CH. IJAZ AHMED, J. -- Petitioner has sought leave to appeal against the order of the Lahore High Court, Lahore dated 27.7.2007 wherein Criminal Org. No, 409-W/2009 filed by Respondent No, 1 was accepted with certain directions to the petitioner to acquire the land of the original owner predecessor-in-interest of respondent No, 1.
2. Necessary facts out of which the present petition arises are that predecessor-in-interest of respondent No, 1 namely Noor Muhammad filed suit for possession with mandatory injunction of the land measuring 16 marals, 2 sq. ft. over which Municipal Corporation, Faisalabad, built mettled road. The suit was decreed after completing the legal formalities vide judgment dated 8.6.1983 passed by the learned Civil Judge, Faisalabad. Municipal Corporation being aggrieved filed appeal before the Additional District Judge, Faisalabad, who dismissed the same vide judgment and decree dated 14.2.1985. Municipal Corporation, Faisalabad, being aggrieved filed Revision Petition before the Lahore High Court which was dismissed in limine on 29.5.1985. The judgment-debtor thereafter preferred Civil Petition No, 826/1985 before this Court which was finally dismissed as withdrawn vide order dated 17.6.1989. Predecessor-in- interest of respondent No, 1 filed execution petition before the executing Court. The executing Court consigned the execution petition to the record room after holding that the decree had been set aside on the report of Tehsil Municipal Administration, Jinnah Town on the ground that the road had been removed from the property in question. Predecessor- in-interest of the original owners-respondent No, 1 and others filed an appeal before the Additional District Judge, Faisalabad, who accepted the same and set aside the order of the executing Court dated 2.7.2007 by observing that the execution petition of the predecessor-in-interest of original owner Noor Muhammad including respondent No, 1 be considered to be pending on its number in the relevant register before the executing Court. The executing Court vide order dated 14.6.2003 had frozen bank accounts of the petitioner. Petitioner being aggrieved filed revision petition before the Additional District Judge who modified the order of the executing Court vide order dated 8.8.2003 wherein the petitioner's accounts were allowed to be operated for a period from 9.8.2003 to 11.8.2003 in result of which an amount of Rs, 2,23,26,836/- was withdrawn for payment of salary of the employees and thereafter those accounts were again ordered to remain frozen in terms of the order of the executing Court dated 1.5.2003. Petitioner being aggrieved filed Writ Petition No, 13298/2003 in the Lahore High Court which was finally dismissed as withdrawn in terms of the agreement arrived between the parties vide order dated 16.2.2004 Respondent No, 1 filed W.P. No, 7614/2008 in view of the non-compliance of order dated 16.2.2003 by the petitioner. The learned High Court accepted the Writ Petition vide order dated 8.9.2008 without securing report and parawise comments from the petitioner in the following terms:-- "The judgment and decree passed in favour of the petitioner on 8.5.1983 but the petitioner, who is entitled to enjoy the benefits of the decree, is hanging in the air from the last many years, therefore, executing Court seized of the matter is directed to execute the decree in the light of the direction given by the Appellate Court in its order dated 3.11.2007 positively within a period of two months under intimation to the Deputy Registrar (J) of this Court."
3. The executing Court failed to decide the execution petition within the prescribed period as directed by the learned High Court vide order dated 8.9.2008. Respondent No, 1 being aggrieved filed Criminal Org. Petition No, 409-W/2009 before the Lahore High Court against the petitioner and the Civil Judge, Faisalabad (Respondent No, 2) which was accepted vide impugned order in the following terms:-- "The TMA Will initiate the acquisition proceedings pertaining to the land in question within one month from today and the DCO shall also facilitate the respondent-TMA as well as the petitioner for early completion of the acquisition, with intimidation to the Deputy Registrar (J) of this Court."
4. Hence the present petition.
5. The petition was fixed before this Court on 25.9.2009 and 5.10.2009 and the following orders were passed respectively:--- Order dated 25.9.2009 "What had been settled up to the level of this Court was that at least 15 marlas of land belonging to respondent No, 1 and others had been illegally and forcibly taken over by the governmental authorities without taking up any proceedings in accordance with law and where a road now reportedly stand constructed. The decree passed in favour Of the said land owners is now awaiting its execution. The governmental authorities are attempting to complicate the issues and to frustrate the said decree by pushing the burden from one department/agency to the other with the decree-holders standing as victim spectators of this game. Let the Secretary, Local Government of Punjab, the Secretary of the Communication and Works Department of the Government of Punjab, the District Co-ordination Officer of Faisalabad as also the petitioner who is NAZIM of the relevant town appear before this Court on the next date of hearing. The office shall telephonically convey this order to the said officials for compliance."
Order dated 5.10.2009 ' Secretary Communication & Works Department, Punjab, Secretary Local Government, Punjab and D.C.O., Faisalabad are present in person.
' They need some time to workout the compensation which could be offered to the legal heirs of the decree-holder i,e, the late Noor Muhammad. Ch. Ali Muhammad, learned ASC for the petitioner shall supply a list of all the said heirs to the D.C.O., Faisalabad to whom notice is hereby issued for appearance before this Court on the next date of hearing. The D.C.O., Faisalabad shall convey this notice to all the said local heirs.
6. The representative of the Government present in Court under instructions has given offer to pay Rs, 4,50,000/- per maria to satisfy the decree in question which has not been accepted by respondent No,
1. Hence the petition is being decided on merits.
7. The learned counsel for.the petitioner submits as under:- (1)The city government has only power to pay any compensation to the owner whose land is included in road and Town Municipal Administration is not responsible to pay compensation to the decree-holders in terms of the provisions of Punjab Local Government Ordinance, 2001 including Section 180 of the Ordinance.
(2)The leaned High Court, erred in law to direct the petitioner to initiate acquisition proceedings to acquire the land in question.
(3)The learned High Court had not either found the petitioner as guilty or discharge him, therefore, erred in law to direct the petitioner to initiate proceedings under Land Acquisition Act qua the land in question. He relied upon Mehdi Hassan's case (PLD 1960 Lah. 751).
(4)The learned High Court had also erred in law to issue notice to the Civil Judge concerned.
(5)The petitioner was not party in the suit as is evident from the title of the suit filed by the predecessor-in-interest of the respondent No, 1 "Noor Muhammad s/o Umar Bux R/o house No, P.
191, Street *No, 2, Mohammadpura, Faisalabad v. Chairman, Municipal Corporation, Faisalabad."
(6)The petitioner is not. successor in any capacity of the Municipal Corporation, Faisalabad under the provisions of Local Government Ordinance, 2001 but this fact was not considered by trie Lahore High Court in the impugned order in its true prospective.
(7) Legal heirs of original owner have already filed suit with the prayer that the legal heirs of the original owner are entitled compensation of the land in question. The said suit is still pending adjudication.
8. Learned counsel for the respondents has vehemently supported the impugned order as under:-- (a)that respondent No, 1 and other legal heirs of respondent No, 1 had become decree-holders by operation of law after the death of the father of original owner Noor Muhammad.
(b)The learned High Court was justified to direct the petitioner to initiate proceedings under the Land Acquisition Act to acquire the land in mettled road original owner without his consent.- (c)Legal heirs of the original owners-are decree- holders which was secured by the original owner on 8.6.1983 and which was upheld upto the apex Court, therefore, learned High Court was justified to pass the impugned order in accordance with law.
9. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record, lt is better and appropriate to reproduce title of the suit, relevant previsions of the Punjab Local Government Ordinance, 1979 and Punjab Local Government Ordinance, 2001:- ' Title of the Suit "Noor Muhammad s/o Umar Bux R/o house No, P.
191, street No, 2, Mohammadpura, Faisalabad versus Chairman, Municipal'Corporation; Faisalabad."
' Punjab Local Government Ordinance, 1979 Section 3(iv): "Chairman" means the Chairman of a Local Council constituted under the Ordinance but in the case of a Metropolitan Corporation, the Chairman may be called the Lord Mayor, and in the case of Zonal Municipal Corporation and a Municipal Corporation the Chairman may be called the Mayor; ' Section 3(xiv): 'Government' means the Government the Punjab; ' Section 3 (xvii): 'local council means a local constituted under the Ordinance: ' Section 3(xxiii): 'municipal corporation' means a municipal corporation constituted for a city under the Ordinance ' Section 3 (xxxiii): 'public road'. means a road maintained by Government or by a local council or a local authority; ' Section 3(xi): 'road' includes a road which is not a thoroughfare ' Section 5(2)': A Municipal Committee and Municipal Corporation constituted under the Ordinance shall be the successor of the Municipal Committee or the Municipal Corporation respectively constituted under the Municipal Administration Ordinance 1960 (X of 1960).
' Section 6(1 )(f): Constitution of Local Councils.--As soon as may be, the following local councils shall be constituted:- a municipal corporation for each city; ' Section 49(1): Functions of Union Councils:--A union council may if so directed by Government shall undertake all or any of the following functions:--
(i) provisions, maintenance, improvement and management of public ways, public roads, public streets, culverts, bridges and public buildings; ' Section 182: Repeal of the Punjab Local Government Act, 1975 -- (1) The Punjab Local Government Act, 1975 (XXXIV of 1975) is hereby repealed.
(2) Notwithstanding the repeal of the Punjab Local Government Act, 1975, any appointment, rules, regulations or bye-laws made or saved, notification, order or notice issued, tax imposed or assessed, scheme prepared or executed, contract entered into, suits instituted, rights acquired, claims made, legal or administrative proceedings or action taken under the said Act or under such enactments as were repealed by the said Act, shall so far as it or they are not inconsistent with the provisions of the Ordinance, be deemed to have been respectively made, saved, issued, imposed or assessed, prepared or executed, entered into, instituted, acquired, made or taken, under the Ordinance.
Punjab Local Government Ordinance. 2001 Section 2(xiii): 'Government' means the Government of the Punjab.
' Section 2(xvi):'local government includes:-- (a)A District Government or a City District Government and Zila Council; (b)a Tehsil Municipal Administration and Tehsil, Council; (c)a Town Municipal Administration and Town Council; and (d)a Union Administration and Union Council; ' Section 8; Creation of a City District--(1) ln addition to the Provincial headquarter notified by the Government as City District Lahore, the government may, by notification in the official Gazette, declare, a tehsil or tehsils within one or more adjoining districts as a City District if-- (a)the population of urban settlement therein or of proximate settlement exceeds one million people; (b)the economy thereof is largely oriented to commercial industrial, and services sectors, and, according to the last preceding census, the labour force employed in such sector or in non- agricultural sectors is more than six percent; and (c)the existing administrative and municipal infrastructure therein have become inadequate for efficient service delivery and require integrated development and management.
(2) For the purpose of creation of city district, the Unions in the district affected by such creation may be delimited in accordance with section 6: ' Provided that in all other districts section 11 of this ordinance shall apply.
' Section 13: Composition of District Govemment.--(1) The District Government shall consist of Zila Nazim, and District Administration.
(2)The District Government shall be competent to acquire, hold or transfer any property, movable and immovable, to enter into contract and to sue or be sued in its name, through District Coordination Officer, ' Section 16(3): Authority and responsibility of District Government -- ' The District Government shall be responsible to the people and the Government for improvement of governance and delivery of services within the ambit of the authority decentralized to it under this Ordinance,'
Section 18: Functions and powers of the Zila Nazim.- --(1) The functions and powers of the Zila Nazim shall be to-- (e)oversee formulation and execution of the annual development plan, delivery of services and functioning of the District Government; (f)maintain administrative and financial discipline in the District Government; ' Section 32: Assignment of work to Tehsil Municipal Administration.-- A District Government may assign any of its functions to a Tehsil Municipal Administration or Union Administration, on such terms and conditions as may mutually be agreed: ' Provided that the primary responsibility for discharge of such functions shall continue to vest with the District Government: ' Provided further that no function or responsibility shall be transferred without allocation of corresponding resources and funds.
' Section49:Composition of Tehsil Municipal Administration.- ' Section 54: Functions and. powers of the Tehsil Municipal Administration. - (1) The functions and powers of the Tehsil Municipal Administration shall be to-- (h)provide, manage, operate, maintain and improve the municipal infrastructure and services, including.-- (v)roads and streets, other than roads falling under the jurisdiction of and maintained by, the District Government or Government and streets maintained by the Union Administration or Village Council; ' Section 57: Functions of- Tehsil Nazim.--The functions of Tehsil Nazim shall be-- (a)to provide vision and direction for efficient functioning of the municipal administration; (b)to formulate strategies for development of municipal infrastructure and improvement of delivery of the municipal services of the tehsil..
' Section 135: Inspection and supervision ' Section 180: Succession of the properties, assets and liabilities(1) Subject to Section 123, on commencement of this Ordinance, the properties, assets and liabilities of the Local Council, namely Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees, Union Councils under the Punjab Local Government Ordinance, 1979 (VI of 1979), shall be succeeded by the following local governments under this Ordinance:-- (a)City District Government in the case of Metropolitan Corporation or Municipal Corporation in the concerned City District, as the case may be; (b)District Government in the case of District Council; (c)Tehsil Municipal Administration in the case of Municipal Corporations Municipal Committees and Town Committees in the tehsil, as the case may be, and (d)Union Administration in the case of Union Councils: ' Provided that the liabilities of the predecessor local governments shall be discharged in accordance with the existing arrangements: ' Provided further that the discharge of liabilities of the decentralized offices shall remain with the Government.
(2) The funds of a Metropolitan Corporation, Municipal Corporation, Zila Council, Municipal Committee, Town Committee and Union Council shall, be transferred to a local Government as the successor under sub-section (1.)
' Section 196:Repeal and Savings.--(1) On commencement of this Ordinance:-- (i)the Punjab Local Government Ordinance, 1979 (VI of 1979), shall be repealed; (ii)the Punjab Local Government Elections Ordinance, 2000 (V of 2000), shall be repealed; and all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union Councils created under the Punjab Local Government Ordinance, 1979 (of 1979) shall stand dissolved.
' Section 197: Removal of difficulty -- The Government may, by order, provide for the removal of any difficulty which may arise in giving effect to the provisions of this Ordinance.
10.Mere reading of the aforesaid facts and provisions of law of the aforesaid Ordinances, then it is crystal clear that petitioner is not successor of the Municipal Corporation. The learned High. Court had directed the petitioner merely accepting the statement of the D.C.O without adverting to the aforesaid provisions of law. lt is settled principle of law that all the laws of the land must wear in the sleeves of the Judge as law laid down by this Court in Muhammad Sarwar's case (PLD 1969 SC 278). lt is also settled principle of law that learned High Court had to decide the controversy between the parties after juridical application of mind as law laid down by this Court in various pronouncements. See G.M. Sikandar's case (PLD 1970 SC 158) and Mollah Ejahar Ali's case (PLD 1970 SC 173). lt is also an admitted fact that learned High Court without serving the petitioner as guilty or discharging him issued direction to the petitioner to initiate proceedings under Land Acquisition Act to acquire the land in question whereas the petitioner is not legally competent to acquire the land of the predecessor- in-interest of respondent No, 1 and other petitioner in terms of the aforesaid provisions of law. The learned High Court had also not taken note of the subsequent events as stated by the parties before us that legal heirs of original owner Noor Muhammad have filed suit against the petitioner and others for securing compensation of land in question, lt is also settled principle of law that superior Courts had ample jurisdiction to look into the subsequent events at the time of deciding the case, lt is also settled principle of law that contempt is always between the contemnors and the Court. We have re-examined the facts available on record with the assistance of the learned counsel of the parties. We are of the view that the learned High Court had erred in law to direct the petitioner to initiate proceedings under and Acquisition Act to acquire the land of the predecessor-in- interest of Respondent No, 1 and others without adverting no the facts and provisions of law. lt is pertinent to mention here that constitution petition filed by Respondent No, 1 was accepted by the learned High Court without securing report and parawise comments from petitioner and other respondents in the Writ Petition. Similarly contempt petition was accepted, as mentioned above, without giving any finding qua guilt of the petitioner or by discharging the petitioner without securing a reply from the petitioner and Respondent No, 2, therefore, impugned order is not sustainable in the eyes of law on any canon of justice. Adverting to the contents of Criminal Original No, 409- W/2009, we find that a case for taking action against the petitioner is not made out.
11.ln view of what has been discussed above this petition is converted into appeal and appeal is allowed. The impugned order is set aside with no order as to costs.