' ASIF SAEED KHAN KHOSA, J.---The issue involved in these cases is a claim regarding payment of compensation and damages arising out of acquisition of some land in Tehsil and District Peshawar. On 12-3-1995 the Secretary, Population Planning and Housing Department, Government of the North-West Frontier Province (now Khyber Pakhtoonkhwa) had described the present case as "a stinking case", later on the Minister for Population Planning and Housing Department had observed that "the Department is faced with a fait accompli" and still later the Chief Minister of the Province had remarked that "we have to suffer for the follies of others". It is unfortunate that the acknowledged follies committed in the case could not be rectified and the stench created by them could not be removed even through the judicial process undertaken by the learned courts below.
Hence, the present appeal and the connected petition before this Court.
2. Through this consolidated judgment we propose to decide Civil Appeal No. 933 of 2000 and Civil Petition No. 405-P of 2000 together as the same have arisen from the consolidated judgment passed by a learned Division Bench of the Peshawar High Court, Peshawar on 1-5-2000 whereby Regular First Appeal No. 67 of 1998 filed by. The appellants in Civil Appeal No. 933 of 2000 and Regular First Appeal No. 63 of 1998 filed by the petitioners in Civil Petition No. 405-P of 2000 were dismissed and the judgment and decree passed by the learned Civil Judge, Ist Class, Peshawar on 18-7-1998 partly decreeing a suit for recovery filed by the respondents in the present appeal/petitioners in the present petition were upheld.
3. The necessary facts giving arise to the present appeal and the connected petition are that the Project Management Unit of the Urban Development Board, North-West Frontier Province, Peshawar had proceeded to acquire some land situated in Mahal Lala Ahmed, Tehsil and District Peshawar under the North-West Frontier Province Urban Planning Ordinance, 1978 for construction of Northern Section of the Ring Road in Peshawar. Upon issuance of notices under section 52 of the said Ordinance the respondents in the present appeal/petitioners in the connected petition (hereinafter referred to as 'the respondents') filed their objections against the proposed acquisition but their objections were rejected and finally on 17-7-1994 the Land Acquisition Collector, Peshawar Development Authority/Project Management Unit, Peshawar announced an Award and fixed the amount of compensation which were subsequently modified through a Corrigendum dated 28-2- 1995. Thereafter, as per the record, an Undertaking was executed between the appellants and the respondents to the effect that no party would go in appeal or would challenge the Award in any manner before any court or forum and that the Award would be given effect to without recourse to any legal remedy. We have been informed that on the basis of that Award some compensation was paid to the respondents in respect of the land actually owned by them but qua the remaining land no compensation was paid to them because their title or interest in that land was found to be non-existent. On 23-10-1996 the respondents filed a suit for recovery of the compensation statedly due to them and they also claimed damages for the loss suffered by them on account of failure of payment of compensation to them in time. The appellants contested the suit by filing a written statement and after holding a full-dressed trial the said suit filed by the respondents was partly decreed by the learned Civil Judge, 1st Class, Peshawar vide judgment and decree dated 18-7-1998 whereby the respondents were declared to be owners of the relevant property acquired and, thus, entitled to payment of the remaining amount of compensation. The claim of the respondents regarding payment of damages was, however, rejected by the learned Civil Judge. The appellants assailed the said judgment and decree before the Peshawar High Court, Peshawar through Regular First Appeal No. 67 of 1998 whereas the respondents preferred Regular First Appeal No. 63 of 1998 maintaining that their claim regarding damages ought also to have been decreed by the trial court. The said appeals were heard by a learned Division Bench of the Peshawar High Court, Peshawar and through a consolidated judgment dated 1-5-2000 both the said appeals were dismissed and the judgment and decree of the trial court were upheld. The appellants then filed Civil Petition No. 320-P of 2000 before this Court against the judgment passed by the Peshawar High Court, Peshawar wherein leave to appeal was granted by this Court on 9-8-2000 whereas the respondents have preferred Civil Petition No. 405-P of 2000 before this Court. Both these matters have now come up before us for a consolidated hearing and decision.
4. Mr. Athar Minallah, Advocate Supreme Court appearing for the appellants in Civil Appeal No.933 of 2000 has argued that the respondents were not owners of most of the land acquired and the Award announced on 17-7-1994 was restricted in its applicability only to owners of the relevant land and it did not extend to any other person having any other interest in that land and, thus, the respondents had no right to claim any compensation under that Award and also that their suit for recovery of compensation and damages was not maintainable. He has also argued that at the time of acquisition of the relevant land the Provincial Government was itself the undisputed owner of the same and, thus, the very acquisition of that land was misconceived and a nullity in the eye of law and, therefore, there was hardly any occasion for payment of compensation for that land to the respondents. He has further submitted that the so-called and purported recognition of the respondents as Muqarraridars of the acquired land through promulgation of, the North-West Frontier Province Mugarraridars (Conferment, of Proprietary Rights) Ordinance, 1995 on 26-2-1995 had come about much after announcement of the Award on 17-7-1994 and that Ordinance had lapsed on 25-5-1995. He has pointed out that on 1-6-1995 the North-West Frontier Province (Conferment of Proprietary Rights on Muqarraridars) Rules, 1995 had been notified which Rules had been framed under the authority of the above mentioned Ordinance of 1995 which had already lapsed before notification of the said Rules and, thus, a :further attempt made to create or recognize the interests of the respondents in the acquired land through those Rules was nothing but non est. According to him, apart from lapsing of the said Ordinance and invalidity of the said Rules of 1995 that Ordinance and those Rules could not have any bearing upon the Award announced on 17-7-1994 because the said Ordinance and the Rules had not been given retrospective effect. Mr. Athar Minallah has brought to our notice that on 23-7-1995 the North-West Frontier Province Mudarraridars (Conferment of Proprietary Rights) Act III of 1995 was enacted through which another effort was made to create and recognize some interest of the respondents in the acquired land but that Act was also not given any retrospective effect so as to have any bearing upon the Award announced in the year, 1994 and, even otherwise, no material was brought on the record of this case by the respondents to establish that they could claim to be Muqarraridars as defined by that Act. He has also drawn our attention towards various letters, summaries and memoranda written, prepared or issued by various high functionaries of the Provincial Government wherein the whole scam was adversely commented upon and mala fide in the matter was highlighted. He has lastly submitted that the respondents have been trying to rob the public exchequer of a huge amount of money through collusion with some high public functionaries regarding which a Reference has already been filed by the National Accountability Bureau and that it is high time that this Court may block the respondents' attempt in that regard.
5. Mr. S. M. Zafar, Senior Advocate Supreme Court appearing for the respondents has argued that in the Award dated 17-7-1994 and in many other documents available on the record the respondents had been acknowledged by the appellants to be 'owners' of the relevant land and, thus, the appellants could not be allowed to turn around and start disputing that status of the respondents.
He has also contended that possession of the relevant land was taken from the respondents under the Award on 11-8-1996 but before such transfer of possession the respondents had already acquired title and interest in that land and, therefore, by virtue of the law declared by this Court in the case of Haq Nawaz Khan and others v. Rab Nawaz and others (1992 SCM R 993), the respondents were entitled to receive compensation for the land acquired. He has also highlighted with reference to the summaries prepared by the concerned officials of the Department for the Minister concerned and for the Chief Minister and also with reference to the Undertaking executed between the appellants and the respondents that the rights of the Provincial Government over the relevant land already stood extinguished and, thus, the Provincial Government could not be allowed to approbate or reprobate. According to Mr. S. M. Zafar, the respondents were Muqarraridars of the relevant land at the time of announcement of the Award and, therefore, they were 'interested persons' entitled to be compensated for their interest in the land acquired and for explaining the interests of Muqarraridars he has referred to Douie's Settlement Manual (page No. 11), Ghulam Khan v. Dullah and another (AIR 1944 Lahore 181), Mst. Anwar Jan v. Hazrat Din (PLD 1967 Peshawar 386), Buta Singh v. Gurdit Singh (1896 Punjab Record, Case No. 10) and A. M. Dunne Receiver to the Bhukoilash Ghosal Family Estate v. Nobo Krishna Mookerjee and after his demise, his son Binod Behari Mookerjee and another (ILR 1917 Calcutta 144). For the definition of the term `Muqarraridars' he has referred to sections 4(20) and 114-A of the Punjab Tenancy Act, 1887 and section 2(1)(ii) of the North-West Frontier Province Muqarraridars (Conferment of Proprietary Rights) Act III of 1995. He has finally read out some portions of the impugned judgment passed by the learned Division Bench of the Peshawar High Court, Peshawar in order to maintain that the reasons recorded therein are cogent and sound and the same merit acceptance by this Court.
Khawaja Muhammad Farooq, Senior Advocate Supreme Court has canvassed and reiterated more or less the same points which have been argued by Mr. S. M. Zafar, Senior Advocate Supreme Court.
6. Mr. Zahid Yousaf, Additional Advocate-General, Khyber Pakhtoonkhwa has supported the arguments advanced by Mr. Athar Mina114 Advocate Supreme Court appearing for the appellants.
In exercise of his right of reply Mr. Athar Minallah has emphasized that the Award had made compensation payable only to the owners of the land acquired and if the respondents claimed to have any other interest in that land then they ought to have challenged the Award but they had never done so and they had only claimed recovery of compensation and damages on the basis of the Award which recovery could not have been ordered or decreed until the Award itself was amended. In this view of the matter he has maintained that the suit filed by the respondents for recovery of compensation and damages was not maintainable.
7. After hearing the extensive arguments advanced by the learned counsel for the parties and going through the voluminous record of this case with their assistance it has straightaway been noticed by us that the Award in this case was announced by the Land Acquisition Collector on 17- 7-1994 and indisputably till that time the Provincial Government was the exclusive owner of the relevant property and such exclusive ownership of the Provincial Government was duly recorded and reflected in the revenue record. In view of this established and admitted position we have been astonished to learn that despite the Provincial Government's own ownership of that land proceedings had been undertaken to acquire that land by the Project Management Unit of the Urban Development Board, North-West Frontier Province. Our astonishment is further compounded by the fact that after acquiring the Provincial Government's own land various public functionaries had been, in the words of Mr. Athar Minallah, "bending over backward" for creating and then recognizing some interest of the respondents in that land so that the respondents could claim compensation for such acquired land. These factors are so clearly apparent on the record of these cases that it is impossible not to sme ll a rat or not to suspect foul play. Apart from that, for good or for worse, the Award announced on 17-7-1994 was in favour of only "persons having hissadari possession keeping in view their shares entered in the ownership column (Khana Malkiat)" and the said Award was not in favour of any other person having any other interest in the acquired land. It was mentioned by the respondents in their own plaint that they had "agreed to the .Award" and also that they had undertaken not to challenge the Award. Admittedly the Award had never been challenged by the respondents and through their suit recovery of compensation and damages had been claimed by them under that Award. In their written statement filed by the appellants it had clearly been maintained that the respondents had no right or interest in the acquired land and it is not disputed that at the time of announcement of the Award the respondents were not owners of the acquired land having their hissadari possession entered in the ownership column (Khana Malkiat) of the relevant revenue record, as expressly required by the Award. In these circumstances we are of the considered opinion that the suit for recovery under the Award filed by the respondents was not maintainable because the respondents had no right to recover anything under the Award as long as the Award stood as it did. It is probably in this context that on 20-3- 1995 upon a summary received by him from the concerned Department the Chief Minister of North-West Frontier Province had directed that for accommodating the respondents the Award itself needed to be corrected. We have been informed that no correction of the Award was ever either sought or allowed.
8. As the Award, as it stood announced on 17-7-1994, was proving to be a hindrance in the way of the respondents' claim regarding payment of compensation, therefore, various attempts were made by the public functionaries to create or recognize the respondents' interest or title in the relevant land but all such attempts had remained in vain. On 26-2-1995 the North-West Frontier Province Muqarraridars (Conferment of Proprietary Rights) Ordinance, 1995 was promulgated for recognizing the respondents as Muqarraridars but that Ordinance lapsed on 25-5-1995. The attempt so made was even otherwise futile because that Ordinance was not given any retrospective effect and the same could not establish the respondents as Muqarraridars on the date of announcement of the Award. On 1-6-1995 the North-West Frontier Province (Conferment of Proprietary Rights on Muqarraridars) Rules, 1995 were notified and those Rules had been framed under the authority of the above mentioned Ordinance which had already lapsed before notification of those Rules and, thus, the Rules so framed were void and a nullity and the same could not, create or recognize any interest of the respondents in the land already acquired. Still later, the North-West Frontier Province Muqarraridars (Conferment of Proprietary Rights) Act (III of 1995) was enacted on 23-7-1995 but even that Act was not given any retrospective effect and, thus, another attempt made to create or recognize any right or interest of the respondents as Muqarraridars remained abortive. Apart from that, the said Act tended to recognize the respondents as Muqarraridars because they already stood recognized as such under the above mentioned lapsed Ordinance and the void Rules and, therefore, the very foundation of recognition of the respondents as Muqarraridars under that Act was legally non-existent and unfounded. It may also be relevant to mention here that for establishing the respondents as Muqarraridars as defined by section 2(1)(ii) of that Act B the respondents had to establish some facts mentioned in that definition but no such proof was brought on the record of this case before the learned courts below. For all these reasons all the belated attempts made in order to create or recognize the respondents' right or interest in the acquired land had ended in smoke.
9. It may be added in the above mentioned context that at the relevant time the Provincial Government was the recorded owner of the land in issue and there is nothing available on the record to show or establish that the Provincial Government had ever conferred any Muqarraridari right or transferred any other interest qua that land in favour of the respondents so as to entitle them to any benefit under the North-West Frontier Province Muqarraridars (Conferment of Proprietary Rights) Act III of 1995. The reference made by Mr. S. M. Zafar to the case of Haq Nawaz Khan and others v. Rab Nawaz and others (1992 SCM R 993) has been found by us to be inapt because the asserted ownership of the respondents was neither established nor legal and the very basis of their purported ownership, i.e. Muqarraridari interest in the relevant land had a defective, unproved and shady origin.
10. It may be true that in some of the documents referred to by the earned counsel for the respondents different authorities had referred to the respondents as 'owners' of the land acquired but it is not disputed before us that till the announcement of the Award the respondents were not the owners of the relevant land and no interest of the respondents in that land stood established, proved or recognized till then. In this view of the matter reference in some such documents to the respondents as owners could not work as estoppel because it is by now an established D principle of law that there is no estoppel against facts or against the law.
11. It is important to mention here that at the time of announcement of the Award on 17-7-1994 and till the promulgation of the North-West Frontier Province Muqarraridars (Conferment of Proprietary Rights). Ordinance, 1995 on 26-2-1995 the only interest in the relevant land being asserted by the respondents was that of Muqarraridars but even that interest could not be proved or established by the respondents as they had throughout remained unable even to explain the nature or the extent of their claimed interest, if at all they were to be compensated in respect of any particular or specific interest other than title. In the absence of any proof regarding the nature or the extent of that specific or particular interest the learned courts below could not have declared the respondents to be entitled to compensation for such interest and even from this angle the learned courts below have been found by us to have erred in this case both in law as well as acts.
12. In the opening part of this judgment we have noted that on 12-3-1995 the Secretary, Population Planning and Housing. Department, Government of the North-West Frontier Province had remarked that the case in hand was "a stinking case" and after hearing the learned counsel for the parties and going through the record of this case we cannot agree with the Secretary more. Subsequently the Minister for Population Planning and Housing Department, Government of the North-West Frontier Province had observed that "the Department is faced with a fait accompli" and still later the Chief Minister of the Province had observed that "we have to suffer for the follies of others". It is also available on the record that at one stage the concerned Secretary had found the compensation ordered to be on the "higher side" and "very exorbitant". The record further shows that at another stage an Undertaking had been executed by the appellants and the respondents not to challenge the Award or the compensation determined therein before any court or forum. Such an Undertaking was nothing but unusual and was sufficient to raise many an eyebrow creating a lot of suspicion vis-a-vis the circumstances in which land belonging to the Provincial Government itself had been acquired and then different organs of the State were made to bend over backward to create and recognize some interest of the respondents in the acquired land so that they could claim compensation for the same: The weird and bizarre circumstances of this case manifest that the concerned executive authorities had, wittingly or otherwise, yielded to extraneous pressure, influence or persuasion, the legislative process was repeatedly utilized for dishing out undue favour and unfortunately the learned courts below could not appreciate the legal and factual aspects of this case in their true perspective. In the peculiar circumstances of this case detailed above we have felt convinced that the end result achieved was clearly illegal, unfair and unjust and the same clamours for interference by this Court.
13. For what has been discussed above Civil Appeal No: 933 of 2000 is allowed, the impugned judgments and decrees passed by the Peshawar High Court, Peshawar and the learned Civil Judge, 1st Class, Peshawar are set aside and, consequently, the suit for recovery filed by the respondents is dismissed. On account of dismissal of the respondents' suit Civil Petition No. 405-P of 2000 filed by them before this Court has lost its relevance and the same is, therefore, also dismissed and leave to appeal is refused.
14. Before parting with this judgment it is important to mention that as a consequence of enactment of the North-West Frontier Province Muqarraridars (Conferment of Proprietary Rights)
Act. III of 1995 some compensation had statedly been received by the Provincial Government from the respondents and in return proprietary/ownership rights of the land in issue had been conferred upon them. As the respondent's recognition as Muqarraridars under the North-West Frontier Province Muqarraridars (Conferment of Proprietary Rights). Ordinance, 1995 and the North-West Frontier Province (Conferment of Proprietary Rights on Muqarraridars) Rules, 1995 has been found by us to be factually and legally laconic besides being nullity in the eyes of law, therefore, proprietary/ownership rights could not be granted to the respondents under the above mentioned Act, III of 1995 by treating them as Muqarraridars. The transaction is issue, therefore, needs to be rescinded and the Government of the Province of Khyber Pakhtoonkhwa is directed to do the needful forthwith. It shall only be fair that the amount of compensation deposited by the respondents for grant of such proprietary/ownership rights ought to be refunded to them and, keeping in view the factor of fluctuating rate of interest over the last many years, the respondents shall be entitled to payment of yearly interest at the rate of 10% (ten per cent-um) on the amount to be refunded to them.