MUHAMMAD KHALID MEHMOOD KHAN, J.---The predecessor-in-interest of petitioner namely Habib-ur-Rehman was the owner of land in Village 224/RB, Tehsil City, District Lyallpur now Faisalabad; according to the petitioner's assertions, his predecessor namely Habib-u-Rehman was the owner of land measuring 147 kanals 18-marlas detailed in para 2 of the petition (hereinafter referred to as the Land), and as per family partition duly recorded in the revenue record for the year 1994-95; petitioner become owner of the suit land: on 14-5-1956, the Member Board of Revenue issued Notification under Section 6 of the Land Acquisition Act, 1894, which was published in official gazette on 28-9-1956, whereby land measuring 3188-kanals 11 marlas was acquired for establishing a Housing Colony; out of acquired land 95% of land was an evacuee land, the provincial government exchanged the evacuee land with the State land, hence final award under section 11 of the Land Acquisition Act 1894 was not announced; however, the acquisition proceedings to the extent of remaining 5% land remained pending and till the filing of instant petition the acquisition proceedings of petitioner's land are not finalized. The petitioner asserts that no final award has been announced or issued under section 11 of the Land Acquisition Act, 1894 and as such the petitioner's land is deemed to be not acquired or if acquired the compensation will be payable to the petitioner on the day of issuance of award; the petitioners thus prayed as under:-- "Declarations:
(i) 147 kanals and 18 marlas of land specified in para 1 above have been confiscated by the respondent Government. The petitioners stood expropriated to this extent. This is prohibited by the Constitution.
(ii) None of the respondents has the lawful authority to continue to deprive the petitioners of the usufruct of the land in question without either acquiring the same under the law or in the alternative, paying adequate compensation for it
(iii) The respondents have procrastinated to issue a fresh notification under the relevant law to reinitiate the process of acquisition. They are liable to be directed to finalize the matter within a reasonable time.
Directions:
(i) All the respondents be directed to initiate proceedings forthwith to acquire the land in question under the existing laws as per Draft Section 4 Notification attached with Memorandum dated 22-9- 1988. In particular, respondent Deputy Commissioner be directed to sign and finalize the Draft Section 4 Notification send to him by the respondent Government.
(ii) In the alternative, if the respondent Government has abandoned its intention to acquire, it is liable to proceed to pay adequate compensation in terms of market price of the land obtaining at the time of actual payment of compensation.
(iii) Any other relief deemed appropriate to the peculiar facts of this case be also afforded to the petitioners."
2. The respondents filed reply and contended that respondents issued notification under Section 4 read with Section 17 (1) of the Land Acquisition Act of 1894 (hereinafter referred to as 'Act of 1894') on 14-5-1956 and then on 2-9-1957 under Section 6 of the Act of 1894 but claimed that the petitioner's predecessor was the owner of land approximately measuring 95-kanals only; the petitioner's predecessor-in-interest never agitated against the acquisition of land in his life time.
The land was acquired after notice to the owners, possession has been taken over, residential colony has been constructed on the land under the name and style of Peoples Colony Extension; the compensation of petitioner land amounting to Rs,1,25,000/- was deposited in the government treasury; the petitioner at maximum can claim, interest under Section 34 of the Act of 1894 on the deposited compensation, although petitioners are not entitled under the law to claim interest from the respondents as the respondents have already deposited the amount in government treasury but the respondents for ending the long outstanding issue are willing to pay 8% interest P.A on already deposited amount. The respondents raised the objection that the petition suffers from laches as it has been filed after the lapse of 36 years.
3. Learned counsel for petitioner submits that the petitioner's land was acquired, but admittedly no award has been announced/ issued so far and as such petitioner is entitled for payment of compensation, at the rate prevailing on the date of announcement of the award or the respondent should allot an alternate land as pointed out by the petitioner. Learned counsel has relied on letter dated 22-9-1988 whereby the Director, Sargodha Housing and Physical Planning Circle, Faisalabad has confirmed to Deputy Commissioner Faisalabad, that final award under the Act of 1894 has not been announced so far and as such necessary acquisition proceedings under the Act of 1894 be finalized; a draft notification was also submitted to the Deputy Commissioner Faisalabad. Learned counsel submits that the respondents themselves are admitting that till today no final award has been issued/ announced and as such the petition merits acceptance. Learned counsel contends that the Notification dated 14-5-1956 issued by the Governor Punjab is without lawful authority and as such it will be presumed that till today no valid and legal notification of acquisition is in field.
' Learned Counsel further contends that, it is an established principle of law that compensation of acquired land is payable on the day of announcement of final award. He further submits that it is settled law if the beneficiary of the acquisition failed to utilize the acquired land, the land is liable to be restored to the owner. Learned counsel finally prayed that either the acquired land be returned to the petitioners or an alternate land be allotted as pointed by the petitioner and if the respondent intends to announce the final award, the compensation be paid according to the prevailing market price on the day of final award. Learned Counsel contends that as the petitioner is still the owner of land and as such the objection of laches is not applicable in his case. Learned counsel have relied on Nadir Khan v. The State (PLD 1992 FSC 392), Muhammad lqbal Khan v. Election Tribunal, Zila Council, Muzaffargarh and 5 others (1999 SCMR 1577), Messrs Pfizer Laboratories Limited v.
Federation of Pakistan and others (PLD 1998 SC 64), Naeem Hussain Chatha v. Tawakkal Ullah and another (1997 CLC 192), Nazar-ulHussain v. The Collector Lahore (PLD 1990 Lah.472), Kh.Zubair Ahmed and others v. Collector and others (1990 MLD 1941), Quadrat Ullah v. Government of West Pakistan and others (1992 CLC 680), Taquer Ahmed Khan v. Government of Pakistan (1994 MLD 1866), Mst. Abida Aman-i-Rehman v. Government of N.-W.F.P. (PLD 2012 Peshawar 172), Land Acquisition Officer and Collector v. Muhammad Jumman and others (2004 YLR 1123), Province of Sindh v. Ramzan and others (PLD 2004 SC 512), Noor-u-Din v. Government of Pakistan etc., (1997 CLC 1971), Rashid-A-Khan v. West Pakistan Railway Road and others (PLD 1973 Lahore 733), Pacific Multinational (Pvt.) Limited v. Inspector General Police Sindh (PLD 1992 Karachi 283), Zohra and others v. Government of Sindh and others (PLD 1966 Karachi 1), Shauket and others v. Govt. Of Pakistan and others (PLD 1977 SC 342), Arif Builders and Developers v. Government of Pakistan (PLD 1977 Karachi 627) and Government of Punjab v. Madina Jute Mills (2010 CLC 812).
4. Ch. Muhammad Iqbal learned Additional Advocate General Punjab submits that the land of petitioner's predecessor-in-interest was measuring approximately 95 kanals and the competent authority on 14-5-1950 and 2-9-1957 issued notification under Section 4 read with section 17(1) and under Section 6 of the Act of 1894 respectively; the respondent Govt. Acquired land measuring 3188 Kanal in 1956 for establishing a Satellite Town in Faisalabad, 95% land out of the said land was owned by Central Government, the Provincial Government exchanged the evacuee land with the State land and as such the award under the Act of 1894 was not announced, however the compensation for payment of the private owners was settled/ascertained and deposited in the Govt. Treasury, learned Additional Advocate General Punjab submits that possession of the suit land was taken over in the year 1957; the petitioner's predecessor-in-interest has not assailed or challenged the acquisition nor filed any objection, which was admittedly initiated under section 4 read with Section 17(1) of the Act of 1894. The petitioner remained silent for 36-years and have not approached any competent court for redressal of his alleged grievance but suddenly in 1992, the petitioner filed the instant petition which suffer from laches. Learned Additional Advocate General submits that the respondent Government has already deposited Rs,1,25,000/-, the compensation settled and ascertained by the Collector payable to petitioner's predecessor-ininterest, the compensation is lying in the Government Treasury; the petitioner, if has not received the compensation that is not the fault of the respondents. However the respondent Government to end the protracted litigation is ready to pay 8% interest per annum on the amount already deposited.
Learned Additional Advocate General has vehemently opposed the petition, and contends that the predecessor-in-interest, of the appellants did not raise any objection against the acquisition proceedings at any stage. The announcement of award is a legal requirement for the purpose of making a reference under Section 18 of the Act. It is established fact on record that respondents have taken possession of the suit land in 1957, in view of the fact that once possession is taken, the acquired land stands vested in the State, free from all encumbrances under section 17( 1) of the Act of 1894.
5. I have considered the rival submissions made by the learned counsel for the parties and perused the records. However, before examining the merits of the case, it is desirable to consider the legal issues involved herein.
(i) Whether the legal heirs can challenge the acquisition proceedings initiated in the life time of owner of land, specially when the original owner has not challenged the acquisition;
(ii) Whether Habib-u-Rehman left land or compensation after his death.
6. Heard, record perused.
7. The petitioner predecessor-in-interest's ownership to the extent of 95 kanals is not deemed by the respondents. The acquisition of land and taking over the possession of the suit land is also admitted fact. The issuance of notification under Section 4 read with section 17(1) of the Land Acquisition Act, 1894 dated 14-5-1956 and Notification under Section 6 of the Act of 1894 and deposit of Rs,1,25,000/- being the compensation of petitioner's land is also a proven fact on record.
8. The argument of learned Counsel for petitioner is, as the final award under section 11 of the Land Acquisition 1894 has not been announced hence the compensation of acquired land will be settled at the market rate prevailing on the day of final announcement of Award. The facts stated above will show that Notification under Section 4 read with section 17(1) of the Act of 1894 was issued on 14-5-1956 in the following terms: "No,2064-URD-56/2614-Whereas it appears to the Governor of West Pakistan that land is likely to be required to be taken by Government at the Public purpose for public purpose of setting up a Satellite Town known as Peoples Colony (Extension) Scheme No,1, Lyallpur is hereby notified that the land in the locality described below is likely to be required for the above purpose.
' This notification is made under Section 4 of the Land Acquisition Act, 1894, to whom it may concern.
' In exercise of the powers conferred by the aforesaid section, the Governor of the West Pakistan is pleased to authorize the officers for the time. Being engaged in the undertaking with their servants and workmen to enter upon the said land in the locality and do all acts required or permitted by that section.
' The Governor is further pleased to direct under section 17(4) of the Act that provisions of Section 5-A of the Act will not apply to these proceedings, in view of the provisions of section 17(1) of the Act, which have been made applicable to this case."
9. The beneficiary of the acquisition took over the possession of land on 28-9-1956. After taking over the possession of acquired land, on 2-9-1957 the respondents issued Notification under Section 6 of the Act of 1894 as under: "9249-UDD-57/9775.---Whereas it appears to the Governor of West Pakistan that the land is likely to be required to be taken by Government at public expense for a public purpose of setting up a satellite town at Lyallpur, known as Peoples Colony Extension No,1, Lyallpur, it is hereby declared that the land described in the specification below is required for the public purpose.
' This declaration is made under the provisions of section 6 of the Land Acquisition Act, 1894, to all whom it may concern and Under the provisions of section 7 of the said Act. The Collector of Lyallpur is hereby directed to take order for the acquisition of the said land.
' A plan of the land may be inspected in the office of the Collector, Lyallpur:--"
10. The Land Acquisition Collector ascertained the compensation and on 9-4-1960 deposited Rs,1,25,000/- the compensation of acquired land of Habib-u-Rehman.
11. It is settled principle of law that purpose of issuance of Notification under Section 4 of the Act of 1894 is to give a notice to the public at large that land subject matter of the notification is required for A a public purpose, and it further means that there will be "an impediment to any one to encumber the land acquired thereunder", this mean any encumbrance created after the gazette notification, all encumbrances will be void against the State. For example, if any person purchased land after the issuance of notification under Section 4 of Act of 1894 the said purchase of land will not create any right in favour of purchaser, hence he will not be entitled to challenge the acquisition proceedings for the reason, that his/her title is void and he/she can at best claim compensation on the basis of vendor's title.
12. Under section 17(1) of the Act of 1894, in case of urgency, the Provincial Government can direct Collector, even if the award has not been issued even on expiry of 15 days of Notification from the publication, the Collector in the absence of any objection on the part of interested person can take possession of any waste or arable land for "public purpose" or for company and the said land after taking possession shall vest absolutely in the Government free from all encumbrances.
13. Under subsection (4) of Section 17 of the Act of 1894, where in the opinion of the Provincial Government, the provision of subsections (1) and (2) of Section 17 of the Act ibid are applicable, the provisions of Section 5-A of the Act ibid may be exempted and if the Provincial Government has not directed as above, then declaration of Section 6 of the Act ibid may be issued at any time after the publication of the notice of Section 17(1) of the Act of 1894.
14. The issuance of above Notifications will show that in the absence of any objection on the part of owner, the suit land stands vested in Provincial Government and the compensation ascertained and deposited in Government Treasury became the property of owner.
15. This is not the case of petitioner that, his predecessor-in-interest challenged the acquisition proceeding or raised any objection against the ascertainment of compensation, hence it is proven fact on record that when Habib-u-Rehman died, his estate was Rs,1,25,000/- qua the acquired land and after his death his legal heirs only inherited the deposit of Rs,1,25,000/- and not the land.
16. The proposition that once the land is vested in the State, free from all encumbrances could be disinvested in favour of original owner even if the award has not been announced, came up for resolution in Government of A.P. And another v. Syed Akbar (AIR 2005 SC 492):-- "The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilized for the public purpose envisaged in the Directive Principles of the Constitution."
17. In Allahabad Development Authority v. Nasiruzzaman and others (1996) 6 Supreme Court Cases 424) it is held as under:-- "The controversy is no longer res integra. In Lt. Governor of H.P. v. Avinash Sharma this Court had laid. Down that once the lands stood vested in the State free from all encumbrances there is no question of divesting the land and revesting the land in the erstwhile owners. The only right the erstwhile owner has is as to the determination of compensation in accordance with the provisions of the Act."
18. Therefore, it is safe to hold that, in case the owner or interested person fails to raise ,objections or to challenge the acquisition proceedings after issuance of gazette Notification under Section 4 read with section 17(1) and Section 6 of the Act ibid, the acquisition proceedings qua such person is generally neither quashed nor does it vitiate qua the owner of land by any error of law. It is thus clear that once the land is vested in the State, free from all encumbrances, it cannot be divested and proceedings under. The Act would not lapse, even if an award is not made within the statutory stipulated period.
19. The word 'vest' used in Section 17 of the Act of 1894 is of great importance, the word Vesting was considered by, the Indian Courts in the following case In Fruit and Vegetable Merchants Union v.
The Delhi Improvement Trust (AIR 1957 SC 344):-- "In the cases contemplated by Sections 16 and 17, the property acquired becomes the property of Government without any condition or limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration"
20. The respondents have placed on record, a detail of compensation ascertained of the land acquired of different owners including Habib-u-Rehman, the details show that an amount of Rs,125,000/- being the compensation payable to Habib-u-Rehman was deposited by Collector Lyallpur on 9-4-1960. Habib-u-Rehman in his life time has not objected the acquisition of land and handed over the possession of land to respondents on 28-9-1956 as is evident from the report of Revenue Officer. The possession report shows that the possession of suit land was taken over by Overseer of P.W.D. Office of B&R and no one resisted the process of taking over the possession of acquired land including suit land. The report further finds mention that possession of Kila Nos.5, 6 15, 16, 24 and 25 were not taken over as these Kilas were Ghair Mumkin Abadi' and were in possession of illegal occupants, the officer reported that unless and until the illegal encroachers are not dispossessed or removed, the department will not take over the possession of said land.
Admittedly the petitioner land did not fall in the above said Kila numbers and as such in the absence of any objection on the part of the owners of land it. Will be presumed that deceased Habib-u-Rehman accepted the acquisition of his land and Provincial Government became the absolute owner of land free from any encumbrances. It is also an admitted fact that Habib-u- Rehman remained alive up to 1972, as mutation of inheritance was attested in the name of Hafeez- u-Rehman and his other legal heirs on 10-11-1992. It is also an admitted fact on record that even the legal heirs of Habib-u-Rehman also have not filed any claim or challenged the acquisition proceedings, It is the legal heirs of Hafeez-u-Rehman who first time filed an application on 19-1- 1986.
21. The above said facts will show that the original owner never challenged the acquisition and in his life time the respondents deposited the compensation, hence the immoveable property of the deceased Habib-u-Rehman stand converted into compensation and the legal heirs of deceased owner will be entitled to the compensation being the estate of deceased after his death. It is the settled law that the owner of property in his life time has the every right to deal with his property according to his own choice and wisdom.
"The general rule of law is undoubted, that no one can transfer a better title than he himself possesses; Nemo dat que' non habet."
' So it is proven fact on record that petitioner being legal heir has no right to open a past and closed transaction as the estate of deceased owner was the compensation and not the land.
22. The second argument of learned Additional Advocate General Punjab is that the petition suffers from laches. As it is proven fact on record that respondents have deposited the compensation on 9-4-1960 the right to receive the compensation of petitioner still alive as the respondents are not denying the right of petitioner to receive the compensation, hence no question of laches arose.
23. As the respondents themselves have admitted that they are ready and willing to pay 8% interest P.A. On the amount already deposited and payable to petitioner hence the petitioners are entitled to receive the amount of compensation of Rs,125,000/- along with @ 8% interest P.A. As agreed by the respondents.
24. In view of above, this petition is dismissed. However, the petitioners will be entitled to receive an amount of Rs,125,000/- along with 8% interest P.A. Till the date of announcement of the judgment.