UMAR ATA BANDIAL, C.J.---The petitioner is owner of plot measuring 2-kanals 3-marlas situated in mouza Kaure, Tehsil Cantt, Lahore. A part of that land was acquired along with other land by the Federal Government for the public purpose of extending Engineering Depot No,1 for the Pakistan Army. The notification under section 4 of the Land Acquisition Act, 1894 ("Act") regarding the aforenoted acquired land was published on 10-2-1983 and notification under section 5 of the Act was published on 26-4-1984.
2. According to the respondents the possession of the land was taken over in terms of the report of the Tehsildar dated 7-2-1985 which is witnessed by the Girdawar and the Patwari. The said report admits that none of the affected parties, including the petitioner were present at the time of taking over of possession of the acquired land.
3. It is a common ground between the parties that the Military authorities decided to abandon the extension of the Engineering Depot project. Consequently, letter dated 24-12-1987 by the HQ 11 Div.
Lahore Cantt. Addressed to the 3 Engrs 13n directed that the acquired land be handed back to the petitioner. Another letter dated 6-1-1988 by the 3 Engrs Bn Lahore Cantt to the HQ 11 Div. Intimates exclusion of the petitioner's land measuring 2-kanals 3-marlas from the unit area and therefore declares the same as private rather than acquired land. Reliance is placed by the petitioner on a summary prepared by the Patwari dated 30-5-1985 describing the petitioner's land measuring 2- kanals 3-marlas to be in his possession.
4. On the other hand, learned Deputy Attorney General submits that Pakistan Army was merely a user of the land, which was actually acquired by the Federal Government. Consequently any handing back of the said land ought to have been done by the Federal Government which has not happened in the present case. Accordingly, the entry of possession by the Land Acquisition Collector on 7-2-1985 as depicted in the Tehsildar's report remains binding and effective to retain 1-kanal 7-marlas of land by the Federal Government.
5. The element of possession is critical to the outcome of this case because the Hon'ble Supreme Court in a recent judgment titled Mst. Asmat un Nisa and another v. Government of N.-W.F.P. And others (2010 SCMR 480) has, on the point whether an announced public purpose of acquired land has been abandoned, held that such land is returnable to the original owner provided he had continued to retain possession thereof. Accordingly, both the learned counsel have strenuously argued that in terms of the record possession of the disputed land is retained by their respective clients.
6. Learned Deputy Attorney General has reinforced his submission with reference to Paras Nos.17 and 18 of the writ petition which acknowledge that the possession of the land was handed over to the petitioner consequent upon the aforenoted letter dated 24-12-1987 by the HQ 11Div. By the 3 Engrs Bn as intimated by letter dated 6-1-1988. He submits that dispossession of the petitioner is admitted in the petition and therefore the principle laid down by the Hon'ble Supreme Court in the aforenoted authority opposes restoration of title of the land to the petitioner. In answer to the foregoing plea learned counsel for the petitioner has taken the stand that the possession report dated 7-2-1985 relied by the learned Deputy. Attorney General admittedly acknowledges absence of any affected party. He submits that the petitioner's absence on the date of dispossession proceedings is on account of the failure to .Issue him notice under section 9(3) of the Act. That provision is as follows:- "The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons,known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate.
7. According to the law laid down in Mst. Sardar Begum v. Lahore Improvement Trust,, Lahore and 3 others (PLD 1972 Lahore 458) and Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others (PLD 1970 Lahore 321) notice under section 9(3) of the Act is a mandatory requirement for validity of the acquisition proceedings; otherwise such proceedings are void. The 13 object of the notice is to enable the affected party to raise objection under section 5 of the Act to the acquisition of his land. A similar view is' expressed by the learned Sindh High Court in Muhammad Hanif Khan v. Province of Sindh and 8 others (PLD 2006 Karachi 531). The authority pronounces service of notice on the affected parties in terms of section 45 of the Act to be a mandatory requirement of law.
8. The record does not contain any material sustaining service of a prior notice on the petitioner whereby he may have challenged the acquisition of his land in terms of section 5 of the Act.
Consequently, there is a defect in the proceedings of the acquisition. This defect is coupled with the equity that the project for which land was acquired has been abandoned; also that a report by the Patwari dated 30-5-1985 states that the petitioner's land and all the land adjoining it is retained in possession of its original owners in the revenue record. It may be noted that the notification of acquisition of the petitioner's land pertains to 1-kanal 7-marlas because prior to its issuance land measuring 16-marlas on which the petitioner's house, is constructed, was admittedly exempted from the acquisition proceedings. These points are material for the purposes of the present proceedings. The revenue record showing petitioner's possession of acquired land on 30-5-1985, the abandonment of the project for which land was acquired and the exemption of part of the petitioner's land pursuant to NOC dated 24 -1-1988 creates a preponderance of evidence to support the petitioner's case for his remaining land measuring 1-kanal 7-marlas to be relieved of the acquisition by the Federal Government.
9. To the mind of ,this Court, this is a fit case for treating the petitioner's land, although acquired by the respondent authorities, not to have been taken over for the project land, firstly: for the legal defect of service of notice in accordance with law and secondly that contemporaneous record by the revenue department reflects the petitioner to be in possession of his land; followed by decisions taken by the Pakistan Army to abandon the project in question. The legal impliCation of the respondents stand is that the acquired land was subsequently exempted from acquisition except to the extent of 1-kanal 7-marias land belonging to the petitioner. In essence that act singles out the petitioner for differential treatment and consequently suffers from arbitrariness and discrimination. Accordingly under the rule laid down in Mst. Asmat un Nisa's case (supra) the petitioner's land measuring 1-kanal 7-marlas is liable to be returned to him by the acquiring department.