1. MUHAMMAD YAQUB ALI, J.--This order will dispose of Civil Appeal No, 36 of 1970 filed by the Lahore Improvement Trust hereinafter referred to as the Trust and Civil Appeal No, 37 of 1970 filed by the Punjab University hereinafter referred to as the University. Both the appeals are directed against the judgment and order of a Division Bench of the erstwhile High Court of West Pakistan, Lahore Seat, dated the 26th May 1969, whereby Writ Petition No, 1142 of 1965 filed by the Trust to call in question the sale of 2508 kanals and 7 marlas of land situated in village Bhakewal, Tehsil Lahore, by the Custodian of Evacuee Property in favour of Rizwan Co-operative Society hereinafter referred to as the Society was dismissed.
2. The facts giving rise to these appeals may first be taken notice of.
3. The old Campus of the University is situated outside the walled city of Lahore between the Lower Mall Road and College Road. In the course of time the number of Colleges affiliated to the University multiplied manifold and many new departments were added to the teaching section consequent upon which it became necessary to expand the Campus of the University. No land in the locality was, however, available at the old site. In view of this congestion the Trust made provision in the Greater Lahore Scheme framed by it in 1944 for shifting of the University Campus to an area of 2200 acres between Ferozepur Road and Multan Road three miles away from the existing Campus, The Scheme was not yet finalised when Partition took place in 1947 and nothing more was heard of it.
4. In 1950 the Punjab Government set up a University Com-mission which submitted its report in 1953.
5. Among other proposals it was recommended by the Commission that the University and its affiliated colleges be shifted from the existing crowded localities to the site earlier earmarked by the Trust in the Scheme framed by it in 1944. The proposal was accepted by the Provincial Government and a direction was given to the Trust to frame a development Scheme for construction of a modern housing colony and a New Campus for the University.
6. The Scheme under sections 24 and 28 of the Town Improvement Act was framed by the Trust in early 1954 comprising an area of 3100 acres. Under section 36 of the Act the Scheme was notified in Daily Newspaper appearing in Lahore on the 10th and 16th of April 1954, inviting objections by the Mayor of the Corporation of the City of Lahore, Health Officer, general public and the owners whose lands were included in the Scheme. As part of the land belonged to evacuees notices were separately sent to the Custodian of Evacuee Property and the Rehabilitation Commissioner as representative of the Evacuee interest.
7. The history of the Scheme up to this stage is summed up by the Vice-Cnancellor of the University in his letter to the Chairman of the Trust reproduced below: "August 16, 1955.
8. My dear Rahim, A few days ago I had a telephone talk with you regarding the new site for the University. Since then I have studied the University file dealing with this case.
9. The proposal to shift the University out of the present congested area has been under consideration for many years, but I will take up the story from 1944 when Mr. Zafrul Ahsan wrote a letter to the Vice-Chancellor (D. 0. No, 99, dated the 17th April 1944). The area which Mr. Zafrul Ahsan suggested was on this side of the canal, between Ferozepur Road and Multan Road, beyond Muslim Town. Several meetings were held and the question discussed again and again. I find a printed copy of the resolution No, 38, passed at the ordinary meeting of the Lahore Improvement Trust, held on the 10th March 1945, regarding the University Area Scheme. There are printed in this document minutes of a meeting held at the residence of the Hon'ble Minister of Education on the 8th February 1945, wherein details are given, and the site selected by the Lahore Improvement Trust for the construction of a new University Town (approximately 2500 acres) was approved.
10. There is a letter No, 2142 dated September 6, 1946, from the Chairman, Lahore Improvement Trust, to the Vice-Chancellor which says: "Much of the land affected by the scheme was notified for requisition on the 29th October 1944, and if it is not decided very soon to complete the acquisition we shall have in fairness to the owners to drop this scheme altogether", to which Vice-Chancellor replied to the effect that he was awaiting reply from the Government. There was some discussion about this matter further, but this phase evidently ended in October 1946, without any definite decision.
11. The Scheme was again revived in 1953 and there is a D. 0. No, SB/52/SB/76/1218, dated the 27th April 1953, from the Town Planner, Lahore Improvement Trust to Dr. Bashir Ahmad, Vice-Chancellor, and an alternative suggestion had been made that the University might shift to Rakh Chandra.
12. In September 1953, Dr. Bashir Ahmad discussed this question with Mr. Muhammad Iqbal, Chairman, Lahore Improvement Trust, and Mr. S. A. Rahim, Town Planner. It was then estimated that the cost of land would be Rs, 300 per kanal, and the Development charges Rs, 700 per kanal the total being Rs, 1,000 per kanal.
13. On 26th January 1954, there was a discussion between Mr. Howe, Chairman, Lahore Improvement Trust, Dr. Bashir Ahmad, Vice-Chancellor, Mr. S. A. Rahim, Town Planner, Sh. Muhammad Iqbal, Secretary, Lahore Improvement Trust, Registrar, Deputy Registrar and the University Engineer.
14. Then followed a meeting held on the 16th February 1954, in the room of the Hon'ble Chief Minister, Punjab, Malik Feroze Khan Noon. The Chairman of the Improvement Trust was instructed to proceed with the acquisition of the land. It was decided that out of this total area of 3000 acres approximately 2200 acres would be for the University Campus and the rest will be developed by the Improvement Trust as a modern residential area.
15. Dr. Bashir Ahmad received an encouraging reply No, F16(21)/ 54. R. II, dated the 18th February 1954, from the Minister of Refugees and Rehabilitation, Government of Pakistan, stating that the Central Government would agree to sanction the acquisition of the evacuee land in question provided the Government of the Punjab undertook to provide suitable alternative land to the refugees settled on that land.
16. On March 31 1954, the Lahore Improvement Trust, Lahore, issued a notice under section 36 of the Punjab Town Improvement Act, 1922, regarding the acquisition of approximately 3100 acres situated on both sides of Lahore Branch Bari Doab Canal giving the boundary. This notice appeared in the Pakistan Times dated April 3, 1954 and April 10, 1954. Mr. Howe, Chairman, Lahore Improvement Trust addressed a Letter No, SB-52/1400, dated the 19th May 1954, to the Commissioner, Lahore Division, Lahore, raising various questions. I think here the matter rests.
17. I shall be grateful if you will kindly let me know what the present position is?
18. University is anxious to proceed with the scheme and the first step is acquiring land. I shall feel most grateful if you will kindly take necessary action and give me an estimate of the cost of approximate 1500 acres which will be required by the University. Yours sincerely, (Sd.) (M. Afzal Hussain) Vice-Chancellor."
19. In response to the notices issued by the Trust under section 36 of the Town Improvement Act a number of persons raised objections to the proposed Scheme which were disposed of in the meeting of the Trust held on 14-7-1955. Thereafter the Scheme was on 7-12-1955 submitted by the Chairman to the Commissioner, Lahore Division, for obtaining sanction of the Government under section 41 of the Act. The Provincial Government was further requested to obtain sanction of the Central Government for acquisition of evacuee land as required by section 12 of the Administration of Evacuee Property Ordinance XV of 1949.
20. The area of 3100 acres included in the Scheme was divided into four parts: (i) Satellite Town, (ii)
21. One-Unit Staff Quarters, (iii) Development Scheme and (iv) University Area. The Provincial Government raised certain objections to the proposed Scheme and directed that the area earmarked for One-Unit Staff Quarters be deleted from the Scheme as the Public Works Department had since then decided to construct the staff quarters through its own agency and acquire the land for this purpose separately. The Scheme for Satellite Town was also abandoned by the Government in the interest of the University. The Scheme was revised by the Trust and resubmitted to the Commissioner Lahore Division, on 8-12-1956. The area included in the Scheme was, as mentioned in the letter of the Chairman of the Trust accompanying the revised Scheme, now reduced to 2478 acres divided into three parts:
(i) University Campus 1615 acres
(ii) Development Scheme adjacent to Muslim Town221.84 acres (iii)Development Scheme adjacent to Garden Town606 acres The Scheme was sanctioned by the Provincial Government and published in the official Gazette dated the 24th January 1957. The Trust was authorised to acquire the land included in the Scheme either under the Land Acquisition Act, 1894, as modified by the Schedule attached to the Punjab Town Improvement Act, 1832, or by purchase, exchange, or otherwise. The Governor of West Pakistan was further pleased to declare that the purpose for which the Trust required land was a public purpose under the provisions of the Land Acquisition Act, 1894, as modified by the Punjab Town Improvement Act, 1922. The Land Acquisition Collector was authorised to take possession of the land before announcement of the Award for compensation as provided in section 17 of the Land Acquisition Act. Possession of evacuee land was, however, to be taken after permission to acquire was obtained from the Central Government.
22. The Collector obtained orders from the Provincial Government for acquisition of privately owned land comprised in the Scheme under section 7 of the Land Acquisition Act and issued notices under sections 9 and 10 to the owners of the lands for filing statements of their claims. Separate notice were given to the Custodian of Evacuee Property and the Rehabilitation Commissioner for this purpose as representatives of Evacuee interest. Before these notices were issued the Central Government had accorded permission to acquire evacuee land on the conditions laid down in their No, F-16(33)/57-P. II dated the 18th April 1957, addressed to the Secretary to the Government of West Pakistan, Refugees and Rehabilitation Department, Lahore, reproduced below: "With reference to your letter No, 2447-RR/1 R-57, dated the 2nd April 1957, I am directed to say that in exercise of the powers conferred by section 16(3)(b) of the Pakistan (Administration of Evacuee Property) Act, 1957 (X11 of 1957), the Central Government are pleased to accord approval to the acquisition by the Government of West Pakistan under the provisions of the Land Acquisition Act, 1894, as modified by the Punjab Town Improvement Act, 1922, of evacuee land measuring 11,924 (canals and 18 marlas as per details shown in the schedule received with your letter under reference situated in District Lahore for University Campus on the cone petition that fair compensation in accordance with the principles laid down in the said Act will be assessed in consultation with the Custodian of Evacuee Property, Lahore, and paid to that officer for credit to the evacuee owners' account and that the refugees, if any, settled thereon will be provided with alternative land."
23. After the expiration of prescribed period of 15 days the Collector took possession of the lands included in the Scheme and made it over to the Trust. The possession of the land in village Bhakewal of which the land in dispute forms a part was taken by the Collector on 26-6-1958 as recorded in the Daily Diary of Patwari halqa dated 2nd July 1958.
24. On considering the claims filed by the local owners and the data supplied by the Revenue authorities the Collector drew up a tentative award fixing the price of both evacuee and non- evacuee land at an average rate of Rs, 550 per kanal. The Award was sent to the Custodian of Evacuee Property for his approval in terms of the direction given by the Central Government. The Custodian reluctantly agreed to the rate of compensation and accepted the tentative award, but desired that the rate fixed in this case should not be treated as a precedent in other cases.
25. Thereafter the Collector pronounced the final awards for separate estates situated in village Dhana Singhwala on 19th March 1959, in village Bhakewal on 19th April 1960, in village Devasabad on 20th September 1960, and village Ichhra on 26th September 1960. The total price of the evacuee land acquired by the Collector worked out at Rs, 24,24,807-6-0. Out of this sum the University paid as mentioned earlier Rs, 20 lacs to the Custodian partly through the Trust and partly by a deposit in the account of the Custodian. Soon thereafter the University started construction of its New Campus in accordance with the plans drawn up by a foreign firm of architects. According to the figures given in the blue print of the Scheme published by the University in 1954 the total cost of buildings and equipment amounted to a little over Rs, five crores.
26. Turning to the claim by the Society we find that it was registered in 1953 with the object of acquiring land and providing building sites to its like minded members at cheap rates. The land selected for this purpose was situated in village Bhakewal and was already included in the University New Campus Schemes. This fact was fully known to the Society and on 1-9-1955 it obtained a No- Objection Certificate from the Town Planner of the Trust who had no lawful authority to give the certificate. Similar certificates were obtained from the Rehabilitation Commissioner (Lands) in 1954 and from the Urban Development Commis-sioner in 1955. Finally on 13-7-1959 approval of the Central Government was obtained under section 16(3) (b) of the Pakistan (Administration of Evacuee Property) Act XII of 1956 for the purchase of 2508 kanals and 7 marlas of evacuee land (a little more than 312 acres) comprising of Khasra Nos, 1388 to 1622. In consultation with the Deputy Commissioner, Lahore, the Custodian fixed the price of the land at Rs, 250 per kanal although earlier he had rather reluctantly accepted Rs, 550, per kanal, as the price of land acquired by the"Trust. The Society deposited the sale price amounting to Rs, 6,27,087.00 with the Deputy Rehabilitation Commissioner Lahore, and thereupon a formal sale-deed was executed in its favour on the 22nd March 1964.
27. After entering into possession the Society commenced buildings operation which came to the notice of the Lahore Improvement Trust and the Punjab University. The Trust applied to the Custodian of Evacuee Property for cancellation of the sale of 2508 kanals and 7 marlas of land to the Society which already stood acquired by it and title had passed on to the Trust under section 17 of the Land Acquisition Act. The application was rejected and thereupon the Trust filed Writ Petition in the High Court impleading among others the Custodian of Evacuee Property, the Society and the University as respondents. It was claimed that the Custodian having been divested of title in the land acquired by the Trust could not have Lahore resold the same to the Society.
28. In its written statement the University supported the claim v. of the Trust and pleaded that it had already paid Rs, 20 lacs Custodian of as price of the land given to it by the Trust for the construe of its Campus and that the Campus was already under construction.
29. The claim made by the Trust in the Writ Petition was controverted by the Society on variety of grounds to which reference will be made at a later stage.
30. A Division Bench of the High Court dismissed the writ petition holding that (i) the notice issued by the Trust under section 36 of the Town Improvement Act was illegal as prior approval of the Central Government as required by section 12(1) of the Administration of Evacuee Property Ordinance XV of 1949 was not obtained (ii) that no proper scheme was prepared by the Trust in respect of which notice under section 36 could be issued; (iii) that the acquisition was not for any purpose contemplated by the Town Improvement Act; (iv) that in acquiring the land the Trust did not act bona fide; and (v) that under the Town Improvement Act the Trust could not acquire land for another corporate body.
31. Leave to appeal was granted both to the Trust and the Punjab University as important questions of law were involved in the decision of the case and there was no authoritative pronouncement of the Court on these points.
32. During the hearing of the appeals the counsel for the Society and the Trust arrived at a settlement and made the following statements before the Court on 12-3-1971 : "Mr. Ghias Mohammad states that the Improvement Trust and Rizwan Colony agreed that the sale of land in question by the Custodian in favour of Rizwan Colony, should be maintained as valid and Rizwan Colony undertakes to abide by rules, bye-laws and Regulation of the Lahore Improvement Trust, regarding development of this land by the Rizwan Colony. The parties to bear their own costs. (Sd.) Ghias Mohammad.
33. Mr. Mahmood Zaman, Advocate, for the Improvement Trust, says that they have agreed to accommodate the Rizwan Colony and to accept the sale, in favour of Rizwan Colony, on the above terms and conditions. (Sd.) Mahmood Zaman."
34. Counsel for the Punjab. University did not subscribe to the agreement and maintained that the Custodian having been divested of title in the land, in dispute its resale in favour of the Society was wholly illegal and void. No amount of agreement between the Trust and the Society could, therefore, deprive the University of the land which had come to be vested in it long before the sale in favour of the Society. The statement made by Mr. Mahmood Zaman on instructions from the Chairman of the Trust was also claimed to be without any legal authority.
35. Under section 96 of the Town Improvement Act the powers of the Chairman are confined to- (i)institute, defend or withdraw from legal proceedings under this Act; (ii)compound any offence against this Act; (iii)admit, compromise or withdraw any claim made under this Act; and (iv)obtain such legal advice and assistance as he may from time to time deem it necessary or expedient to obtain, or as he may be desired by the Trust to obtain, for any of the purposes referred to in the foregoing clause of this section, or for securing the lawful exercise or discharge of any power or duty vested in or imposed upon the trust or any officer or servant of the trust."
36. The claim made by the Society that the land, in dispute had been lawfully acquired by it from the Custodian did not constitute a claim under the Town Improvement Act. The Chairman had, therefore, no power to admit the claim of the Society and thereby surrender valuable property rights of the Trust. Such a compromise could only be made by the Trust and that too with the concurrence of the University and the Provincial Government. The former had paid Rs, 20 lacs for purchase of land which included the disputed area of 2509 kanals sold by the Custodian to the Society. The approval of the Provincial Government was necessary as the compromise offended the provisions of the Town Improvement Act which lay down that after a Scheme has been sanctioned by the Provincial Government under section 40, a substantial modification cannot be made except with the approval of the Provincial Government and on giving fresh notices to the persons affected thereby. The Court, accordingly, declined to enforce the settlement and heard the appeals on merits.
37. We may examine now in detail the reasons on which the High Court judgment is based. The learned Judges held firstly that the notice given by the Trust under section 36 of the Town Improvement Act was bad in law because there was no proper scheme in respect of which the notice as an essential step in the acquisition proceedings was to be given. Secondly it was held that section 36 which authorised the Land Acquisition Collector to enter upon the land proposed to be acquired and perform certain acts on the land including causing an injury to the land was in conflict with section 24 of Ordinance XV of 1949. Thirdly the Scheme for which the land was acquired was held to be outside the purview of the Town Improvement Act as the requisites of sections 24 and 28 of the Town Improvement Act were not complied with. Fourthly it was considered necessary to obtain prior permission of the Central Government when notice under section 36 was given. Reliance was placed on section 12 of the Administration of Evacuee Property Ordinance XV of 1949 in this behalf. Lastly it was held that the Trust could not acquire land for the University as it was not one of the purposes of the Town Improvement Act.
38. The principal question argued from the bar before us was whether sanction of the Central Government was necessary before the Trust could give notice under section 36 of the Town Improvement Act. We will therefore, advert to it first.
39. Under the Schedule to the Town Improvement Act notices under sections 36 and 42 have the same effect as notices under sections 4 and 6 of the Land Acquisition Act, 1894. It is well established that a material defect in a notice issued under either section renders the entire acquisition proceedings illegal. The learned Judges relied in support of this proposition on the decisions in Rameswar Singh v. Secretary of State for India , Mercer v. Liverpool St. Helens and South Lancashire Rail Co. , Associated Hotels of India Ltd. etc. v. Jodha Mal Kothalia and Feroze Din v. Government of West Pakistan. There can be no disagreement with the view expressed by the learned Judges on this point. But was prior permission necessary under section 12 which in substance provides that no legal process shall issue against evacuee property and that while the Central Government may acquire it under any law which confers on it this power to do so, the Provincial Government shall obtain prior approval of the Central Government when exercising this power. The learned Judges held that prior approval was necessary because a notice under section 4 of the Land Acquisition Act, 1894, creates a defect in the title of the owner as held in the case Associated Hotels of India Ltd. etc. v. Jodha Mal Kothalia.
40. Two questions arise for consideration in this respect. Firstly whether notice under section 36 created a defect in the title of evacuee owners and the Custodian of Evacuee Property as representatives of their interest and secondly whether there was a bar in section 12 to the giving of such a notice as an essential step in the acquisition proceedings. It was contended by Mr. Manzur Qadir with considerable force that whatever may be the position under the ordinary law, notice under section 36 of the Town Improvement Act did not create any defect in the title of the owner of evacuee land as provided in section 12 of Ordinance XV of 1949 which is reproduced below : "12. Exemption from legal process.--(1) Property which has vested in, or of which possession has been taken by, the Custodian shall be exempt from legal process, including seizure, distress, ejectment, attachment or sale by any officer of Court or any other authority, and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority.
41. (2)Upon the commencement of this Ordinance, any such legal process as aforesaid subsisting immediately before such commencement shall cease to have effect and all evacuee property in custody of any Court, or Receiver, guardian or other officer or person appointed by it, shall, upon delivery of the same being called for by the Custodian, be delivered to the Custodian.
42. (3)Nothing contained in the foregoing subsections shall-- (a)prevent Registering Officer from ordering registration of a deed of sale or exchange relating to evacuee immovable property, or a civil Court from ordering specific performance of a contract of sale or exchange of any such property where the sale or exchange or the contract of the same has been duly confirmed or approved by the Custodian and the required certificate has been granted by him; or (b)affect any power conferred on the Central Government by or under any law for the time being in force to requisition or acquire property, and it is hereby declared that if by or under such law or any other law for the time being in force like power is conferred upon or delegated to a Provincial Government the Provincial Government may exercise the same in relation to evacuee property with and only with the previous approval of the Central Government and subject to such direction as the Central Government may at any time see fit to give.
43. Clause (b) of this subsection shall be deemed to have taken effect on the day this Ordinance came into force."
44. A notice under section 36 inter alia notifies boundaries of the land included in the scheme under preparation. Under section 38 it is necessary to give within 30 days of the publication of the notice under section 36, individual notices to the owners of the land who may thereupon lodge objections to the proposed acquisition of their land. Notices under section 38 were issued to all the owners including evacuees by publication in daily newspapers. Separate notices were given to the Custodian of Evacuee Property and the Rehabilitation Commissioner as representatives of the1 2 3 4 interest of evacuee owners. No objection was filed by the evacuees or the said authorities on their behalf. The declared intention of section 36 is thus to notify to the owners that their land is proposed to be included in a scheme and that if so advised they may file objections to the proposed acquisition. The bar contained in section 12 is to the issuance of a legal process, such as, seizure, distress, ejectment, attachment, etc., and to acquisition of evacuee land by the Provincial Government without prior approval of the Central Government. Subsection (3) expressly preserves the power of the Central Government to acquire evacuee land under any law in force for the time being which includes Land Acquisition Act, 1894, and the Town Improvement Act, 1922. It cannot, therefore, be questioned that notwithstanding the bar contained in subsection (1) of section 12 of Ordinance XV of 1949, the Central Government may give order to a Collector under section 7 of the Land Acquisition Act to acquire evacuee land and thereupon he may issue notice under section 4 and enter upon acquisition proceedings. Would it, therefore, make any difference if the Provincial Government directs the Collector to enter upon acquisition proceedings. The answer must be in the negative for the operation of subsection (1) of section 12 is applicable to the Central as well as the Provincial Governments.
45. We have, therefore, to see whether under clause (b) of subsection (3) of section 12, the Trust could not give notice of a scheme in which evacuee land was proposed to be included. On its plain reading clause (b) bars the Provincial Government from exercising power under any law for the time being in force to acquire evacuee land. At the stage when notice under section 36 was given, the Provincial Government had directed the Trust to prepare a development scheme for the construction of a new campus for the University and a modern housing colony. The Scheme had yet to be finalised by the Trust and submitted to the Provincial Government for sanction under section 40 of the Town Improvement Act. As mentioned earlier the Scheme was sent back by the Provincial Government to the Trust with certain objection and it had to be revised and resubmitted for sanction. In the circumstances it could not be said that at the time when notice under section 36 was given by the Trust the Provincial Government was exercising the power conferred on it by the Land Acquisition Act, 1894, as modified by the Town Improvement Act to acquire evacuee land.
46. Prior approval of the Central Government was, therefore, not necessary for giving notice under section 36.
47. In coming to the contrary conclusion the learned Judges of the High Court relied on the legal incidence of a notice given under section 4 of the Land Acquisition Act that it creates a defect in the title of the owner of the land proposed to be acquired. But creating of a defect in the title of an owner is not an essential ingredient of a notification under section 4 of the Land Acquisition Act or section 36 of the Town Improvement Act. As contended by Mr. Manzur Qadir section 12 of the Administration of Evacuee Property Ordinance XV of 1949 itself safeguarded against any defect being created in the title of the owner of evacuee land or the Custodian of Evacuee Property as his representative in interest. Evacuee land could not be acquired without the prior approval of the Central Government in this case. The notice issued by the Trust, therefore, only notified to the evacuee owners that their lands were likely to be included in the Scheme and did not go a step further to create a defect in their title in the land. As creation of a defect in the title of the owner of the land which is proposed to be included in a scheme notified under section 36 of the Town Improvement Act is not an essential ingredient of that section, the notice was validly given in spite of the bar contained in section 12.
48. Before we part with this aspect of the case it may be pointed out that even before the Trust notified the Scheme under section 36 the Central Government had expressly agreed to the acquisition of evacuee land for the University and directed the Vice-Chancellor to move the Provincial Government for this purpose. Reference may be made in this behalf to the following letter written by the Minister Incharge, Refugees and Rehabilitation Department, Government of Pakistan, to the Vice-Chancellor on 18-2-1954 : "My dear Mr. Bashir Ahmad, Please refer to your d.o. letter dated the 25th January 1954, regarding acquisition of certain evacuee land in connection with the construction of new buildings for the University of the Punjab.
49. The Central Government would agree to sanction the acquisition of the evacuee land in question provided the Government of the Punjab undertake to provide suitable alternative land to the refugees settled on that land. The acquisition proceedings are conducted by the Provincial Government under the Land Acquisition Act. No proposal has so far been received from the Government of the Punjab and I would, therefore, suggest that you may approach the Rehabilitation Commissioner (General), who is also Secretary to the Government of the Punjab in the Rehabilitation Department, to move in the matter. The proposal will be dealt with promptly in this Ministry on its receipt from the Provincial Government.
50. The papers received with your letter are herewith returned. Yours sincerely. (Sd.) (Shuaib Qureshi)
51. Bashir Ahmad, Esquire, Vice-Chancellor, The University of the Punjab, Lahore."
52. The Central Government had thus in principle agreed to the aequisition of evacuee land included in the University New Campus Scheme. However, under section 12 it was necessary for the Provincial Government to obtain prior approval of the Central Government and the record bears out that as soon as the letter written by the Secretary to the Provincial Government reached the Ministry of Refugees and Rehabilitation, the requisite permission was given. The Scheme framed by the Trust thus had the prior approval of the Central Government and it could not be said that the Trust acted in breach of the law which provided protection to evacuee property from being compulsorily acquired under the Land Acquisition Act.
53. The learned Judges next held the notice issued under section 36 of the Town Improvement Act bad in law as it was a legal process which under section 12(1) of Ordinance XV of 1949 could not be issued in respect of evacuee property. "Legal Process" is defined in Stroud's Judicial Dictionary as "Process is the doing of something in a proceeding in a civil or criminal Court, and that which may be done without the aid of a Court is not a 'process'. Therefore, a distraint, whether for rent or any other payment, and whether the right of distress be given by the common law or statute is not a 'process', nor is it 'execution or other legal process, within the Bankruptcy Act, 1869 (32 & 33 Vict., C.
54. 71). "Process" does not include an order made by a Court in the exercise of its punitive jurisdiction; therefore, a Justice's order, under Distress for Rates Act, 1849 (12 & 13 Vict., C. 14) committing a person to prison for non-payment of rates, or an order of imprisonment for either of the defaults in payment mentioned in the Exceptions to Debtors Act, 1869 (32 and 33 Vict., C. 62), section 4 is not a 'legal process against the property or person of the debtor.' Similarly, a committal for non-payment of debt under section 5, Debtors Act, 1869, is punitive, and is not a 'legal process'. Obviously, "all the steps taken in an execution the seizure and the sale--are, in the natural meaning of the word, comprehended in the term 'process'," (Lynch, J, Re Delahoyd . A mere notice, though headed with the name of a county Court, is not a 'process' within County Courts Act, 1846 (9 & 10 Vict., C. 95) section 57 (R. v. Castle).5 6 This definition of 'process' in subsection (1) of section 12 is made clear by the succeeding subsection that "any such legal process as aforesaid subsisting immediately before such commencement shall cease to have effect and all evacuee property in custody of any Court, or Receiver, guardian or other officer or person appointed by it, shall, upon delivery of the same being called for by the Custodian, be delivered to the Custodian." The nature of legal process contemplated in section 12 (1) is also illustrated by the description "seizure, distress, ejectment, attachment or sale, injunction".
55. As notification of the Scheme was not covered by any of these legal processes Mr. Ghias Mohammad relied on the words "or other order of whatever kind" in the second part of subsection
(1) of section 12. This clause, however, is qualified by the words "shall be granted or made by any Court". The notice issued under section 36 of the Town Improvement Act was, therefore, not covered by subsection (1) of section 12 of Ordinance XV of 1949 and the learned Judges erred in arriving at the contrary conclusion.
56. We may now turn to the finding by the learned Judges that acquisition of land by the Trust for the University was outside the purview of the Town Improvement Act. In support of this proposition they placed reliance on the provisions of sections 24 and 28 of the Town Improvement Act which are reproduced below for facility of reference.
57. "24. Development and expansion schemes.--(1) The trust may, for the purpose of development of any locality within the municipal limits contained in its local area, prepare "a development scheme", and (2)Such trust may, if it is of opinion that it is expedient and for the public advantage to promote and control the development of land to provide for the expansion of a municipality in any locality adjacent thereto, within the local area of such trust prepare "an expansion scheme".
58. (3)"A development scheme" or "an expansion scheme" may provide for the lay-out of the locality to be developed, the purposes for which particular portions of such locality are to be utilised, the prescribed street alignment and the building line on each side of the streets proposed in such locality, the drainage of insanitary localities and such other details as may appear desirable."
59. "28. Combinations of schemes and matters which may be provided for in the scheme.--(1) A Scheme under this Act may combine one or more types of schemes or any special features thereof.
(2) A scheme under this Act may provide for all or any of the following matters: (i)The acquisition under the Land Acquisition Act, 1894, as modified by this Act, or the abandonment of such acquisition under sections 56 and 57 of this Act, of any land or any interest in land necessary for or affected by the execution of the scheme, or adjoining any street, thoroughfare open space to be improved or formed under the scheme; (ii)the acquisition by purchase, lease, exchange, or otherwise of such land or interest in land; (iii)the retention, letting on hire, lease, sale, exchange or disposal otherwise of any land vested in or acquired by the trust; (iv)the demolition of buildings or portions of buildings that are unfit for the purpose for which they are intended and that obstruct light or air or project beyond the building line; (v)the relaying out of any land comprised in the scheme and the redistribution of sites belonging to owners of property comprised in the scheme; (vi)the laying out and alteration of streets;
(vii) the provision of open spaces in the interests of the residents of any locality comprised in the scheme or any adjoining locality and the enlargement or alteration of existing open spaces;
(viii) the raising, lowering or reclamation of any land vested in or to be acquired by the trust for the purposes of the scheme and the reclamation or reservation of land for the production of fruit, vegetables, fuel, fodder and the like for the residents of the local area; (ix)the draining, water-supply and lighting of streets altered or constructed; (x)the provision of a system of drains and sewers for the improvement of ill-drained and insanitary localities; (xi)the doing of all acts intended to promote the health of residents of the area comprised in the scheme, including the conservation and preservation from injury or pollution of rivers and other sources and means of water supply;
(xii) the demolition of existing buildings and the erection and re-erection of buildings by the trust or by the owners or by the trust in default of the owners;
(xiii) the advance to the owners of land comprised within the scheme upon such terms and conditions as to interest and sinking fund and otherwise as may be prescribed under the scheme of the whole or part of the capital requisite for the erection of buildings in accordance with the scheme;
(xiv) the provision of facilities for communication;
(xv) all other matters which the Provincial Government may deem necessary to promote the general efficiency of a scheme or to improve the locality comprised in such scheme"
60. In the opinion of the learned Judges the Act gives the Trust the power to acquire land only if it is required for executing one of the schemes under the Act. The scheme for the construction o f a new campus for the University which was to be developed by the University and not by the Trust was in this view considered to be outside the purview of the Town Improvement Act. The willingness of the Trust to exercise this power at the request of the Government for the benefit of the University was on this hypothesis held to be ultra vires of the intent of the Act itself. The learned Judges relied on the dictum in Manick Chand Mahata v. Corporation of Calcutta , Calcutta Improvement Trust v.
61. Mst. Meherunisa and Lynch v. Commissioners of Sewers of the City of London and concluded thus:-- "We have no doubt that the Trust was exercising its power not for statutory purpose of executing the scheme, but that the land should be handed over to the University for building the New Campus. The Trust it appears was conscious of this position. They had been asked by the Government to acquire the land for the University. They could not legally do so, but to carry out the wishes of the Government which they thought, though wrongly, they could not ignore, they, by giving the transaction as ostensible name of Development Scheme, proceeded to acquire the land under the Act. The Trust did not act bona fide."
62. We are unable to concur in the view expressed by the learned Judges that the acquisition of the land by the Trust was not for any one of its purposes and that in making the acquisition the Trust did not act bona fide. The finding on this point of the case is based solely on the assumption that the entire land acquired by the Collector was handed over to the University for development and that in making resort to the provisions of the Town Improvement Act land was acquired at less than the market value and thereby a wrongful gain was conferred on the University.
63. In the plan accompanying the revised scheme to which reference has been made earlier the area of 2478 acres included in the Scheme is divided into three parts:--
(1) University Campus 1615 acres
(2) Development Scheme adjacent to Muslim Town.221.84 acres
(3) Development Scheme adjacent to Garden Town.606 acres 7 8 9 In the middle is the area earmarked for the University Campus and on the other two sides adjoining areas are earmarked for housing colonies. The area earmarked for the University Campus was made over to the University authority to be developed by them in accordance with the special requirements of a teaching institution. The University had prepared a comprehensive scheme for the construction and development of the New Campus and printed its copies in early 1954. Five copies of the scheme were sent to the Chairman of the Trust. One of the copies was placed on the file of the Scheme with which we are concerned.
64. In a meeting held in the Office of the Chief Minister of the Punjab on 16th February 1954, which was attended by the Hon'ble Chief Minister, Minister for Education, Minister for Revenue, Minister for Agriculture, Vice-Chancellor, Director of Public Instruction, Financial Commissioner, Revenue, Deputy Commissioner, Lahore, Chairman, Lahore Improvement Trust, Secretary, Lahore Improvement Trust, Registrar, Punjab University, Town Planner, Lahore, Deputy Registrar (Administration), Punjab University, and the University Engineer. It was inter alia resolved:-- "After discussing the pros and cons of the proposal, it was unanimously decided that the proposed site beyond Muslim Town, between Multan and Ferozepur Roads, comprising 3000 acres be acquired. The Chairman of the Improvement Trust was instructed to proceed with the acquisition of the land. It was decided that out of this total area of 3000 acres, approximately, 2200 acres will be for the University Campus and the rest will be developed by the Improvement Trust as a modern residential area under their own Scheme."
65. It has been mentioned earlier that the Scheme was revised by the Trust in the light of the objections raised by the Provincial Government and resubmitted by the Chairman to the Commissioner, Lahore Division, on the 8th December, 1956. In his covering letter the Chairman proceeded to say:-- Sir, I have the honour to refer to the West Pakistan Government Memo. No, 495 C &T 56/1708 dated the 25th February 1956, to your address a copy of which was also endorsed to me under No, 495-C&T- 56/1709 of even date and to state as under:-- Vide this office letter No, SB-153-7145 dated the 7th December, 1955, the sanction of the Government was sought to the acquisition of the land included in the scheme shown on the plan and described in the notification sent herewith. Para. 6 of this letter clearly lays down the reasons for not preparing a layout. Out of the land included in the scheme an area measuring approximately 320 acres has been utilized by the P. W. D. for the construction of their colony known as "Wandat Colony". A portion of the land included in the Scheme measuring approximately 1500 acres was proposed to be developed as a Satellite Town by the Urban Development Department, but as will be evident from D. 0. letter No, E. S. P. A-179/56 dated the 20th November 1956, from the Secretary to Government, West Pakistan, Education Department, to my address and his Memo. No, A-3/61-56 dated the 6th November 1956, to the address of Secretary to Government, West Pakistan, Social Welfare and Local Government Department (Copies attached) the Government have now decided to drop the scheme for building a Satellite Town in this area. Now, therefore, after excluding the area taken by the P. W. D. under the "Wandat Colony" and the contiguous area along the Kacha Multan Road the boundary of the scheme has been changed as shown on Drawing No, D. S. 93/1-54 attached herewith. The remaining area after excluding the Wandat Colony will be developed as under : (1)Land measuring 1650 acres for setting up the New University Campus.
66. (2)Land measuring 221.84 acres to be developed as a Trust development scheme as framed by the Trust in its Resolution No, 23 dated 23-3-1954 which was notified by the Trust on 31-3-1954 a copy of which was sent to you and the Government under endorsement No, S3-153/13972 dated 21- 3-1954.
3. Proposals for the development of the remaining area measuring about 606.76 acres which is mostly comprised of Muslim ownership will be formulated later. As a matter of fact it is contemplated to leave this land with the owners after its development by the Trust at their (owners) cost on exemption basis.
67. (i)The University authorities are arranging to obtain the necessary funds for the .acquisition of the land through the Trust.
68. (ii)Since the area under the University Campus will be developed by the University itself the Trust has not drawn up any lay out plan for the Campus at this stage. The finalization of such a lay out will take some considerable time and the Vice-Chancellor is very anxious to have the foundation stone of the New University Campus laid at a very early date. This would not be possible until the land is acquired and placed at the disposal of the University Authorities and the case is being submitted without a lay outplan for the areas.
69. (iii)As stated in (I) & (II) above the Trust contemplates to develop an area measuring 221,84 acres and when forwarding separately that scheme for Government sanction it will submit the rough cost estimate on the lines of P. W. D., giving specifications of works to be done, the streets to be paved, the schedules of rates on which the expenditure will be incurred etc. For the remaining area a separate scheme will be prepared under section 28 of the Punjab Town Improvement Act, later on and submitted with the desired cost estimates as required under section 40 of the Punjab Town Improvement Act, 1922.
70. (iv)The land taken by the P. W. D. under "Wandat Colony" and contiguous land along the Kacha Multan Road not required by the Trust has been excluded and Public Notice is being issued accordingly.
71. (v)The land measuring 221.84 acres will be developed by the Trust from its own resources within the next two years and their remaining areas will be developed after another two years thereafter.
72. (vi)University Authorities and the Government are pressing hard for the immediate possession of the land and therefore a notification by Government under section 17 of the Land Acquisition Act, 1894, is an absolute necessity. D. 0. No, A-3-61-5 dated 7/11-10-56 from the Secretary to Government, West Pakistan Education Department speaks for itself.
(vii) The Trust has vide Resolution No, 2 dated 15-9-1955 decided to give freely, exemptions to Muslim Owners in all its scheme.
73. The land falling within the New University Campus is mostly comprised of evacuee land and Government land under the Artillery Rifle Range (an application for the transfer of which free of cost has since been made vide my letter No, SB-153/2940 dated 8-7-1954 to your address- correspondence resting with late Punjab Government endorsement No, 3613-C & P-55/24366 dated 19-4-1956 to you refers).
(viii) After the sanction of the scheme the Land Acquisition Collector will be advised to deal with the land of the Corporation under the Land Acquisition Act, 1894, as modified by the Punjab Town Improvement Act or the land will be acquired by private treaty.
74. (ix)A revised draft notification is enclosed herewith as desired. It is now requested that the Government may kindly be approached to sanction at a date as early as possible the acquisition of the land by the Lahore Improvement Trust also authorise the L. I. T. to take possession of the land under section 17 of the Land Acquisition Act. 1894. Your obedient servant (Sd.) Abdur Rahim, Chairman, Lahore Improvement Trust."
75. The Scheme thus included not only the construction of a New _ Campus for the University, but also development of two housing colonies. This was in accordance with the decision taken in the meeting held by the Chief Minister on 16-2-1954 to which reference has been made above. Under section 24 of the Town v. Improvement Act the Trust may inter alia prepare a scheme for Custodian of the purpose of development of any locality within the municipal Evacuee limits. Construction of a new campus for the University and Property development of housing colonies in the area included in the Muhammad scheme was thus amply covered by the provisions of section 24.
76. Yaqub Ail, J Mr. Mahmood Zaman, appearing for the Trust maintained and rightly so that construction of a new campus for the University was for the development of the city of Lahore and that the real beneficiaries of the scheme were the citizens of Lahore generally and the students community in particular.
77. We will now examine the two other grounds on which the acquisition proceedings were invalidated by the High Court (i) that the scheme framed by the Trust was no scheme at all under sections 24 and 28 of the Town Improvement Act and therefore, no notice under section 36 could be given in respect of it and (ii) the Trust could not acquire land for another corporate body.
78. Earlier we have reproduced in extenso the provisions of sections 24 and 28 which inter alia authorise the Trust to frame a development scheme within a municipal area. A plain reading of these sections makes out that a scheme framed under section 24 may provide for all or any one of the matters provided in it. A scheme may thus provide for acquisition of land only and that seems to be the case here. The University Campus was to be developed by the University, the scheme for developing a housing colony in 221.84 acres had been prepared separately and submitted to the Government for sanction as mentioned in the letter of the Chairman, reproduced earlier, while the scheme for development of 608.70 acres was to be prepared at a later stage. It would not, therefore, be said that the scheme prepared by the Trust was no scheme in the eye of law at all, because it G did not provide for relaying out of land comprised in the scheme or laying out and alteration of streets, earmarking open spaces, raising, lowering or reclamation of land, drainage, water supply and lighting.
79. The learned Judges pointed out that no estimate of costs was prepared, but that was necessary only in respect of that part of the scheme which was to be executed by the Trust itself. The University Campus was to be constructed by the University Authorities. No estimate of costs for this part of the scheme was, therefore, necessary. Estimate of costs of the housing scheme in 221.84 acres had been submited along with the scheme. The third part of the scheme had yet to be prepared. The omission to submit an estimate of cost for the entire scheme was, therefore, no fatal defect in the scheme as held by the learned Judges.
80. In dealing with section 28 of the Town Improvement Act, reproduced above, the learned Judges again fell in error in making the assumption that a scheme which did not make provision for all the matters enumerated in the section was no scheme at all under the Act. The section expressly provides that the scheme may provide for all or any of the matters set out therein. The scheme in respect of which notice was given was thus amply covered by the provisions of sections 24 and 28 of the Town Improvement Act and the notice issued in respect of it under section 36 of that Act was quite valid in law.
81. A word may be said about the observations by the learned Judges that in acquiring the land for the University the Trust did not act bona fide and that the scheme was a fraud on the Town Improvement Act. It has been noticed that while compensation for evacuee land was fixed by the Collector at the rate of Rs, 550, per kanal, and the Custodian of Evacuee Property accepted this price grudgingly, the portion of the same land was sold by him to the Society, seven years later, when prices had appreciated considerably, at Rs, 250, per kanal. Could it, therefore, be said that in acquiring the land for the University the Trust wanted to confer a wrongful gain on the University or that it was an abuse of the Town Improvement Act. On the contrary in their letter dated 18th April 1957, the Central Government had expressly provided that approval was accorded to the acquisition of evacuee land by the Government of West Pakistan under the Land Acquisition Act, 1894, as modified by Second Schedule to the Town Improvement Act. It has also been seen that a scheme for shifting the University Campus was first framed by the Trust in 1944 which was abandoned because of Partition in 1947. The Trust had thus acted in accordance with law and not mala fide in acquiring land inter alia for the construction of a new campus for the University.
82. The last ground that the Trust could not acquire land under the Town Improvement Act for another corporate body is equally untenable. The decided cases on which they have relied have been mentioned earlier. The entire reasoning on this part of the cases proceeded on an erroneous assumption. As seen the Trust was required by the Provincial Government to prepare a scheme inter alia for the construction of a new campus for the University. Possession of the land was given under the orders of the Collector to the Trust and thereupon title in the land passed to it under section 17 of the Land Acquisition Act, 1894. The total area of land acquired by the Collector in the four villages of Bhakewal, Davisabad, Dhana Singh Wala and Ichhra as given in the chart at page 601 of the Collector's File is 1192.67 acres. The rest of the land belonged to the Government. It Shad been used in the past as Rifle Range by Armed Forces. At the request of the Punjab Government, the Government of Pakistan surrendered it for construction of the University Campus. The letter of the Central Government is in the records of the Trust. The learned Judges have themselves emphasised that the University did not claim any title in the land in dispute. It was therefore, incorrect to say that the Trust had acted as an agent of the University in acquiring the land comprised in the scheme. The University paid Rs, 20 lars to reimburse the Trust for the compensation payable by it to the Custodian of Evacuee Property but that is true in all cases in which the Trust acquires land included in a development scheme and subsequently transfers it to others for building houses, shops, factories, etc. It does not mean that land is acquired by the Trust for those individuals as an agent. In the instant case the land was acquired for a development scheme as envisaged in sections 24 and 28 of the Town Improvement Act and its legality could not be challenged on the ground that it was subsequently disposed of two other persons including a corporate body. As held earlier the acquisition of land by the Trust was within the purposes of the Act and on that ground alone the acquisition of the land comprised in the scheme was valid. None of the decided cases on which the learned Judges of the High Court have relied in support of this ground is, therefore, applicable to the facts of the present case.
83. After the arguments were concluded and judgment was reserved Mr. Ghias Mohammad filed a miscellaneous petition for rehearing the appeals on the ground that his clients had succeeded in laying their hands on two housing colony schemes framed by the Trust on part of the land acquired under the scheme with which we are concerned at later dates. It was intended to show that the original scheme included only the construction of a campus for the University, the assumption made by the petitioners is palpably incorrect. We have reproduced for this purpose in this order the letter of the Chairman of the Trust No, SB-153/4688 dated the 8th December 1956, written to the Commissioner, Lahore Division, under which he submitted the revised scheme for sanc-tion of the Provincial Government. The plan accompanying the scheme shows in different colours the areas earmarked for the two housing colonies and the University Campus. The area of each sector is mentioned in the plan and is referred to in the letter. The proposals of the two housing colonies schemes at later dates on which the respondents rely, therefore, has no bearing on the decision of these appeals. We did not, therefore, consider it necessary to reopen the hearing of these appeals.
84. It remains to mention one more ground urged by Mr. Ghias Mohammad. During the hearings of the appeals, he made a grievance that this Court should not make reference to any document of which copy was not produced in the High Court by the Trust and of which he had no notice. As the matter raised is of substance, we will examine it in detail.
85. In its writ petition the Trust relied among others on the Resolution passed by the Trustees approving the scheme framed under sections 24 and 28 of the Town Improvement Act, the Notification issued by it under section 36 of the Town Improvement Act in which the boundaries of the land included in the scheme were delineated; the No-Objection Certificate issued by the Rehabilitation authorities for acquisition of evacuee Land included in the scheme ; Notification issued by the Provincial Government according sanction to the scheme under section 42 of the Town Improvement Act ; the permission granted by the Central Government under section 12 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 ; orders passed by the Governor declaring that the scheme for which land was to be acquired was covered by section 50 of the Land Acquisition Act and application of section 17 to the acquisition proceedings under which the Collector could take possession of arable and waste land before delivery of award ; order given by the Provincial Government to the Collector to enter upon acquisition proceedings ; notices issued by the Collector under sections 9 and 10 of the Land Acquisition Act ; entry in the Roznamcha of the Patwari recording delivery of possession to the Trust on 26-6-1957; the concurrence given by the Custodian to the tentative award drawn up by the Collector ; and finally the awards delivered by the Collector and payment of Rs, 20 lacs by the University to the Custodian of Evacuee Property as compensation for evacuee land acquired by the Trust. Copies of these documents formed annexures to the writ petition. Nothing more was needed on the part of the Trust to make out its case that the Custodian of Evacuee Property as well as the evacuee owners having been divested of title in the land acquired by the Trust, the Custodian could not in law resell the same land to the Society.
86. The onus was thereafter on the Society to show that the acquisition proceedings in which the land sold to it was acquired earlier by the Trust was illegal and void. The Society filed documents to show that it had acquired the land after obtaining No-Objection Certificates from the Rehabilitation Department and the Town Planner of the Trust though the latter had no legal authority to issue such a certificate and that permission of the Central Government was obtained under section 12 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 for acquisition of evacuee land. Copy of the sale deed executed by the Custodian and the receipt showing payment of Rs, 6,27,037.50 by the Society to the Custodian as price of the land were also placed on record. None of these documents, however, reflected on the legality of the acquisition proceedings in which the same land had been earlier acquired by the Trust.
87. The pleas taken up by the Society in their written statement were different from the pleas urged during the hearing of the writ petition. Initially the Society maintained that the land, in dispute, was withdrawn from the scheme rrepared by the Trust, that the approval given by the Central Government under section 12 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 for acquisition of evacuee land by the Trust was revoked, that no price for the land, in dispute, was paid by the Trust to the Custodian, that the Trust having issued a No-Objection Certificate to the purchase of the land, in dispute, by it was estopped from challenging the legality of the sale of that land and finally that the writ petition filed six years after the sale in favour of the Society had been completed was liable to be dismissed on grounds of laches. The last ground was factually incorrect. Sale deed in favour of the Society was executed in March 1964, and the writ petition was filed on 1965.
88. On perusal of the pleadings of the parties the learned Judges in the High Court directed counsel for the Trust to produce the file relating to the acquisition of the disputed land by the Trust.
89. This fact is mentioned in clause (d) of the replication tiled by the Trust to the preliminary objections raised by the Society. It reads: "However, in view of the objections raised by respondent No, 3 and as directed by this Hon'ble Court, the record relating to acquisition of the land, in dispute, has been produced. All the grounds on which the acquisition proceedings were later on declared by the High Court to be illegal thus arose from the perusal of the record by the learned Judges of the High Court and not on the basis of the written statement filed by the Society or any document produced by it. The learned Judges themselves make mention of the fact that they had perused the records of acquisition of the land by the Trust on which their conclusions are based.
90. In summoning the record and using it for the purpose of determining the legality of the acquisition proceedings, the learned Judges acted with jurisdiction. This, however, does not mean that examination of the record by this Court should be limited only to those documents on which the learned Judges have relied. The entire record was before the High Court and a fortiori the same is open to examination by this Court.
91. Another principle attracted in the case is that before an order passed by a public authority is struck down it is the duty of the Court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has been passed. See The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector. It was remarked in this judgment : "Acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their functions examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect."
92. To satisfy the requirement of this rule it is the duty of the "Court to examine the entire record pertaining to the action taken, order passed and proceedings undertaken which are challenged as without lawful authority under Article 98 of the Constitution. Otherwise grave miscarriage of justice may take place in the exercise of this beneficial jurisdiction. The objection raised by Mr. Ghias Mohammad that the appellants or the Court suo motu could not make resort to any document on the record of the Collector, the Trust and the University which was not relied upon in the High Court has, therefore, no substance.
93. For the foregoing reasons we allow both the appeals, set aside the judgment and order of the High Court passed in Writ Petition No, 1142 of 1965 on 26th May 1969, and declare that the sale of the land described in the writ petition by the Custodian of Evacuee Property to the Society under the sale deed executed by him on 1st of May 1964, was without lawful authority and direct him to cancel the sale-deed and to refund to the Society the sum of Rs, 6,27,037.50 paid by the Society to him as sale price.
94. In the circumstances of the case, we refrain from burdening the respondents with the costs of these proceedings. I L R 34 Cal. 470 (1903) 1 K B 652 PLD 1954 FC 35 PLD 1961 Lah. 304 11 Jr. Ch. Rep. 407 27 L J M C 70 AIR 1921 Cal. 159 AIR 1932 Cal. 17810 1 2 3 4 5 6 7 8
…and 38 more citing cases