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Petitioner: AHBAB CO-OPERATIVE HOUSING SOCIETY LTD. VS Respondent: COMMISSIONER, LAHORE JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Mahmood Bhatti Title:AHBAB CO-OPERATIVE HOUSING SOCIETY LTD. vs COMMISSIONER, LAHORE
JUDGMENT
Reported As: PLD 1978 Lahore 273 Result: Petition accepted Judgment JUDGMENT The petitioner society has challenged the impugned Notification No. LA/646/399/4117 dated 9-7- 1975 issued by respondent No. 1 (Commissioner, Lahore Division. Lahore) under section 48 of the Land Acquisition Act (hereinafter called the Act) as being without lawful authority and of no legal effect. 2. This writ petition arises out of the fact that the petitioner is a co-operative society duly registered under the Co-operative Societies Act, 1925 on 20-1-1969. The petitioner society wanted to establish and promote residential colleges for the boys and girls in and near Lahore in collaboration with Qur'anic Education Society and it was decided by the petitioner society to acquire land for the said college and also for a small township appertinent and subservient to these institutions to make them self-sufficient in all respects arid transfer the site for colleges, hostels, playgrounds to the said Qur'anic Education Society. 3. It may be stated, here, that the Qur'anic Education Society is alleged to have been registered for this purpose under the Registration of Societies Act, 160 on 30-3-1965. The petitioner society applied to the Collector on 12-9-1970 for acquisition of land comprising Khasra Nos. 982, 985, 986, 987, 988, 995, 996, 1004, measuring 61 kanals 8 marlas. Situated in village Hanjarwal, and Khasra Nos. 984, 997, 998, 999, 11100, 1001, 100?, 1003, 1039. 1040, 1041, 1012, 1043, 1044 and 1045, measuring 152 kanals 9 marlas, situated in Mauzia Niaz Beg, and the total area measures 213 kanals 17 marlas. 4. The Collector, Lahore issued Notification No. LAC/2559 dated 16-2-1971 in the Punjab Gazette dated 11.6-1971 under section 4 of the Land Acquisition Act. This notification was amended by another Notification No. LAC/15128 dated 4-8-1971 in the form of corrigendum and the area shown
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against mauza Niaz Beg was reduced to 147 kanals 9 marlas and the total area to be acquired comes to 209 kanals 7 marlas. The price of the land in question was estimated at Rs. 3,15,647.46. Respondent No. 1 called upon the petitioner society to deposit. The amount ire the Government Treasury and in compliance with this direction the amount was deposited in September 1971. A further corrigendum was published in the Punjab Gazette dated 19-11-1971 so as to read the public purpose in the notification as a company purpose. The notification reads as under :- "OFFICE OF THE COLLECTOR, LAHORE DISTRICT, LAHORE [The 12th November 1971] No. LAC/3693/C-Corrigendum.-In paragraph I of this office Notification No. LAC/2559, dated the Itch February 1971, issued under section 4 of the Land Acquisition Act, 1894 and published in the Punjab Gazette, 11th June 1971, for construction of residential college for boys and girls in collaboration with the Qur'anic Education Society (Regd,) and for a small township appertinent and subservient to these institutions to make themselves sufficient in all respects, the public purpose notified should be read as company purpose" 5. The Governor of the Punjab on behalf of the Provincial Government examined the case of the petitioner and was satisfied that the land in question was needed by the petitioner-Company "or the construction] of residential college for boys and girls in collaboration with the Qur'anic Education Society and for a small township. After being satisfied a notification under section 5 of the Land Acquisition Act was published by the Governor of Punjab, Lahore, which reads as under : "REVENUE DEPARTMENT [The 25th January 1972] No. 50-72/240-SIV.-Whereas the Governor of Punjab is satisfied that the land notified under section 4 of the Land Acquisition Act, 1994vide Collector, Lahore District Lahore's Notification No. LAC/2559, dated the 16th February 1971, read with corrigendum Notification No. LAC/15128, dated 4th August and Corrigendum Notification No. L dated 12th November 1971 (is described in the specification below) is needed by Ahbab Can-operative Housing Society Limited, Lahore at their expense for a "company purpose", namely for construction of residential college for Boys and Girls in collaboration with the Qur'anic Education Society (Rend.) and for a small Township appertinent and subservient to those institutions to make themselves sufficient in all respect. (2) Now, therefore, in exercise of the powers conferred by section 5 of the Land Acquisition Act, 1894 the Governor of Punjab has been satisfied that the land specified below (of which plan can be Inspected in the office (1I of the Lend Acquisition Collector (Sadar) Lahore, (2) the Ahbab Co- operative Housing Society Limited 25-B Gulberg II, Lahore) is needed for the said purpose. (3) Any person who is interested and who has any objection to the acquisition of any land ire the locality may, within thirty days of the publication of this notification file an objection in writing before tine Land Acquisition Collector, Lahore. (4) Land upon which any religious place of worship shrine, tomb, graveyard or any immovable property attached to any institution and the boundaries of which are contiguous with the site of the same shall be excluded from the said land. (5) Similarly, waqf and evacuee properties send State land shall be excluded. " SPECIFICATION 1234 5 Area District Tehsil Locality Khasra Nos. KM Lahore Lahore Hanjar Wal 982, 98-5, 986: 987, 988, 995, 996, 1004,6118 Niaz Beg984, 997, 998, 999, 1000, 1001, 1002,
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1003, 1039, 1040, 1041, 1042, 1043, 1,044, 10451479 Total2097 "No. 1423-73/7F6-SIV---Corrigendum.-In this Department Notification No. 50/72/240-SIV, dated 25th January 1972, published in "'Part I of the Punjab Gazette dated 4th February 1972. The words "for construction of residential college for boys and girls in collaboration with the Qur'anic Education Society Registered appearing in lines 7 and 8 thereof should be substituted by the words for the establishment of a Qur'anic Research Centre and a residential Colony in collaboration with the Qur'anic Research Society (Rend)." 6. After fulfilment of all the formalities under stations 5 and 5-A an agreement under section 41 of the Land Acquisition Act was executed between the petitioner society and the Punjab Government on 28-7-1973 and published in the Punjab Gazette on 3-8-1973. 7. The Provincial Government was satisfied that the land is required for a public purpose and Notification No. LA/646/161 dated 16-10-1973 was issued under section 6 of the Land Acquisitions Act. 8. After the declaration that the laud i3 needed far a public purpose the Collector wag directed under section 7 of the Land Acquisition Act to proceed for acquisition of the land. The Collector issued notifies under section 9 to the interested persons, an enquiry was made and the award under section 11 of the Land Acquisition Act was formulated on 18-3-1974 and it was forwarded to the Commissioner vide Letter No. LAC1670 dated 25-3-11174 sad finally it was announced on 10-5- 1975. 9. It is admitted by the parties that no proceeding under section 18 of the Land Acquisition Act in the form of reference to the civil Court through Collector was made by any of the land-owners whose lend was acquired. 10. On 19-6-1975 (ride Annexure ---K"), respondents 3 to 9 submitted an application to the Government, Punjab, Ravenna Department, Lahore under section 48 of the Land Acquisition Act to withdraw from the acquisition proceeding on the ground that they are the bona fide owners in possession of the land in dispute as they had purchased the same from Anjnman-I-Araian Pakistan and Din Mohammed son of Miraj Din. It was also stated that they undertook to utilise the land for construction of residential houses. Respondent No. 1 (Commissioner, Lahore Division, Lahore) without any notice to the petitioner issued the impugned notification dated 9-7-1975 published in the Punjab Gazette dated 11-7-1975 whole reads an under :- OFFICE OF 'FIDE COMMISSIONER. LAHORE DIVISION, LAHORE. (The 9th July 1975] No. LA 646(399/4117.-Acquisition of 51 kanals 1 marla of land in village Hanjarwal and 133 kanals 16 marlas in village Niaz Beg in total 184 kanals 17 marlas, in Tehsil and District Lahore was undertaken for the Ahbab co-operative Housing Society Lid. 25-B, Gulberg II, Lahore.-ride declaration issued by the Commissioner, Lahore Division, Lahore, anti published under Government Gazette. Dated 19th October 1973. On a representation from the owners of the land addressed to the Board of Revenue and on the basis of a report of the District Collector, Lahore, the 833M of Revenue have issued direction for taking appropriate action on the request of the petitioners, for withdrawal of land under acquisition. (2) In pursuance of the direction of the Board of Revenue the petition for withdrawal from action has been considered. The collector of the District has reported that the acquiring agency is likely to utilize the land for residential houses instead of establishing an institution for public purpose as is evident from the repeated amendment in their objectives and that the petitioner also intend to construct dwelling houses on the subject land. The acquiring agency had undertaken to establish
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a College for Boys and Girls with a small Township appertinent and subservient to whole institutions. Establishment of a College for Boys and Girls being the principal objective of the Society, it was given permission to acquire the land on tile condition that the Society would apply to the Government for establishment of a College as originally proposed. Despite the issue of directions,-tide this office Letter No. LA-5331, dated 14th November I972, the Society leas not obtained the necessary permission of the Government for establishment of the College and has thus failed to honour its commitment. The principal purpose of the Society now appears to be the construction of houses for the members of the said Society. Since the owners also wish to utilize the land for tile same purpose. The justification for acquiring this land on behalf of the Society has disappeared. The possession of the land is still with the owner and it has, therefore been decided that the land should be allowed to remain with the owners and acquisition proceedings be set aside. (3) Accordingly, I, Anwar Zahid, Commissioner, Lahore Division, Lahore, exercising the powers vented in me under section 48 of the Land Acquisition Act, hereby order cancellation to all the notification and declaration under section 6 of the Land Acquisition Act, the latter issued-vide No. LA/646/171 dated 16th October 1973 and published at page 2096 of the Government Gazette, dated -19th October 1973." This notification has been challenged by this writ petition on the ground that this has been issued without lawful authority and without notice. 11. The learned counsel for respondents 3 to 9 has submitted a written statement and his raised the following preliminary objections "(i) That some of the respondents have died during the pendency of the writ petition and no effective relief can be granted to the petitioner, (ii) that the petitioner has no locus standi to move this writ petition, (iii) estoppel, and (iv) that the writ petition suffers from laches." The learned counsel for respondent No. 1 has also submitted pare-wise comments during the course of arguments and has also raised the same objections. Respondent No. 16 has also been represented by a counsel (Mr. Muhammad Aslam Advocate) who bas also submitted a written statement with preliminary objections cited above. 12. The learned counsel for the petitioner has vehemently contended that the impugned notification was issued without notice and is without lawful authority because after the deposit of the total amount it was not within the jurisdiction of the Government to withdraw the notification. Mala fide has also been attributed to the action of the Government. Before considering the argument of the learned counsel for the petitioner it is necessary to dispose of the preliminary objections raised by the learned counsel for the respondents. 3. It has been vehemently contended by the learned counsel for the respondents that a few persons I e. Five or six respondents have died during the pendency of the writ petition anti as such no effective relief can be granted in the absence of their legal representatives who have not been brought on record and the writ petition may be declared to have abated in toto. 14. There does not appear to be any force in the contention of the leaned counsel for the respondents because the written statement has been filed on behalf of respondents 3 to 9. Out of them, respondent No. 3 is Nawab Sadiq Hussain Qureshi who was the Governor of the Punjab and subsequently remained as Chief Minister, Punjab till 5-7-f977 when Martial Law was enforced in the country. Respondent No. 4 is Begum Sadiq Hussain--- his wife. Respondents 5 to 7 ace Ashiq Hussain, Maqbool Hussain and Riaz Hussain sons of respondent No. 3 and respondent No. 8 is Begum Shehnaz Bano daughter of respondent No. 3.
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15. Respondent No. 1 (namely Commissioner, Lahore Division Lahore) and respondent No. 2 (namely Secretary, Revenue, Government of Punjab, Lahore) have also submitted their written statements during the arguments and they are represented ha counsel. Out of respondents Nos. 10 to 62, only respondent No. 16 is represented by Mr. Muhammad Aslam Advocate. None of tale other respondents appeared in pursuance of the notice and Ex parte proceedings are taken against them. As far as the five or six persons who are alleged to have died during the pendency of the writ petition are concerned, admittedly they died after the enforcement of the Law Reforms Ordinance, 1972 and there is no question of abatement of the writ petition. 16. It is also admitted by both the parties that none of the land-owners out of respondents Nos. 10 to 62 felt aggrieved by the award of the Collector in the sense that none of them made a reference under section 18 of the Land Acquisition Act to the civil Court through Collector. The petitioner has only challenged the notification as being without lawful authority and respondents Nos. 10 to 62 are not the necessary parties and even the decision can be arrived at in their absence. 17. It has been stated by the learned counsel for the respondents that one writ petition was filed without availing an effective and alternative remedy provided under section 18 of the Land Acquisition Act in the High Court but was subsequently withdrawn. 18. I do not want to give any finding on the filing or otherwise the maintainability of the writ petition and its subsequent withdrawal. The fact remains that the original land-owners i.e. Respondents Nos. 10 to 62 did not feel aggrieved by the award of the Collector and as such no reference was made in the civil Court in accordance with the provisions of section 18 of the Land Acquisition Act. In such circumstances it is not necessary to ascertain whether actually some of the respondents out of respondents Nos. 10 to 62 who are not the necessary parties have died because there is no cogent proof for the same before this Court and the writ petition can be decided on merits. 19. The next objection is that of locus standi. It has been contended by the learned counsel for the respondents that the petitioner is not an aggrieved person and as such he has no locus standi to file this writ petition. 20. This objection is also devoid of force. The land in dispute, measuring 209 kanals 7 marls, was acquired at the instance of the petitioner because tote petition---! Society wanted to establish a Qur'anic Research Contra and a Residential Colony in collaboration with the Qur'anic Education Society Regd.) and before issuance of a notification under section 5 an amount (if Rs. 3,15,6,47.46 was deposited in the Government Treasury and when the award was prepared but not set announced the petitioner was further directed to deposit the balance amount stipulated in the award i.e, Rs. 99,667.04 in the Government Treasury which was deposited vide challan dated 13-11- 1974. It appears that the total amount of Rs 4,15,314.50 wag deposited by the petitioner and the Government withdrew the notification without even notice to the petitioner. In such circumstances it is to be ascertained if by declaring the impugned notification as without lawful authority the petitioner gets sufficient relief as prayed in the writ petition? Then he will be considered to have a substantial interest in the matter and as such he will be considered as an aggrieved person. 21. Any "aggrieved party" within the meaning of Article 199 of the Constitution dots not necessarily mean a person having a stricto sense legal right., Even a person who is deprived of a benefit privilege etc. By an Illegal act or omission can be considered as an aggrieved person. Reliance is placed on Mss. Inayat Bibi etc. v. Assistant Settlement Commissioner etc. (PLD 1978 Lah. 252) which reads as under :- "It is to be observed that the expression 'aggrieved party' as occurring in paragraph (a) of clause (1) of Article 199 of the Constitution an has a wide connotation anti it would event embrace a
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person who though suffering from no violation of a legal right, hays been deprived of a benefit, privilege, liberty or franchise by an illegal not or omission of a public authority." Reliance is also placed on Mian Fazal Din v. Lahore Improvement Trust, Lahore etc. (PLD 1969 SC 223) which reads as under : "The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that ho had a personal interest in the performance of the legal duty which it not performed or performed in a manner not permitted by law would result in the Ions of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise." be placed on Arsalla Khan v. Bashir Ahmad Blour etc. (PLD 1976 SC 581) wherein even a prospective bidder at auction for collection of Octroi Duty had not received notice of auction was considered to be an aggrieved person. 22. The withdrawal of the notification under section 48 has the effect of canceling the agreement with the Government which could not be cancelled otherwise than in terms of the deed because under section 42 of the Act the acquisition was even subject to the provisions of the agreement and only under pans. 2(R) of the agreement the Government could resume ire land. Reliance can be placed on .The Majlis-i-Intizamia. Lamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. Tree Secretary to Government of West Pakistan, Communications and Works Department. Lahore (PLD1975SC355) wherein even the lease executed by the Government was cancelled otherwise than granted by the terms of grant and the aggrieved party was entitled to invoke the writ jurisdiction. 23. In view of what has been observed above I bold that the petitioner society is an aggrieved party' and has a locus standi to tile the writ petition. The third objection is that of estoppel. The learned counsel have raised the third objection on the ground that the petitioner is estopped to prosecute the writ petition because he had submitted two applications for the withdrawal of the amount deposited by him, and, in such circumstances, according to the contention of the learned counsel for the respondent, the petitioner is estopped to prosecute the writ petition. 24. There does not appear to be any force in the argument of the learned counsel for the respondent because one application (C. M. No. 2 of 1976) was filed to seek permission to withdraw the money on the clear condition that his right to prosecute the petition will not be prejudiced, perhaps the petitioner was under as impression that the petition is not likely to be heard in the near future so he felt the necessity of withdrawing the same with the intention to re-deposit it when required by the Court. The prayer in the application reads as under : "It is, therefore, respectfully prayed that this Hon'ble Court may please permit the petitioner to withdraw this money and the same should be deposited immediately after tae petition is decided in favour of the petitioner and/or whenever the Land Acquisition Collector called upon the petitioner to do so, without prejudice to any of the rights of the petitioner in the whole matter." "The petitioner actually wanted temporary withdrawal but has not given up his tight to contest the writ petition. It is also admitted by the parties that the amount deposited by the petitioner has not so far been received by the petitioner. There is another application (C M. No. 3 of 1977) relating to withdrawal of the money under similar circumstances. In such circumstances there is no question of estoppel and the petitioner is legally entitled to prosecute his petition. 25. The learned counsel for the respondents have raised a question of laches. It may be stated here that the impugned notification wag issued by respondent No. 1 and published in the Punjab Gazette, dated 11-7-1975 and the writ petition was filed by the petitioner on 31-10-1975 which mean that the petition was filed within three months and about 19 days. This cannot be considered as inordinate delay in filing the writ petition. In Manzur Ahmad P. F. S. v. The
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Province of West Pakistan ate. (PLD 1961 SC 166) a writ was filed after about nine months and the Supreme Court has held that there was no inordinate delay. There is no limitation provided in the Constitution for filing a writ of certiorari under Article 199 of the Constitution and laches or mere delay in itself is not sufficient to non-suit a party unless it is accompanied by negligence on the part of the petitioner in pursuing the remedy. Reliance is placed on Mohsin Khan etc. v. Chief Settlement Commissioner, West Pakistan, Lahore etc. (,1969 SCMR 306) which reads as under :-- "It is true that mere delay is not by itself a sufficient ground for non-suiting a party in a proceeding of this nature but where the delay is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to pursue his remedy with due diligence or conscious acquiescent in the adverse order made against him, then that would be a very good ground for denying this extraordinary remedy. The law assists those who are vigilant about their rights and not those who sleep over them." No such negligence has been pointed out by the learned counsel for the respondents. In fact when an eye parts order was passed by respondent No. 1 without notice to the petitioner, the writ petition has been filed within the minimum possible time and it cannot be termed as suffering from laches. 26. After answering the preliminary objections the learned counsel for the petitioner has vehemently contended that the order is mala fide. 27. There appears to be much force in the contention of the learned counsel for the petitioner. It may be stated here that after the issuance of a notification under section 4 of the Land Acquisition Act (hereinafter called the Act) the Provincial Government was satisfied under the amended section 5 of the Act that the lane is required for the company his satisfaction although appears to be subjective in nature was never challenged by the original owners i.e. Respondent Nos. 10 to 62. Some of the respondents raised objection under section 5-A of the Act. During this period an agreement was executed by the petitioner-Company with the Provincial Government and on behalf of the Provincial Government the Commissioner was authorised to enter into an agreement in accordance with the provisions of section 41 of the Act. This agreement was published in the official Gazette in accordance with section 42 of the Act and as a result of this publication "the acquisition shall be deemed to have been wade subject to the provisions of this agreement". The terms of agreement as shown in para. 2(a) is reproduced below : "The land shall be used only for the purpose of establishment of a Qur'anic Research Centre and a residential colony in collaboration with the Qur'anic Education Society (Regd.) and for a small township appurtenant and subservient to those institutions to make them self sufficient in all respects, the initial constructions to be within a period of five years from the date of the possession of the land being given to the society by the Government or within such further period as may be agreed to in writing between the Government and the Society frown time to time." By the force of the provisions of section 4" of the Act the land was to be acquired : "(i) for the…
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