1. MUHAMMAD HALEEM, C.J. --This appeal arises from the judgment of the Lahore High Court, Lahore, dated 13-2-1974 which was disposed of following the reasons given in writ petition No. 269-R of 1967, disposed of on the same date. This petition was dismissed with costs.
2. By order of the Government of Pakistan, Ministry of Refugees and Rehabilitation dated 28th October, 1953, the Central Government exercising the powers conferred by section 12 (3) (b) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, accorded approval to the acquisition by the Government of the Punjab under the provisions of Land Acquisition Act, 1894, of evacuee land measuring 70 acres 'situated on the Multan-Delhi Road on the North-West of Qasimpura for the purpose of setting up an Industrial Colony in Multan on the condition 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, and paid to that officer for credit to the evacuee owner of the property. This approval was accorded on the assumption that the land was not in the occupation of refugees. Thereafter the Multan Improvement Trust prepared a scheme known as "Industrial Areas Scheme" and invited applications from the industrialists to establish factories in the area comprised in the Scheme. However, without obtaining the sanction of the Scheme from the Provincial Government allotted plots to the industrialists including the respondent herein who was allotted plot No.8 on 4th of July, 1955. On 8th of September, 1955, the Chairman, Multan Improvement Trust, Multan, cancelled the allotment of the plot of the respondent, but the order did not take effect as it was not issued on the ground that the matter required further discussion. However, before this date on 2nd December, 1954, by a notification of even date, the Governor of West Pakistan in exercise of the power conferred by sub-section (1) of section 41 of the Town Improvement Act 1922 cancelled the development scheme known as the "Improvement Trust Industrial Area Scheme Multan" earlier sanctioned by notification dated 9th of February, 1956. Again on 20th of September, 1956, the Government of West Pakistan by its order of the same date communicated that all proceedings in connection with the Scheme should be kept in abeyance till further orders. Thereafter, on 13th of June, 1957, the respondent herein was conveyed information to stop further construction. By letter dated 21st of December, 1957, the Provincial Government informed the Chairman, Multan Improvement Trust that the, allotments in the Scheme had been made by the Chairman without first acquiring the land as the land acquisition proceedings had not been finalised and getting the approval of the Trust, which too was not properly constituted, and, therefore, the Improvement Trust could not legally transfer the possession of the plots to the industrialists. It was further conveyed that the matter would be decided on the next visit of the Minister for Social Welfare and Local Government to Multan.
3. On 21st of March, 1959, another letter was issued by the Government of West Pakistan seeking information from the Chairman, Multan Improvement Trust as under:
(i) Whether the land acquisition proceedings in the Scheme are complete;
(ii) Whether sanction of the Government of Pakistan to the acquisition of the evacuee land involved has been received;
(iii) Whether the compensation has been assessed and if so, the same has been accepted by the Custodian of Evacuee Property;
(iv) Whether the plots in the scheme were auctioned or allotted. In the former case whether the payment has been received and in the latter case whether all the conditions of allotments have been fulfilled by the allottees;
(v) Whether the trust was properly constituted at the time of allotments were made. And whether the allotments have been confirmed by the Trust by means of a Resolution;
(vi) What is the economic position of the scheme at present. The prices of material have gone high these days and as such it may not be possible for the trust to carry out all the development works within the estimates which were framed at early as 1955. The estimates should be recast as at present and submitted to Government; and,
(vii) Whether Mr. S.M. Elahi, made any payment before and if so how much and whether that undertook any construction on the plot.
(i) The acquisition proceedings are complete except the announcement of award and entry of mutations in trust's name.
(ii) Sanction of the Government for the evacuee property has been received.
(iii) Compensation has not been assessed. It will be assessed by the Land Acquisition Collector, Multan, Improvement Trust, while announcing the award.
(iv) The plots were allotted conditions were being fulfilled by the allottees when the stay order from the Government was received, Mr. S.M. Elahi, however, did not fulfil the conditions. He offered to pay the advance money of Rs.8,165/4/- in February, 1959 but it could not be accepted in .View of the proceedings having been stopped by the Government.
(v) The allotment was made by the Chairman on 1-7-1955 on recommendation of the Sub- Committee but there is no resolution approving this allotment in clear terms. The names of allottees were however known to the Trust when the case of representation of allottees regarding price was place before the Trust vide res-No.10 dated 4-2-1957. At the time of passing the resolution only four trustees (including one Chairman) held their office while the names of the three Municipal Nominees were not yet notified by the Government in the official Gazette.
(vi) The estimate (rough cost statement) enclosed with the Scheme as early as 1955 was a rough one, detailed estimates will be prepared when the award is announced and proceedings are opened by the Government.
4. At present the expenditure on the Scheme is almost nil and in view of the conditions conveyed vide No.22-C & T-56/1079 dated 9-2-1956 subject to which the Government sanctioned this scheme, there is no scope of the scheme going into the loss.
(vii) Mr. S.M. Elahi did not deposit the amount before the receipt of Government orders directing to stop proceedings. However, he sent a draft for Rs.8,156/4/- in February, 1959. But it had to be returned due to the reason that the proceedings were stopped."
5. By notification issued under section 4 of the Displaced Persons (Land Settlement) Act, 1958, evacuee land was acquired for the purpose of the settlement of refugees claim-holders, and on 1st of July, 1964, land measuring 13 Kanals 8 Marlas comprised in Khasra Nos. 319, 320 and 3206 was proposed in favour of Muhammad Ismail, predecessor-in-interest of appellants Nos. 1 to 3 in lieu of his claim which proposal was confirmed by the Assistant Settlement Commissioner (Lands) on 14th December, 1964. Muhammad Ismail thereafter sold the land to Muhammad Saleem on 26th of April, 1965 by a registered sale deed. Respondent herein preferred an appeal against the order of allotment to the Deputy Settlement Commissioner (Land) impleading Muhammad Ismail alone, who by order dated 20th of January 1966, allowed the appeal holding that the land measuring 8 acres 7 kanals and 11 marlas was duly allotted to the respondent by the Deputy Commissioner and Chairman, Multan Improvement Trust, Multan, which was in occupation of it under an order of the competent authority and that the disputed land was not duly acquired, and accordingly could not be the subject-matter of allotment to Muhammad Ismail.
6. A revision was preferred by Muhammad Saleem, the purchaser, against this order which met the same fate as it was dismissed by order dated 10-9-1966 by the Settlement Commissioner (Land).
7. Again the plea of the respondent that the disputed land did not form part of evacuee pool prevailed. The appellants 1 to 3 herein and Muhammad Ismail filed a writ petition against the impugned order in the High Court, but was again unsuccessful as it was dismissed as afore-stated.
8. Before the High Court, the appellants contended firstly, that, Multan Improvement Trust not having validly acquired any legal right in respect of the land comprised in the Industrial Area Scheme on account of the defect in the acquisition proceedings, the allotments made to the respondent and the others were void ab initio; and, secondly, that as the whole Scheme was subsequently scrapped, the respondent had no subsisting title to the land in question. The High Court held that before the appellants could succeed they must show that the land was duly acquired and became a part of the compensation pool when it was allotted and confirmed in their favour. Having observed so, the High Court examined the Notification No. R.5/1-60 (1462) dated 9th June, 1960, issued under section 4 of the Displaced Persons (Land Settlement) Act, and reached the conclusion that evacuee land in respect of which the Central Government had accorded sanction for acquisition or sale before the date of notification did not form part of the compensation pool as it was excepted by clause (i) of the notification.
9. The learned counsel for the appellants to surmount this dilemma urged that since the approval was accorded under the provisions of the Pakistan (Administration of Evacuee Property)
10. Ordinance, 1949, and not under the Pakistan (Administration of Evacuee Property) Act, 1957, clause
(i) of the notification could not be read to have excepted the land. In this context the expression "or.
11. Under any law for the time being in force" for the administration of evacuee property in West Pakistan in clause (i) of the notification came to be construed and the High Court held that it undoubtedly referred to the law namely, the Pakistan (Administration of Evacuee Property)
12. Ordinance, 1949, which was in force at the time when the notification was issued as the later Act of 1957 was enacted on 15-3-1957 much after the date of the approval of the Central Government.
13. Hence clause (i) of the notification excepted the land from the ambit of acquisition, and the land never became a part of the compensation pool and could not be allotted to the appellants who had no locus standi to challenge the title of the land allotted to the respondent. The High Court thereupon refrained from examining the title of the respondents to the land allotted to them.
14. Leave to appeal was granted to consider the following questions:
(a) Whether, if the Scheme known as Industrial Area Scheme having been cancelled in exercise of the powers under section 41 (1) of the Town Improvement Act by the Government of West Pakistan and the land having been made available to the deserving refugees, the respondents could still claim a title to the land allotted to them earlier; and,
(b) Whether the condition of approval by the Government namely, the payment of fair compensation in consultation with the Custodian for being credited to the evacuee owners' account was fulfilled as the acquisition proceedings were not completed nor taken in hand for the acquisition of the evacuee land as required by the provisions of the Punjab Town Improvement Act read with the Land Acquisition Act.
15. Again before us the question raised was that the Chairman Multan Improvement Trust could not allot plot No.8 to the respondent without the land having been duly acquired; and not only this the allotment should also have received the approval of the Trust which was not properly constituted.
16. In this connection reference was made to the letter of the Provincial Government dated 21st December, 1957. Therein it was stated that the orders regarding the cancellation of plots Nos. 2,3 and 5 and the stoppage of construction were issued for the afore-stated defects. Therefore, plot No. 8 also being one of the plots allotted in that fashion was also hit by this letter. From the record it transpires that the order for the cancellation of plot No.8 was issued but had not taken effect as the matter was left over for further discussion. In that view of the matter, the order dated 8th of September, 1955, of the Chairman Multan Improvement Trust did not have any effect qua the allotment and the transfer of possession of plot No.8 to the respondent. In this respect the orders of the Government dated 1st September, 1955, were not carried out to the hilt.
17. It shay here be observed that the notification dated 2-12-1964 on which reliance is placed by the appellants also refers to the Industrial Area Scheme having been earlier sanctioned by another notification dated 9-2-1956, and it was thereafter that the Development Scheme was cancelled by the Governor under section 41(1) of the Town Improvement Act, 1922, which provision again does not provide for cancellation of the scheme already sanctioned. Although this point was not argued nonetheless prima facie that provision seems to be applicable only when the Scheme is first submitted for approval as would appear from the earlier provisions of the .Act. Be that as it may, nothing finally came out as would appear from the letter dated 20th of September, 1956, when a status quo was ordered and queries were made to elicit information on certain matters. The position remains that the respondent was in possession of plot No.8 which had been allotted to him under the Scheme. This allotment was upheld in appeal and revision by the Settlement authorities as they were of thy opinion that the plot was not acquired by the notification under section 4 of the Displaced Persons (Land Settlement) Act. This question should not detain us further as before the legality of the allotment could be challenged the appellants should establish their locus standi by establishing a valid allotment of the land under the Displaced Persons (Land Settlement) Act.
18. The word "acquisition" clearly indicates the appropriation of property on payment of compensation, that is, the market value of the property. That it could not otherwise but be fair cannot also be disputed. Thus, payment of compensation being inherent in the appropriation of land, it cannot be regarded as a condition in the sense in which it is used. There is also nothing on record to indicate as to whether the Custodian was not consulted on the question of payment of fair price of the land proposed to be acquired, The appellants did not canvass as to the non- fulfilment of this direction, either before the High Court or the Settlement authorities who dealt with the case on the settlement side. However, that remains eminently a question of fact as to what is a fair price and whether it was acceptable to the Custodian which had to be established.
19. We have examined clause (i) of the notification dated 8th June, 1960. This clearly excepts land for acquisition or sale or which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Ordinance, 1949, was duly accorded under section 12 (3) (b) before the issuance of the notification under section 4 of the Displaced Persons (Land Settlement) Act, 1958, and the expression that, "or under any Law for the time being in force" undoubtedly refers to the Ordinance XV of 1949. All that clause (i) refers to is approval for acquisition and not whether the proceedings in regard to acquisition had commenced or not at all. The approval, therefore, is not dependant on the completion of acquisition proceedings before the issuance of notification under section 4 of the Displaced Persons (Land Settlement) Act, 1958. It could take place even after that event and for all that matters is the factum of sanction itself which is enough to bring the case within the Exception.
20. The question as to whether respondent was lawfully in possession of the plot No.8 allotted to him could be challenged only if the appellants are able to establish their intervening interest as allottees of the land which had become a part of the compensation pool. That not being so, we agree with the High Court that it was unnecessary to examine the legality of the allotment in favour of the respondent. We are informed at the bar that considerable construction had been raised and money invested in raising the factory, and it would not be in the interest of justice to deprive the respondent of the benefit` of the allotment of land when it was not cancelled by the competent authority. Having held so we do not consider it necessary to examine in detail the first point, and as for the second it has been duly considered.
21. Accordingly, the result is that the appeal fails, but with no order as to costs.