' MUNIR A. SHEIKH, J.--- These petitions are directed against consolidated judgment, dated 1-4-2003 of the Lahore High Court whereby I.C.As. Nos.240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250 and 251 of 1994 filed by the petitioners have been dismissed. By this common judgment we intend to decide the above titled Civil Petitions involving common questions of law and facts.
2. The land in dispute measuring 74 Kanals, 4 Marlas situated in Mauza Niaz Beg was acquired by the L.D.A. Under the Punjab Acquisition of Land (Housing) Act (No,VIII) of 1973 for an Area Development Scheme known as Johar Town. Award was delivered on 9-10-1982 by the Collector in which the names of the present petitioners were mentioned as owners thereof according to the entries in the Revenue Record. On 23-12-1982 the respondents filed a suit for declaration that in fact they were owners in possession of the disputed land by way of adverse possession which was decreed by the trial Court on 22-11-1986. The present petitioners filed appeal before the First Appellate Court which was dismissed through judgment, dated 2-7-1988. A revision petition was filed by the petitioners before the High Court which too was dismissed through judgment, dated 22-10-1989. The petitioners filed an application under section 12(2) of the C.P.C. Before the High Court which was dismissed as withdrawn on 6-11-1990. The petitioners approached this Court by filing C.P. No,64-L of 1991 to assail not only the order, dated 6-11-1990 but also judgment passed in the revision petition. This petition was dismissed through judgment, dated 14-4-1991 by this Court.
After the judgment was passed by the First Appellate Court on 30-7-1988 the respondents on 13-8- 1988 moved the Commissioner, Lahore by way of an appeal under section 14 of the Punjab Acquisition of Land (Housing) Act (No,VIII) of 1973 for necessary amendments in the Award in terms of the decree passed by the Civil Court in their favor. It was allowed through order, dated 25-6-1990 with the direction to amend the award, dated 9-10-1982 in terms of the decree. It was further held that the said respondents were entitled to compensation for the land acquired by the L.D.A. As against the present petitioners.
3. The petitioners filed Constitutional petition before the High Court to challenge the order of the Commissioner dated 25-6-1990. During pendency of this petition, it appears that the learned counsel for the petitioners made an offer that the dispute may be referred to Mr. Aitzaz Ahsan, learned counsel for the respondents to decide as to whether the petitioners were entitled to 12 plots as claimed by them in lieu of the land acquired or any other number of plots. On this Mr. Aitzaz Ahsan sought a clarification as to whether he has only to decide that the question of entitlement in terms of number of plots or it was open to him to hold that the petitioners were not entitled to any plot. Dr. Abdul Basit, Advocate learned counsel for the petitioners clarified the matter that he would accept the decision even if Mr. Aitzaz Ahsan would hold that the petitioners were not entitled to any plot.
' The learned Judge in Chambers of the Lahore High Court, seized with the Constitutional petitions disposed of the said petitions in view of this arrangement arrived at between the parties through judgment, dated 2-11-1992. Civil Misc. Applications were tiled in all these writ petitions under sections 30 and 33 of the Arbitration Act challenging the decision of Mr. Aitzaz Ahsan to the effect that none of the petitioner were entitled to any plot in view of decision of Civil Court on the ground that he, while coming to the said conclusion, had misconducted. These petitions were dismissed through an order, dated 21-2-1994 by holding that no case was made out under section 30 of the Arbitration Act.
5. The petitioners filed I.C.As. Against the judgment of the learned Single Judge, dated 2-11-1992 passed in Constitutional petitions and order dated 21-2-1994 which have been dismissed through the impugned judgment, dated 1-4-2003 by a Division Bench of the Lahore High Court against which these petitions for leave to grant of appeal are directed.
6. Dr. A. Basit, Advocate learned counsel for the petitioners raised the following contentions:--
(i) The final determination by the Civil Court that the respondents were owner with possession of the land stood diluted with the offer made by the petitioners in the Constitutional petitions and accepted by the respondents to refer the dispute to Arbitration; therefore, the decision should have been made independently from the said decree which should be deemed to have become non- existent and that dispute stood re-opened.
(ii) The Constitutional petitions shall not be deemed to have been disposed of in accordance with law, therefore, the case should be remanded to the learned Single Judge for disposal of the Constitutional petitions on merits.
(iii) The question of payment of compensation in cash was not the scope of the reference made to Mr. Aitzaz Ahsan, therefore, he had misconduct himself when he, after holding that the petitioners were not entitled to a single plot, observed that they may be given an amount of Rs,10, 000 each by way of compensation.
7. We have gone through the Constitutional petitions and find that the following prayers were made which are reproduced below for ready reference:-- "(i) Impugned order, dated 25-6-1990 passed by the respondent Collector be set aside.
(ii) Respondent L.D.A. Be restrained from treating any private respondents as owners of the suit- land for purposes of grant of exemption, notwithstanding the declaratory decree dated 22-11-1986 in their hands.
(iii) Respondent Commissioner be restrained in future also from amending. The Award rendered by the Land Acquisition Collector on any ground derivable from order relatable to the Acquisition of Land (Housing) Act, 1973.
(iv) Respondent L.D.A. Be directed to process the case of the petitioner for compensation including exemption of developed site to the extent of his recorded entitlement on the basis of the subsisting Award without any further delay.
(v) Respondent L.D.A. Be directed to exempt plot in favor of the petitioner according to the exemption policy applicable to Johar Town Scheme as has been done in the case of other affected landowner.
(vi) Any other relief deemed appropriate to the peculiar facts of this case be also afforded to the petitioner."
8. It is clear from these prayers that the petitioners' effort was to seek a direction contrary to the rights determined finally by the Civil A Court in a suit between the parties. His contention was that award of the Collector under which compensation was to be granted could only be challenged under the Special Law before the Commissioner within six weeks, through an appeal while this case was barred by time, therefore, the said award had become final and should have been given effect to by all authorities irrespective of the decree by the Civil Court. This contention has been dealt with adequately by the Division Bench of the High Court in the impugned judgment in paragraph No,9 thereof which is reproduced below in extenso:-- "We are of the view that even if the case stricto senso did not fall in the saving clause contained in section 3 of the Punjab Act No,XII of 1985, the direction of the Commissioner for amending the award in accordance with the decree of the Civil Court was only a consequential order and the Lahore Development Authority was otherwise bound to act in accordance with determination of the title by the aforesaid decree of the Civil Court. The entire effort of the appellants has been to re- open the controversy and defeat the judgments and decrees passed in the civil litigation between the parties. Therefore, we are of the view that interference by us will bring about a patiently unjust consequence, i,e, that the judgments and decrees passed in the civil litigation are reduced to nullity."
9. The objection that appeal was barred by time has no force in the facts and circumstances of this case. To enforce the declaratory decree declaring question of title in the land which had become final between the parties as to their right in the land could be given effect to by all the concerned authorities who were to award compensation in lieu of the land acquired.
10. Learned counsel for the petitioners then argued that the Constitutional petitions should be remanded for decision on merits. We do not feel disposed to accept this contention for the direction sought by the petitioners in the Constitutional petitions are not tenable for no direction could be given to the authorities to act contrary to a decree passed by the Civil Court between the parties and if the same is granted it would amount to directing persons performing functions in connection with, the affairs of the Province to refrain from doing what law required them to do i,e, act in accordance with law. If Mr. Aitzaz Ahsan on reference made to him is also of the view that decree of Civil Court should be honored, he had not misconducted himself in the proceedings nor the finding of decree had been diluted and matter stand re-opened as argued.
11. Learned counsel for the petitioners submitted that the Punjab Acquisition of Land (Housing) Act of 1973 was repealed through the Punjab Acquisition of. Land (Housing) (Repeal) Act, 1985 (Act XII of 1985) and argued that in terms of section 3 of this Repealing Act no proceedings would be deemed to be pending at the time of commencement of the same and therefore, no appeal was competent before the Commissioner as such order, dated 25-6-1990 of the Commissioner is nullity.
12. Section 3 of the Punjab Acquisition of Land (Housing) (Repeal) Act, 1985 reads as follows:-- "3. Continuation of acquisition proceedings and assessment etc. Of compensation.--- Where in a case proceedings have commenced under the Punjab Acquisition of Land (Housing) Act, 1973 or under its provisions as, incorporated or referred to in any other law, rule or instrument, for the time being in force, the same shall continue and shall be completed under the provisions of the said Act and the rules made there under: ' Provided that where in a case an award has not been made under section 7 of the said Act at the time of commencement of this Act, the compensation in such a case shall be assessed, awarded and paid under the provisions of the Land Acquisition Act, 1894 (I of 1894): ' Provided further that in a case in which an award has been made before the commencement of this Act under the Punjab Land (Housing) Act, 1973, but the payment of compensation or a part thereof is to be made through bonds, debentures or annuities, the said compensation- shall become due for immediate payment in cash on the commencement of this Act unless the owner whose land has been acquired chooses to adjust the same towards the cost of any developed site which may have been given to him as part of compensation."
' It is clear that where the proceedings had commenced under the provisions of the Repealed Act of 1973 the same were to be continued and concluded under the said Act irrespective of the appeal. However, under the proviso a distinction has been made that where the award had not been delivered under section 7 of the Act of 1973, the quantum of compensation would be determined according to the Land Acquisition Act of 1894. It was rightly held by the High Court that though the award had been delivered but since compensation had not been granted to any of the persons, therefore, proceedings had not been finalized/concluded under the Act of 1973. As to the right of appeal before the Commissioner it has been already observed that no such formality of filing appeal was required in this case for all the concerned authorities even otherwise were bound to honor the decree of Civil Court and give compensation to persons who were declared to be the owners of the land.
13. For the foregoing reasons, these petitions have no force which are accordingly dismissed and .