MUHAMMAD AFZAL LONE, ACTING CHIEF JUSTICE,- The facts are that on the move of the petitioner Society land measuring 184 kanals 18 marlas, situate in village Hanjarwal and Niaz Beg Tehsil and district Lahore, after fulfilment of the requirements of the ^and Acquisition Act, 1894 was acquired for the purposes of Quranic Research Centre and a residential Housing Colony. In pursuance of Section 41 of the Land Acquisition Act, an agreement between the Provincial Govt and the Society was executed on 28th July, 1973. The award was made on 10.5.1975 and possession given to it on 27.9.1978 and 16.10.1978. Out of this land, an area measuring 35 kanals 16 marlas belonged to respondents No.3 to 9. Respondent No.3, moved an application dated 16.6.1988 (Annexure 'E') before the Chief Minister, Punjab that their land be resumed and returned back to them, on the plea that the Society had failed to carry out any of the terms of the agreement and in fact its real purpose was to grab land at a very cheap rate for the personal need of the members. This application was endorsed by the Chief Minister to the Commissioner, Lahore Division, Lahore, who after hearing both the sides by his order dated 20.12.1988 under challenge in this writ petition, directed dc notification of the land claimed by the petitioners.
2. The application (Annexure 'E') is the respondent's fourth attempt to get back their land, their first application dated 19.6.1975 for withdrawal from acquisition of the land was acceded and the land de notified by the Commissioner on 9.7.1975. The Society sought removal of the de-notification through judicial review and its writ petition No.2746/75 was accepted on 30.10.1977 and de notification was found to have been motivated by mala fide. The Supreme Court in CPSLA No.678 of 1977 and filed by the respondents confirmed, the findings of the High Court, that the Commissioner's order was mala fide and made for ulterior purposes. The respondent's second application was dismissed by the Commissioner on 24.9.1978. Their writ petition No.4716/78 challenging this dismissal also failed. The High Courts order in this behalf is dated 7.10.1978.
Thereafter, they unsuccessfully sued the Society that the acquisition proceedings be declared as illegal and without lawful authority. During the pendency of the litigation before the Civil Court, the respondents filed another application before the Commissioner again soliciting an under Section 48 of the Act for withdrawal from acquisition. According to the petitioner this application is still lying undisposed of.
3. Before the Commissioner, in arguing the application, which gave rise to the instant writ petition, the respondents' stand was that the society took over the possession over ten years ago but did not take any step to implement the agreement. Reliance was also placed on para 2(h) and (i) of the agreement and contended that only l/3rd of the area could be used for Quranic Research Centre and if similar area would be used for residential colony, the remaining, l/3rd land could well be de-notified as in excess of the Society's requirements. The latter controverted these contentions, hinted upon the political learnings of respondent No.3, dubbed the application as mala fide, and attributed its inability to proceed with construction, to the delay in approval of the plans by the Lahore Development Authority and the litigation commenced by the respondents, in which injunction was also issued. It was urged that the petitioner got prepared the development plan, design of the infra structure facilities and took other steps to implement the agreement.
4. The Commissioner maintained that the possession was taken over by the Society in the year 1978 the period for completion of the building was only 5 years but it never embarked upon actual construction work rather did not take any step in this behalf, even after the approval of the plan by the Lahore Development Authority. He reached the conclusion that the Society had no intention to implement the agreement. He upheld the respondent's allegation that the land in possession of Society was in excess of its requirements. The operative part of his order is reproduced below: "....... I have therefore no alternative but to accept the petition and in the exercise of powers available under Punjab Land Acquisition Act, 1894 to direct a de notification of 35 kanals and 16 Marlas of land belonging to the petitioner "
As already stated, before the Commissioner, the respondents referred to clauses 2-(h)&(i) of the agreement. Clause (h) empowers the Govt to resume and take back the land in the event of failure of the Society to comply with any of the conditions of the agreement. However, if the breach is capable of rectification, the resumption cannot be ordered without written notice, requiring the society to rectify the breach within a reasonable lime. Under clause (i) such portion of the land as may be found by the Govt in excess of the requirements of the Society is liable to be resumed. The agreement also embodies a clause to the effect that any dispute arising between the Govt and the Society, in respect of the subject matter L . Of the agreement would be referred to the Commissioner for dicision which would be conclusive and binding on both the parties. The impugned order conveys an impression that the Commissioner seemingly did not proceed to de- notify the land under any of these provision. Further these provisions could be invoked by the Govt who evidently never presented its case before the Commissioner much less to rely upon these provisions. The impugned order/indicates that the Commissioner purportedly exercised the powers vesting in him under the Land Acquisition Act. But under Section 48 of the Act, the power to withdraw from acquisition vests in the Govt and that too in respect of the land of which possession has not been taken. In the instant case the Commissioner himself recorded a positive finding that possession was taken over by the Society 10 years ago.
5. When this petition came up before me for limine hearing I noticed that the Commissioner's order de notifying the land in exercise of the power under the Act apparently did not conform to the requirements of law. By order dated 27.2.1989 he was asked to submit report that under which provision of the Land Acquisition Act he proceeded to renotify the land in dispute. In compliance with this direction, the Commissioner filed comments on the writ petition. In the comments he did not refer to any specific provision but tendered a vague and an evasive reply that he "was fully competent to dc-notify the land under Land Acquisition Act, 1984". About 4h months after the submission of the comments, the Commissioner vide his letter No. R-l/LA/2386/W dated 29.8.1989.
Sent an addendum to the para wise comments, reproduced below: "That notwithstanding the use of the term "de notification" respondent No. 1, in exercise of powers conferred upon him under the Land Acquisition Act read with the agreement dated 3.3.1973 proceeded to resume the land which is the subject matter of this petition, in view of the circumstances detailed in the order dated 20.12.1988 and directed notification of the same.
That this's addendum may kindly be read as an integral part of the para wise comments submitted in the Court on 9.4.88.
6. With this background of the case, MV. Salcem Sehgal, the learned counsel for the petitioner, quite justifiably contended that the respondent- Commissioner had no jurisdiction under the Land Acquisition Act to renotify the land as its possession had been delivered to the Society. He urged that after the execution of the agreement, relation between the Society and the Punjab Govt, was be regulated by that document; the Govt, neither raised any issue in terms of clauses 2-(h) and (i), nor referred the same for adjudication to the Commissioner, who otherwise too was not competent to resolve the controversy; for, under the agreement, any decision in the matter rested solely with the Govt, who never asked for any de notification. It was emphasised that there was no allegation in the application that the Society retained land in excess of its need. The argument that the Society had no intention to honour the agreement or failed to abide with the terms thereof was vehemently refuted. In this connection, the learned counsel placed before me, the particulars of the litigation to which the Society was subjected at the hands of the respondents; the injunction issued against the former; the delay occasioned by the Lahore Development Authority in sanctioning the plan and the steps taken to utilize the land. The learned counsel further submitted that there was no evidence that the land belonged to the respondents. He categorised the impugned order as mala fide and referred to the political affiliation of respondent No. 1 with the party in power in the Punjab Province.
7. Mr. S.M. Zafar, who represented respondents No.3 to 9, did not dispute the factum of delivery of possession. The correctness of the proposition than the Govt, alone can withdraw from the acquisition of land of which the possession is not taken, has not been questioned. He, however, endeavoured to save the impugned order on the basis of another arguments. He submitted that the respondents were merely informers to the Govt, through their application Annexure 'E' and brought to the notice of the Govt, the breach of the agreement committed by the society and that it also retained their land illegally. He argued that the respondents had the locus standi to move the application, because if the information was found correct and the land was ultimately resumed, they would be entitled to its restoration-under the Policy of the Govt. In the submission of Mr. S.M. Zafar, the information was laid before the Chief Executive of the Govt who referred the dispute to the Commissioner in terms of Para 4 of the agreement to arbitrate and decide the same. He canvassed that a general reference of the dispute without specifying the disputes is permissible and drew my attention to the following para appearing at Page 98 of the 9th Edition of S.D. Singh's Law of Arbitration: " It is not necessary to specify the dispute either in the arbitration agreement or in the reference to the arbitrator. Such specification can also be made in the proceedings before the arbitrator...."
He also referred to the addendum to the comments and stated that the land was actually resumed in terms of Para 4 of the agreement but in the order it was erroneously described as 'dc- notified'.
8. I am not persuaded by the submissions of Mr. S.M. Zafar. A dispute envisaged by the Arbitration Act arises when one thing is asserted by one party and denied by the other. No such dispute existed between the Punjab Govt and the Society who were parties to the agreement containing the Arbitration clause. It is to be noticed that on commission of un-rectifiable breach of the terms of agreement, under Para 4(h) the Govt, could resume the land. Further power of resumption was also available to the Govt in respect of such portion of the acquired land, as found in excess of the requirements of the Society. The Govt never exercised its powers either under clause (h) or (i). Had the land been resumed and such resumption was contested by the Society; a dispute could be said to have arisen between the parties but such a situation did not emerge. Even the Commissioner was conscious of it. It is evident from his comments. In the para-wise comments on para 4(b) of the writ petition, wherein reference was made to the Arbitration clause of the agreement, the Commissioner stated- "(b) In reply to this paragraph, it is submitted that it was not a dispute but breach of the condition of the agreement. As such there was no need to refer the matter to the Commissioner for its resolution...."
It is thus obvious, that on his own showing the Commissioner did not act as an arbitrator to adjudicate upon some disputes, as in his estimation, no such dispute had arisen. Further as an Arbitrator he had to make an award on a stamped paper and a notice in writing of making and signing thereof in terms of Section 14(1) of the Arbitration Act was to be given to the parties. This requirement was also not complied with. As regards the addendum it is merely an after thought. It is, therefore, difficult to hold that a reference was made to the Commissioner as Arbitrator, within the meaning of Para 4, ibid, and in that capacity he adjudicated upon the dispute and rendered an award. The reference from the Arbitration Act, relied upon by the learned Counsel has no application to the case in had.
9. As regards the respondents' role as informer and their application addressed to the Chief Minister the only endorsement made by him on it is: "O.K. Commissioner."
It is clear to me that it was never present to the mind of the Chief .Minister that a dispute had arisen between the Govt, and the . Society which required adjudication by the Arbitrator much less to make reference of the dispute to the Commissioner as arbitrator. It is also on the record that though out of the proceedings before the Commissioner, no one appeared or conducted the case on behalf of the Govt. Even if it is accepted that the respondents could move the Govt, as a party to the dispute, the Govt had to. Present its case before the Arbitrator. But here .The contest was wholly between the Society and the respondents and the Govt never appeared on Scene. There are strong indications on the record that the Commissioner did not act as arbitrator. From all these facts I am inclined to hold that the arbitration clause was never invoked by the Govt.
10. On behalf of the respondents, it was next argued that the Commissioner's order can be treated exercise of powers by the Government under Para 2(h) & (i) of the Agreement. Their learned counsel submitted that under Section 42 of the Land Acquisition Act, upon the publication of the agreement in the Official Gazette it formed part of the Act. He also attempted to show that under the Act, the Commissioner could act on behalf of the Govt.
11. This argument has no merit. Under the Scheme of the Land Acquisition Act, the role of the Commissioner is different from that of the Government, and these are two separate entities. The Commissioner can perform only those functions which arc specifically entrusted to him under the Statute. The learned counsel has failed to lay had on any provision of the Act to establish that for the purpose of Para 2(h) & (i) the Commissioner could play the role of the Government.
12. As stated earlier, in the impugned order, the Commissioner has rendered a finding that the Society committed breach of the terms of the agreement. In holding so, he docs not appear to have considered properly the effect of the litigation, the prohibitory order issued by the Civil Court and other relevant factors. He never adverted to the fact that the breach was rectifiable and in this respect no notice under Para 2(h) was served on the Society. The Commissioner's verdict that the land is in excess of needs of the Society seems to be merely a hypothetical finding, not founded on any concrete data. At least no such material has been referred to in the impugned order. Though the material on the record lends support, to the contentions advanced by the petitioner's learned counsel in this behalf, but as the impugned order suffers from jurisdictional defect, there is no need to dilate much on this issue. As regards the allegation .Of mala fide, the background of the case, the attempts made by the respondents in the past to get back the land in dispute, the manner in which the case was processed and then dealt with by respondent No. 1 arc indicative of the inference that restoration of the land to the respondents was not above board.
13. For all these reasons, this writ petition is accepted1 with costs and the impugned order declared to have been passed without lawful authority and of no legal effect.