' MIFTAH-UD-DIN KHAN, J.---Petitioner Moatamir Al-Alam Al-Islami has filed the present revision petition against the judgment and decree dated 21-5-2003 of the learned District Judge, Abbottabad, whereby, the appeal of the present petitioner against the judgment and decree dated 6-2-2002 of learned Senior Civil Judge, Abbottabad was dismissed.
2. The brief facts of the case are that through Award No,45 dated 16-11-1983, the suit property was acquired for the present petitioner and on the basis of Award, Mutation No,912 was also attested in favour of the present petitioner on 30-1-1988. The Award as well as acquisition proceedings were challenged through two different, suits, one bearing No,158/1 of 1990 instituted by Sultan Khan etc., respondents and other Civil Suit No,97/1 of 1999 instituted by Muhammad Aslam Khan etc respondents on the grounds that the property was not acquired for any public purpose as no notice under sections 5 and 5-A of Land Acquisition Act was issued, and that no previous sanction in respect of acquisition was obtained as required under section. 39 of the Land Acquisition Act and that the compensation of the land was wrongly and unauthorizedly reduced from Rs,11,91,637.37 to Rs,1,30,460. The respondents alleged in their plaint that all the acquisition proceedings were conducted at the back of the respondents without any notice and that the petitioner is not at all a company hence the acquisition was not for any public purpose, therefore, the Award be declared as illegal, without jurisdiction and without lawful authority and respondents be given possession of the suit property. The suit of the respondents was contested by the petitioner by submitting written statement. The learned Senior Civil Judge reduced the pleadings of the parties to the following issues:-- ' ISSUES.
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the plaintiffs are estopped to sue?
(3) Whether the suit is within time?
(4) Whether the suit is bad due to non-joinder of necessary parties?
(5) Whether in the year, 1982-83 the suit property was jointly owned and possessed by the plaintiffs and others?
(6) Whether the suit property was acquired for defendant No,1 under the Land Acquisition Act after fulfilling all the requisite formalities, if so, its effect?
(7) Whether the defendant No,1 is unlawfully in possession of the suit property?
(8) Whether the plaintiffs are entitled to the decree of possession for the suit property as prayed for?
(9) Relief?
3. After recording evidence of the parties on the above issues and hearing the learned counsel for the parties, the learned Senior Civil Judge decreed the suit of the respondents vide judgment and decree dated 6-2-2002. The present petitioner preferred an Appeal No,20/13 of 2002 before the learned District Judge, Abbottabad which was also dismissed on 21-5-2003. Aggrieved from the concurrent findings of both the Courts below, the petitioner has lodged the present revision petition.
4. Mr. Muhammad Yunus Khan Tanoli, Advocate, the learned counsel for petitioner contended that the petitioner is a registered society and the acquisition proceedings were conducted perfectly in accordance with law and due notice to the respondents. He further submitted that in case of emergency, the Collector can dispense with issuance of notice under sections 5 and 5-A which has been done in the present case. He further submitted that the property in question was acquired for public purpose and in this connection Notification issued under section 6 of the Land Acquisition Act is conclusive proof of the fact that the acquisition was for public purpose. He further submitted that the acquisition proceedings cannot be challenged in the civil court and the respondents were required to have applied for filing a reference under sections 18/30 of the Land Acquisition Act to the Collector. He further submitted that no separate agreement or previous sanction under section 39 was necessary in the present case as the acquisition proceedings have been completed and the property in question has been transferred in favour of the petitioner in due course of law, therefore, both the courts below have wrongly and illegally appreciated the evidence and decreed the time barred suits of the respondents against the present petitioner. He placed reliance on 2007 YLR 568, PLD 2008 SC 335, 1993 SCMR 1673, 2001 CLC 1853, 2007 SCMR 741, PLD 1973 Lahore 665, PLD 2004 Lahore 47 and 2004 MLD 1182.
5. Messrs Sultan Khan Jadoon and Haji Ghulam Basit, Advocates, learned counsel for respondents contended that the acquisition proceedings were conducted in clear violation of the relevant provisions and the respondents have been deprived of their proprietary rights without any legal justification because the petitioner is neither a company nor the property has been acquired for public purpose. They further submitted that neither any notice under sections 5 and 5-A of the Land Acquisition Act was issued nor any inquiry in this connection was conducted and no proper justification for non-issuance of notice has been given. They further contended that neither any agreement between the petitioner and Commissioner has been executed nor any sanction/ permission under section 39 has been obtained and published in official Gazette as required under section 42 of the Land Acquisition Act in spite of the fact that more than twenty-seven years have elapsed to the passing of Award. They lastly argued that on account of non-fulfillment of legal requirement and without any proof that the acquisition was necessary in the public interest, the respondents have been illegally deprived of their proprietary rights in respect of the suit property, therefore, both the courts below have rightly decreed the suit of the respondents against the present petitioner through their concurrent judgments which cannot be interfered with in exercise of revisional jurisdiction by this court. He placed reliance on AIR 1962 Madras 1099, PLD 1957 Peshawar 149, 1989 CLC 181 and PLD 2000 SC 825.
6.The first and foremost question for determination before both the courts below was as to whether the acquisition was made for a company or a registered society and as to whether acquisition was in the public interest and previous sanction or agreement between the petitioner and provincial government was entered into in respect of such acquisition as required under sections 39 to 42 of the Land Acquisition Act. In the present case, the respondents have categorically pleaded that the petitioner is not .a company and the acquisition is not for a public purpose, thus, the onus was shifted to the petitioner to establish that the petitioner is a company or registered society and that the acquisition was for a public purpose and in this connection, necessary sanction was obtained under the law after entering into an agreement with the provincial government/Commissioner as required under the law. The present petitioner has not uttered a single word in the written statement that the petitioner is a company or registered society. No one from petitioner's side has appeared to produce evidence in respect of the fact that the petitioner is a company or registered society. The witnesses who appeared before the trial Court on behalf of Acquiring department are ignorant of the fact as to whether petitioner is a company or an international institution. They categorically admitted that no agreement was executed on behalf of the company with the provincial government or the Commissioner. The certificate Exh. P.W.3/D-I was produced in an illegal and unusual manner by the learned counsel for petitioner by confronting respondent Sultan Khan P.W.3 with this certificate, which was neither in his custody nor he is the author or signatory of the said certificate. This document should have been produced in original by the relevant custodian and properly tendered by the petitioner in evidence with an opportunity of cross- examination to the respondents. Thus; this document is of no help to the present petitioner and cannot be taken as evidence in the present case to prove the petitioner as registered society. No evidence in the present case exists that any previous consent of the Commissioner was obtained and any agreement was executed between the provincial government/Commissioner with the present petitioner as required under section 39 of the Land Acquisition Act. The provisions of section 39 of the Land Acquisition Act clearly provide that the provisions of sections 6 to 37 (both inclusive) shall not be put in force in order to acquire land for the company unless with the previous consent of the Commissioner or unless the company shall have executed the agreement hereinafter mentioned. Section 40 of Land Acquisition Act provides that such consent shall not be given unless a report of the Collector under section 5-A is submitted or an inquiry is held by an Inquiry Officer at such time and place as the provincial government shall appoint. In the present case, the report of Collector under section 5-A was not obtained as no notice under section 5-A was issued in the present case. Similarly, no inquiry as required under section 40 of the Land Acquisition Act was held by any inquiry officer. Thus, the petitioner has failed to establish any previous consent of the government or prove that an inquiry was held to show that the acquisition was necessary for the public purpose. No convincing and worth reliance evidence is available on record regarding the status of petitioner as a company or registered society. In these circumstances the provisions of Land Acquisition Act were wrongly and illegally invoked by the Collector in favour of petitioner against the respondents. The case-law relied upon by the learned counsel for petitioner is not applicable to the facts of the present case as the petitioner is neither a company nor registered society. Similarly, the acquisition was neither in public interest nor the legal requirement of sections 9 to 42 was complied with. It has been ruled in PLD 1983 Lahore 178 that section 39 places embargo on Commissioner to issue notification under section 17(4) before the conditions prescribed in section 39 are satisfied. In PLD 1957 Peshawar 149 this Court ruled that no right in the land vested or existed with the company if agreement executed long after action under sections 6 to 11 was taken. In the present case even after the expiry of more than twenty- seven years of passing the award, neither sanction has been obtained nor agreement has been executed. In 1993 SCMR 1673 the apex court ruled that:-- "Sections 6 to 37 of the Act would not be put into force without previous consent of the Commissioner. Such consent cannot be given unless the Commissioner is satisfied, on a report of the Collector under section 5-A(2) or by an enquiry held under section 40 by such person as appointed by the Commissioner that such acquisition was needed for construction of work which was likely to prove useful for the public."
As the provisions of sections 39 to 42 were not complied with, therefore, notification issued under sections 6 to 17 of Land Acquisition Act in favour of petitioner and subsequent award and attestation of mutation in favour of petitioner were wrong, illegal and without lawful authority. The suit of respondents Sultan Khan etc is for declaration and possession which was instituted in 1990 i.e, within twelve years of the prescribed period of limitation, therefore, the same was rightly held as within time by the learned courts below.
7. Consequently, both the courts below have rightly decreed the suit of the respondents against- the present petitioner after making legal and proper appraisal of law and evidence. The present revision petition is without merit, hence dismissed.