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Petitioner: MULTAN DEVELOPMENT AUTHORITY VS Respondent: Malik ZAHOOR HUSSAIN
1988 M L D 734
1988 M L D 734
[Lahore]
Before Fazal Karim, J
MULTAN DEVELOPMENT AUTHORITY--Petitioner
Versus
Malik ZAHOOR HUSSAIN and 3 others--Respondents
Civil Revision No. 309 of 1987, decided on 2nd April, 1988.
(a) Punjab Town Improvement Act (IV of 1922)-------
---Ss 4, 24, 36 to 38, 40, 42 & 43--Land Acquisition Act (I of 1894), S.9---Development Scheme--Powers, functions and procedure of Improvement Trust- Where a Scheme had been framed, Trust would prepare a notice and publish same--Such notice had to be served on person whom Improvement Trust had reasons to believe after due inquiry to be the owner of any immovable property which was to be acquired for execution of scheme.
Section 40 of Punjab Town Improvement Act, 1922 provides that after the expiry of periods respectively prescribed under sections 36, 37 and 38 in respect of any scheme, the Trust would consider any objection or representation received thereunder, and after hearing all persons or their representatives making any such objection or representation, who might desire to be heard, the Trust might either abandon the scheme or apply to the Provincial Government fro 115 sanction with such modifications as the Trust might deem necessary. Section 4, empowers the Provincial Government to sanction a scheme either with or without modification, or refuse to, sanction it and section 42 requires the Provincial Government to notify the sanction of every scheme under that Act and require the Trust to forthwith proceed to execute such scheme. Section 42-A empowers the Provincial Government, on the request of the Trust, to permit the abandonment of the whole or part of a scheme sanctioned under section 41 and notify such permission in the official Gazette and section 43 empowers the Trust to alter a scheme "at any time between its sanction by the Provincial Government and its execution.
Section 56 of the 1922 Act provides that if in any locality comprised in any scheme under that Act, the Provincial Government had sanctioned acquisition of land which was subsequently discovered to be unnecessary for execution of the scheme the owner of such land, or any person having an interest therein, might make an application to the Trust requesting that the acquisition of such land be abandoned in consideration of the payment by hurl of a sum to be fixed by the Trust in that behalf, provided the application reached the Trust before the time fixed by the Collector under section 9 of the Land Acquisition Act, 1894.
(b) Punjab Town Improvement Act (IV of 1922).-----
---Ss.41 & 42--Land Acquisition Act (I of 1894), S.23--Punjab Acquisition of Land (Housing) Act (VIII of 1973), S.9--Acquisition of land--Acquisition proceedings completed and compensation determined--Abandonment of such proceedings and resort to Act VIII of 1973, whereby compensation to be paid had been fixed at a lower rate--Jurisdiction of Court to question mala fides of action- Abandonment of acquisition proceedings was evidently done by defendant to avoid payment of compensation as per market value of land, that being the criterion for determination of compensation under Land Acquisition Act, 1894- Maximum rate of compensation was limited to a specified price per acre under Act VIII of 1973--Abandonment of previous acquisition proceedings and resort to provisions of Act VIII of 1973 was that instead of paying market value as assessed by Collector, defendant .wanted to acquire such land for a nominal price as fixed by the Act of 1894--Such action of the defendant being mala fide, Civil Court was competent to go into the matter--Provisions of Act VIII of 1973 envisaged its own housing scheme--Scheme under which plaintiff's land was proposed to be acquired was not a scheme under the Act of 1894 and, therefore, such land was not being acquired for the purposes of the Act.
Lahore Electric Supply Co,, Ltd. v. Province of Punjab A I 8.1943 Lah. 41 and Murree Brewery Co. Ltd. v. Pakistan through the. Secretary to Government of Pakistan Works Division and 2 others P L D 1972 S C 279 ref.
(c) Punjab Acquisition of Land (Housing) Act (VIII of 1973)--
---S.7 [as repealed by Punjab Acquisition of Land (Housing) (Repeal) Act (XII of 1985)]--Land Acquisition Act (I of 1894), S.23-..Acquisition of land--Effect of repeal of Act III of 1973--Where in a case an award had not been made at the time of the commencement of the Repealing Act, 1985, compensation in that case was to be assessed, awarded and paid under the provisions of the Land Acquisition Act, 1894.
(d) Land Acquisition Act (I of 1894)--------
---S.23----Civil Procedure Code (V of 1908), S.115--Revisional jurisdiction--Where defendant was clearly moved by ulterior motive in abandoning the acquisition proceedings under Land Acquisition Act, 1894, and proposed to take advantage of the provisions of the repealed Act, such action of defendant was mala fide- Court in exercise of its discretion declined to interfere in revisional jurisdiction and maintained the finding of Court below.
Sh. Ziaud Din Ahmad Qamar for Petitioner.
Ch. Khurshid Ahmad and Malik Nasim Muhammad for Respondents.
Dates of hearing: 9th and 15th March, 1988.
JUDGMENT
This was a suit for perpetual injunction brought by Malik Muhammad Hussain, plaintiff, against the Province of Punjab and the Multan Development Authority, Multan "restraining the defendants/respondents from acquiring-the property in dispute for the purpose of scheme drawn up by defendant No. 2 vide resolution No 11 of 1973 and giving effect to the same under the provisions of Act No.VIII of 1973 or in any manner or for any purpose". The suit was dismissed by judgment of the learned Civil Judge, Multan, dated 30-7-1986. On appeal, however, the learned Additional District Judge, Multan, passed a decree by his judgment dated 19-25-1987 "restraining the defendants-respondents from acquiring the Property in dispute for the purpose of Scheme drawn up by defendant No.2 Resolution No.11 of 1973 and giving effect to the same under the provisions of Act No.VIII of 1973 or in any manner or for any purpose and adding that "the defendants-respondents would be at liberty to proceed into the matter afresh in accordance with law if so advised"..
2. It should be mentioned here that Malik Muhammad Hussain, plaintiff had died during the pendency of the suit and his legal representatives, Malik Zahoor Hussain, Malik Muhammad Nawaz, sons, and Mst. Sughran Bibi, widow, were brought on the record. They and the Province of the Punjab are the respondents in this revision petition.
3. The Multan Development Authority, Multan, has filed this revision petition under section 115 of the C.P.C.
4. The land in suit comprises Khasra Nos. 1225 and 122.6 measuring "? Kanals 9 Marlas and k1hasra No.122r/1 measuring 4 Kanals 5 Marlas. Admittedly, it belongs to the plaintiffs. On 4-1-1962, the Multan Improvement Trust passed Resolution No.42 approving the proposal of Major Muhammad Afzal Khan Daha Trustee "that a Commercial Scheme may be framed at this place. The site measures about 6 Acres, 7 Kanals and 11 Marlas and is suitable for the purpose". This scheme was under sections 24 and 28 of the Punjab Town Improvement Act, 1922. The scheme was duly approved by the Government and in pursuance thereof, the Collector was asked to acquire the land included in the scheme, including the land in suit. The plaintiffs' case was that the acquisition proceedings were completed. Vide a Letter No.33/50-LAC, dated 15-12-1972, the Collector called upon the Improvement Trust "to deposit Rs.3,12,713.66 in the Government Treasury for the purpose of awarding compensation". The process 41 compensation was, thus, completed tinder the provisions of the Land Acquisition Act, 1894. In the meantime, the Punjab Acquisition of Land (Housing) Act, 1973 (VIII of 1973) came into force from 14-3-1973; the maximum rate of compensation awardable under that Act was Rs.20,000 per acre. The Improvement Trust, therefore, "with mala fide intention and ulterior motive" restarted the proceedings of acquisition under that Act "with a view to deprive the plaintiffs of the compensation that was awarded by the Land Acquisition Act of 1894". It was said that "after having cancelled the housing scheme a fresh scheme for the same purpose cannot be. drawn up and approved on the basis of Act, VIII of 1973 with a view to deprive the plaintiffs of the compensation that had already been determined"; that the scheme once having been dropped cannot be drawn up under the law in the manner of the circumstances mentioned above and that, therefore, the notification dated 25-6-1973 was void, without jurisdiction and ultra vices.
5. The suit was contested by the second defendant, namely, the Multan Improvement Trust, by filing a written statement. It appears that the facts that under the Town Improvement Act, 1922, a scheme was sanctioned and the proceedings for the acquisition of the land in suit in pursuance of that scheme were initiated and completed; that on the coming into force of the Punjab Acquisition of Land (Housing) Act, 1973, the acquisition proceedings under the Town Improvement Act, 1922 were "cancelled" and that a new scheme under the tatter Act was framed and proceedings for the acquisition of the land in suit under that scheme were set in motion were not expressly denied. The plea taken by the Improvement Trust was that they were entitled to take advantage of the provisions of the Punjab Acquisition of I-and (Housing) Act, 1973.
6. The Multan Improvement Trust also raised a number of preliminary pleas. On the parties pleadings, the learned Civil Judge formulated the following
(1) Whether the Civil Court has got no jurisdiction is try the suit?
(2) Whether the plaintiff has not served the defendants with the legal notice prior to the institution of the suit, if so its effect?
(3) Whether the suit is barred by section 56 of the Specific Relief Act?
(4) Whether the suit is time-barred?
(5) Whether the plaintiff is estopped to bring the present suit by his own conduct?
(6) Whether the suit is barred by the principle of res judicata? '
(6-A) Whether acquisition proceedings under Punjab Land Acquisition (Housing) Act, 1973, are mala fide and with ulterior motive? If so, its effect?
(7) Whether the plaintiff is the owner of the suit property and the defendants are not authorised to acquire the same for the purposes of housing scheme?
(8) Relief.
7. The learned Civil Judge dealt with issues Nos. 6-A and 7 together; he found that the plaintiffs were the owners of the land in suit; that it was correct that the acquisition proceedings under the Acquisition of Land Act, 1894 were dropped "but proceedings under Punjab Land Acquisition Act, 1973 were initiated and in pursuance of Exh.P-1, a letter was issued to Land Acquisition Collector, Multan, on 24-5-1973 copy of which is Exh.P-5 and in pursuance of it, on 8th June, 1973 a Notification was issued by the Deputy Commissioner, Multan under section 4 of the Punjab Acquisition of Land (Housing) Act, 1973. Then on 22-8-1974 a Notification was issued by Collector, Multan, under section 6(1) of the Acquisition of Land (Housing) Act, 1973, the copy of which is on the record so these documents reveal that acquisition proceedings under the 1973 Act issued and completed and no irregularities have been made in this respect". As regards the compensation, the learned Civil Judge was of the opinion that "although the rate according to 1973 Act was fixed as Rs.20,000 per acre but as per directions of Law Department the photostat of which is included and judicial notice is being taken, it was decided to deposit the compensation only not to cause the pecuniary damage to the plaintiffs". In this connection, the learned Civil Judge noticed copes of challans Exh.D-2 and Exh.D-3, which proved the deposit of the amount of compensation. As compensation had been deposited "under the previous compensation award", the objection of the plaintiffs that compensation was being paid under the Land Acquisition Act, 1973, so held the learned Civil Judge, "does not hold water and the act of defendant No. 2 cannot be declared as mala fide because plaintiffs were not suffered with financial loss". The learned Civil Judge was, therefore, of the view that the acquisition of the land under the 1973 Act could not be said to be mala fide, for, "the previous compensation award amounting to Rs.3,12,713.66 was deposited and no loss has been caused to the plaintiffs, so the acquisition proceedings cannot be termed as mala fide one".
8. The learned Civil Judge was also of the view that as no illegality or irregularity in the acquisition of land had been committed, and the proceedings were not mala fide, "so the Court has got no jurisdiction and 'issue is decided against the defendants'.
9. The learned Additional District Judge referred to the award dated 8-4-1977 Exh.D-1 and found that award was given on the request of the Director- General of the Multan Development Authority, Multan, "without legally fulfilling the requirements of the acquisition proceedings under the new Act. It was also clear that without conducting the proceedings under the new .Act the respondent by their own sweet-will and with some ulterior motive, compelled the Land Acquisition Collector to announce the award under the old Act without issuing any fresh notification under sections 4 and 6 of the said old Act. It is also evident that acquisition proceedings initiated under the new Act were also dropped inasmuch as no proceedings were conducted as are envisaged under sections 7 to 11 of the new Act." The learned Additional District Judge then referred to the Punjab Acquisition of Land (Housing) Repealing Act, 1985, and observed that the plaintiffs were owners in possession of the property, "inasmuch as no compensation of award was announced under the Act VIII of 1973 nor any compensation or award has been deposited under the said Act". The learned Additional District Judge, thus, reached the conclusion that the impugned action of the defendants was mala fide and, therefore, the Civil Courts had jurisdiction to hear the suit.
10. The Town Improvement Act, 1922 (hereinafter to be called the 1922 Act) ceased to apply to Multan City on the establishment of the Multan Development Authority by a notification under section 4 of the Punjab Development of Cities Ordinance 1976, dated 8-5-1976. The Multan Development Authority (hereinafter to be walled the petitioner) is, therefore, the successor-in-interest of the Improvement Trust, Multan.
11. The Punjab Acquisition of Land (Housing) Act, 1973 (Act VIII of 1973) was published in the Gazette of Punjab, Extraordinary, dated 4th March, 1973 and will hereinafter be called the 1973 Act. The Land Acquisition Act, 1894, will, for the sake of brevity, be called the 1894 Act.
12. Section 24 of the 1922 Act empowered the Trust, for the purpose of development of any locality, to prepare a development scheme or an expansion scheme. By section 28 of that Act, a scheme so prepared should provide for all or any of the matters enumerated therein, including the acquisition of land under the Land Acquisition Act, 1894.
13. Section 36 of the 1922 Act provided that when a scheme had been framed, the Trust would prepare a notice mentioning the facts stated therein and publish it in accordance therewith and section 38 required the said notice to be served on the person whom the Trust had reason to believe after due inquiry to be the owner of any immovable property which it was proposed to acquire in executing the scheme and on the occupier of such premises. Section 40 provided that after the expiry of periods respectively prescribed under sections 36, 37 and 38 in respect of any scheme, the Trust would consider any objection or representation received thereunder and after hearing all persons or their representatives making any such objection or representation, who might desire to be heard, the Trust might either abandon the scheme or apply to the Provincial Government for sanction to the scheme with such modifications as the Trust might deem necessary. Section 4, empowered the Provincial Government to sanction a scheme either with or without modification, or refuse to sanction it and section 42 required the Provincial Government to notify the sanction of every scheme under that Act and required the trust to forthwith proceed to execute such scheme. Section 42-A empowered the provincial government, on the request of the Trust, to permit the abandonment of the whole or part of a scheme sanctioned under section 41 and notify such permission in the official Gazette and section 43 empowered the Trust to alter a scheme "at any time between its sanction by the Provincial Government and its execution."
14. Reference may with advantage also be made to section 56 of the 1922 Act. It provided that if in any locality comprised in any scheme under that Act, the Provincial Government had sanctioned the acquisition of land which was subsequently discovered to be unnecessary for the execution of the scheme the owner of such land, or any person having an interest therein, might make an application to the Trust requesting that the acquisition of such land be abandoned in consideration of the payment by him of a sum to be fixed by the Trust in that behalf, provided the application reached the Trust before the time fixed by the Collector under section 9 of the 1894 Act.
15. As noticed above: the 1922 Act ceased to apply to Multan City in the `I`' year 1979 on the publication of the notification under section 4 of the Punjab Development of Cities Act, 1976. By section 47 of the latter Act, it is provided that on the establishment of the authority under that Ordinance, the Town Improvement Act, 1922 "shall cease to apply to the area and all schemes, projects, or works started under the said Act but not completed shall be taken over by the Authority and executed under the provisions of this Act"; and "notwithstanding the fact of the Town Improvement Act, 1922, ceasing to apply to the Areas, ail rules, regulations and orders made, notifications issued, land acquired, schemes prepared, or executed suits instituted by or against the Improvement Trust or any other right accrued, or liability incurred or action taken, or proceedings initiated, shall so far as they are consistent with the provisions of this Act, continue in force and be deemed to have been made, imposed, levied, entered into, instituted, prepared, executed, accrued or incurred, taken and initiated under this Act".
16. The 1973 Act envisaged its own "Housing Scheme", which meant a scheme providing for residential sites, houses or apartments and declared by section 3 thereof that "notwithstanding anything to the contrary contained in the Land Acquisition Act, 1894 or any other law for the time being in force, all land within the Province shall be liable to acquisition at any time under this Act for a housing scheme approved and notified by Government or Official Development Agency"; the latter term included the Improvement Trust constituted under the 1922 Act. As to the procedure for the acquisition of land, section 4 thereof empowered the Deputy Commissioner to publish a notification in the Official Gazette that land in any locality was needed or was likely to be needed for any housing scheme; upon the publication of that notification, it was lawful for any officer to enter upon any such land. Section 6 of the Act required the Collector to cause public notice to be given stating that Government intended to take possession of the land and that claim to compensation for all interests in such land should be made to him. After hearing the objections, if any, under section 7 of the Act, the Collector was empowered to determine the amount to be paid as compensation in accordance with sections 9 and 10 of the Act. As noticed above, the maximum rate of compensation to be determined by the Collector under the Act "shall not exceed Rs.20,000 per acre".
17. Turning to the facts of the case, it is common ground between the parties that a scheme under sections 24 and 28 of the 1922 Act was prepared by the Improvement Trust, Multan in the year 1962; it appears that after the necessary formalities under sections 36, 38 and 40 of the 1922 Act had been fulfilled, the Improvement Trust applied to the Provincial Government for the sanction of the Hassan Parwana Road Scheme and the Provincial Government had, in exercise of its powers under section 41 of that Act, sanctioned the scheme. The sanction so accorded by the Provincial Government was duly notified under section 42 of that Act. These facts are borne out by the copy of Resolution No. 42 (Exh.P-4) and copy of Resolution No.15, dated 27-1-1971 (Exh.P-2). The latter resolution mentions the notification, by which, the scheme was sanctioned by the Provincial Government. By Exh.P-2, the Trust had asked the Land Acquisition Collector to give his award determining the amount of compensation. On 16-2-1973, the Collector asked the Trust to arrange to deposit the approximate amount of Rs.3,12,713.66 "on account of cost of land into Government Treasury, Multan, under head Revenue Deposit-Compensation Money".
18. The 1973 Act came into force on 14-3-1973; on 28-3-1973, the Improvement Trust passed Resolution No. 11 (Exh.P-1); in that resolution was mentioned the advice obtained from the Legal Advisor of the Trust advising the Trust to abandon previous acquisition of land proceedings and to acquire the land under the 1973 Act. The Trust accorded its approval to this proposal. By a letter dated 24-5-1973 (Exh.P-5), the Improvement Trust informed the Land Acquisition Collector that "the Multan Improvement Trust vide its Resolution No.11, dated 28-3-1973 decided to drop the previous acquisition proceedings and to acquire the land in question under the Punjab Acquisition of Land (Housing) Act, 1973. "A draft Notification under section 4 of the 1973 Act was sent and a request was made to the Land Acquisition Collector" to please proceed in the matter expeditiously as the case has already been delayed. Then comes Notification No.184-LAC of 8th June, 1973 published in the Punjab Gazette of 25th June, 1973 Exh.P-3. This Notification was issued under section 4 of the 1973 Act; it included the land in suit; by it, the Deputy Commissioner was satisfied that the land mentioned therein was needed or was likely to be needed for the execution of the housing scheme known as Housing Scheme situate on Hassan Parwana Road outside Bohar Gate, which, the Multan Improvement Trust, Multan, an Official Development Agency vide Resolution No. 42, dated 4th January, 1962 "conceived and approved". The intention that the Trust proposed to acquire the land under the 1973 Act was conveyed to Muhammad Hussain, plaintiff, and Abdus Salam son of Muhammad Bakhsh vide notices Exhs. P-9 and P-8 dated 21-6-1974 inviting objections. In these notices, the Notification No.184/LAC, dated 25-6-1973 was expressly mentioned.
19. This suit was instituted on 4-12-1975. To recapitulate, the plaintiffs' case was that though the proceedings for the acquisition of the land under the 1922 Act had been completed, so much so that the Collector had called upon the Trust to deposit Rs.3,12,713.66 as the approximate amount of compensation, yet those proceedings were "cancelled; that with mala fide intention and ulterior motive, the Trust tried to avail itself q*e provisions of the 1973 Act "with a view to deprive the plaintiffs of the compensation that was awarded by the Land Acquisition Collector under the provisions of the Land Acquisition Act, 1894" and that as the Trust had been moved in so proceeding under the 1973 Act by mala fides, it was not entitled to do so. In the written statement, the Trust did not expressly deny the allegation that the acquisition proceedings under the 1922 Act "had been cancelled". What it said was that it was fully competent to take advantage of the provisions of the 1973 Act.
20. Learned counsel for the plaintiffs appeared to suggest that the scheme under the 1922 Act was at the stage of proposal and, therefore, the acquisition proceedings could not have been taken in pursuance of that scheme. This contention does not take due notice of Exh.P-2, which as seen above, mentions the Notification dated 21-1-1971, by which, the scheme had been sanctioned by the Government, the inference being that this was done under section 42 of the 1922 Act.
21. We must, therefore, proceed on the footing that the scheme had been duly sanctioned by the Provincial Government under section 41 and notified under section 42 of the 1922 Act. There is, however, no question that the acquisition proceedings under the 1922 Act read with the provisions of the 1894 Act had been dropped and the acquisition of the land in suit had been abandoned with a view to acquiring…
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