This civil revision is directed against the order dated 24th of January, 1989 whereby while accepting the appeal of the respondents the learned Additional District Judge, Gujranwala vacated the temporary injunction granted to the petitioners by the trial Court on 27th of April, 1988.
2. This revision petition arises out of a suit for declaration filed by the petitioners in which they challenged the proceedings for acquisition of land measuring 9 Kanals 9 Marlas situate at Sialkot By-pass Road, Tehsil and District Gujranwala of which they claimed to be the owners. This land was acquired by the respondents for the benefit of Board of Intermediate and Secondary Education, Gujranwala (respondent No.5) for the construction of a Campus. The acquisition proceedings were challenged on various grounds mentioned in the plaint. The suit as well as the application for temporary injunction was opposed by the respondents inter alia, on the grounds that the Civil Court had no jurisdiction; that the land was required for a public purpose, namely, construction of a Campus and, is part of an area of about 50 Acres which was needed for the said purpose and that the acquisition was in accordance with law.
During the course of hearing of the application for temporary injunction a Local Commissioner was appointed by the trial Court who submitted his report on 14th of October, 1987, according to which the petitioners were in physical possession of the land whereon they had raised construction and were running a workshop. The trial Court on 27th of April, 1988 found that the petitioners had a prima facie case as no notice was given to them during the course of acquisition and that the notification under section 17 had not been issued within a period of one year of the notification under section 4 of the Land Acquisition Act. It was observed that the petitioners were earning their livelihood from the workshop being run on the disputed land and as such the balance of convenience also lay in their favour and by the refusal to grant temporary injunction they were bound to suffer an irreparable loss. This order was set aside on appeal by the learned Additional District Judge, Gujranwala, who was of the view that the notification under section 17(4) was validly issued and there was no requirement under the law of any notice being served upon the petitioners. He observed that the remedy of the petitioners lay m making a reference under section 18 of the Arbitration Act, 1940 and the suit was barred by section 52 of the Land Acquisition Act, especially when no notice was served upon the respondents by the petitioners before filing the suit.
He, therefore, proceeded to dismiss the application for temporary injunction and vacated the interim order issued by the trial Court.
3. From the record, it appears that at the request of respondent No.5, the Board of Intermediate and Secondary Education, Gujranwala respondent N.1 acquired the land measuring 28 Acres 5 Kanals and 19 Marlas for the construction of a Campus. The notification under section 4. Of the Land Acquisition Act was issued by the Collector, Gujranwala on 1-1-1986 which was published in the Punjab Gazette on 14-1-1986. The next notification which was issued by the Commissioner, Gujranwala Division, was published in the Gazette of 9-6-1987. This notification under section 17(4) of the Act directed that the provisions of sections 5 and 5-A shall not be applicable and the Land Acquisition Collector shall take action accordingly. It was followed by a declaration under section 6 of the Act made by the Collector on 29th of September, 1987. It appears that subsequently an award was also announced by the Land Acquisition Collector.
4. The learned counsel for the petitioners has challenged the acquisition on three grounds, first that as on the expiry of period of one year from the publication of notification under section 4 of the Act, the proceedings came to an end in the absence of any further notification within the stipulated period and the subsequent notification under section 17 was of no legal effect; second that no notice as required by law was issued to the petitioners at any stage of acquisition and thirdly, that the acquisition was mala ride as the request made by the Board of Intermediate and Secondary Education was for 25 Acres only, but instead the Collector acquired 20 Acres 5 Kanals and 19 Marlas. The learned Assistant Advocate-General who appeared on behalf of respondents Nos.l to 4 and Ch. Mushtaq Masood, Advocate appearing for the Board of Intermediate and Secondary Education, respondent No.5, have contended that the notification under section 17 can be issued at any time; that there is no requirement of service of any notice on the petitioners as the provisions of sections 5 and 5-A had been dispensed with and lastly that no mala fides were involved in the acquisition. It was also asserted by the respondents that the jurisdiction of the Civil Court in this behalf was barred.
5. For the purpose of decision of application for temporary injunction it is sufficient that a prima facie case is shown to exist and the petitioner is not required to prove his case. It- is well-settled that if serious quest' ns of law and facts arise for determination at trial, the petitioner has a prima facie case. Reference in this connection may be made to Muhammad Azeem and others v. The Municipal Committee, Montgomery PLD 1987 Lah. 218 and Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner Khairpur and another PLD 1970 SC 180.
Coming to the present case, the first contention of the learned counsel for the petitioners appears prima facie to be well founded. The notification under section 4 was issued, on 1-1-1986. It is provided by rule 7 of the Punjab Land Acquisition Rules, 1983 that the Commissioner shall issue a notification under section 5 of the Act not later than one year from the date of publication of notification under section 4. If, however, no notification is issued within the period specified, the matter has to be reported to the Board of Revenue which may extend the time for issuance of such notification for not more than 60 days. If the Board of Revenue declines to grant extension or no notification is issued even during the extended period, the acquisition proceedings are deemed to have come to an end. In the present case, admittedly, no notification under section 5 of the Act was issued within one year or for that matter even after 60 days of the expiry of the year, and as such proceedings by virtue of deeming clause came to an end. Consequently the question of issuance of any notification subsequently does not arise. Although section 17 of the Act provides that in case of urgency the Commissioner can direct that the provisions of section 5-A shall not apply and the declaration under section 6 can be made at any time, but it is highly doubtful if this power can be exercised at the time when no proceedings are pending and have come to an end by the efflux of time as provided by rule 7. I have refrained myself from giving any conclusive findings in this respect lest it may prejudice the case of any of the parties before the trial Court.
Suffice it to say that for the present purposes, the case of the petitioners needs further inquiry and probe. Similarly, it is not denied by the respondents that no notice was served on the petitioners in proceedings for acquisition as according to them such a notice was not required. The learned counsel for the petitioners has, however,. Relied upon Abdul Ghani and another v. Province of Baluchistan and 2 others PLD 1982 Quetta 63 and Haidar Ali and others v. Deputy Commissioner Karachi and others 1986 MLD 2650 in support of his contention that service of such a notice is essential. The learned counsel has also relied upon the observations made by the Supreme Court in the Co-operative Zenith Industries Ltd., D.G. Khan v. Mst. Qayyum and others 1984 SCMR 1196.
There is, prima facie, force in this contention of the learned counsel also.
The third contention of the learned counsel does not appear to be well founded. At the time when the request for acquisition was made, the Board of Education had indicated its desire to acquire the land which was described with reference to particular Khasra numbers. Through an area was mentioned as 25 Acres but if subsequently it was found that the area of Khasra number was 28 Acres 5 Kanals 19 Marlas, no valid exception can be taken in this behalf. In any case, the Court cannot be a judge as to how much area is required by the respondents for the purpose which they alone can decide.
6. As regards the jurisdiction of the Civil Court, I do not find much force in the contention of the learned counsel for the respondents. It is well-settled, if during the course of acquisition the provisions of the statute or the law are not strictly complied with, the same can be challenged before the Civil Court. The jurisdiction of the Civil Court is only to be ousted if it is shown that the Authorities have not flouted but have acted strictly in accordance with law. In face of the averments in the plaint, it cannot be held, at this stage, that the Civil Courts lack jurisdiction in the matter. Reliance of the learned counsel on sections 18 and 52 of the Land Acquisition Act is not apt.
In the present. Proceedings the petitioners have not sought enhancement of compensation but have challenged the acquisition itself. The grant of this relief is not within the competence of the Collector or the Authorities under the Land Acquisition Act.
From the above discussion it becomes apparent that serious questions of t law and facts arise in the case which cannot be decided in a cursory manner while disposing of the application for temporary injunction. The petitioners have as such a prima facie case. It is not denied that the petitioners are still in possession of the land where they are running business. According to the plan shown to me, the land is required for the purpose of construction of offices and admitted by, no construction had as yet started at the site. The complex in question is quite huge and according to the learned counsel its construction is likely to consume lot of time. The land in dispute is on one side of the Complex and will not hinder the respondents in completing the construction over the remaining 25 Acres of land. In these circumstances, it will be inequitable at the present stage to deprive the petitioners of the land over which they are carrying on their business especially when it is a case of compulsory acquisition.
For all these reasons, this revision petition succeeds, the impugned order of the Additional District Judge is set aside and that of the trial Court granting temporary injunction to the petitioners restored. Since the suit arises out of the acquisition proceedings it shall be decided within three months without fail, if necessary, by holding day-to-day proceedings. It may also be clarified that this order will not be a bar in the way of the petitioners to take proceedings for acquisition afresh, if they so desire.
No order as to costs.