MOHAMMAD AZAM KHAN, CJ. --- The titled appeal by leave of the Court arises out of the judgment of the High Court dated 9th May, 2012, whereby Writ Petition No. 228 of 2006 has been dismissed in limine.
2. Necessary facts for disposal of the appeal are that the appellants filed a writ petition in the High Court on 16th November, 2006, alleging therein that the land bearing survey Nos. 482 and 483 situate in village Barban, Tehsil and District Mirpur was in the ownership of the forefathers of the appellants which was acquired for the construction of Mangla Dam. The land was required by WAPDA therefore, they throughout remained in possession of the land The houses are constructed in the land the appellants are continuously residing in the said land since the time of their forefathers. The respondents who have no concern with the land filed a baseless application before the Collector/Deputy Commissioner, Mirpur for ejectment of the appellants. The application was forwarded to the Tehsildar, Mirpur. He passed an order for ejectment on 4th September, 1991 without any notice and without hearing the appellants. They challenged the said order by way of appeal before the Collector which was accepted. On revision petition, the Commissioner remanded the case to the Collector and ultimately the case went upto the Board of Revenue. The Board of Revenue passed the order for ejectment of the appellants. They claimed that they are previous owners of the land. The land was acquired for the construction of Mangla Dam which was not utilized for the purpose. Being previous owners of the land, they are entitled for taking back the land which is surplus. The learned Chief Justice in the High Court dismissed the writ petition in limine while observing that the parties may resort to the Civil Court for redressal of their grievance.
3. Ch. Muhammad Afzal, Advocate, counsel for the appellants, submitted that the judgment of the High Court is against law and the record. The forefathers of the appellants were owners of the land.
The land was acquired for construction of Mangla Dam which was not utilized, therefore', the forefathers of the appellants remained in possession of the land and after their death, the appellants and proforma--respondents are in possession of the same. If the and is not utilized by the authority for the purpose it was acquired, then it has to be reverted back to the original owners.
The High Court failed to consider this aspect of the case. The learned counsel referred to the minutes of meeting held in the President House of Pakistan on 25th April, 1961, wherein it was decided that if the acquired land remains surplus, it shall be reverted back to the original owners.
The learned Chief Justice failed to consider this document.
4. While controverting the arguments, Mr. Muhammad Ayub Sabir, Advocate, counsel for the other side, submitted that the judgment of the High Court is perfectly legal. The appellants have not proved that they are owners of the land. The land is reserved for the refugees and local destitute.
The appellants are not in possession of the same.
5. We have heard the learned counsel for, the parties and perused the record. The claim of the appellants is that the disputed land was in possession of their forefather& and after being acquired for the construction of Mangla Dam the land remained unutilized and they all along remained in possession of the land. They constructed houses and are residing there. After the death of their forefathers the appellants and proforma-respondents are in possession of the land. It is an admitted position that the land was acquired by the Government for construction of Mangla Dam from village Barban and it was not utilized by the WAPDA for construction of Mangla Dam and remained surplus. It is also on record that the appellants are in possession of the land as Ghair Moroos, as is evident from the record-of-rights of village Barban, pertaining to year 1991-92. Under Rules 14 and 15 of the Land Acquisition Rules, 1993, if the land of a owner is acquired for public purpose and after fulfilling the purpose, the land remains surplus and unutilized, the Government is at liberty to utilize the same for another purpose provided the other public purpose is proved from an approved scheme. Mere mentioning that Government wants to utilize the said land for another public purpose is not sufficient. It was observed in the case titled Sajida Maqsood v. Azad Govt. & others [2013 SCR 461] as under:- " .... It may be observed that when the land of an owner is acquired for a public purpose and after fulfilling the said public purpose, some land is left unutilized, the Government is at liberty to utilize it for another public purpose and if the other public purpose is not proved from any scheme approved by the Government, then the land is to be de-awarded in favour of the original owner or his legal heirs. In the case titled Ghulam Rasool & another v. Said Ahmed & others [PLJ 2012 SC (AJ&K) 204], it was observed as under:-
10. The reading of hereinabove reproduced rules reveals that once the land is acquired by the Government for public purpose or for company or industry it cannot be utilized against the public interest or for the individual's benefit. The first condition is that the acquired land can only be used for the purpose it is acquired. The land can be acquired under the Land Acquisition Act, whereas there is no provision empowering the Government to acquire land for any individual's personal interest or benefit.
The other condition is that even if the land is acquired for a company, the company cannot sell the same without express approval of the Government. This condition also is laid down with spirit that public interest is supreme. The Government will have to watch the interest of public. The third condition is that if at all, the acquired property is not required for the public purpose or for the purpose for which it is acquired, the same shall be resumed and restored to the original owners or their heirs from whom it was acquired and if there is no such eventuality, the land shall be utilized or disposed of by the Board of Revenue, in accordance with the policy of Government regarding disposal of the land. Thus, the scheme and spirit of these rules ultimately also is in consonance of the Constitutional provision as expressed under the provision of Section 52(A) of the Interim Constitution Act, 1974, which means that without any express and specific legislation no one is empowered to transfer the Government land to any person in an arbitrary manner."
Thus, the appellants claimed that they are previous owners of the land. The land was acquired from their forefathers for construction of Mangla Dam but it was not utilized for the purpose, it remained surplus, therefore, they are entitled for the land as such the same shall be reverted back to them.
6 From the record, it appears that the land was acquired for the construction of Mangla Dam. The compensation was paid by the WAPDA. The mutation was sanctioned in the name of the Azad Government and possession of the land was entered that of WAPDA. The respondents who filed application for dispossession of the appellants are unconcerned persons. It is only the WAPDA which can apply for dispossession of the appellants. An unconcerned person has no right to file application for ejectment of a person who is in possession of the land. The learned Chief Justice in the High Court while dismissing the writ petition in limine has correctly observed that it is only the WAPDA which on apply for dispossession of the land.
7. The analyses of the minutes of meeting held in Presidents House of Pakistan on 25th April, 1961 is also necessary which provide a right in the previous owners to remain in possession, if the acquired land is not utilized. In the light of said minutes of meeting which recognize that after acquisition the previous owner shall have a right to remain in possession of the land if it is not utilized, therefore, the findings recorded by the High Court that possession of the appellants is illegal and they are not entitled to file writ petition needs consideration in the light of above-referred minutes of meeting.
8. All the above-referred points are of vital legal importance which need detailed deliberation by the High Court. The appeal is accepted. The writ petition is admitted for regular hearing on the points referred to above and case is remanded to the High Court for decision on merit.
Since the appellants are in possession of the land they shall not be disturbed till disposal of the writ petition in the High Court.