' SHAFIUR RAHMAN, J.-- Leave to appeal was granted to examine whether the land described by Khasra Nos.815 and 1113 of Village Bhekewal, Tehsil & District Lahore, and within the limits of Lahore Corporation which happened to be attached to waqf property and was itself waqf, could be acquired for the purposes of Town Improvement Act by notification appearing in the Punjab Gazette dated 1st January, 1971 notwithstanding the provisions of Standing Order No,28 to the effect that in no circumstances any religious place of worship, shrine, tomb, graveyard or any other property attached to such institution could be acquired compulsorily.
2. A notification appeared in the Punjab Gazette on Friday, January 1st, 1971 under sections 41, 56 and 57 of the Town Improvement Act 1922. By this notification the Lahore Improvement Trust was authorised inter alia, to acquire land under the Land Acquisition Act 1894 as modified by the Town Improvement Act.
3. The appellant filed a Civil Suit on 18-12-78 challenging the acquisition of Khasra Nos.815 and 1139 on the ground that these were Wakf properties and could not be acquired under the law. The suit was contested. The following issues were framed on the pleadings of the parties:-
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether this plaint does not disclose any cause of action? OPD
(3) Whether this Court has no jurisdiction to try the suit? OPD
(4) Whether the acquisition of the suit land is illegal, void, mala fide and inoperative? OPP
(5) Relief.
4. Except for issue No,4, the other issues were not pressed. The trial Court disposed of and accepted the claim of the appellant by deciding as follows:-- "It is established in evidence which is certified copy of the Revenue record that the suit (property) numbers were made gift in the name of Hazrat Imam Hussain Syedush Shohada through its Mutawalli Imdad Hussain who is father of the plaintiff. P.W.1 and P.W.2 have also admitted that the same entries were found in the Revenue record but the Numbers were acquired and award of Khasra No,815 was also announced on 3-9-1975. Since in evidence it is established and also admitted by the defendant L.D.A. In the written statement that property was waqf therefore waqf property always vests in God and it cannot be acquired for any purpose. Learned counsel for the L.D.A. Also conceded that there can be no acquisition of the waqf property."
5. The Additional District Judge rejected the appeal by recording the following concession:-- "Mr. Hamdani learned counsel for L.DA. Has frankly conceded that the plaintiffs evidence establishing the status of the property as waqf stands unrebutted and that he has no argument against the factual position. He has also conceded that the property being waqf it would not be acquired by the L.DA. In view of the established factual position and in view of the fact that the property being waqf cannot be acquired by the L.D.A. I hold that the findings of trial Court are very much correct and are hereby upheld and this appeal having no merits is hereby dismissed with costs."
6. The matter was taken to the High Court in Regular Second Appeal and the learned Judge accepting it reversed the finding, holding as hereunder:- "The Courts below decreed the suit of the respondent on the sole ground that a waqf property vests in God Almighty and it cannot be acquired for any other purpose. Section 3 of the Punjab Acquisition of Land (Housing) Act, 1973 referred to above, however, did not place any restriction in the way of the appellant to include shuch a property in a scheme and get it acquired. As said above, the above law cannot be termed un-Islamic either. The provisions of Sharia, as referred to above from the book of Mulla do not lay down any such restriction. Rather, the Muttwalli as well as the Court have been given specific powers to permit the alienation. Even Section 16 of the Punjab Wakf Property Ordinance, 1979, permits the Chief Administrator to sell a waqf property with the permission of the Government. In this view of the matter, I do not think that the two Courts below were justified to hold that waqf property cannot be acquired."
7. Ch. Muhammad Sadiq, Advocate, learned counsel for the Appellant, has contended that it is not disputed that the land in question was wakf property and that the Standing Order 28 exempted such properties from acquisition. An attempt was made also to demonstrate that these properties had not been expressly acquired on the strength of the notification.
8. So far as the factual aspect of the case is concerned, the notification specified that an area measuring approximately 1446 Acres was covered by the Scheme and its boundaries were on the North National Bank Staff Colony and Pakki Thathi, in the east Old Abadi of Ichhra and Wandat Colony, south-east Wandat Road, north-west Multan Road. The Khasra Numbers indicating the limits of the land covered by the Scheme were provided in the Schedule. On not finding these Khasra Numbers in the Schedule it is contended that they were not included in the Scheme. The correct study of the notification would reveal that the land in dispute is within the boundaries indicated and specified in the notification both broadly in the beginning of the notification and with particularity in the Schedule. The specific Khasra Numbers need not be there in view of such a description.
9. Standing Order No,28 was originally issued on 26th of June, 1909 and it was revised in October, 1950. It is a supplement to Chapter 14 of the Land Administration Manual which deals with acquisition of land for public purposes. It does mention in Para. 17 that in no circumstances, shall any religious place of worship, shrine, tomb, graveyard or any immovable property attached to any such institution and the boundaries of which are continuous with the site of the same be acquired compulsorily. Other property attached to such institution required consultation of the unofficial members of the Legislative Assembly of the community concerned before taking an action.
10. Punjab Town Improvement Act incorporated the Land Acquisition Act with certain modifications.
The effect of such adoption or incorporation was considered by this Court in Muhammad Ashraf and others v. Province of West Pakistan 1985 SCMR 707, at page 711. The effect of it was dealt with in the following words:-- "This incorporation of the Land Acquisition Act in the local Act is an instance of legislation by reference. The effect of the adoption of one statute by another by reference is the same as if the adopted statute had been written into the adopting statute. Such incorporation is meant to avoid the necessity of repeating such provisions in the subsequent Act dealing with the same matter. The effect of the incorporation by reference to the provisions of a former Act is as if the new Act has come into force containing all those provisions subject, of course, to such modifications and alterations, if any, as may be indicated in the adopting Act."
11. The instructions issued by the Financial Commissioner, or Board of Revenue, for administering the Land Acquisition Act are neither incorporated in express words nor can be said to be incorporated by necessary implications. Therefore, the controlling features appearing in the Standing Order No,28 shall not apply to the acquisition under the Town Improvement Act, under which acquisition was taking place. There is no provision at all in the Land Acquisition Act, as amended and incorporated in the Punjab Town Improvement Act, which may stand in the way of acquisition of these properties.
12. The reference by the High Court to Punjab Acquisition of Land (Housing) Act, 1973 and by the appellant to Lahore Development Authority Act, 1975 and the rules framed thereunder, are of no consequence and are not relevant either because the statutes are of a later date. The principles of Mohammadan Law are not attracted to acquisition of property under Town Improvement Act. If the appellant wanted to contest the vires of the provisions of this law as being repugnant to injunctions of Islam, his remedy lay under chapter 3-A of the Constitution and in the Federal Shariat Court.
13. The claim to the compensation as is being advanced for one of the Khasra Numbers (Khasra No,1113), cannot be taken cognizance of in a civil suit because a special procedure is prescribed for disputing the amount of compensation and for claiming its payment. Recourse must be had to that.
' For reasons different from those recorded by the High Court, the appeal is found to be without merit, the acquisition to the proper and competent and in accordance with law. This appeal is, therefore, dismissed with no order as to costs.