This appeal is directed against the judgment and decree dated 26-3-1973 passed by the learned District Judge, Sargodha dismissing the suit of the appellant.
2. The appellant filed a suit for declaration that the land in dispute over which he was 'maroosi mozrah' had been requisitioned and as a consequential relief, a decree for mandatory permanent injunction was prayed for requiring the defendants to assess the compensation of the land and pay the same to him. In the plaint it was pleaded that the alleged acquisition of land on 4-11-1946 was not legally made and all subsequent proceedings regarding reference to arbitrator and the award made by him on 23-6-1971 were illegal and void and not binding on the plaintiff. The suit was contested by the respondents. On the pleadings of the parties the learned District Judge, Sargodha, framed the following issues:- (1)Whether this court has no jurisdiction to try the suit?
(2)Whether the suit is maintainable in its present form?
(3)Whether the suit has been correctly valued for the purposes of court-fee and jurisdiction? .
(4)Whether the plaintiff has any locus standi to bring the suit?
(5)Whether defendant No.3 has been properly impleaded?
(6)Whether the suit land was properly acquired or requisitioned?
(7)Whether the award in dispute dated 23-6-1971 is legal and valid?
(8)Relief.
An additional issue was also struck on 17-3-1973 to the following effect:- "Whether the suit is within time? OPP The learned District Judge transferred the suit to his own Court and decided the same himself. The suit was dismissed through judgment and decree dated 26-3-1973 mainly on the ground that it was barred by time. It has been held by the learned District Judge that in the suit mainly legality of acquisition of land was challenged which took place in 1946, therefore, it was barred by time as the period of limitation under Section 120 of the Limitation Act, was six years.
3. Learned counsel for the appellant submitted that the case of the appellant has not received proper consideration by the learned District Judge. According to him the case of the appellant was that there was no acquisition of land as no notice was published in the official Gazette for that purpose without "which the land did not stand acquired and never vested in the Government and it continued to be a requisitioned land.
4. I have examined the record. The respondents have produced a notice Ex.D.3 in evidence issued by the Collector. In this notice it has been stated that the land measuring 223 acres in Chak- No.78/NB Civil Station and Chak No.87/NB and Chak No.47/NB was being acquired. Neither any khasra numbers of the land nor other particulars of the land have been given in this notice. Even the names of the owners of the land whose land was intended to be acquired were given. A note has been given that a copy of this notice with an Urdu translation should be pasted in a conspicuous place in the village Chaupal and another copy with Urdu translation should be personally served by the Patwari on all the persons interested in the land. There is no document placed on the record to show that this direction was carried out. Ex.D.2 is an order dated 21-2-1947 passed by the Collector Shahpur for reference of the case to the Commissioner Rawalpindi Division, Rawalpindi for the appointment of an arbitrator by the Central Government as the plaintiff when appeared before the Collector was not willing to accept the compensation. EX.D.1 is the award made by the arbitrator appointed in these proceedings which is dated 23-6-1971. It is common ground between the parties that the proceedings were governed under the provisions of Requisitioned Land (Continuance of Powers) Ordinance XIX of 1946. Under Section 5 of the said Ordinance, it is mandatory requirement of law that the acquisition could only be made through publication of a notice in the official Gazette. According to Section 5(2) the land was to vest in the Government from the day on which such a notice was published in the official Gazette and from the same date it was to cease to be requisitioned land. It is also not disputed by the learned counsel for respondent No.1 that the land previously had been requisitioned. No evidence has been brought on record by the respondent that any such notice was published in the official Gazette.
There being no evidence of publication of notice as required under Section 5, therefore, the property cannot to held to have vested in the Government and that it ceased to be, requisitioned property. 'The learned District Judge appears to have proceeded on the assumption as if the land undisputedly stood acquired and vested in the Government. The care of the plaintiff that the land had not been acquired did not receive due consideration In view of the above findings, the objection of the respondent that the Civil Court had no jurisdiction to try the suit has no) substance.
Notice Ex.D.3 does not contain the particulars of the land, the owner is of whose land was intended to be acquired. This notice has also not been established to have been published in the official Gazette. The rule is firmly; established that if doing of a particular thing is made lawful, doing of something in conflict of that will be unlawful. Reference may be made to judgment reported) as EA.
Evans v. Muhammad Ashraf PLD 1904 SC 536. Similar view has also been expressed in judgment reported in Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. PLD 19005 (WP) Lah.
82, by holding that where a power is given to do a certain in a certain way the thing must be in that way and other methods of performance are necessarily forbidden. In view of the above finding the objection that the suit was not triable, by the Civil Court r as no force. The plaintiff did not challenge the award of arbitrator merely on the ground that the compensation for acquired land determined by the award was inadequate but the same was challenged because there was no acquisition of land in accordance with law and as such the said award was challenged having been based on non-existent act of acquisition of land. So far as form of suit is, concerned the same was not defective. Learned counsel for the respondent argued that further relief of possession of land as consequential relief must have; been prayed for. I am afraid the argument has no force. Admittedly the property; had been requisitioned before the alleged acquisition of land, therefore, further; relief which the plaintiff was to ask was the assessment of compensation of land as requisitioned land and for its payment to him which has been prayed for. So long as requisition continued the plaintiff was not entitled to ask for possession of I land. So far as the value of the suit for the purposes of court-fee and jurisdiction I is concerned it may be observed that the suit is for declaration with consequential, relief which is governed by Section 7(4)(c) of the Court Fees Act, therefore, it was correctly valued for the purposes of court-fee and jurisdiction as the plaintiff had a right to assess the valuation. The locus standi of the plaintiff was also challenged. The plaintiff having been adversely affected by the impugned act, therefore, he had locus standi to file the suit being an aggrieved person. Collector District Sargodha was impleaded as one of the defendants and the objection that he was not properly impleaded has no force. Since the initial notice Ex.D.3 was issued by him, therefore, he was a proper party. I have already held that the' property was never acquired and had never vested in the Government, therefore, it continued to retain its status as requisitioned property. On the same reasonings the award dated 23-6-1971 is hereby held to be void because no award could be I pronounced in respect of property which had not been acquired and vested in the Government. Issues Nos. 1 to 8 framed by the learned District Judge are hereby, answered in favour of the plaintiff.
5. These issue. Were not decided by the learned trial Court because the suit was dismissed as barred by time. I have decided these issues myself because for the reason to follow I have held that the suit was filed within period of limitation. The parties produced evidence on all these issues before the learned trial Court therefore, the remand of the case for decision of issues on merits was not considered necessary.
6. Having found that there was permanent acquisition of land, therefore, the act of the respondents of making reference to the arbitrator for determination of price of land assuming it to be an acquired land and consequential award dated 23-6-1971 made by the arbitrator are wholly void and illegal and did not affect the rights of the plaintiffs in the land in dispute which continued to be a requisitioned land. Since the land never stood acquired and vested in the Government and the period of requisition never came to an end, therefore, the suit of the plaintiffs could not be held to be barred by time which finding was recorded on the I assumption that there was valid acquisition of land permanently. The act of making reference to arbitrator and his award dated 23-6-1971 were such acts which caused grievance to the plaintiffs and amounted to denial of their rights in the land as requisitioned land, therefore, the period of limitation was to start from 23-6-1971 for filing the suit as such the suit as filed on 13-9-1971 could not be held to be barred by time.
7. Learned counsel for the respondents attempted to argue that since it is to be presumed that all official acts are correctly and properly performed, therefore, a presumption should be raised that the property was permanently acquired and vested in the Government and period of requisition came to an end.
8. I am afraid the argument has no force. Once a dispute was raised and it was specifically pleaded that there was no permanent acquisition of land and an issue was framed, it was imperative for the respondents to have established on the record the compliance of provisions of Section 5 of the Requisitioned Land (Continuance of Powers) Ordinance XIX of 1946 i.e. Publication of notice in the official Gazette on the happening of which only the property was to vest in the Government absolutely and the period of requisition was to end. This provision of law is mandatory and no evidence, having been produced on the record in this respect, this question could not be decided in favour of the respondents merely on the loss of presumption of correctness in favour of official acts.
9. For the foregoing reasons the appeal is accepted, the judgment and decree dated 26-3-1973 passed by the learned District Judge is hereby set aside and the suit filed by the appellant is decreed with costs.
M.Y.H./S-399/L