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Petitioner: Syed ZAINUDDIN And 9 Others VS Respondent: ASSISTANT JUDGMENT
Court Name: Balochistan High Court Judge(s): Javaid Iqbal, Amir-ul-Mulk Mengal Title:Syed ZAINUDDIN And 9 Others vs ASSISTANT
JUDGMENT
Reported As: 1996 MLD 731 Result: Order accordingly Judgment JUDGMENT JAVED IQBAL, J.---This is an appeal preferred under section 96, Cr.P.C. Against the judgment arid decree, dated 30-6-1992 passed by learned District Judge (Ad hoc) Quetta, whereby he has dismissed the suit for declaration possession and Injunction filed by the appellants. 2. Briefly stated the facts of the case are that land measuring 23 acres 1 Rod, 35 Poles (93 Mode and 35 Poles) situated in Karez Landi, Mouza Killi Gul Muhammad, Tappa Durrani, Tehsil and District Quetta, belonged to the appellants was acquired by WAPDA (respondent No.2) for the construction of 50-Bed WAPDA Hospital, Staff Colony and Store for Kuwait Finance Project. The Notification under sections 6 and 7 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued by the Commissioner and notice under section 9 of the Act was issued by Assistant Collector, Quetta on 10-10-1985 whereby the land owners were asked to file their objection on or before 26-10-1985 which was, however, could not be served on the appellants. The Collector made an award on 2-11- 1985. After the pronouncement of award dated 2-11-1985 some dispute occurred in-between the WAPDA Union and WAPDA regarding the location meant for construction of the Hospital, being located at some distance from City and as such, was not suitable. WAPDA through its Chairman, Area Electricity Board vide his self-explanatory letter, dated 2-12-1985 (Exh.P/15) intimated the Deputy Commissioner and Assistant Collector that a decision was made to acquire land for WAPDA Hospital Complex at Mohal Vialla Baz, Mouza Kotwal, Tappa Durrani and an amount of Rs.50 lacs had already been paid vide cheque of even number, dated 22-8-1985, with further intimation that the land at Sheikh Mandah, Killi Gul Muhammad which was under the process of acquisition for WAPDA Hospital Complex may be dropped. A second letter (Exh.P/30) was again written by the
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WAPDA that acquisition of land at Sheikh Mandah Karez Landi, has finally been dropped and that acquisition of land in Mohal Vialla Baz be processed and finalized at an early date, and third letter on the same subject was addressed on 6-6-1986 (Fxh.P.18) with the intimation that it was finally decided to drop the purchase of land at Sheikh Mandah for WAPDA Hospital and as such formalities be completed to procure the land at Mohal Vialla Baz for acquisition of land measuring 24 acres, 2 Rode and 22 Poles. That in view the abovementioned letters and fresh demand for acquiring land at Mohal Vialla Baz, the appellants did not approach Collector Quetta, to make reference to the Civil Court in view of the provisions as contemplated under section 18 of the Act. In pursuant to the after completion of necessary formalities as envisaged under the Act 98 poles of land situated at Villa Baz for the purpose of construction of WAPDA Hospital Complex, Staff Colony and Store for rural acquisition of the land at Vialla Baz, the WAPDA again contacted the Collector Quetta, and expressed that the land in Killi Kotwal may also be retained. The Collector instead of taking action of derequisitioning the land under section 48 of the Act as previously requested by the WAPDA vide abovementioned letters, failed to initiate any action and accordingly a suit for declaration, possession and injunction was filed, with the following prayer: -- "It is accordingly respectfully prayed that a decree in terms as follows may be passed in favour of plaintiffs: -- (a)declaring that acquisition of the properties belonging to plaintiffs is not lawful and consequently is without lawful authority; (b)declaring that as the respondent No.2 had abandoned his right to possess the properties in question, therefore, WAPDA has no authority to claim any right over the property on the basis of award, dated 2-11-1985; (c)declaring that if WAPDA now needs the land, it has to apply fresh for acquisition; (d)declaring that award, dated 2-11-1984 cannot be implemented; (e)a decree for possession of property referred to in para. No. 1 above; (f)compensation amount to Rs.15,00,000; (g)permanently restraining the .Defendant No. l from delivering the possession to defendant No.2 and further restraining defendant No.2 from interfering in the property in question; . (h)any other relief, which the Court may deem fit and proper, in the circumstances of the case; (j)cost of the suit." 3. The suit was contested by the defendants who filed their written statement and raised various objections and also repudiated and the claim of the plaintiffs. The Collector in his written statement mainly stated that he had no knowledge about the construction made in the land in dispute, but admitted that WAPDA had requested to acquire the land situated at Viala Baz, but keeping in view various technicalities and extra burden on the exchequer, it was finally decided by the WAPDA. To retain the land of Mouza Kotwal as well. The defendant No. 2 has also repudiated the claim by stating that the award was made on 2-11-1985, the requisite amount deposited and land was acquired in accordance with the provisions as contained in the Act, and as such, no illegality whatsoever was committed. It is also stated that the. Petitioners remained in touch during the proceedings and appeared before the Collector and actively participated, and as such the question of their unawareness does not arise. It is also stated that the plaintiffs have accepted the award, and as such, jurisdiction of Civil Court cannot be invoked. The learned trial Court framed the following issues: -- (1)Whether this Court has no jurisdiction to entertain the present suit? ; (2)Whether the plaintiffs are estopped by their conduct to file the present
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suit? (3)Whether the suit is bad for misjoinder and multifariousness of causes of action? (4)Whether the reliefs claimed by the plaintiffs are contradictory. If so, to what effect? (5)Whether defendant No.2 is not properly sued? (6)Whether the suit is not properly valued and court-fee paid is deficit? (7)Whether the land in question is not required by defendant No.2 thus the proceedings of acquisition is illegal? (8)Whether acquisition of land in question is illegal? (9)Whether the plaintiffs are entitled for possession of land in question? (10) Whether the plaintiffs are entitled for compensation, if so, to what extent? (11) Whether the plaintiffs are entitled to the relief claimed? (12) Relief? 4. The plaintiffs in order to substantiate their claim, produced Muhammad Ibrahim (P.W.1), Aslam Parvaiz (P.W.2), Ali Ahmed Jogezai (P.W.3), Sher Fateh Khan (P.W.4) and Haji Abdul Manan (P.W.5). No witness was produced by the Collector (defendant No. l) while WAPDA (defendant No.2) produced Muhammad Anwar Cheema in support of its contentions. It is to be noted that in spite of more than seven opportunities, the arguments could not be advanced by the learned counsel on behalf of the appellants and for defendants, and resultantly the trial Court decided the matter on the basis of record dismissed the suit as mentioned hereinabove, hence this appeal. 5. It is mainly contended by Mr. Basharatullah, Advocate, on behalf of the appellants that the impugned judgment and decree being contrary to law and facts deserves dismissal. It is next contended that after the issuance of letters, dated 2-12-1985, 8-12-1985 and 6-1-1986 wherein the position was made crystal clear by WAPDA that the land at Karez Lundi was no more required, and as such, the Collector was bound to initiate action in view of the provisions as contained in section 48 of the Act, for derequisition of the land and failure on his part to do the needful, tantamounts to serious illegality and as such the plaintiffs were entitled to grant of Declaration and Injunction as sought for. It is next contended that since no power of rescission was available to be exercised by WAPDA as such, their letter of even number, dated 19-1-1987 whereby the Collector was intimated to acquire the land in suit was illegal and without any lawful justification. It is also contended that the learned trial Court has failed to consider that the two lands cannot be acquired for the same purpose under the Act for "Public purpose" and after the award, dated 30-1-1986, the WAPDA had no authority to request the Collector to maintain the award, dated 2-11-1985. It is further argued that the conclusion derived by the trial Court that there is no provisions under the Act to place embargo on WAPDA to acquire the second land is non-meriting view and is therefore, liable to be set aside. It is also clarified that the appellants could not approach the Collector for making a reference under section 18 of the Act within the stipulated period of time as mentioned in the Act as WAPDA had shown its interest in the land of Vialla Baz and also approached the Collector to drop the process of acquisition in respect of land located at Killi Kotwal. It is also contended by Mr. Basharatullah, Advocate, that the requisite notices could not be served upon the appellants, which caused a serious miscarriage of justice and prejudice. 6. Mr. Ejaz Ahmed, learned Deputy Attorney-General appeared on behalf of respondent No.2 and strenuously controverted the position as canvassed by Mr. Basharatullah, Advocate, and contended that two different awards made for two different lands should not be mixed-up as initially the award 'was made regarding the land in suit and it could not be challenged
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subsequently by way of filing a civil suit. The second award in his view, was altogether made regarding a different land and it should not have been referred to again and again in order to avoid confusion. It is next contended that the appellants did not file reference under section 18 of the Act, and as such the award cannot be challenged because a specific mode has been provided in a separate enactment and provisions whereof should have been invoked, and on this score alone, the suit is liable to be dismissed. He further argued that the law has provided a proper remedy and grievances regarding an award are to be challenged by making reference under section 18 of the Act, within a stipulated period, which could not be done for the reasons best known to the plaintiffs. He also mentioned that since no reference could be made being time- barred, as such the suit was preferred to be filed in order to escape from the stipulated time limit. Learned Deputy Attorney----General urged vehemently that due notice was served upon the plaintiffs and referred a letter, dated 8-11-1985 addressed to the Collector by Haji Abdul Manan; who is Attorney in this case regarding the possession of the land in dispute which makes the position abundant clear and, therefore, it cannot be agitated that no notice was served or that the petitioners remained unaware regarding the proceedings. He also mentioned that notice to receive compensation was also served upon the plaintiffs on 31-1-1987 which was received and duly signed by Abdul Manan. He also drew the attention of this Court towards a legal notice, dated 25-1-1987, which is demonstrative of the fact that each and every detail was in the knowledge of the plaintiffs, and therefore, it can be concluded safely that they were fully aware about the proceedings. He also argued that it was finally decided by WAPDA to acquire both the lands, and therefore, no importance should be attached to the correspondence made during the intervening period. In this regard he referred a letter (Exh.D/33) addressed to the General Manager, WAPDA, Lahore by Chairman, Area Electricity Board, WAPDA, Quetta, which is self-explanatory. He also urged that full payment had been made (Exh.D/36) regarding the land of suit after award and possession had already been taken over by WAPDA, hence the question of derequisitioning at this belated stage does not arise. He also argued that the purpose was never changed and relied on deposition of Anwar Cheema, who appeared on behalf of WAPDA and removed all the doubts regarding the allegation that the land in question was not required for public purposes. He has also relied the following authorities in support of his above--referred to contentions: -- PLD 1987 Quetta 165; 1990 CLC 242; PLD 1958 Lah. 918; 1987 CLC 1829 and 1983 CLC 1273. 7. Mr. H. Shakeel Ahmed, Advocate, appeared on behalf of WAPDA and urged emphatically that due notice was served upon the plaintiffs as is indicative from the notice, dated 25-1-1987 got issued by the Attorney of the plaintiffs indicates that they participated and remained in touch with the authorities concerned at the time when acquisition process was being finalized. It is further contended that the award, dated 2-11-1985 was never challenged and it was not alleged that the 'public purpose' for which the land in suit was acquired has been changed. It is next contended that the award, dated 2-11-1985 had attained finality, and as such, the prayer made in the suit and appeal is vague because, it is not mentioned that as which of the provisions of Act have been violated. It is also argued that the land was never abandoned by WAPDA and why it should be so done, as the entire payment was made by WAPDA, hence the question of abandonment does not arise, and no practical step in this regard was ever taken by the WAPDA. He also argued that the process of the derequisitioning could not be initiated by WAPDA being incompetent to do so, in view of the provisions of section 48 of the Act. 8. Learned Advocate-General appeared for respondent No.1 and pointed out that no jurisdictional error whatsoever was committed by the Collector during the completion of process, as mentioned in the Act. He further pointed out that no such irregularity could be pointed out by the appellants. He has also supported the impugned judgment and decree by arguing that the material on record has been considered properly and conclusion derived is in accordance with law and as such no
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interference is called for. He also argued that the acquisition process was never terminated and compensation awarded by the Collector was not challenged, hence the same could not have been challenged by way of filing a Civil Suit, because a comprehensive scheme has been given in the Act, itself for the redress of the grievances of the persons concerned and award can be challenged by way of reference under section 18 of the Act. 9. We have carefully examined the contentions as adduced on behalf of the appellants and for respondents in the light of relevant provisions of law and available record. We have minutely perused the impugned judgment and decree and also thrashed out the evidence which has come on record. The evidence as produced by the petitioner is insufficient to support his claim. Muhammad Ibrahim (P.W.1) has mentioned the conversation in-between Haji Manan (attorney for appellants) and that of Mr. Jaffery Director WAPDA, who assured that the land in suit would be abandoned and they both agreed to acquire the land pertaining to Dost Muhammad. He was subjected to cross-examination and he could not mention the exact date, day or month of the said conversation. He, however, mentioned that the said conversation took place in the end of 1985. Even if the deposition of Muhammad Ibrahim (P.W.1) is admitted as it is, in our view, it can hardly render any assistance to the case of appellants for the simple reason that the award was made on 12-11-1985, and as such, Director WAPDA and Haji Marian both were neither competent nor empowered to make any amendment, insertion, addition or deletion in the award. The-only course available was to make a reference under section 18 of the Act. We may mention here that derequisitioning of such a land can only be made by the Government (section 48 of the Act), hence the assurance given by Mr. Jaffery cannot be taken into consideration having no sanctity of law behind it. There is nothing in black and white in-between WAPDA and that of Abdul Manan to infer that there was any such move, for development. Aslam Pervaiz (P.W.2) brought the original official record (Exh.P/1 to Exh.P/22) which was returned after having the comparison All Ahmed Jogezai (P.W.3) has given his estimation regarding the loss, which the appellant sustained due to the acquisition of land in suit. He, however, could not point out that what were the basis for his estimation of loss amounting to Rs.5/6 lacs yearly. He conceded frankly that the appellants could not develop a garden as the land was acquired. He however, mentioned about the initial preparation made in this regard. He was subjected to cross-examination and he admitted categorically that in 1985 when the award was made there was no cultivation on the land. He also denied various other suggestions. It is to be noted that his statement is based on hypothetical analysis of the loss, which were allegedly sustained by the appellants, and there is no solid or concrete base to admit the same. Fateh Muhammad (P.W.4) is Government Contractor, who stated that he completed certain construction work and no other details could be mentioned pertaining to the claim of the appellants. Haji Abdul Manan, appeared as attorney for the appellants, and mentioned the details regarding the acquisition of land by the Government for WAPDA and also explained that the WAPDA authorities decided in 1985 to acquire the land at Viala Baz and in this regard reference was also made to Martial Law Authorities. He also mentioned the conversation which took place in-between him and that of Mr. Jafery Mechancial Director, who assured that the land pertaining to Dost Muhammad would be acquired. He also mentioned that in this regard three letters were addressed to Collector and he admitted that he remained least interested thereafter. He deposed further that when the award was made regarding the suit land, he approached WAPDA authorities by whom it was informed that they have abandoned the land. He also produced Notification and relevant correspondence (Exh.P/24 to Exh.P/27) regarding the land pertaining to Dost Muhammad. He also deposed that he could not utilize the suit land since 1982, but did not claim any compensation in writing, however, verbal demands were made. He stated further that all of sudden in 1987 WAPDA sent an amount of Rs.50 lacs regarding the suit land on the basis of award, which they had already abandoned. The said action was mala fide
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which was taken so that they could not be compensated. He further mentioned that WAPDA has already acquired land at Viala Baz, and as such, there is no necessity for acquisition of the land in suit. He also deposed that Collector did not issue any notice before making final award. He also mentioned that no reference could be made by him at the assurance of WAPDA authorities. He also mentioned about the loss amounting to Rs.5/6 lacs per year as the land could not be cultivated since 1982. He was subjected to cross-examination, and he admitted that award was made on 2-11-1985 prior to the award, dated 30-1-1986 made in respect of the land. Pertaining to Dost Muhammad. He also admitted that he never met any of the Officer of WAPDA. He showed his ignorance as to whether Ahmed Khan had already taken his share from the award. He however, admitted that it was so stated by Ahmed Khan before High Court Exh.D/31 makes the position clear regarding amount received by Ahmed Khan. He also admitted that possession of the suit land remained with WAPDA since 1984. He also pointed out that award, dated 2-11-1985 was never implemented. He admitted that WAPDA had never written any letter to the petitioners regarding the suit land, neither the plaintiffs wrote anything to WAPDA. He also admitted that he raised various objection at the time when the acquisition process was commenced. He admitted that he remained present during the process but WAPDA decided to acquire the land of Dost Muhammad, thereafter, he did not associate with the proceedings. He further mentioned that in March, 1987 he came to know regarding the award, dated 2-11-1985. It transpires from the scrutiny of his deposition and cross-examination that no assurance whatsoever was given by WAPDA in writing to the petitioners regarding the abandonment of the suit land. It is also an admitted position that award was made on 2-11-1985 and objection was also filed by the petitioner which was decided by the Collector. It is also an admitted position that Ahmed Khan had already taken his share. 10 The defendant No. l did not produce any evidence. The defendant No. 2, however, produced one witness namely Muhammad Anwar Cheema, who deposed the background of the dispute in depth and mentioned in an unambiguous manner that Award regarding the suit land was made on 2-I 1- 1985 after completion of the necessary formalities 'as envisaged under Land Acquisition Act. He also deposed that the award, dated 2-I1-1985 was never challenged in any Court. He admitted that due to some financial constraints the Collector Quetta, was informed on 2-12-1985 that the proceedings initiated under Land Acquisition Act, may be dropped, but it could not be done as Award was given on 2-I1-1985 and moreso, the Collector also informed vide his letter, dated 14-4- 1986 that in case the proceedings were dropped then the payment already made would not be recoverable, and further compensation would also be given to the land owners, therefore, it was decided that both the lands be kept by WAPDA and used for different Projects, which were meant for Public Purpose as such finally the amount was deposited regarding the suit land. He also admitted that the land pertaining to Dost Muhammad for construction of Hospital was used for Regional Training Centre, Dispensary, Bachelor Hospital, Computer Centre and residential accommodation, and contract whereof was given to Muhammad Qasim. He also deposed that complaint filed by Haji Abdul Marian to worthy Ombudsman, was decided and he produced a copy of the order (Exh.D/46). He also deposed that Haji Abdul Manan, who was attorney for the appellants remained present on the day when the Award was given by the Collector. He also produced a copy of Award, dated 2-11-1985 (Exh.D/48) duly signed by Haji Abdul Manan and concerned Officer of WAPDA. He also mentioned that the appellants were fully aware regarding the process of acquisition and participated fully and no appeal or reference whatsoever was made except an appeal filed on 20-1-1987, which was decided by Commissioner on 5-10-1988 vide order Exh.D/49, which was subsequently set aside by the Hon'ble High Court. He also mentioned about the notice, dated 25-1-1987 served by the appellants whereby they demanded for the acquisition amount and compensation. He also stated that Ahmed Khan, who was a shareholder in the suit land received his amount of compensation and-no-abjection was made on the Award, dated 2-1 f
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1985. He also deposed that boundary wall of the land in question has been completed by incurring heavy amount and WAPDA intended to construct 50-bed Hospital, Staff Colony and Store. He further mentioned that land pertaining to Dost Muhammad which was obtained for the said purpose could not be utilized for the abovementioned Projects. He also deposed that WAPDA was not having its permanent Hospital and resultantly WAPDA employees were facing grave hardship, moreso, that WAPDA was not having any land where Regional Store could be constructed to cater for the needs of entire Province. He also mentioned without any ambiguity that the suit land is required for public purpose, which still exists. He denied that any cultivation was made on the suit land, however, admitted that some structure was available and compensation whereof was determined in the Award. He also deposed that there was no tubewell, and moreso, the suit land was barren and the suit was entirely baseless and WAPDA had never abandoned the suit land. He also deposed that Award, dated 2-11-1985 had already been implemented. He was subjected to cross-examination and it is to be noted that his deposition regarding the signatures of Haji Abdul Manan on Award, and further their awareness regarding acquisition proceedings was never cross- --examined. He was also not cross-examined on the point that Award, dated 2-11-1985 had already been implemented. Nothing advantageous could be elicited. 11. We have diverted our attention to the main plea around which the entire litigation revolves that WAPDA had abandoned the land, as such it could not be retained any more. No doubt, that various letters had been written by the WAPDA authorities intimating therein that the land vacated at Viala Baz should be acquired instead of land…
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