable. As discussed above, according to the provision of this Ordinance, the status of land as requisitioned land was to cease only from the date of publication of notice of permanent acquisition in the official Gazette and not otherwise. If the land was acquired before 1-10-1940 about which also there is no evidence, then rule 75-A of the Defence of the India Rules was applicable. Sub-rules (2) and (3) of this rule are as follows:-- "75-A (1) ... ... ... ... ... ... ... ... ... ... ... .... ... ... ... ... ... ... ... ... ... ... .... ... ... ... ... ... ... ... ... (2) Where the Central Government or the Provincial Government has requisitioned any property under sub-rule (1), that Government may use or deal with the property in such manner as may appear to it to be expedient, and may acquire it by serving on the owner thereof, or where the owner is not readily traceable or the ownership is in dispute, by publishing in the official Gazette, a notice stating that the Central or Provincial Government, as the case may be, has decided to acquire it in pursuance of this rule. (3) Where a notice of acquisition is served on the owner of the property or published in the official Gazette under sub-rule (2), then at the beginning of the day on which the notice is so served or published, the property shall vest in Government free from any mortgage, pledge, lien or other similar encumbrance, and the period of the requisition thereof shall end." According to the provision of this rule in case of acquisition of requisitioned land on permanent basis, a notice was required to be served on the owner of the land or where the owner was not readily traceable or the ownership was in dispute, by publishing in the official Gazette a notice stating that the Central or Provincial Government as the case may be, had decided to acquire it in pursuance of this rule. It was only when notice was served in the manner prescribed in this rule that the land was to vest in the Government free from any mortgage etc. the period of requisition was to end. According to findings of the two Courts below based on findings in Ext. P3 i.e. the award dated 30-5-1971, the notice of permanent acquisition of land was allegedly served through proclamation by beat of drum. It means that none of the requirements of rule 75-A (2) and (3) of Defence of India Rules, were complied with and as a consequence thereof it can safely be held that the land shall be deemed to have never been acquired and vested in the Government and period of requisition did not end and it continued to retain its status as requisitioned land. Reliance on rule 4 of Punjab Land Acquisition (Defence of India) Rules, 1943 in the context of the aforementioned provision of law was wholly misconceived as the said rule prescribed the procedure to be followed for determination of compensation of acquired land and not for acquisition of land itself for which rule 75-A of Defence of India Rules as noted above was applicable. This is manifest from rule 4 (I)-of Punjab Land Acquisition (Defence of India) Rules, 1943 which is as under:- "4(1) When any land has been acquired whether permanently or temporarily by the Central or the Provincial Government under the Defence of India Rules, the Collector shall cause public notice to be given at convenient places on or near the land that has been taken, stating that the land has been acquired, permanently or temporarily, as the case may be, and that claims to compensation for all interests in such land may be made to him." The crucial question was whether the land stood acquired permanently which fact was denied and was a controversial question. The findings of the two Courts below recorded on the basis of alleged compliance of procedure prescribed in rule 4 of the Punjab Land Acquisition (Defence of India) Rules, 1943, regarding notice to the effect that the acquisition of land permanently was established is based not only on misreading and misconstruction of the record as also misapplication of the correct law. As has been discussed above, neither under the Requisitioned Land (Continuance of Powers) Ordinance 1946 nor under the Defence of India Rules, the land could be held to have been acquired and vested in the Government as none of the mandatory requirements of these provisions of law was established to have been complied with, therefore, the suit of the plaintiffs qua legality of acquisition could not have been held as barred by time as the very alleged act of acquisition of land permanently, was proved to be legally non-existent.

5. The case of the petitioners in substance was that the respondents could not treat the land as permanently acquired land, therefore, their act of appointment of arbitrator and determination of compensation as price of land by the Collector on 30-5-1971 on the assumption that the land had been permanently acquired and vested in the Government and had ceased to be requisitioned land was an act which amounted to the denial of the rights of the petitioners in the land and their entitlement to get its compensation as requisitioned land, therefore. the suit was within time from 30-5-1971 and could be maintained to obtain the decree as prayed for. The findings of the two Courts below on all these issues recorded against the petitioners cannot be sustained. It was not a case where the award of the arbitrator was being challenged only on merits regarding factum of price determined, as such, the findings that the remedy of the petitioners was to file appeal against the said award in the High Court according to Defence of India Act is also not sustainable. The two Courts below have not only committed material irregularity and illegality in exercise of their jurisdiction but also failed to exercise jurisdiction vested in them under the law to grant decree to the petitioners in these circumstances to which they were entitled. This revision petition is accepted and judgments and decrees of both the Courts below are set aside, the suit of the petitioners is hereby decreed with costs throughout. H.B.T./M-1324/L Revision accepted.