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Petitioner: PAKISTAN TANNERIES LTD. (UNDER LIQUIDATION), LAHORE VS Respondent: Sardar HIDAYAT JUDGMENT
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Karam Elahi Chauhan Title:PAKISTAN TANNERIES LTD. (UNDER LIQUIDATION), LAHORE vs Sardar HIDAYAT
JUDGMENT
Reported As: PLD 1972 Lahore 880 Result: Petitions accepted Judgment JUDGMENT K. E. CHAUHAN, J.-In the year 1944, Messrs F. D. Piracha floated a limited concern known as Pakistan Tanneries Limited. Later on they applied to the Punjab Government for acquisition of land for the said Company in Village Noon, Tehsil Ferozewala, District Sheikhupura on Lahore -Gujranwala Road. Due enquiry was held under section 40 of the Land Acquisition Act I of 189 1. Whereafter the Government called upon the Company to enter Into an agreement regarding matters laid down in section 41 of the said Act. The said agreement was executed on 20-11- 1948 and a Notification under section 4 of the Act was published on 7-1-1949. It reads as follows:- INDUSTRIES AND MEDICAL DEP ARTMENT COMMERCE The 3rd January 1949. No. 3978-Com-48/3.-Whereas it appears to the Governor of West Punjab that the land described in the Schedule, be it a little more or less, is likely to be required for a public purpose, namely , for the erection of a Tannery and ancillary buildings, godowns and quarters. Now, therefore, in exercise of the powers conferred by section 4 of the Land Acquisition Act, 1894, read with section 38(1) of the said Act the Governor of West Punjab is pleased to authorise the Managing Director of the Pakistan Tanneries Ltd., Lahore, and their servants and workmen to enter upon .The aforesaid land and survey any land in the locality and do all other acts contemplated by subsection (2) of section 4 of the said act. Any person who has any objection to the acquisition of the land to question or any portion thereof may within thirty days of the publication of this notification file such objection in writing before the Collector of Sheikhupura District. Details of area List of Plot Numbers-1533, 1534, 1535, 1536, 1552, 1553, 1551, 1537, 1538, 1539, 1540, 1541, 1550, 1554, 1556, 1549, 1542, 1544, 1557, 1543, 1542, 1547, 1546, 1545, 1567, 1568, 1598, 1599, 1600, 1566, 1569, 1597, 1596,
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1601, 1573, 1570, 1594, 1595, 1602, 1572, 1571, 1593, 1592, 1605, 1588, 1589, 1590, 1591, 1606, 1622, 1621, 1620, 1608, 1607, 1623, 1624, 1619, 1609, 1610, 1626, 1625, 1618, 1612, 1611, 1627, 1628, 1617, 1613, 1630, 1629, 1616, 1614, 1615, 1640, 1639, 1636, 1635 and 1631. (Sd.) S. M. Hasan; Secretary to Government of W est Punjabi Industries and Medical Department. No. 3978-Com-48/4, dated the 3rd January 1949. A copy is forwarded to the D. I. West Punjab for information with reference to his memo. No. D-4-104/7978, dated the 25th August 1948. No. 3978-Com-48/5, dated the 3rd January 1949. A copy (with 50 spare copies) is forwarded to the Collector of Sheikhupura District for information and favour of necessary action, with reference to his memo. No. 13701, dated the 23rd November 1948. 2. A report on the objections received, if any, against the proposed acquisition of land may be made to Government after the expiry of thirty days, as required by paragraph 19-A (a)(iii) of the Financial Commissioners' Standing Order No. 28. 3. A copy of the notification should be served on all persons known to be interested in the land proposed to be acquired as required by paragraph 17 of the Financial Commissioners' Standing Order No. 28, and a copy may also be served on the Custodian of Evacuee Property as the land belongs to the non-Muslim evacuees. 4. Please report the price of the land proposed to be acquir--ed and state whether the price has been paid to Government or will be recovered from the proprietors of the Tanneries after the land acquired by Government is handed over to them. No. 3978-Com-48/6, dated the 3rd January 1949. A copy is forwarded to the Commissioner , Lahore Division, Lahore, for information. By order etc. S. M. Hasan, Secretary to Government W est Punjab, Industries and Medical Departments." As the above notification shows its one copy was meant for the Custodian of Evacuee Property , Lahore. Even otherwise, from the file of the Collector (Acquisition) produced in Court by Mr. Maqbool Ilahi Malik, learned counsel for the Settlement Department, it appears that the Collector on his part as well, on 17-2-1969, sent a copy of the Notification to the Deputy Custodian of the Evacuee Property , Sheikhupura, within whose territorial jurisdiction the evacuee land to be acquired was situated. Nobody raised any objection before the Collector/ Deputy Commissioner who after usual enquiry sent a report to the Government under section 5-A of the Act on 22-6-1945. Thereafter two notifications of the same date, namely , 15-9-1949, were Issued. In one Notification was published, the agreement hereinbefore mentioned, under section 42 of the Act and the other was a notification under section 6 of the Act. The latter notification reads as, follows :-- NOTIFICATION The 15th September 1949. No. 4194-Com-49/56362: In exercise of the powers conferred by section 6 of the Land Acquisition Act, 1894, and with reference to the West Punjab Government Notification No. 3978-Com-48/3, dated the 3rd January 1949, it Is hereby declared that the land measuring approximately 75 acres, 6 kanals and 11 marlas described in the Schedule given below and a plan of which may be inspected in the office of Collector of the Sheikhupura District, is to be acquired at the expense of the Pakistan Tanneries Ltd., Lahore for a public purpose, to writ the erection of a tannery and ancillary buildings, godowns and workmen's quarters. SCHEDULE District Tehsil Locality Area Place where plan may be inspected. 1 2 3 4 5
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Sheikhupura Shahdara Noon near Muridke75 acres 6 Kanals, 11 Marlas.Office of the Collector , Sheikhupura District. Details of area List of Plots Numbers.-1533, 1534, 1535, 1536, 1552. 1553, 1551, 1537, 1538, 1539, 1540, 1541, 1550, 1554, 1556, 1549, 1542, 1544, 1557, 1543, 1548, 1547, 1546, 1545, 1567, 1568, 1598, 1599, 1600, 1566, 1569, 1597, 1596, 1601, 1573, 1570, 1594, 1595, 1602, 1572, 1571, 1593, 1592, 1605, 1588. 1589, 1590, 1591, 1606, 1622, 1621, 1620, 1508, 1607, 1623, 1624, 1619, 1609. 1610, 1626, 1625, 1618, 1612, 1611. 1627. 1628, 1617, 1613, 1630, 1629, 1616, 1614, 1615, 1640, 1639, 1636, 1635 and 1631. (Sd.) J. W . Hearn, Secretary to Government W est Punjab, Development Department (Industries). No. 4194-Com-49/56363, dated Lahore, the 15th September 1949. A copy is forwarded to the Director of Industries, West Punjab, for information, in continuation of the West Punjab Government endorsement No. 3978-Com-48/4, dated the 3 January 1949; By Order (Sd.) Ejaz Hussain Deputy Secretary Development (Industries) No. 4194-Com. 49/56364, dated Lahore, the 15th September 1949. A copy is forwarded to the Collector , Sheikhupura District, with reference to his Memorandum No. M. 5558/SWBN., dated the 11th August 1949, for information, and necessary action. He is requested to direct the Company to deposit the money in the Sheikhupura treasury to enable him to pass his award. 2. As required by section 7 of the Land Acquisition Act, 1894 he is directed to take order for the acquisition of the land; By Order Deputy Secretary Development (Industries). No. 4194-Com-49/56365, dated Lahore, the 15th September 1949. A copy is forwarded to the Commissioner , Lahore Division for information, in continuation of the West Punjab Government endorsement No. 3978-Com-49/6, dated the 3rd January 1949. By Order (Sd.) Ejaz Hussain Deputy Secretary Development (Industries)." This notification directed the Collector (as required in section 7 of the Act), to take order for the acquisition of the land. The Land Acquisition Collector on 26-9-1949 sent a further notice to the Deputy Rehabilitation Officer, Sheikhupura which reads as follows :-- "From The Land Acquisition Collector , Sheikhupura. The Deputy Rehabilitation Of ficer, Sheikhupura. No. 7297 SWBN dated 26-9-1949. Subject: Acquisition of land for the Pakistan Tanneries Limited, Lahore. Memorandum, Please take notice that the West Punjab Government in their Notification No. 4194-Com-49/56362 dated 15-9-49 have decided to acquire land measuring 75 acres 6 kanals and 11 marlas. The description of which is given in the enclosed notice under section 9 of the Land Acquisition Act, and make arrangements to represent yourself in the proceedings for compensation under the Act. (Sd.)rd
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Land Acquisition Collector , Sheikhupura." No appearance was put to by the Custodian or Rehabilitation Department before the Collector , who announced his Award oft 1-2-1950. It is pertinent to mention that the Company on 28-11-1949 had already deposited a sum of Rs. 15.000 in advance. In the award the compensation fixed was Rs. 8,684-10-0 and the Collector , therefore, directed that the excess deposited, namely . Rs. 6,315-6-0 should be returned to the Company . Thereafter (the exact date is not known on the present record), the Company took possession of the land and made construc--tions, raised a factory extending over an area of 45 kanals with a boundary wall. About twenty kanals of land was left outside the boundary wall which allegedly contained certain quarters and shops which also were made by them. According to the learned counsel for the petitioners the possession had been taken by the Company oft 26-5-50 though this date is disputed by the other side. 2. In 1965, an application being Civil Original No. 26 of 1965 was filed in this Court for voluntarily winding up of the Company under section 162 of the Companies Act IV of 1913. The learned Company Judge (S. A. Mahmood, J.), by means of his judgment and order , dated 18-10-1965, directed that the Company should be wound up and appointed Mian Hamid-ud---Din, Advocate , as its Official Liquidator . The Official Liquidator proceeded in the matter of the disposal of the property of the concern and called for tenders. After certain formalities, on 8-12-1966, the offer of Abdul Hamid son of Muhammad Sharif (respondent No. 2) and Raja Abdul Hamid son of Abdul Aziz (respondent No. 3) was accepted and formal document of transfer dated 15-2-1967 was issued in their favour . The sale price was Rs. 3,25,000.00, which was duly paid by them to the Of ficial Liquidator . 3. Four persons, namely , (i) Bashir Ahmed; (l1) Shehzad Nazir; (iii) Mst. Khudeja Hakim and (iii) Masood Hassan, acting as informers moved an application to the Settlement Department pointing out that the land in question at the relevant time was agricultural land and being an evacuee property was liable to be allotted to displaced persons and that respondents Nos. 2 and 3 possessed no valid title about the same. The Extra Assistant Settlement Officer, Sheikhupura, rejected the application on 31-10-1967, whose order was agreed to by the Settlement Officer (on 1- 11-1967) who possessed the delegated powers of the Chief Settlement Commissio ner under sections 10 and 1 t of the Displaced Persons (Land Settlement) Act XL VII of 1958 (hereinafter called the Act). 4. The same set of informers filed another application before the Chief Settlement Commissioner which was entrusted by him to Sardar Hidayat Ullah Khan Mokal, who possessed the delegated powers of the Chief Settlement Commissioner under the sections hereinbefore mentioned. The Official Liquidator was not impleaded as a party in those proceedings though the purchasers, namely , respondents Nos. 2 and 3 herein did join the said proceedings. The learned company Judge on 24-4-1969, directed the Official Liquidator to apply in black and white for becoming a party before the delegate Chief Settlement Commissioner . This order was complied with and the Official Liquidator was impleaded in this way as a party therein. 5. On 7-8-1970, the delegate Chief Settlement Commissioner , passed an order whereby he held: (a)that the land in dispute at the relevant time was an evacuee agricultural land and did not stand validly acquired by means of any proper or lawful manne r under the Land Acquisition Act read with Evacuee Laws on the subject which were in force at that time; (b) that the property being evacuee property , all the proceedings for its sale and disposal through the Official Liquidator were misconceived and bad in law: (c) that the land be resumed under section 19(2) of Act XLVII of 19.58 and included in the "Pool" for transfer to deserving displaced persons but its allotment and disposal shall not take place until and unless further directions are received from the learned Chief Settlement Commissioner; and (d) that the illegal occupants should render accounts of mesne profits for the period they had remained in unlawful possession of the land in dispute and that the same should be received from them as arrears of land revenue. 6. Against the aforesaid order , two Settlement Revisions have been filed in this Court; one is Settlement Revision No. 241 of 1970 filed by Pakistan Tanne ries Ltd., (Under Liquidation) through Mian Hameed-ud-Din, Its Official Liquidator v. (1) Sardar Hidayat Ullah Mokal, Settlement Commissioner (Land) with powers of the Chief Settlement Commissioner , Lahore, (2) Abdul Hamid son of Muhammad Sharif, c/o Din Muhammad & Sons, Judhia Bazar ,
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Karachi, (3) Haji Abdul Hameed son of Abdul Aziz, Haji & Co., 32 Islamabad, Gujrauwala, (4) Mst. Begum Khudeja Hakeem, (5) Mirza Haq Nawaz, (6) Shahbaz Khan and (7) Mst. Hashmat-un-Nisa Begum. The other case is Settlement Revision No. 242 of 1970 entitled (1) Abdul Hamid son of Muhammad Sharif c/o Din Muhammad and Sons, Jodhia Bazar , Karachi, (2) Haji Abdul Hamid son of Abdul Aziz, Haji & Company , 32 Islamabad, Gujranwala v. (1) Pakistan Tanneries Limited (under Liquidation) through Mian Hameed-ud-Din, its Official Liquidator , Lane Road, Lahore, (2) The Settlement Commissioner (Lands) (Sardar Hidayat Ullah Mokal), with powers of Chief Settlement Commissioner , 11-Egerton Road, Lahore, (3) Mst. Khudeja Begurr , (4) Mirza Haq Nawaz, (5) Shahbaz Khan and (6) Mst. Hashmat-un-Nisa. Since there were involved common questions of law and fact both these revision petitions were heard together and the present judgment will cover both of them. Some of informers hereinbefore mentioned put in appearance and opposed both these cases. 7. The first point argued by the learned counsel for the petitioners was that Sardar Hidayat Ullah Khan Mokal (Settlement Commissioner) did not possess any delegated power of the Chief Settlement Commissioner to proceed under section 11 of the Act and, therefore, the presently impugned order passed by him was without lawful authority . Mr. Mokal has placed on record an order of the Chief Settlement Commissioner , which negatives this objection. It reads as follows:- Notification No. 75 (Land)-III-Admn. Reh/67.-In exercise of the powers conferred by subsection (1) of section 9 of the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) read with the Ministry of Agriculture and Works (Rehabilitation & Works Division) Notification No. F. 1(1)/65 S. P., dated the 17th June 1965 the Government of West Pakistan is pleased to invest Sardar Hidayat Ullah Khan Mokal, with the powers of Settlement Commissioner , for performance of duties and functions assigned to him by or under the said Act, in respect of cases entrusted to him by the Chief Settlement Commissioner till further orders. His jurisdiction as Settlement Commis sioner , extends to the whole of West Pakistan. He will continue to exercise the powers of Chief Settlement Commissioner under sections 10 and 11. Of the Displaced at Persons (Land Settlement) Act, 1958 (XL VII of 1958). (Sd.) S. Manzoor Ilahi, Secretary to Government of W est Pakistan, Rehabilitation Department. 8. A perusal of the above communication will show that Sardar Hidayat Ullah Khan Mokal, did possess the delegated power and, as such, objection raised has no force. 9. The second point argued was that the power of the delegate Chief Settlement Commissioner under section 11 of the Act extended only to take possession of such properties, allotments whereof were cancelled by him under subsection (1) of the aforesaid section and In case where a person was not an allottee (as for example was a trespasser), there the jurisdiction of the Chief Settlement Commissioner or his delegate, did not reach. Section 11 to which reference was being made reads as follows:- SCHEDULE District Tehsil Locality Area Place where plan may be inspected. 1 2 3 4 5 Sheikhupura Shahdara Noon near Muridke75 acres 6 Kanals, 11 Marlas.Office of the Collector , Sheikhupura District. 10. In this context learned counsel for the petitioners has referred to the definition of the word "allotment" wherein it was written, "unless there is anything repugnant in the subject or context", "allotment" means an allotment of agricultural land made to a Displaced Person under this Act or under any Scheme , in lieu of any claim registered and verified, or deemed to have been registered and verified under any of the follow ing enactments, namely , (i) The West Punjab Refugees (Registration of Land Claims) Act, 1949; (ii) The Refugees (Registration of Land Claims)
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(Capital of the Federation) Ordinance, 1949; (iii) The North-W est Frontier Province Refugees (Registration of Land Claims) Act, 1949; (iv) The Bahawalpur State Refugees (Registration of Land Claims) Act No. 14 of 1949; (v) The Sind Refugees (Registration of Land Claims) Act, 1950; (vi) The Khairpur State Refugees (Registration of Land Claims) Ordinance No. 4 of 1952; (vii) The Refugees (Registration of Land Claims) (Baluchistan) Regulation, 1956; and (viii) The Registration of Claims (Displaced Persons) Act, 1956. He also referred to section 2(7) for the definition of word "Scheme" which, "mea ns a Rehabilitation Settlement Scheme prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956 or section 7 of the Baluchistan (Rehabilitation) Regulation, 1950". Learned counsel submitted that since this was not a case of "allotment" within the meaning of that term, therefore, there was no question of cancellation of any "allotment" of the petitioners and nor of taking possession from them thereafter . Similarly , it was argued that power to cancel allotments existed only in those cases where allotments had been made under a "Scheme" as defined in the Act and if allotment was under any other Scheme or any other law, then the power to cancel the same and take possession of the land in that respect did not exist in the Chief Settlement Commissioner or his delegate. The contention has no merit. No doubt subsection (1) of section 11 deals with cancellation and variation of the terms of allotments or leases, under a "Scheme" or under "this Act" but subsection (2) is wider in scope and would cover the cases of unauthorised occupants or such occupants who did not hold any valid allotment or lease under the "Scheme" or under "this Act" though they may be holding allotments or leases under any other law . To paraphrase subsection (2) states:-- "Powers of Chief Settlement Commissioner to cancel or terminate allotment or to amend or vary terms of allotment.11.-(1)Notwithstanding anything contained in any other law for the time being in force or in any contract, but subjectto the provisions of this Act and the rules made thereunder , the Chiefsettlement Commiss ioner may, for reasons to be recorded in writing, cancel or terminate any allot--ment or lease made under a Scheme or under this Act, or amend or vary the terms of any such allotment or lease: Provided that no order under this subsection shall be passed by the Chief Settlement Commissioner without giving the persons af fected thereby a reasonable opportunity of a being heard. (2) If any allottee, lessee, holder or occupant of any acquired under this Act by reason of lack of a valid allotment order or lease or on account of an order made under subsection (1) is not, or ceases to be, entitled to the possession of such land, he shall, when so required by the Chief Settlement Commissioner , surrender the possession thereof to the Chief Settlement Commissioner , or to any person authorized by the Chief Settlement Commissioner in this behalf. (3) If any person required under subsection. (2) to sur--render possession of land fails to do so, the Chief Settlement Comm issioner , or any person authorized by the Chief Settlement Commissioner in this behalf, may, notwith--standing anything to the contrary contained in any other law for the time being in force, eject such person and take possession of the land and may use or cause to be used such force as may be necessary for the purpose:' A little closer scrutiny of the provisions hereinbefore re--produced will show that broadly speaking there may be three types of persons-(the classification is not intended to be exhaustive but is only by way of illustration)-(a) firstly , those to whom land had been allott ed or given on lease under a "Scheme" (as this word is defined in the Act) or allotted or given on lease expressly under this Act itself, (b) secondly , those to whom land had been given on case or in the form of allotment etc., under any other Act or any other Scheme; or (c) thirdly , those who were just trespasser or unauthorised occupants or holders of lands. Subsection (2) of section 11 groups classes (b) and (c) ibid together and states that irrespective of the fact that the persons mentioned therein may be holders or occupants under any other Scheme or law, so long as they do not possess any valid allotment order under this Act or under a scheme as defined in this Act or so long as they do not have any valid lease in their favour , the Chief Settlement Commissioner can resume land from them. The resumption is to be on the ground that they do not have
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any valid allotment order under this Act or a valid lease. If any of the said persons does not fulfil the aforesaid conditions, then obviously , he is not entitled to the possession of land and when so required is liable to surrender it to the Chief Settlement Commissioner . As against them, there may be persons who are allottees or lessees under this Act, or under a Scheme as defined herein, but their allotments or leases have been cancelled under subsection (1) of section 11. These persons al. o when so required are liable to surrender possession of land in their occupation. That the Scheme of the Act is to divide occupants into aforesaid categories is clear from the fact that persons whose allotments or leases are cancelled under subsection (1) of section 11 are again separately mentioned in subsection (2) in contrast to other , types of occupants, if subsection (2) was not to be wider in scope and was confined only to those occupants who were mentioned In subsection (1) then there was no necessity to affix various other types of occupants before them in subsection (2). Again the words "is not entitled to possession or ceases to be entitled to possession", in subsection (2) are very significant. If the occupation of any person is invalid then he is not entitled "to possession." If, however , his occupation was valid, due to his being allottee or lessee under this Act, or under a Scheme "as defined therein, then after his aforesaid allotment or lease is cancelled under subsection (1), he ceases to be entitled to retain possession. Cession of entitlement will come where initially there was entitlement but the same has been cancelled under subsection (1) of section 11. On the other hand, there may be persons who had no entitlement to remain in occupation of the land ab initio. It was not the intention of the Legislature to place such persons at an advantage as against the other categories, because that will mean that Chief Settlement Commissioner can take possession from allottees and lessees under this Act after cancelling their allotments or leases but could not take possession from trespassers or squatters or such persons who do not hold any valid allotm ent order under this Act or any valid lease. Obviously this cannot be the meanings of subsection (2) of section 1 1. This is further clear from section 3 of the Act which reads as follows:- "3(1) As soon as may be after the commencement of this Act, but not later than ninety days therefrom every person who is in possession, supervision or management of any land which he knows or has reason to believe to be concealed evacuee property shall submit to, the Rehabilitation Authority , or the Settlement authority of the area concerned full information relating to such land, including the date since when, or the period for which he has been in possession, supervision or management thereof. (2) Any such property as is referred to in subsection (1) shall, notwithstanding the provisions of section 3 of the Pakistan (Administration of Evacuee Property)…
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