' MIAN HAMID FAROOQ, J.--- Facts leading to the present constitutional petition are that the respondents acquired the land measuring 358-K, 16-M and 223-K, 6-M of Mauza Khairpur and Qasim Bela, respectively, owned by the predecessor-in-interest of the petitioners and others, -vide Notification, dated 18-2-1965 for construction of a portion of Shujabad Canal Branch. The land was not utilized for the purpose it was acquired, therefore, the petitioners filed the application before the Board of Revenue for restoration of the total. Land. Thereupon the Board of Revenue, in consultation with the Irrigation Department, the beneficiary of the said land, issued notification dated 18-1-2006, whereby respondent No,1 approved for restoration of land measuring 125-K, 2-M, in Mauza Khairpur and 221-K, 12-M in Mauza Qasim Bela, respectively, to the original landowners, however, subject to the condition that the land may be offered to the original land owners at the prevailing market value. The petitioners, thus, aggrieved from the said condition, has filed the present constitutional petition on the principal ground that the condition cannot be imposed in view of mandatory provisions of Rule 14(2)(ii) of the Punjab Land Acquisition Rules, 1983 (The Rules).
Written statement has been filed on behalf of the respondents, pleading therein that the constitutional petition is not maintainable, the petitioners have no "locus standi" to file the petition and that Rule 14 of the Rules has not been infringed.
2. Learned counsel for the petitioners contends that the impugned condition imposed by the Board of Revenue for return of the land at the prevailing market price is contrary to the provisions of Rule 14(2)(ii) of the Rules; that the petitioners and others are legally entitled to get back the acquired land in question on refunding the amount received as compensation and that the action of respondent No,1 of imposing the condition is mala fide. He has relied upon the judgment of Yagoob Khan v. Government of Punjab and others 1986 SCM R 1224. Conversely, the learned Law Officer submits that the constitutional petition is not maintainable and that no writ can be issued to the authorities for returning the land to the petitioners. He has relied upon the judgments reported as Province of Punjab through Collector Lahore and another v. Saeed Ahmad and 4 others PLD 1993 SC 455, Bashir Ahmad Akhgar and another v. Collector Land Acquisition, Sadiqabad and 2 others 1992 M LD 2364, and Rana Abdul Qadir and 4 others v. Government of Pakistan Ministry of Defence, Defence Production Division, through Secretary Defence, Rawalpindi and 6 others 2005 CLC 1.
3. I have heard the learned counsel and examined the available record. Admitted facts are that the land belonging to the predecessor-ininterest of the petitioners and others was acquired, compensation of the acquired land was deposited/paid, the land was not utilized for the purpose it was acquired and the respondents, on the application filed by the petitioners, out of the total land, decided to return the land measuring 125-K, 2-M, in Mauza Khairpur and 221-K, 12-M in Mauza Qasim Bela, respectively, to the original landowners, subject to the condition that they repay the price at the prevailing market rate. In view whereof it is not disputed by the respondents that the original owners or their successors-in-interest are not entitled for return of the land, as it has been admitted in para.3 of the written statement that the "Government of the Punjab approved for restoration of the land measuring 125-K, 2-M, in Mauza Khairpur and 221-K, 12-M in Mauza Qasim Bela Tehsil and District Multan to the original landowners". The only dispute between the parties at present is as to whether the land will be returned to the petitioners on refunding the amount paid, as compensation, as claimed by them, or at the prevailing market price as contended by the respondents. Rule 14(2)(ii) of the Rules states that the disposal of the land shall be made by the Government in its discretion, and its possession restored to the persons from whom it was acquired or to their heirs on refunding the amount paid as compensation less the 15% granted for compulsory acquisition. It appears appropriate to reproduce the said provision of law, which reads as follows:-- "14(1) ..................................................................................
(2) The disposal of land under sub-rule (1) shall be made by Government in its discretion, and its possession restored to the persons from whom it was acquired or to their heirs as under:-- (i)
(ii) On refunding the amount paid as compensation less than 15 per cent. Granted for compulsory acquisition if the original landowners or their heirs have already received cash compensation in respect of their land. The price may be allowed, if necessary, on account of deterioration or enhanced in the rare case of land having been improved by the use to which Government has put it."
' It is evident from bare perusal of the aforesaid provision of law that although it is within the discretion of the Government to return/restore or not the land to the original landowners or their legal heirs, which was acquired and not utilized or it was abandoned, yet once the said discretion has been exercised in favour of the landowners and the Government has decided to restore the land then, the land would be returned/restored to the original owners or their legal heirs only on refunding the amount paid as compensation less the 15% granted for compulsory acquisition.
Once the Government in exercise of its discretion decides to restore the acquired land, then it is left with no further discretion to return the land on refunding the amount paid as compensation or at the market value. The said provision of law does not give any discretion to the Government to impose any condition and claim market value of the land in lieu of return of the land. Aforesaid provision of law is very clear and unambiguous in its terms and no discretion, whatsoever, vests with the Government to tag any condition with the return of land. The discretion of the Government, vested under section 14(2), ends when it once decides to dispose the acquired land and restore it to the original land owners/their legal heirs and thereafter no further discretion vests with the Government to claim market value of the property. The amount to be refunded must be the same amount, which was paid as compensation at the time of acquisition, less than 15% for compulsory acquisition. To my mind, the Government has no authority in law or even discretion to impose the condition to restore the land upon return of the amount at the market value.
' As regards the case of Yaqoob Khan, (ibid) relied upon by the learned counsel for the petitioner, the said case was decided in view of the concessional statement given by the learned A.A.-G.
Punjab. It appears appropriate to reproduce para. 2 of the said judgment, which reads as follows:-- "Notice was issued to the Advocate-General, Punjab. Learned A.A.-G. Appeared in response to the notice and submitted on behalf of the respondent-Government that the Government has to return the land in question to the petitioner at the same price on which it had been acquired under Rule 14(2)(ii) of the Punjab Land Acquisition Rules, 1983, minus the additional 15% given to him for compulsory acquisition."
' In the said case the learned Law Officer stated before the Court that the Govermnent has to return the land at the same price on which it has been acquired minus the additional 15% given to him for compulsory acquisition. No principle of law was laid down in the said case, however, I feel that the stance of the Government, projected through the statement of learned Law Officer, was completely in consonance with Rule 14(2)(ii) of the Rules.
4. Before coming to the judgments relied upon by the learned Law Officer, it appears appropriate to reproduce the relief being sought by the petitioners in the present petition, as the same has nexus with the principle of law laid down by the superior Courts:--- "It is most respectfully prayed that this petition may graciously be accepted, the imposition of condition No,1(i) and (ii) of the impugned memorandum dated 18-1-2006 (Annexure "A") be declared without jurisdiction, unlawful, without lawful authority and of no legal effect.
Consequently, the respondents may please be directed to restore the land as mentioned in the impugned memorandum to the petitioners and all other concerned on refunding the amount paid as compensation less the 15 per cent. Granted for compulsory acquisition by them.
' Any other writ, relief or direction expedient in the interest of justice may also please be granted in favour of the petitioners."
5. Now coming to the cases relied upon by the learned Law Officer. In the case of "Province of Punjab through Collector Lahore and another", (ibid); it has been held that Government had the option either to put the land in question to auction or as a matter of grace restore the same to the previous owners, who could not compel Government to restore the unutilized land as a matter of right. The said judgment is not at all applicable in the present case, as in the case in hand the Government had already exercised his option, while deciding to return the land in question to the landowners/legal heirs instead of auctioning it. Additionally, the petitioners have not prayed that the Government be compelled to restore the utilized land. Rather it was after exercise of discretion and option by the Government to restore the land, that the present petition was filed with the prayer, as noted above, that the condition imposed by the Government for the return of the land at market value is illegal.
' In the case of Bashir Ahmad Akhgar and another (supra) this Court, while dilating upon the provisions of Rule 14 of the Rules has held that the landowners are not entitled as of right for return of their land, however, the Government in its discretion could return the land to its owners if it had abandoned the scheme. The said judgment is also of no avail to the respondents, as in the present case, as noted above, the petitioners are not asking for return of the land as a matter of right but has challenged the imposition of condition.
' Similarly the case of Abdul Qadir (ibid) is also of no help to the respondents. It has been held in the said case that no directions could be issued by the High Court to the authorities to return the land to the petitioners and the proper course open to them under Rule 14 of the Rules was to approach the Government. The petitioners in the present case are not seeking directions of this Court to the respondents for return of the land rather they in consonance with the law laid down in the said case, approached the Government and the respondents, while exercising discretion, decided to return major portion of the land to the landowners/ legal heirs.
' The above narrative would amply show that the judgments relied upon by the learned Law officer have no nexus with the controversies involved in the case and in none of the judgments it has been held that the Government at the time of return/restoration of the land has the discretion either to return. The land upon refunding the amount paid as compensation or at the market value.
6. There is another aspect of the case. Letter dated 7-5-1995 placed in Annexure "B" to this petition, shows that in another case the Government of Punjab returned the land to the original owners or their heirs on refunding the amount paid as compensation less than 15% granted for compulsory acquisition under para.100 of Standing Order 28 D read with para. 493 of Land Acquisition Administration Manual. To my mind said stance of the Board of Revenue, as reflected from letter dated 7-5-2005, is in accordance with the provisions of Rule 14(2)(ii) of the Rules. The respondents cannot be allowed to approbate and reprobate in the same breath and they are bound by their previous stance. In that E letter the respondents decided to return the land on refunding the amount, paid as compensation, while in the present case unprecedented condition has been imposed to return the land at market price. The petitioners cannot be discriminated and the respondents cannot adopt different parameters for the persons similarly placed and in identical circumstances. The imposition of the condition by the respondents in the case of the petitioners is discriminatory and thus hit by Article 25 of the Constitution of Islamic Republic of Pakistan.
7. In the above perspective, I have examined the impugned letter and find that the imposition of the condition No, (i) viz. "the land may be offered to the original owner at the prevailing market price" is illegal, unconstitutional and contrary to the provisions of Rule 14(2)(ii) of the Rules and thus, I am persuaded to strike it down and set it aside.
8. In view of the above, the present constitutional petition is allowed and the imposition of impugned condition No,(i) in letter dated 18-1-2006 is declared to be unlawful, without lawful authority, unconstitutional and having no legal effect.
No order as to costs.