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Petitioner: MUHAMMAD YAQUB AND 13 OTHERS VS Respondent: THE MUNICIPAL COMMITTEE, LYALLPUR
Court Name: Lahore High Court Judge(s): Sheikh Anwarul Haq Title: MUHAMMAD YAQUB AND 13 OTHERS vs THE MUNICIPAL COMMITTEE, LYALLPUR Case No.: Writ Petition No, 117 of 1961 Date of Judgment:1970-08-26 Reported As: PLD 1971 Lahore 664 Result: Petition dismissed
JUDGMENT
JUDGMENT The fourteen petitioners claim to be in possession of different plots of land comprised in the industrial sector of the New Municipal Market, Lyallpur. Petitioners Nos, 3, 12, 13 and 14, namely, Muhammad Osman Khalil, Ch. Bashir Ahmed, Ch. Ameer Ali and Ch. Nazir Ahmad, allege that they were allotted their respective plots by the Municipal Committee in 1960 and agreements of lease/rent notes were duly executed, whereafter they installed industrial machinery by way of looms for manufacturing cloth. The remaining petitioners do not claim to be the original allottees/lessees from the Municipal Committee, but state that they obtained the plots from the original lessees by means of partnerships or other arrangements. 2. All the petitioners are aggrieved by the fact that the Municipal Committee of Lyallpur has served notices on them to vacate their plots within specified periods, failing which the Committee would itself proceed to demolish their installations and take forcible possession. The notices appear to be of the following kinds:-- (i) In the case of petitioners 3, 12, 13 and 14 the original allottees) the notices proceed on the ground that these petitioners had started a business different from the one for which the plots were leased out to them. They were given ten days time to vacate the plots; (ii) in the case of petitioners 4, 5, 7 and 11 the notices allege -unauthorised possession and direct the occupants to vacate the plots within 24 hours; and (iii)in the case of the remaining petitioners, namely, at serial Nos, 1, 2, 6, 8, 9 and 10, the allegation is that they had obtained the plots by pagri from the original lessees and they are given fifteen days time to clear out. 3. It is stated that on receipt of these notices the petitioners had filed civil suits and obtained
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temporary injunctions, but subsequently the suits were withdrawn for the reason that thirty days' notice required under section 94 of the Basic Democracies Order, 1959 had not been given to the Municipal Committee. After the withdrawal of the civil suits the present writ petition was filed. 4. It will be seen that the cause of action is not identical in the case of all the petitioners and for that reason there is indeed a misjoinder of causes and parties. However, the writ petition having been filed and admitted as long ago as 1961, I did not consider it desirable or expedient to refuse to proceed with the hearing on this ground. 5. The validity of the notices served on the petitioners by the Municipal Committee of Lyallpur has been challenged on the following grounds:-- (a)That the Municipal Committee has no right or title to deal with these plots as they are evacuee property vesting in the Custodian or the Settlement Department, (b)that the petitioners being entitled to the transfer of these plots as building sites under paragraph 13 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, were not liable to ejectment by the Municipal Committee, (c)that the Municipal Committee having received rents from some of the petitioners could not turn round and treat them as unauthorised occupants liable to ejectment, and (d)that, in any case, the notices were inoperative and invalid as having been issued beyond the period of six months prescribed under section 195 of the Municipal Act of 1911 which is applicable in this case, and as also being in violation of section 78 of the subsequent Municipal Administration Ordinance, 1960. 6. On behalf of the Municipal Committee certain preliminary objections have been raised by Mr. Akhtar Mir as to the maintainability of this petition. He has contended that as the petitioners had already resorted to the alternative remedy by way of civil suits, it was not open to them to invoke the extraordinary jurisdiction of this Court under the Laws (Continuance in Force) Order, 1958 or Article c 8 of the 1962-Constitution; that, in any case, it was open to the petitioners to file an appeal to the Controlling Authority, namely, the Divisional Commissioner, under section 119(1) of the Municipal Administration Ordinance of 1960, but they did not avail of this remedy as provided under the relevant statute; and, finally, that the petitioners have come to this Court with unclean hands, as they have made incorrect statements and have acted dishonestly in encroaching upon municipal land after obtaining interim stay orders from this Court. The learned counsel for the Municipal Committee has also referred to certain previous writ petitions filed in the years 1957 and 1959 by certain occupants (not the petitioners) of this very evacuee land, although not necessarily these specific plots, and has stated that those petitions were dismissed. It appears to Mr. Akhtar Mir that the dismissal of those previous petitions should act as a bar in the way of the present petitioners as well. One last point made by the learned counsel for the Municipal Committee is that in reply to the impugned notices the petitioners had agreed to remove the constructions put up by them and had only prayed for time, with the result that they are now estopped from challenging the legality of these notices. 7. On merits, the case set up by the Municipal Committee is that the land, of which the plots in dispute in this case form a part, was indeed evacuee land, but in 1954 the Collector of Lyallpur set apart an area measuring 152 acres 4 kanals and 16 marlas for expansion of the New Municipal Market. On 20th of November 1954 he proposed to the Provincial Government that the area be sold to the Municipal Committee. The Central Government made an order on the 3rd of January 1958 permitting the exchange of 5235 acres of evacuee land with 7150 acres of State land, with the result that the land in dispute became State land. However, subsequently, by its letter dated the 30th of June 1959, addressed to the Custodian of Evacuee Property, the Central Government sanctioned the outright sale of evacuee land measuring 152 acres 4 kanals and 16 marlas to the Municipal Committee of Lyallpur as proposed by the Deputy Commissioner in November 1954. According to
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the Municipal Committee, the net effect of all these transactions was that the Municipal Committee became the owner of this land and was, therefore, competent to deal with it as if it was municipal property. It is submitted that the plots in dispute were leased out to petitioners 3, 12, 13 and 14 for starting specific businesses, namely, motor workshop, timber business, carpentry and furniture respectively, but in violation of the terms of the lease all these petitioners started khaddis or handlooms, thus thwarting the plan formulated by the Municipal Committee for the functioning of the new market. As regards the remaining petitioners, the position taken up by the Committee is that they are trespassers having no right to remain on municipal land. It is submitted that in these circumstances no question arises of any right accruing to the petitioners to have the plots transferred to them under the provisions of the Settlement Laws, as the plots are no longer evacuee property available in the compensation pool. 8. I shall first take up the preliminary objections raised on behalf of the respondent. It is true that the petitioners did file civil suits, but those were withdrawn on account of the non-service of the statutory notice as prescribed under section 94 of the Basic Democracies Order, 1959. In these circumstances, it can hardly be said that an alternative remedy was available to the petitioners, or that such a remedy had failed on merits. In this view of the matter I am fortified by the observations of the Division Bench in Mst. Sattan and others v. Group Captain Masroor Hussain, P. A. F., Sargodha in which it was stated, inter alia:-- "The power to issue a writ vesting in the High Court is not circumscribed by any conditions and consequently it is for the High Court to determine whether or not the power should be exercised in any particular case before it. If on consideration of the circumstances of any case it becomes manifest that if the relief sought for is not made available to the petitioner, he would suffer in reputation and possibly in property, then in such circumstances notwithstanding the fact that the petitioner has already instituted a suit to get substantially the same relief as he is claiming by means of the writ petition, the institution of the suit by him should not stand in the way of the issue of a writ if, after considering the matter, the Court comes to the conclusion that one should issue." 9. Again, in Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty etc. , the principle was laid down that when an order is attacked on the ground of lack of jurisdiction the availability of an appeal could not stand in the way of the exercise of writ jurisdiction by the High Court. In the present case, one of the grounds of attack is that the property is evacuee property, not amenable to the jurisdiction of the Municipal Committee. In these circumstances, the filing of a civil suit, or the availability of an appeal under the Municipal Administration Ordinance of 1960, could not therefore, operate as a bar in the way of the maintainability of the present petition. It seems to me that the observations appearing in Muhammad Aziz Asif v. Chairman and Trustees of Port Trust, Chittagong and another and Begum Lutfoonnessa Ibrahim and 3 others v. The Province of East Pakistan and others relied upon by Mr. Akhtar Mir, are, in the circumstances, not applicable to the facts of the present case. Similarly, the observations made by his Lordship the Chief Justice in Hasan Din Chishti v. Chief Engineer, WAPDA are not attracted, as the principle involved here is different. 10.It will be seen that the first question which needs determination in this case is whether the property in dispute continues to be evacuee property available in the compensation pool or whether it has ceased to be so available on account of the Central Government having accorded sanction for its sale to the Municipal Committee of Lyallpur. 11.In order to answer this question we have to examine the relevant provisions, and the notifications issued thereunder, relating to the inclusion of evacuee property as part of the compensation pools created for this purpose. 12.The case for the petitioners, of course, is that the disputed plots are urban building sites and, therefore, governed by the provisions contained in the Displaced Persons (Compensation and1 2 3 4 5
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Rehabilitation) Act, 1958 (hereinafter referred to as the Urban Act). On behalf of the respondent- Committee, and the Provincial Government as respondent in the large number of connected cases, a suggestion was made that as the area in dispute was not included in the municipal limits of Lyallpur on the 14th of August 1947, therefore, it had to be treated as rural agricultural land governed by the provisions of Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Land Act). I shall deal with this last question at a later stage, if necessary; but for the present I shall proceed with the matter on the assumption that the property is indeed urban evacuee property as contended by the petitioners. 13.Subsection (2) of section 3 of the Urban Act contemplates that "as and when so required by the Central Government the Government of West Pakistan shall, for any of the purposes of this Act, by notification in the official Gazette, acquire such Evacuee Property, other than agricultural land situated in the Province excluding the Federal Territory of Karachi, as the Central Government may deem it necessary to acquire". Subsection (5) of the same section states that a notification under subsection (2) or the earlier subsection (1), with which we are not concerned in the present case, may relate to all evacuee property generally, or any class of evacuee property, or all evacuee property situated in a specified area, or any particular evacuee property. Section 4 of the same Act creates a compensation pool consisting, inter alia, of all evacuee property acquired under section 3. In pursuance of a direction given by the Central Government under subsection (2) of section 3 of the Act the West Pakistan Government issued a notification on the 21st of August 1959 acquiring all immovable evacuee property situated within the Province of West Pakistan other than (i) agricultural land; (ii) property for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957 (hereinafter referred to as Act XI[ of 1957), or under any law for the time being in force for the administration of evacuee property in Pakistan, had been accorded before the date of this notification; (iii) property with regard to which any proceedings were pending on the date of this Notification under Act XII of 1957 before a Custodian, and (iv) property situated within the limits of the Murree Municipal Committee and the Murree Cantonment Board. 14.Another notification was issued by the Provincial Government on the 11th of August 1961 to the effect that "the Governor of West Pakistan is pleased to acquire, with immediate effect, all evacuee property (other than agricultural land) in West Pakistan with regard to which any proceedings under the Pakistan (Administration of Evacuee Property) Act, 1957 were either pending on the twentieth day of February 1960 or were commenced on any date thereafter and have been finally disposed of before the date of this notification". It was stated at the Bar that some subsequent notifications had also been issued on more or less identical lines, but they were not placed on the record by either side. However, this fact does not have any bearing on the examination of the question in issue. 15.Taking first the notification of 21st of August 1959, it is clear that the property in dispute would stand excluded from the purview of this notification in terms of the second exemption clause relating to property for the acquisition or sale of which sanction of the Central Government had been accorded under Act XII of 1957. It is also possible to bring this property within the third exemption clause by holding that proceedings relating thereto were still pending before the Custodian as, according to the petitioners themselves, the sale had not yet been finalised in terms of the sanction accorded by the Central Government. The subsequent notification dated the 11th of August 1961 does not, in any manner, affect this property, as it relates to that property regarding which proceedings mentioned in clause (iii) of the earlier notification have concluded and the net result of those proceedings is that the property is held to be evacuee property available for acquisition under section 3 of the Act. This is not the case here, and we are, therefore, limited to the effect to the first notification dated the 21st of August 1959.
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16.It is contended on behalf of the petitioners that the exemption clauses contained in this notification cannot be permitted to be invoked in this case as the sanction accorded by the Central Government for the sale of this property to the Municipal Committee of Lyallpur was invalid for two reasons: (a) the property had already become State land in terms of the order made by the Central Government on the 3rd of January 1958 permitting the exchange of evacuee land with State land, and (b) the sanction contained in the letter dated the 30th of June 1959, was granted by the Central Government of its own motion without the matter having been initiated by the Custodian of Evacuee Property in accordance with the powers and duties conferred upon him by clause (s) of subsection (2) of section 25 of Act XII of 1957. The argument goes further and even the validity of the earlier exchange order dated the 3rd of January 1958 is also challenged on the same ground of want of initiative by the Custodian. It is further submitted that even though the Central Government had accorded sanction first for the exchange of this land and subsequently for its sale to the Municipal Committee, yet no steps were taken by the Custodian in pursuance of these sanctions and for this reason as well the transactions have remained inoperative and incomplete. 17.The facts relevant to these contentions have already been stated in the opening part of this judgment, but would bear a brief repetition at this stage for facility of reference. The proposal for the transfer of evacuee land to the Municipal Committee of Lyallpur was initiated by the Deputy Commissioner of that district in November 1954. At that time an area of 529 kanals and 6 marlas was mentioned as having been reserved for the expansion of the Lyallpur Town and for the provision of amenities like schools, dispensaries, playgrounds, children's park hide market, timber marker and fuel-wood stalls. In a subsequent letter dated the 5th of March 1955 an area of 669 kanals, 17 marlas and 126 sq. ft. was mentioned as being required for the shifting of the truck- stands and the market from the congested area of the Lyallpur Town to its outskirts. In pursuance of these proposals the Deputy Commissioner handed over the possession of this property to the Municipal Committee in December 1954 and since then the property has been under the control of the Committee. 18.These proposals of the Deputy Commissioner have to be read along with another proposal made for the exchange of 5235 acres of evacuee land with 7150 acres of State land which was sanctioned by the Central Government in its letter bearing No, F-21 (6)157-H dated the 3rd of January 1958 addressed to the Custodian of Evacuee Property. In fact there had been an earlier order dated the 7th of May 1957 permitting the exchange of 500) acres of evacuee land for 7050 acres of State land, but this order was then amended to exchange 5235 acres of evacuee land for 7150 acres of State land. This letter is followed by another letter of the Central Government bearing No, P. 16(59)/59-PH dated the 30th of June 1959 by which the Central Government was pleased to accord permission for the outright sale of evacuee land measuring 152 acres 4 kanals and 16 marlas for the establishment of a Municipal Market. It is common ground between the parties that the land sold to the Municipal Committee forms part of the evacuee land which is covered by the exchange transaction sanctioned by the Central Government on the 3rd of January 1958. 19.It is true that the respondent in this particular case has not placed on the record anything to show that any formal documents of exchange or sale were drawn up by the Custodian in pursuance to the sanction accorded by the Central Government, but the letter containing the sanction for exchange refers to the previous letter of the Custodian of Evacuee Property dated the 10th of December 1957, thus showing that at least in the matter of exchange the initiative may have come through, it not by, the Custodian of Evacuee Property.The previous letter just mentioned has also not been placed on the record by either party, but a reference to it leaves no doubt in my mind that the Custodian was fully in the picture regarding the proposal for the exchange of evacuee land with State land. It was also pointed out, and rightly, by Mr. Akhtar Mir, appearing for the Municipal Committee, that further implementation of these sanctions by the Custodian was
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impeded by the institution of the present writ petition as well as a large number of connected cases in which orders regarding maintenance of status quo were passed, although proceedings for the fixation of the price of the land had been undertaken by the Custodian. In this behalf a reference was made to a note recorded by the then Custodian (Mr. Justice Masud Ahmad) on the 4th of December 1959 directing that certain steps be taken for the fixation of the price of the land sold. There is also on record a letter addressed by the Additional Custodian on the 3rd of May 1960 to the Additional Deputy Commissioner of Lyallpur in this behalf. This subsequent correspondence tends to show that the Custodian had set in motion certain steps to implement the orders made by the Central Government under section 25(2) (s) of Act XII of 1957. 20.This section deals with the powers and duties of the Custodian, and subsection (1) thereof lays down that "the Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property or property of which possession has been taken by him and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto". Subsection (2) then enumerates the various measures or steps which the Custodian may take for this purpose. Clause (s) of this subsection permits the Custodian to "transfer any evacuee property, notwithstanding anything contained in any law or agreement to the contrary relating thereto". The proviso to this clause lays down that "the Custodian shall not under this clause or the next succeeding clauses transfer any immovable evacuee property or any business or undertaking which is evacuee property, except with the previous approval of the Central Government". 21.It will be seen that section 25 does indeed spell out the powers and duties of the Custodian, and clause (s) of subsection (2) thereof permits the Custodian to transfer evacuee property with the previous approval of the Central Government. Normally, therefore, the initiative to transfer evacuee property would lie with the Custodian who would, however, have to apply for the previous approval of the Central Government before effecting any such transfer. The question, therefore, is whether the approval granted by the Central Government would be inoperative or invalid in law if the initiative for the transfer of the property has not come from the Custodian. 22.This precise question fell for consideration by a Division Bench of this Court in Syed Ehsan Hussain v. The State and anotherI think it will be useful if the relevant observations appearing in the judgment delivered by Sajjad Ahmad, J. are quoted here in full:-- "The learned counsel for the petitioners contended that the transfer allegedly made in favour of the Ministry of Defence by the Central Government was not legally made, and, therefore, the property stood transferred to the 'compensation pool' under section 3 of the Act. The basis for this argument is that under section 25(2) (s) of the Pakistan (Administration of Evacuee Property) Act XII of 1957, it is the Custodian who is to initiate the sale of an evacuee property, although he cannot transfer it without the previous approval of the Central Government, and that in the present case, "the process has been reversed, viz., that the Central Government has effected the sale, to which the Custodian has appended his approval. The learned counsel for the petitioners has stressed this objection, characterizing the departure from the manner of transfer enjoined by the language of the statute, as illegal on the principle that when the law requires a thing to be done in a particular manner it should be done in that manner or not at all. We do not consider that the point carries any substance in the context of the present case. Under the law, as envisaged in section 25(2) (s) and the Proviso attached to it, the Central Government and the Custodian between themselves are the competent authorities to effect the transfer of any evacuee property. The transfer may be done by the Custodian, but not without the previous approval of the Central Government. In the present case, the Central Government has accorded its previous permission; the Custodian has approved the price, and it is not known whether the transfer has been completed or not as required by law. The matter is one which has to be considered and pursued by the parties concerned, namely, the6
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Ministry of Defence on the one hand (to whom the property was sold) and the Ministry of Rehabilitation and the Custodian, on the other. It is enough for our purposes, and for purposes of the decision of this case, that a Notification has been issued by the Government of West Pakistan acquiring the evacuee property, as deemed necessary, and that Notification clearly saves the bungalows in dispute from falling into the 'Compensation Pool'. 23. The learned counsel for the petitioners, however, referred me to The Eastern Aid Society Limited v.…
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