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Petitioner: LAHORE IMPROVEMENT TRUST VS Respondent: THE CUSTODIAN, EVACUEE PROPERTY, WEST JUDGMENT
Court Name: Lahore High Court Judge(s): Sardar Muhammad Iqbal, Karam Elahi Chauhan Title:LAHORE IMPROVEMENT TRUST vs THE CUSTODIAN, EVACUEE PROPERTY, WEST
JUDGMENT
Reported As: PLD 1970 Lahore 257 Result: A. Judgment JUDGMENT SARDAR MUHAMMAD IQBAL, J.----The Custodian of Evacuee property, Lahore, sold land measuring 2509 kanals and 7 marlas comprised in Khasra Nos. 1388 to 1622 situate in village Bikhewal, to Messrs Rizwan Co-operative Society Ltd., Lahore, in considera--petition of a sum of Rs. 6,27,087.50 on the 1 of May 1964. The Lahore Improvement Trust has filed the present petition under Article 98 of the Constitution praying that the sale be declared as illegal, void and ineffective. 2. The averments made in the writ petition were not clear, and, therefore, Mr. Mahmood Zaman who was engaged subsequently placed the facts before us as: The Lahore Improvement Trust by a resolution dated the 23rd of March 1954 (Annex. D) resolved that the University Campus, a Development Scheme, may be framed by the Trust under the Punjab Town Improvement Act, 1922. The notice under section 36 of the Act was published in the official Gazette dated the 10 of April, 23rd of April and the 30th of April 1954 (Annex. E). The Scheme comprised an urea of about 3100 acres situate on both sides of Lahore Branch of the Bari Doab Canal, and bounded by the line projecting on the North of Bikhewal village and passing along with the Rawan village on the south, meeting straight with the Ferozepur Road near Rehmanpura on the North-West, Ferozepur on the East, the limits of the Model Town on the South, the limits of the Trust local area on the West. Objections were invited from the owners and the occupiers of the land to be so included in the Scheme. The Trust considered the objections in a meeting held on the 14th of July 1955, and consequently forwarded the Scheme to the Provincial Government through the Commissioner, Lahore Division, Lahore, on the 7th of December 1955. All the enclosures (sent with the Scheme) except the one where the names of the objectors were given, contained nost th
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particulars and only the word "NIL" was written. It was stated by the Commissioner in paragraph 3 of his forwarding letter: "The object of the scheme is to provide site for the Punjab University for the construction of their buildings and institutes etc., and to convert the area iii excess of their requirements into residential sites to be made available for sale to the public and residential accommodation to the One Unit Staff." The Government was also asked to give permission for the acquisition of the land under section 50 of the Land Acquisition Act, 1894, read with clause (1) of section 28 of the Punjab Town Improvement Act, 1922. A further request was made for a direction under section 17 of 1894 Act to the Land Acquisition Collector for delivery of possession before the acquisition proceedings were finalised. The notice under section 40 of 1922 Act; was published once a week for two consecutive weeks in the newspapers. The Provincial Government sanctioned the Scheme through Notification No. 5174-C & T-1-54/56, dated the 24th of January 1957. It authorised the petitioner herein; to acquire, either under the 1894 Act as modified by the Schedule attached to 1922 Act, or by purchase lease; exchange or otherwise, the Art whole or any part of the laud or any interest in the land comprised in the Scheme. In paragraph 3 of the notification a condition was placed the acquisition of evacuee property shall take place after permission is obtained of the Pakistan Government under section 12 of the Pakistan (Administration of Evacuee Property.) Ordinance (XV of 1949). The Governor also, in the exercise of the powers conferred on him by section 17 of 1894 Act, read with section 59 of 1922 Act and clauses 5 and 6 of the Schedule attached therewith, directed "that the Collector may on the expiration of 15 days from the publication of the notice under subsection (1) of section 9 of the said Land Acquisition Act, take possession of all waste and arable lazed and any area certified to be unhealthy by Magistrate of the First Class comprised in the aforesaid Scheme save evacuee property of which possession shall only be taken after obtaining Pakistan Government's permission under section 12 of Ordinance XV of 1949." 3. The Chairman of the petitioner Trust had, meanwhile, written on the 14th of November 1956, a letter (Annex. L) to the Commissioner to obtain the approval of the Central Government to the acquisition of the evacuee property included in the Scheme. He also wrote on the 21st of January 1957 a letter (Annex. M) to the Secretary to Government of West Pakistan, Social Welfare and Local Government Department, Lahore, informing him that the area of the scheme had been reduced from 3100 acres to 2478.6 acres, and the area of the evacuee land worked out to 11924 kanals, 18 marlas and 55 Sq. Ft. (1231.91 acres). The Secretary to Government of West Pakistan Refugees and Rehabilitation Department wrote on the 2nd of April 1957 to the Secretary to Government of Pakistan, Ministry of Rehabilitation, Karachi, requesting for the approval to the proposed acquisition. It was stated that the land was to be acquired "for implementing a Development Scheme known as University Campus Scheme. The same will be developed by tire University Authorities." The Central Government by their letter dated the 24th of April 1957 accorded approval to the acquisition by the Government of West Pakistan under the provisions of the Land Acquisition Act as modified by the Punjab Town Improvement Act of evacuee land for University Campus Scheme. The Collector, for the purpose of determining com--pensation, gave notices under sections 9 and 10 of the Act. The land was comprised in village Bikhewal, Dhana Singhwala, Davisabad and Ichhra. The petition in hand concerns only to the land in village Bikhewal. The Collector gave his award on the 20th of July 1957 and the possession,, it is contended, was taken of the land in dispute on the 25th of May 1957 and 26th of June 1958, and handed over to the Trust. The learned counsel contended that the property in dispute having been validly acquired by the Trust, the Custodian was divested of it and, therefore, could not pass any title in the said property to the respondent-Society by the sale deed dated the 1st of May 1964. 4. Sh. Ghias Muhammad, learned counsel for the respondent-Society contended (a) that the land was not validly acquired by the Trust or the University, and, therefore, the Custodian was not
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divested of the property till he sold it to the Society in 1964, (b) that the `No-objection Certificate' for sale of the land to the Society was issued on behalf of the Lahore Improvement Trust and that being so the petitioner is estopped In law to challenge the sale ; (c) that the Central Government had vide their letter No. F. 16(43)/58-P-II, dated the 13th of July 1959 decided to sell the land to the respondent-Society ; and (d) that the petition was filed after six years of the order passed by the Government in favour of the respondent-Society on the 13th of July 1959. The respondent-Society was registered on the 27 of February 1953 under the Co-operative Societies Act, 1912. It applied to the Provincial Government for the acquisition of land to construct residential houses for its members. The Deputy Rehabilitation Commissioner (Lands), Lahore issued a certificate on the 18 of August 1954 that the Department had no objection to the acquisition of the evacuee land comprised in Khasra Nos. 1388 to 1628 measuring 2459 kanals and 13 marlas, and Khasra Nos. 1320, 1329, 1344, 1348, 1352, 1363, 1373, 1378 and 1385 measuring 138 kanals and 19 marlas. There is no dispute in respect of land other than the land comprised in Khasra Nos. 1388 to 1622. The Rehabilitation Commissioner in his memorandum No. 7672-II-Reh-3-RF/55, dated the 9th of February 1955 addressed to the Secretary to the Government, Punjab, Agricultural Department, raised a number of questions relevant to the acquisition of the and for the respondent, and particularly asked for "a certificate from the Lahore Improvement Trust that it hag no objection to the propose acquisition." Mr. Abdul Hamid, the then Post-Master General, who was the President of the Society, was informed through a D. O. Letter No. 4172 dated the 1st of September 1955 by the Town Planner, Lahore Improvement Trust, that although the area required by the Sociery fell within the area of University Campus Scheme, the Trust had "no objection to the allotment of this land to Rizwan Co-operative Society Ltd." It was further pointed out by the Town Planner that the Urban Development Department had also included these Khasra numbers for their Satellite Town, and he suggested that the concurrence of that Department should also be obtained for the use of the land in dispute by the respondent-Society. On a reference by the Registrar, Co-opera--tive Societies, West Pakistan, the Member, Board of Revenue (Rehabilitation) Urban Rehabilitation Department, Lahore vide his Memorandum No. 7993-UDD-55/6865, dated the 27th of December 1955, intimated that "a part of the land falls in proposed Lahore Satellite Town Scheme and is being acquired for this purpose. However, the Urban Rehabilitation Department can agree to issue a no-objection certificate provided the Society undertakes to fulfil" certain conditions which he laid down in ~nr the memorandum aforesaid, in regard to the Society agreeing to the planning of their Scheme by the Provincial 'town Planner so as to be consistent with the neighbouring Satellite Town Scheme ere. In its letter No. 1104/R/56, dated the 6th of February 1956, the Society undertook to have the general lay-out of its roads planned by the Provincial Town Planner as also to develop its roads and drainage in accordance with the standard desired by the Urban Rehabilitation Department within a reasonable time. No-objection certificate was thereafter issued by the Urban Development Department on the 7th of April 1956 (Annex. R/8). It was on the completion of ---these formalities that the Provincial Government decided to recommend to the Central Government for obtaining their approval for the acquisition of the land comprised in Khasra Nos. 1388 to 1622 for the benefit of the Society. The decision of the Government is contained in Memorandum Nos. 3076-R&R-IR-58, dated the 10th of May 1958 (Annex. R/9) from the Secretary to Government of West Pakistan, Revenue and Rehabilitation Department, addressed to the Secretary to Government of West Pakistan, Social Welfare & Local Government Department, Lahore. The Government of Pakistan, Ministry of Rehabilitation, by their letter No. F. 16 (43)/58-P 11, dated the 16th of February 1959 conveyed their decision to the Secretary to Government of West Pakistan Revenue & Rehabilitation Department, Lahore "that the evacuee land in question can be sold to the Social Welfare and Local Government Department on the prevailing market value as assessed by the Custodian". The Society by a resolution of 12th of April 1959 decided to purchase the land on the prevailing marketth th
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value. Consequently, the Government of P4kistan by their letter No. F. 16(43)/58-P-I1, dated the 13th of July 1959 conveyed their permission to the sale of evacuee property measuring 2508 kanals and 7 marlas in village Bikhewal, Tehsil and District Lahore, on payment of its current market price. The letter was addressed to the Custodian of Evacuee Property, Lahore, relevant part of which was in the following terms :- ---------------..That in exercise of the powers conferred by section 25(2)(s) of the Pakistan (Administration of Evacuee Property) Act, 1957 (X11 of 1957) the Central Government are pleased to accord permission for the outright sale of the evacuee land measuring 2508 kanals and 7 marlas situated in village Bikhewal, Tehsil and District Lahore in favour of the Social Welfare & Local Government Department, Government of West Pakistan, for construction of houses, educational institution, play grounds, etc., by the Rizwan Co-operative Society Limited, Lahore, at the current market value to be determined by you on the condition that displaced persons, if any, settled thereon will be provided with alternative accommodation------------------------------------- -----------------..--- The Custodian then took steps to have the price of the land determined. The Deputy Commissioner, Lahore, in his Memo. NQ. LAC/M/24488, dated the 5th of November 1960 (Annex. R/17) by making reference to the different sale stated that the market value of the land was Rs. 250.00 per kanal. The Custodian of Evacuee property by his memorandum dated the 30th of October 1962 (Annex. R/18) addressed to the Deputy Commissioner, Lahore. Accorded approval to the proposed rate, viz., Rs. 250.00 per kanal. The Custodian asked the .Deputy Commissioner to recover and deposit with the Deputy Rehabilitation Commissioner, Lahore, the compensation due for the land involved in the case under intimation to him, together with a statement showing the prorata share of each evacuee owner whose land was being acquired. The Deputy Commissioner intimated the approval of the Custodian to the Society vide Memo. No. LAC/M/17097, dated the 8th of November 1962, and asked it to deposit the amount with the Deputy Rehabilitation Commissioner, Lahore. By means of Memo. No. DS&RC/St. 7951, dated the 24th of December 1963, the Deputy Settlement and Rehabilitation Commissioner, Lahore, informed the Custodian of Evacuee Property that the respondent-Society had made full payment of Rs. 6,27,087.50 towards the satisfaction of the compensation of the land in dispute, the last payment, in point of time, having been made on the 18th of December 1963. The Custodian of Evacuee Property then by his Memo. No. CEP/Sales/LHR(42)/ 2543, dated the 22nd of February 1964, asked the Deputy Commissioner, Lahore, to deliver the possession of the evacuee land involved in the case to the Rizwan Co- operative Society Ltd., Lahore. The sale deed was executed in 1964. 5. There are three parties to the dispute, viz., the Lahore Improvement Trust, the University of the Punjab, and the Rizwan Co-operative Society Limited, Lahore. The Trust maintains that it framed a Development Scheme under the Act and has acquired the property in accordance with the provisions of the Town Improvement Act read with Land Acquisition Act as amended by the provisions contained in the Schedule attached to the Town Improvement Act, and the property vested in it since 1959 when it was handed over the possession, and the subsequent sale by the Custodian to the respondent-Society of the land which was covered by the Development Scheme was void ab initio. Learned counsel for the University stated in express terms before us that the property was acquired by the Trust and it is through the Trust that the University will ask for the transfer of the property. According to him, the Trust framed the Development Scheme and it is in pursuance of that Scheme that the property was acquired. One of the purposes of the Development scheme was also the New University Campus, and some property included in the said land was earmarked for the University. The University, it was admitted by the learned counsel, surrendered the area in excess of its requirements in the year 1962 and the land in dispute falls within that area. But the University has,
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on reappraisal and reconsideration of its demands, asked the Trust to transfer the land which the University lit one time surrendered to it. The ease of the respondent-Society is that it has become owner of the land by a valid transfer made in its favour by the Custodian after the Central Government had accorded permission, and that the sale was made in its favour at a time when tile property had not been acquired by the Trust. The Trust, according to tile Society, could acquire the property only for one of the purposes specified in the Towa Improvement Act of 1922, and since the Trust did not frame any scheme under the Act nor did it submit it to the Government for their sanction with the necessary documents as required under section 41, the sanction accorded by the Government under the said section was a nullity, and all the proceedings which were taken in pursuance thereof including the notification under section 42 and other proceedings under sections 9 and 17 of the Land Acquisition Act were null and void. It was also maintained that the property in dispute was an evacuee property, and since the Central Government accorded sanction for the acquisition of the property only in September 1957 the entire proceedings which were taken before that under sections 36 and 42 of the Town Improvement Act, 1922, and section 9 of the Land Acquisition Act were a nullity, being in violation of the provisions contained in section 12 of. Ordinance XV of 1949 (now section 16 of Act XII of 1957). Mr. Ishaq Muhammad, learned counsel for the Custodian, joins issue with the Trust and the University in the position taken up by them and contends that the Custodian had rightly transferred the property to the Society. 6. The position which emerges is that the University does not claim any right or title in the property in dispute. The title, according to the University and the Trust, vests in the latter, The Society, on the other hand, considers that the entire proceedings taken by the Trust for the acquisition of the property were a nullity and no title had passed on to the Trust when the property was sold by a registered deed by the Custodian to the Society. The position boils down to this that if the property had vested in the Trust by the acquisition, the sale made in favour of the Society will be a nullity. 7. Learned counsel for the Trust contended that the Trust had framed a Development Scheme which made a provision for the New Campus of the University and aimed at converting the area in excess of their requirement into residential sites for the public. Under section 24, the Trust can for the purposes of any locality, prepare a Development Scheme. The Development Scheme may provide "for the lay-out of the locality is to be developed, the purposes for which particular portions of such locality are to be utilised the prescribed street alignment and the building line on each side of the streets proposed in such locality, the drainage of insanitary localities and such other details as may appear desirable." Under section 28, the scheme may inter alia provide for the acquisition under the Land Acquisition Act 1894 as modified by the Town Improvement Act, of any land or any interest in land necessary for or affected by the execution of the scheme, or adjoining any street, thoroughfare, open so it to be improved or formed under the scheme. Under section 33, the scheme under the Act can be framed also upon an official representation by the municipal Committee, and the committee may make such a representation on its own motion, or on a written complaint by the medical officer of health, or in respect o1 any area comprised in a Union within the jurisdiction of a municipality, on a written request signed by twenty-five or more inhabitants of such Union. If the Trust does not agree to the framing of a scheme, the Committee can move the Government who, if satisfied as to the propriety of the project, can force the Trust to frame the proposed scheme, because under subsection (5) of section 34 the Trust is bound to comply with every direction given by the Provincial Government. There is, however, no provision that on), of the statutory corporations can initiate a scheme, nor is there any provision that on their move the Government can ask the Trust to frame scheme for the purposes of that statutory corporation. It is exclusively within the domain of a Trust to conceive of a scheme and then to steer it through the
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various formalities as would be seen from clause (c) of subsection (2) of section 33 of the Act. It is only after a scheme is framed under the Act that the Trust acts under section 36 and prepares a notice stating (i) the fact that the scheme has been framed ; (ii) the boundaries of the locality comprised in the scheme ; and (iii) the place at which details of the scheme including a statement of the land proposed to be acquired and a general map of the locality comprised in the scheme may be inspected at reasonable hours. Thus, before a notice under section 36 can be gig en in the case of a development scheme, there should be as contemplated by subsection (3) of section 24 a "lay-out of the locality to be developed, the purposes for which particular portions of such locality are to be utilised, the prescribed street alignment and the building line on each side of the streets proposed in such locality, the drainage of insanitary localities and such other details as may appear desirable." The notice under section 36 is to be published weekly in the official Gazette for three consecutive weeks, and under subsection (3) the Chairman is to cause copies of all documents to be delivered to any applicant on payment of such fees as may be prescribed by rules. The learned counsel for the Trust frankly conceded that nothing had been done as was required under subsection (3) of section 24. The Lay-out of the locality had not been prepared, and it was also not shown that any particular portion of the locality was to be utilised for any purpose. In the absence of a lay-out, the street alignment and the building lines could not be provided for and consequently nothing in this respect was done. Under section 38, the Trust is under an obligation to serve a notice, during the thirty days next following the first day on which the notice under section 36 is published in respect of any scheme, on the owners of the property which is proposed to be acquired (in executing the scheme). Section 38 also presupposes the existence of a scheme. The Trust, after hearing the objections or representa--tions received from any parson may by acting under section 't0 either abandon the scheme or "apply to the Provincial Government for sanction to the scheme with such modifications (if any) as the Trust may deem necessary." Subsection (2) of section 40 is in the following terms: "(2) Every application submitted under subsection (1) shall be accompanied by- (i) complete plans and details of the scheme and an estimate of the cost of executing it ; (ii) a statement of the reasons for modification (if any) made in the scheme as originally framed ; (iii) a statement of objections (if any) received under section 37 ; (iv) the representation (if any) received under section 37 ; (v) a list of the names of all persons (if any) who have objected under clause (b) of subsection (2) of section 38, to the proposed acquisition of their property and a statement of the reasons given for such objection ; and (vi) a statement of the arrangements made or proposed by the trust for the re-housing of persons who are likely to be displaced by the execution of the scheme and for whose re-housing provision is required." It is an established fact ; it is also admitted by the learned counsel for the Trust, anti we have also satisfied ourselves by the perusal of the record that documents (except a list giving the names of objections) referred to in subsection (2) of section 40 extracted above, were not sent to the Government, and that in fact it was only a blue print which had the boundary line marked on it which was submitted. It is also admitted that the sanction was given by the Government with reference to only the blue print which was so submitted, because no plans whatsoever had been prepared by the Trust and that no scheme with any lay-out had been framed. Under section 41, the Provincial Government may sanction, either with or without modification, or may refuse to sanction, or may return for reconsideration, any scheme submitted to it under section 40. This provision also points out to the fact that the scheme submitted under section 40 for the consideration of the Provincial Government is not a mere formality, but a reality and the Government is not to act mechanically but has to pass the order either accepting or refusing the scheme which it can do
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only if a scheme as required by law had been prepared and then submitted to it after complying with the provisions of section 36. In the circumstances, when no Development Scheme and been prepared in accordance with the provisions contained in section 24, it is not understandable as to how a notice under section 36 could be given, or objections invited; the notice and objections being relatable to the scheme itself. When there was no scheme what was it which was submitted to the Government under section 40 of the Act, and in the…
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