Briefly stated the facts of the case are that the Collector, Gujranawala District, vide notification issued under section 4 of the Land Acquisition Act, 1894 dated 27-7-1989, which was published in the official Gazette on 23-8-1989; intended to acquire the land of the respondent No,1, measuring 13 Kanals, 3 Marlas, situated in Mouza Theri Sansi, Tehsil and District Gujranawaia for the construction of 132 K.V. Grid Station, by the WAPDA. However, on 5-9-1989, the Collector issued an addendum, which was notified on 12-9-1989, including certain other Kharsa number in the first notification.
However, notification under section 17 (4) and section 6 of the Act ibid, was issued by the Commissioner on 9-9-1990, dispensing with the notification under sections 5 and 5-A. On 6-2-1991.
LAC announced the award, respondent/plaintiff received the compensation of Rs,12,98,000 under protest. Aggrieved of the compensation awarded, respondent also filed a reference under section 18 of the Land Acquisition Act. Which is pending before the Civil Court. Besides the above, the respondent No,1 on 1-4-1991, filed a suit challenging the acquisition and claiming to be the owner in possession of the said property and seeking inter alia, the restraint against the petitioners from interfering in their possession. This suit has been contested by the petitioners; issues were framed; parties were put to trial and the learned Civil Judge vide judgment and decree dated 25-5-1993 has allowed the suit; appeal of the petitioner has also failed.
2. Learned counsel for the petitioner contends that the provisions of rule 7 of the Land Acquisition Rules, 1983 have been declared to be ultra vires of the Land Acquisition Act, by virtue of judgment of this Court in the case reported as Allah Ditta and others v. Province of Punjab (PLD 1997 Lahore 499) which was upheld by the Honourable Supreme Court in the case reported as Messrs Mehraj Flour Mills and others v. Provincial Government and others (2001 SCMR 1806), therefore, if the process of acquisition was not completed within one year, it does not affect and invalidate the acquisition. It is also stated that in this case even the period of one year has not been lapsed, because, the addendum was issued in the first notification dated 12-9-1989, but before the expiry of one year notification under section 17(4) was issued by the Commissioner on 10-9-1990, which is within one year. It is further submitted that in section 16 (4), there is no period provided limiting the authority of the Commissioner to dispense with the application under sections 5 and 5-A. It is only in the eventuality, where the notifications under sections 5 and 5-A are required to be issued, that the limitation of one year under rule 7 is provided,
3. I have heard learned counsel for the parties. As far as the application of the judgment in the case reported as Allah Ditta and others v. Province of Punjab (PLD 1997 Lahore 499) is concerned, same was passed in the year 1996, whereas the process for the acquisition of land in this case, was initiated in the year 1989. Admittedly decree in this case was passed in favour of the respondent and against the petitioner by the Civil Judge on 25-5-1993 and the appeal of the petitioner was dismissed on 8-10-1995. Thus when the matters were decided, rule 7 was intact; therefore, on account of the above, a vested right has been created in favour of respondent, which on the basis of the judgment of this Court in Allah Ditta's case (PLD 1997 Lahore 499) passed much later, but during the pendency of this revision, shall not destroy and nullify the A right of the respondent. I am not convinced by the argument of the petitioner's counsel that the judgment in the case supra being declaratory in nature, has retrospective effect. This argument may have some worth if the matter was yet at the trial stage. But where the respondent had earned two decrees in his favour, the above judgment shall not be applicable retrospectively, even if this revision was pending.
Because the lis between the parties should be decided on the basis of the substantive law which was applicable, when the list was commenced and certainly which was the law in vogue, when the matter was decided by the Court of the first instance. In the instant case, as the judgment of the Full Bench of this Court declaring rule 7 as ultra vires was much after the right earned by respondent in the shape of two decrees of the Courts below, therefore notwithstanding such rule being declared as unlawful, A the judgment has no application to the case.
4. The submission of learned counsel for the petitioners that the notification under section 17 (4) is an independent power of the Commissioner and notwithstanding the issuance of the notification under section 5, for which period of one year is provided in the rule 7, the Commissioner can dispense with the notification at any point; even after lapse of one year, I do not find any force in the argument. The provisions of section 17(4) do not empower the Commissioner with an unlimited authority for an indefinite period of time to issue the notification under this section. Rather the Commissioner in certain circumstances, if wants to dispense with the notification under section 5, etc, should necessarily take step under section 17 (4) before the expiry of the period of one year.
Resultantly, I do not find any error in the judgments and decrees of the Courts below, calling for interference in the revisional jurisdiction. This petition thus has no force and the same is hereby dismissed.