By means of this revision petition, the judgment & decree dated 19.07.2007 of the learned Additional District Judge, Sialkot has been brought under impeachment.
2. The facts in brief are that the land measuring 8-kanals 9- marlas situated in the revenue estate of Village Goalian Tehsil Daska District Sialkot, fully described in the plaint, was owned by the suitor and vide Mutation No, 176 dated 15.09.1990, the said land was acquired by the Punjab Government of establish a Jinnah Colony but thereafter the Colony Scheme was abolished and possession of the property . remained with the suitor. Claim of the petitioner was that the property was acquired way back on 15.09.1991 but it was not utilized in any scheme till the date of institution of the suit i,e, 13.02.1999. The petitioner retained the property and declaration was claimed that the land-in- dispute was acquired in bad faith and he is entitled to return of the same. There has been a hot contest and the averments contained in the written statement were denied by the respondents.
Divergent pleadings of the parties gave rise to as many as nine issues including one of relief. Issues No, 5 & 6 are the core issues in the whole case. The learned trial Judge answered these issues in favour of the suitor. Issue No, 8 was also decided in a manner that subject to deposit of the amount which the petitioner received, he is entitled to the decree prayed for. Issued No, 1,3 & 4 were answered in the negative. On Issue No, 2 it was said that Court fee of Rs, 4,375/- be affixed on the plaint. Issue No, 7 was also answer in the negative. Resultantly, the suit was decreed in favour of the petitioner. The judgment & decree dated 31.10.2005 was brought under challenge before the learned Additional District Judge, Sialkot who vide his judgment & decree dated 19.07.2007 accepted the appeal and set aside decree of the learned trial Judge.
3. Learned . counsel for the petitioner states that when the property of the petitioner was not utilized period of three years under the agreement, the property was to be returned to the original owner on the same price on which the acquisition was made. Bitterly argued that almost nine years elapsed but the property was not utilized in Jinnah Abadi Scheme. It is asserted that the Scheme was abolished and till today, the property is lying available and has not been utilized by the Provincial Government.
4. Learned Assistant Advocate General appearing on behalf of the respondents supported the impugned judgment & decree of the learned Additional District Judge almost for the same reasons which weighed with the learned lower appellate Court in passing the judgment.
5. I have given conscious thought to the arguments of both the parties and perused the available record.
6. This is outright case of the petitioner-suitor that the land was acquired nine years ago for establishment of Jinnah Abadi Scheme but the Scheme was dropped and the land was not utilized in the Scheme. It has been argued with full vehemence that complete exercise on the part of the respondents is based on mala fide. Three witnesses were got examined by the suitor in support of his contention and all of them are unanimous on the point that the possession is still available with the petitioner. In the written statement, it was not denied that the Colony has not been established.
DW-1 being the sole witness has been examined who stated that an amount of Rs,58,093/- had been paid to the petitioner. He further stated that title and possession qua the property in dispute and lastly testified by the Provincial Government could not be utilized for any other purpose what to talk of the purpose for which the land was acquired. During the course of cross-examination, the said witness admitted in clear terms that till today no Colony has been established. He further stated that as per the record, possession is with the Provincial Government.
7. In Paragraph 9 of the impugned judgment, the learned lower appellate Court recorded findings which are reproduced hereunder: "In whole of the Land Acquisiti9n Act, there is no provision on the basis of which it could be held that the land must go back to the person from whom the same was acquired if the land is not utilized for the purpose, for which the same was acquired. The findings of the learned trial Court are, thus without any substance. The learned trial Court has decided Issues No, 5 and 6 beyond the pleadings of the parties and on the basis of conjectures and surmises. The findings of the learned trial Court on Issues No, 5 and 6 are not sustainable able and same are reversed."
In any event the position, therefore, which emerges is that the learned lower appellate Court has gone by the consideration that there is no provision in the Land Acquisition Act, 1984 which empowers the Court to return the land if it is not utilized for a purpose it is acquired. It is pointed- out that Rule 14 of the Punjab Land Acquisition Rules, 1983 is there which will came in aid of the petitioner. In the cases prior to the year 1983 when the Rules were not framed, Financial Commissioner's Standing Order No, 28 Para 100 is there which in terms provides a complete Scheme for restoration of the unutilized land of the previous owner. Rule 14 ibid is reproduced hereunder: "14.(1) Where any land has been acquired for any Department of the Government or a local authority for a public purpose and it is proposed to abandon the same, it shall be handed over to the Collector who shall be responsible for the disposable of the same in accordance with the order of Government.
(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) Free of cost to the original owners or their heirs, if compensation for the acquisition of land has not been paid.
(ii) On refunding the amount paid as compensation less then 15 percent 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 lowered, 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.
(3) Where the original land-owners or their heirs where provided alternate land in lieu of their acquired land, such land shall not be restored to them, but shall be utilized or disposed of by the Board Revenue in accordance with the policy of the Government regarding disposal and alienation of lands."
If the land has not been utilized for a public purpose it was acquired and it becomes surplus, the land Shall be reverted to the original owner. No doubt that the owner cannot compel the Government to return the land and it is a matter of discretion, which should, however, be, exercised very fairly keeping in view the facts & circumstances of the case. Similar question arose in Province of Punjab through Collector, Lahore and another v. Saeed Ahmad and 4 others (PLD 1993 Supreme Court 455) before the apex Court wherein it was held:-- "However, me may observe that the discretion vested in the Government under the above paragraph is to be exercised fairly and reasonably, and not arbitrarily or capriciously. The present case stands entirely on different footing inasmuch as the competent authority decided to restore the unutilized land to the previous owners, so much so the survey was carried out; the amounts refunded by the previous owner were calculated and the notices were issued under above Paragraph 100 of the Order to the previous owners, though they were not served. The appellants failed to bring on record any material to indicate that the above decision of restoring the unutilized land to the previous owners was rescinded by the competent authority".
The learned Additional District Judge in fact, framed a summary point and non-suited the petitioner for the reasons which are non-existent on the record. Sufficient evidence has been brought on the record that the land had not been utilized for establishment of Jinnah Colony and is still lying vacant. On account of the mal-administration on the part of the Department, the petitioner-plaintiff suffered a tremendous loss and due to arbitrary exercise on the part of the Department, he had been deprived of his bread & butter. In faithful compliance of the decree passed by the learned trial Judge in his favour. The amount has been returned.
8. For whatever it has been stated above, the revision petitions is accepted, the impugned & decree dated 19.07.2007 passed by the learned Additional District Judge, Sialkot is set-aside and that of the learned trial Judge dated 31.10.2005 is restored & maintained. However, in facts & circumstances, there shall be no order as to costs.