This order shall also dispose of Writ Petition Nos. 2510, 4338, 4368, 4369, 4378 and 4389 of 1978 as a common question of law is involved in them.
2. Bungalow No. 69, Ghazi Road, Sialkot Cantonment bearing Survey No. 161, and measuring 17.31 acres had been granted to the predecessor-in-interest of the present petitioner and his two brothers Sh. Zafarullah and Parvez Gul. The petitioner and his two brothers inherited it on 19th April, 1955. An admission deed as required by the respondents was also executed by the petitioner. The terms and conditions of the grant are given in the Governor-General Order No. 179 dated 12th September, 1836.
3. On 25tb August, 1977, the petitioner applied to the respondent No. 1 requesting for the return of the same property which was on hire with the military office for personal need. Respondent No. 2 declined to accede to the petitioner's request vide his order dated 5th September, 1977 on the ground that he was facing shortage of accommodation. The petitioner then made another application to the Brigadier Commander on 30th January, 1978, for enhancement of rent.
4. On 13th February, 1.978, respondent No. 1 informed the petitioner that the property in question had been resumed. It is the grievance of the petitioner that no notice to resume the property had been issued and no intimation about the resumption conveyed. The letter dated 13th February, 1978, however, showed that a compensation in the sum of Rs. 44,211.75 had been assessed for superstructure.
5. The main objection raised on behalf of the petitioner is that the respondents did not apply the procedure prescribed for resumption of the grants and, therefore, the impugned order is unlawful.
Reference was made to the first condition of grant at page 143 of the Military Lands Manual. It reads as under: "The Government to retain the power of resumption at any time on giving one month's notice and paying the value of such buildings as may have been authorised to be erected."
6. The Notes on Governor-General's Order No. 179 as given at pp. 253-257 of the Manual, para. 3 were also cited in support. They read as under: "3(i) Boards have no power to order the resumption of sites, the sanction of the Central Government is required for all resumptions.
(ii) The issue of a notice of resumption is not tantamount to resuming. Resumption must take place as a fact, and a notice issued is merely to enable the licensee to put forward any objection he may have.
(v) Notice of resumption should be issued by the M.E: O. Any duly authorised agent of Government can attend for the purpose of demanding possession. Resumption notices in respect of sites inside bazar areas should also be issued by M. E. O's."
A specific objection was taken in Writ Petition 1233/78 that as no notice, in any case, had been served on the other two co-owners Sh. Zafarullah and Pervez Gul, all the proceedings taken vitiated.
7. The learned counsel also referred to para. (iii) of Annexure R/3 filed by the respondents with their report in some cases. This is a letter written by the Government of Pakistan to the Director, Military Lands and Cantonments, Ministry of Defence, Rawalpindi. It provides that if the grantee does not accept the compensation determined by the Military Authority, acquisition proceedings may be initiated through the Land Acquisition Collector.
8. Reference was also made to rule 4 of the Cantonment Property Rules, 1925, which is in the following terms: "4. Purchase or lease of land other than land vested in His Majesty for the purposes of the Central Government.-Subject to the provisions of section 109 and section 110 of the Act, the Cantonment Board may purchase or take on lease any immovable property, other than property which is vested in His Majesty for the purposes of the Central Government, that may be required for an immediate and definite purpose connected with the administration of the cantonment. Provided that the Cantonment Board shall not acquire any interest in any such property within the limits of the cantonment except with the sanction of the Officer Commanding-in-Chief, the Command It is argued that in cases where construction has been raised and the respondents want to take over the same they shall have to ask for the acquisition of the superstructure which is 'land' as defined under the Land Acquisition Act. Reference was made to Muhammad Amin Khan v.
Government of West Pakistan (PLD 1966 Lah. 111), and Muhammad Saleem v. Commissioner, Rawalpindi Division (PLD 1976 Lah. 1233) section 16 of the Land Acquisition Act was also referred to, to show that only the Collector had the power to take possession.
9. The learned counsel also challenged the arbitrary fixation of compensation and quoted an instance from Writ Petition No. 4378-78 wherein the superstructure purchased from the Settlement Department under the Displaced Persons (Compensation and Rehabilitation) Act for a sum of Rs.
45,500, on 8th December, 1964, was to be compensated for a sum of Rs. 11.700. It was further stated that the compensation of a property which had been let out to the respondents themselves for a sum of Rs. 900 p. m. Had been assessed at a nominal value of Rs. 7,900, though only one of the roofs had fallen down.
10. It was urged that according to Annex. R/3 and the normal practice, acquisition proceedings must have been taken after the petitioner refused to accept that compensation. Reliance was also placed on Article 142(c) and Article 152 of the Constitution to say that the power of acquisition of such properties vested exclusively in the Provincial Government and, therefore, the Central Government has no such authority.
The petitioner also complained of discrimination on the ground that notices issued to the other persons in similar circumstances had been discharged after they explained the situation. The learned counsel, however, admitted that the petitioner did not make offers as was done by those others and that they did not propose to the respondents that they would be willing to surrender surplus land.
12. The learned counsel for the respondents relied on
(i) section 3 of the Government Grants Act;
(ii) Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965;
(iii) clause (6) of Governor-General's Order 179 of 1836, to say that the order of resumption as well as of ejectment could be passed by the Central Government. He also referred to Easement Act to show that the petitioners could be ejected as their licences had been revoked. In support of the contention that the Central Government could eject and take possession of the property, the learned counsel referred to the case of Chan Fir Shah (PLD 1975 Lah. 770). He also cited Muhammad Amin Khan v. Government of West Pakistan to argue that land included superstructure, etc. And, therefore, the same could be taken over after an order of resumption had been passed. The learned counsel, however, conceded that the respondents are prepared to refer the cases to the Land Acquisition Collector only for the purpose of assessing the compensation of the superstructure. He, however, could not refer to any provision of law under which this was possible without initiating the acquisition proceedings.
13. After hearing the learned counsel for the parties, I have come to the' conclusion that the action taken by the respondents is without lawful authority. It is to be noted that in view of first condition of para. 6 of Governor-General's Order No. 179 of 1836, read with Note 3(ii) at page 255' of the Cantonment Manual, the respondents were required to issue a notice and were obliged to allow an opportunity of showing cause to the petitioners. A formal order of resumption could, therefore, be passed only thereafter as explained in Note 3(ii), (v) referred to above. Further, actual possession, without the intervention of the Land Acquisition Collector could be taken only of such property on which no superstructure has been raised. The action] of the respondents is thus in violation of the law and their own practice.
14. The fact that the usual procedure has not been followed in these cases is also clear from para.
(iii) of the letter of the Government of Pakistan dated 15th July, 1968, referred to in para. 6 above. It will be useful to reproduce it herebelow for reference:-'
(iii) In case the grantees do not accept the amount of compensation offered in the resumption notice (without 15 % compulsory acquisition charges) within a period of one month, the amount of compensation including 15 % compulsory acquisition charges shall be placed at the disposal of the Land Acquisition Collector concerned for initiating proceedings for the acquisition of superstructures under the Land Acquisition Act, 1894."
There is an unambiguous direction in the above letter that if the grantee does not accept the given compensation, the amount shall be placed at the disposal of the Land Acquisition Collector, who shall initiate proceedings for acquisition of super-structure under the Land Acquisition Act, 1894.
15. The learned counsel had referred to Government Grants Act . But that only excludes the application of Transfer of Property Act to the Government grants and validates all conditions restrictions etc. Reference was also made to the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, but that too is of no avail. There is no provision in it to take possession of the superstructure not belonging to the Government. Power in section 3 is specifically restricted to any land or building of which the Central Government is the lessor or the lessee.
16. The next question is does the power to resume, as given in Governor-General's Order No. 179 of 1836, include a power to eject and re-enter? Firstly as seen above the very Note 3(ii), (v) show that it does not. Para. (iii) of the letter of the Government of Pakistan (Annex. R/3) supports that view. A reference to sections 24 and 25 of the Colonization of Government Lands Act leaves no manner of doubt that whereas power of resumption is a mere declaration of putting an end to the grant or the licence, a separate power of re-entry or ejectment must be there to arm the authority to take possession. Section 24 of the Colonization of Government Lands Act empowers the Collector to resume a tenancy after notice, if a tenant has committed breach of his tenancy. Section 25 confers on him power of re-entry after resumption. Again section 32 of the Act further confers a power of re-entry in different circumstances. Reliance is also placed on the judgment of the Supreme Court in Ghulam Rasool v. Chief Administrator (PLD 1971 SC 376), wherein their Lordships observed as under : " . . If the Management and control of a waqf property is taken over by the Administrator of Auqafs it does not mean that such taking over automatically extinguishes the tenancy rights or the right to possession of persons settled on the lands. If the Administrator seeks to eject such persons he must proceed in accordance with law."
Reference by the learned counsel to the Easement Act is not relevant as the licensee in these cases are also in possession of the superstructure built by them. There should, therefore, be some independent power to deal with it.
17. Admittedly, acquisition of property situate in a Province is not a Central subject, under Article 142 of the Constitution. Article 152 of the Constitution, on the other hand, enjoins on the Federation to require the province to acquire any land for a purpose with respect to which the Parliament , has power to make laws. The superstructure in this case is required for defence purposes which is exclusively a central subject. The direction contained in para. (iii) of Annexure R/3 is, therefore, not only valid and legal but a constitutional requirement.
18. The learned counsel for the respondents had stated that in a case where the land belongs to the Central Government, there is no need to acquire the superstructure as it is not land as defined in the Land Acquisition Act. This contention, however, is n:,. Sound. The question was considered by a Division Bench of this Court in Muhammad Saleem v. Commissioner, Rawalpindi Division where it was held that land includes superstructure also. Three cases considered by the Privy Council were also referred to in the above judgment. In all these cases, the land was situate in the Cantonments and it belonged to the Central Government which was only acquiring the superstructure. A short passage from the case of Muhammad Amin Khan, may also be reproduced to support the above view: " . . . . The word `include' used in the interpretation clause does not restrict the power of the Government to acquire the totality of interest in land and it is open to the Government, in a given case where it is itself the owner of the land, to acquire such other interests in it as are held by private persons and which clog the rights of the Government to put the land to a particular public purpose. "
The superstructure is, therefore, land as defined in the Land Acquisition Act and can be acquired if the land underneath belongs to the agency for which the superstructure is being acquired.
19. The learned counsel had also attempted to seek support from a judgment in the case of Syed Chan Pir Shah. The dispute in that case concerned agricultural land in Lahore Cantonment. The petitioner in that case who was a grantee of that land had been ejected and possession taken from him. He wanted a declaration that his ouster was unlawful and that he be put back in possession. The learned Judge, however, decided not to enter into that controversy and not to pass any order which may have the effect of putting the petitioner back in possession of his leasehold rights. Thus despite the fact that there was no superstructure the respondents could not get a verdict in their favour that their action resuming possession was lawful.
20. In view of the above, the resumption or acquisition of the superstructure of the petitioners on the land of the respondents as described above without acquisition proceedings is declared to be without lawful authority and of no legal effect. The respondents are, therefore, directed to proceed in accordance with law if they intend to take possession of the property.
As the question involved was not free from difficulty, there will be no order as to costs.
S. G. D,