SARDAR MUHAMMAD IQBAL, J.----The Custodian of Evacuee property, Lahore, sold land measuring 2509 kanals and 7 marlas comprised in Khasra Nos. 1388 to 1622 situate in village Bikhewal, to Messrs Rizwan Co-operative Society Ltd., Lahore, in considera--petition of a sum of Rs. 6,27,087.50 on the 1 of May 1964. The Lahore Improvement Trust has filed the present petition under Article 98 of the Constitution praying that the sale be declared as illegal, void and ineffective.
2. The averments made in the writ petition were not clear, and, therefore, Mr. Mahmood Zaman who was engaged subsequently placed the facts before us as: The Lahore Improvement Trust by a resolution dated the 23rd of March 1954 (Annex. D) resolved that the University Campus, a Development Scheme, may be framed by the Trust under the Punjab Town Improvement Act, 1922. The notice under section 36 of the Act was published in the official Gazette dated the 10 of April, 23rd of April and the 30th of April 1954 (Annex. E). The Scheme comprised an urea of about 3100 acres situate on both sides of Lahore Branch of the Bari Doab Canal, and bounded by the line projecting on the North of Bikhewal village and passing along with the Rawan village on the south, meeting straight with the Ferozepur Road near Rehmanpura on the North-West, Ferozepur on the East, the limits of the Model Town on the South, the limits of the Trust local area on the West. Objections were invited from the owners and the occupiers of the land to be so included in the Scheme. The Trust considered the objections in a meeting held on the 14th of July 1955, and consequently forwarded the Scheme to the Provincial Government through the Commissioner, Lahore Division, Lahore, on the 7th of December 1955. All the enclosures (sent with the Scheme) except the one where the names of the objectors were given, contained nost th particulars and only the word "NIL" was written. It was stated by the Commissioner in paragraph 3 of his forwarding letter: "The object of the scheme is to provide site for the Punjab University for the construction of their buildings and institutes etc., and to convert the area iii excess of their requirements into residential sites to be made available for sale to the public and residential accommodation to the One Unit Staff." The Government was also asked to give permission for the acquisition of the land under section 50 of the Land Acquisition Act, 1894, read with clause (1) of section 28 of the Punjab Town Improvement Act, 1922. A further request was made for a direction under section 17 of 1894 Act to the Land Acquisition Collector for delivery of possession before the acquisition proceedings were finalised. The notice under section 40 of 1922 Act; was published once a week for two consecutive weeks in the newspapers. The Provincial Government sanctioned the Scheme through Notification No. 5174-C & T-1-54/56, dated the 24th of January 1957. It authorised the petitioner herein; to acquire, either under the 1894 Act as modified by the Schedule attached to 1922 Act, or by purchase lease; exchange or otherwise, the Art whole or any part of the laud or any interest in the land comprised in the Scheme. In paragraph 3 of the notification a condition was placed the acquisition of evacuee property shall take place after permission is obtained of the Pakistan Government under section 12 of the Pakistan (Administration of Evacuee Property.) Ordinance (XV of 1949). The Governor also, in the exercise of the powers conferred on him by section 17 of 1894 Act, read with section 59 of 1922 Act and clauses 5 and 6 of the Schedule attached therewith, directed "that the Collector may on the expiration of 15 days from the publication of the notice under subsection (1) of section 9 of the said Land Acquisition Act, take possession of all waste and arable lazed and any area certified to be unhealthy by Magistrate of the First Class comprised in the aforesaid Scheme save evacuee property of which possession shall only be taken after obtaining Pakistan Government's permission under section 12 of Ordinance XV of 1949."
3. The Chairman of the petitioner Trust had, meanwhile, written on the 14th of November 1956, a letter (Annex. L) to the Commissioner to obtain the approval of the Central Government to the acquisition of the evacuee property included in the Scheme. He also wrote on the 21st of January 1957 a letter (Annex. M) to the Secretary to Government of West Pakistan, Social Welfare and Local Government Department, Lahore, informing him that the area of the scheme had been reduced from 3100 acres to 2478.6 acres, and the area of the evacuee land worked out to 11924 kanals, 18 marlas and 55 Sq. Ft. (1231.91 acres). The Secretary to Government of West Pakistan Refugees and Rehabilitation Department wrote on the 2nd of April 1957 to the Secretary to Government of Pakistan, Ministry of Rehabilitation, Karachi, requesting for the approval to the proposed acquisition.
It was stated that the land was to be acquired "for implementing a Development Scheme known as University Campus Scheme. The same will be developed by tire University Authorities." The Central Government by their letter dated the 24th of April 1957 accorded approval to the acquisition by the Government of West Pakistan under the provisions of the Land Acquisition Act as modified by the Punjab Town Improvement Act of evacuee land for University Campus Scheme. The Collector, for the purpose of determining com--pensation, gave notices under sections 9 and 10 of the Act. The land was comprised in village Bikhewal, Dhana Singhwala, Davisabad and Ichhra. The petition in hand concerns only to the land in village Bikhewal. The Collector gave his award on the 20th of July 1957 and the possession,, it is contended, was taken of the land in dispute on the 25th of May 1957 and 26th of June 1958, and handed over to the Trust. The learned counsel contended that the property in dispute having been validly acquired by the Trust, the Custodian was divested of it and, therefore, could not pass any title in the said property to the respondent-Society by the sale deed dated the 1st of May 1964.
4. Sh. Ghias Muhammad, learned counsel for the respondent-Society contended (a) that the land was not validly acquired by the Trust or the University, and, therefore, the Custodian was not divested of the property till he sold it to the Society in 1964, (b) that the `No-objection Certificate' for sale of the land to the Society was issued on behalf of the Lahore Improvement Trust and that being so the petitioner is estopped In law to challenge the sale ; (c) that the Central Government had vide their letter No. F. 16(43)/58-P-II, dated the 13th of July 1959 decided to sell the land to the respondent-Society ; and (d) that the petition was filed after six years of the order passed by the Government in favour of the respondent-Society on the 13th of July 1959.
The respondent-Society was registered on the 27 of February 1953 under the Co-operative Societies Act, 1912. It applied to the Provincial Government for the acquisition of land to construct residential houses for its members. The Deputy Rehabilitation Commissioner (Lands), Lahore issued a certificate on the 18 of August 1954 that the Department had no objection to the acquisition of the evacuee land comprised in Khasra Nos. 1388 to 1628 measuring 2459 kanals and 13 marlas, and Khasra Nos. 1320, 1329, 1344, 1348, 1352, 1363, 1373, 1378 and 1385 measuring 138 kanals and 19 marlas.
There is no dispute in respect of land other than the land comprised in Khasra Nos. 1388 to 1622. The Rehabilitation Commissioner in his memorandum No. 7672-II-Reh-3-RF/55, dated the 9th of February 1955 addressed to the Secretary to the Government, Punjab, Agricultural Department, raised a number of questions relevant to the acquisition of the and for the respondent, and particularly asked for "a certificate from the Lahore Improvement Trust that it hag no objection to the propose acquisition." Mr. Abdul Hamid, the then Post-Master General, who was the President of the Society, was informed through a D. O. Letter No. 4172 dated the 1st of September 1955 by the Town Planner, Lahore Improvement Trust, that although the area required by the Sociery fell within the area of University Campus Scheme, the Trust had "no objection to the allotment of this land to Rizwan Co-operative Society Ltd." It was further pointed out by the Town Planner that the Urban Development Department had also included these Khasra numbers for their Satellite Town, and he suggested that the concurrence of that Department should also be obtained for the use of the land in dispute by the respondent-Society. On a reference by the Registrar, Co-opera--tive Societies, West Pakistan, the Member, Board of Revenue (Rehabilitation) Urban Rehabilitation Department, Lahore vide his Memorandum No. 7993-UDD-55/6865, dated the 27th of December 1955, intimated that "a part of the land falls in proposed Lahore Satellite Town Scheme and is being acquired for this purpose. However, the Urban Rehabilitation Department can agree to issue a no-objection certificate provided the Society undertakes to fulfil" certain conditions which he laid down in ~nr the memorandum aforesaid, in regard to the Society agreeing to the planning of their Scheme by the Provincial 'town Planner so as to be consistent with the neighbouring Satellite Town Scheme ere. In its letter No. 1104/R/56, dated the 6th of February 1956, the Society undertook to have the general lay-out of its roads planned by the Provincial Town Planner as also to develop its roads and drainage in accordance with the standard desired by the Urban Rehabilitation Department within a reasonable time. No-objection certificate was thereafter issued by the Urban Development Department on the 7th of April 1956 (Annex. R/8). It was on the completion of ---these formalities that the Provincial Government decided to recommend to the Central Government for obtaining their approval for the acquisition of the land comprised in Khasra Nos. 1388 to 1622 for the benefit of the Society. The decision of the Government is contained in Memorandum Nos. 3076-R&R-IR-58, dated the 10th of May 1958 (Annex. R/9) from the Secretary to Government of West Pakistan, Revenue and Rehabilitation Department, addressed to the Secretary to Government of West Pakistan, Social Welfare & Local Government Department, Lahore. The Government of Pakistan, Ministry of Rehabilitation, by their letter No. F. 16 (43)/58-P 11, dated the 16th of February 1959 conveyed their decision to the Secretary to Government of West Pakistan Revenue & Rehabilitation Department, Lahore "that the evacuee land in question can be sold to the Social Welfare and Local Government Department on the prevailing market value as assessed by the Custodian". The Society by a resolution of 12th of April 1959 decided to purchase the land on the prevailing marketth th value. Consequently, the Government of P4kistan by their letter No. F. 16(43)/58-P-I1, dated the 13th of July 1959 conveyed their permission to the sale of evacuee property measuring 2508 kanals and 7 marlas in village Bikhewal, Tehsil and District Lahore, on payment of its current market price. The letter was addressed to the Custodian of Evacuee Property, Lahore, relevant part of which was in the following terms :- ---------------..That in exercise of the powers conferred by section 25(2)(s) of the Pakistan (Administration of Evacuee Property) Act, 1957 (X11 of 1957) the Central Government are pleased to accord permission for the outright sale of the evacuee land measuring 2508 kanals and 7 marlas situated in village Bikhewal, Tehsil and District Lahore in favour of the Social Welfare & Local Government Department, Government of West Pakistan, for construction of houses, educational institution, play grounds, etc., by the Rizwan Co-operative Society Limited, Lahore, at the current market value to be determined by you on the condition that displaced persons, if any, settled thereon will be provided with alternative accommodation------------------------------------- -----------------..--- The Custodian then took steps to have the price of the land determined. The Deputy Commissioner, Lahore, in his Memo. NQ. LAC/M/24488, dated the 5th of November 1960 (Annex. R/17) by making reference to the different sale stated that the market value of the land was Rs. 250.00 per kanal.
The Custodian of Evacuee property by his memorandum dated the 30th of October 1962 (Annex.
R/18) addressed to the Deputy Commissioner, Lahore. Accorded approval to the proposed rate, viz., Rs. 250.00 per kanal. The Custodian asked the .Deputy Commissioner to recover and deposit with the Deputy Rehabilitation Commissioner, Lahore, the compensation due for the land involved in the case under intimation to him, together with a statement showing the prorata share of each evacuee owner whose land was being acquired. The Deputy Commissioner intimated the approval of the Custodian to the Society vide Memo. No. LAC/M/17097, dated the 8th of November 1962, and asked it to deposit the amount with the Deputy Rehabilitation Commissioner, Lahore. By means of Memo. No. DS&RC/St. 7951, dated the 24th of December 1963, the Deputy Settlement and Rehabilitation Commissioner, Lahore, informed the Custodian of Evacuee Property that the respondent-Society had made full payment of Rs. 6,27,087.50 towards the satisfaction of the compensation of the land in dispute, the last payment, in point of time, having been made on the 18th of December 1963. The Custodian of Evacuee Property then by his Memo. No. CEP/Sales/LHR(42)/ 2543, dated the 22nd of February 1964, asked the Deputy Commissioner, Lahore, to deliver the possession of the evacuee land involved in the case to the Rizwan Co- operative Society Ltd., Lahore. The sale deed was executed in 1964.
5. There are three parties to the dispute, viz., the Lahore Improvement Trust, the University of the Punjab, and the Rizwan Co-operative Society Limited, Lahore.
The Trust maintains that it framed a Development Scheme under the Act and has acquired the property in accordance with the provisions of the Town Improvement Act read with Land Acquisition Act as amended by the provisions contained in the Schedule attached to the Town Improvement Act, and the property vested in it since 1959 when it was handed over the possession, and the subsequent sale by the Custodian to the respondent-Society of the land which was covered by the Development Scheme was void ab initio.
Learned counsel for the University stated in express terms before us that the property was acquired by the Trust and it is through the Trust that the University will ask for the transfer of the property.
According to him, the Trust framed the Development Scheme and it is in pursuance of that Scheme that the property was acquired. One of the purposes of the Development scheme was also the New University Campus, and some property included in the said land was earmarked for the University.
The University, it was admitted by the learned counsel, surrendered the area in excess of its requirements in the year 1962 and the land in dispute falls within that area. But the University has, on reappraisal and reconsideration of its demands, asked the Trust to transfer the land which the University lit one time surrendered to it.
The ease of the respondent-Society is that it has become owner of the land by a valid transfer made in its favour by the Custodian after the Central Government had accorded permission, and that the sale was made in its favour at a time when tile property had not been acquired by the Trust. The Trust, according to tile Society, could acquire the property only for one of the purposes specified in the Towa Improvement Act of 1922, and since the Trust did not frame any scheme under the Act nor did it submit it to the Government for their sanction with the necessary documents as required under section 41, the sanction accorded by the Government under the said section was a nullity, and all the proceedings which were taken in pursuance thereof including the notification under section 42 and other proceedings under sections 9 and 17 of the Land Acquisition Act were null and void. It was also maintained that the property in dispute was an evacuee property, and since the Central Government accorded sanction for the acquisition of the property only in September 1957 the entire proceedings which were taken before that under sections 36 and 42 of the Town Improvement Act, 1922, and section 9 of the Land Acquisition Act were a nullity, being in violation of the provisions contained in section 12 of. Ordinance XV of 1949 (now section 16 of Act XII of 1957).
Mr. Ishaq Muhammad, learned counsel for the Custodian, joins issue with the Trust and the University in the position taken up by them and contends that the Custodian had rightly transferred the property to the Society.
6. The position which emerges is that the University does not claim any right or title in the property in dispute. The title, according to the University and the Trust, vests in the latter, The Society, on the other hand, considers that the entire proceedings taken by the Trust for the acquisition of the property were a nullity and no title had passed on to the Trust when the property was sold by a registered deed by the Custodian to the Society. The position boils down to this that if the property had vested in the Trust by the acquisition, the sale made in favour of the Society will be a nullity.
7. Learned counsel for the Trust contended that the Trust had framed a Development Scheme which made a provision for the New Campus of the University and aimed at converting the area in excess of their requirement into residential sites for the public. Under section 24, the Trust can for the purposes of any locality, prepare a Development Scheme. The Development Scheme may provide "for the lay-out of the locality is to be developed, the purposes for which particular portions of such locality are to be utilised the prescribed street alignment and the building line on each side of the streets proposed in such locality, the drainage of insanitary localities and such other details as may appear desirable." Under section 28, the scheme may inter alia provide for the acquisition under the Land Acquisition Act 1894 as modified by the Town Improvement Act, of any land or any interest in land necessary for or affected by the execution of the scheme, or adjoining any street, thoroughfare, open so it to be improved or formed under the scheme. Under section 33, the scheme under the Act can be framed also upon an official representation by the municipal Committee, and the committee may make such a representation on its own motion, or on a written complaint by the medical officer of health, or in respect o1 any area comprised in a Union within the jurisdiction of a municipality, on a written request signed by twenty-five or more inhabitants of such Union. If the Trust does not agree to the framing of a scheme, the Committee can move the Government who, if satisfied as to the propriety of the project, can force the Trust to frame the proposed scheme, because under subsection (5) of section 34 the Trust is bound to comply with every direction given by the Provincial Government. There is, however, no provision that on), of the statutory corporations can initiate a scheme, nor is there any provision that on their move the Government can ask the Trust to frame scheme for the purposes of that statutory corporation. It is exclusively within the domain of a Trust to conceive of a scheme and then to steer it through the various formalities as would be seen from clause (c) of subsection (2) of section 33 of the Act. It is only after a scheme is framed under the Act that the Trust acts under section 36 and prepares a notice stating (i) the fact that the scheme has been framed ; (ii) the boundaries of the locality comprised in the scheme ; and (iii) the place at which details of the scheme including a statement of the land proposed to be acquired and a general map of the locality comprised in the scheme may be inspected at reasonable hours. Thus, before a notice under section 36 can be gig en in the case of a development scheme, there should be as contemplated by subsection (3) of section 24 a "lay-out of the locality to be developed, the purposes for which particular portions of such locality are to be utilised, the prescribed street alignment and the building line on each side of the streets proposed in such locality, the drainage of insanitary localities and such other details as may appear desirable." The notice under section 36 is to be published weekly in the official Gazette for three consecutive weeks, and under subsection (3) the Chairman is to cause copies of all documents to be delivered to any applicant on payment of such fees as may be prescribed by rules. The learned counsel for the Trust frankly conceded that nothing had been done as was required under subsection (3) of section 24. The Lay-out of the locality had not been prepared, and it was also not shown that any particular portion of the locality was to be utilised for any purpose.
In the absence of a lay-out, the street alignment and the building lines could not be provided for and consequently nothing in this respect was done. Under section 38, the Trust is under an obligation to serve a notice, during the thirty days next following the first day on which the notice under section 36 is published in respect of any scheme, on the owners of the property which is proposed to be acquired (in executing the scheme). Section 38 also presupposes the existence of a scheme. The Trust, after hearing the objections or representa--tions received from any parson may by acting under section 't0 either abandon the scheme or "apply to the Provincial Government for sanction to the scheme with such modifications (if any) as the Trust may deem necessary."
Subsection (2) of section 40 is in the following terms: "(2) Every application submitted under subsection (1) shall be accompanied by-
(i) complete plans and details of the scheme and an estimate of the cost of executing it ;
(ii) a statement of the reasons for modification (if any) made in the scheme as originally framed ;
(iii) a statement of objections (if any) received under section 37 ;
(iv) the representation (if any) received under section 37 ;
(v) a list of the names of all persons (if any) who have objected under clause (b) of subsection (2) of section 38, to the proposed acquisition of their property and a statement of the reasons given for such objection ; and
(vi) a statement of the arrangements made or proposed by the trust for the re-housing of persons who are likely to be displaced by the execution of the scheme and for whose re-housing provision is required."
It is an established fact ; it is also admitted by the learned counsel for the Trust, anti we have also satisfied ourselves by the perusal of the record that documents (except a list giving the names of objections) referred to in subsection (2) of section 40 extracted above, were not sent to the Government, and that in fact it was only a blue print which had the boundary line marked on it which was submitted. It is also admitted that the sanction was given by the Government with reference to only the blue print which was so submitted, because no plans whatsoever had been prepared by the Trust and that no scheme with any lay-out had been framed. Under section 41, the Provincial Government may sanction, either with or without modification, or may refuse to sanction, or may return for reconsideration, any scheme submitted to it under section 40. This provision also points out to the fact that the scheme submitted under section 40 for the consideration of the Provincial Government is not a mere formality, but a reality and the Government is not to act mechanically but has to pass the order either accepting or refusing the scheme which it can do only if a scheme as required by law had been prepared and then submitted to it after complying with the provisions of section 36. In the circumstances, when no Development Scheme and been prepared in accordance with the provisions contained in section 24, it is not understandable as to how a notice under section 36 could be given, or objections invited; the notice and objections being relatable to the scheme itself. When there was no scheme what was it which was submitted to the Government under section 40 of the Act, and in the absence of the scheme what was that which was sanctioned by the Government and notified on the 24th of January 1957? Learned counsel for the Trust, relying on subsection (2) of section 42, contended that a notification is a "conclusive evidence that the scheme has been duly framed and sanctioned." To apply subsection
(2) ibid, it has to be established as a fact that the scheme had been made, and then if a question arises whether or not it had been duly framed the notification will operate as a conclusive evidence of that fact. However, if it is established as a fact that the scheme had not been framed at all then the question that it had been duly framed will not arise. In the present case, only a blue print delineating the boundaries had been submitted. It was by no means a scheme. In the, circumstances, when the scheme was not there, the provisions of subsection (2) of section 42 cannot be invoked to plead that the scheme had been "duly framed and sanctioned".
It was, however, argued that the fact that the provisions of subsection (2) of section 24 were not complied with and the plans with lay-out or street alignment were not prepared, should not make any difference, because tile Government, when it gave sanction, knew that the land was genuinely needed for the New Campus of the University and also far providing accommoda--petition to the public. The precise contention is that the Government was satisfied about the genuineness of the Development Scheme, and, therefore, sanctioned it.
There would have been some force in what was contended if the Trust had subsequently framed a Development Scheme providing for the Campus and also for the residential sites. We, therefore, asked the learned counsel appearing on behalf of the Trust if any Development Scheme had been prepared by the Trust at all even after the notification, and he candidly stated that it had not prepared any scheme. What happened was that the Trust handed over the area to the University which prepared its own plans and executed them without any reference or approval by the Trust. It was also admitted that the Trust had not taken any part in the development of that area nor had ft taken the responsibility of providing any amenities to the University. In fact, the Trust did not perform any function, whatsoever, in respect of that area. It did not work out any development charges and, therefore, raised no claim for the same from the University and it has no intention to make any such claim.
It was also admitted that the sanction of the Government as was notified on the 24th of January 1957 was for 2478.91 acres. The University surrendered the land in excess of 800 acres.
The land in excess should have been, in terms of the sanction, utilised for residential sites. It was not done. The Trust, instead framed two new schemes for a part of the land surrendered by the University. The schemes are known as New Muslim Town Scheme and New Garden Town Scheme (No scheme like those schemes has been prepared for the land in dispute). They were made strictly in accordance with the provisions of section 24 of the Act ; lay-out was prepared, the street and housing alignment etc., was done, and the Schemes with all the documents mentioned in subsection (2) of section 40 were sent to Government for sanction. The Government sanctioned the two Schemes under section 41 and they were duty notified on the 9th of August 1962 and the 6th of March 1967 under section 42. Now, if a Development Scheme for an area of 2478.91 acres providing for a site of New Campus of the University and residential sites had been sanctioned, why new Schemes, vie., New Garden Town Scheme and New Muslim Town Scheme were framed in respect of the same area ; and in the presence of a sanction already given on the 27th of January 1954 why a necessity was felt to obtain a fresh sanction? It is manifest that there was no scheme in existence before it was submitted to the Government for its sanction, nor was one prepared subsequently in terms of the sanction. The Government gave sanction to a plan which had only the boundary lines marked on it. This being not a scheme at all, the sanction given by the Government for this was not a sanction of a scheme and that being so any proceeding taken or don, in pursuance of such a sanction was invalid. In the absence of a valid scheme and its sanction by the Government the land cannot be acquired under the Town Improvement Act. It is now well established that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. It was so held in Nazir Ahmad v. King-Emperor (AIR 1936 P C 253).
Their Lordships of the Judicial Committee even went to the extent of observing that "other methods of performance are necessarily for bidden". Thus the entire proceedings taken by the Trust for the acquisition of the land in dispute are invalid.
8. The acquisition of the land by the Trust was challenged before us also on the ground that it was not for any purpose contemplated by the Act. The primary object of the Trust in the acquisition of the land in dispute was to take as much land as was indicated by the University for its new Campus. The Legislature had invested the Trust with the power to acquire land for the purposes which were to be achieved by the Act, I e., to execute one or the other scheme contemplated in the Act. If the Trust was acting bona fide there could be no objection to the framing of a Development Scheme, making a provision also for the construction of the New Campus of the University. In that case the Trust could meet the requirements of the University by asking them to submit their own plans and if the plans had not been violative of any provision of the Act or the rules made thereunder, they could have been given effect to in the scheme itself. The scheme in that case would have provided for the lay-out of locality to be developed the purposes for which particular parts of such locality were to be utilised. It would have provided for alignment and the building line on each side of the streets proposed in such locality. The University itself may have suggested the street ligament and the building lines in their plans, and the Trust could accept the suggestion and may have provided the same street alignments and the building lines as was proposed by the University. The difference would have been obvious that whereas now it is the University which itself has constructed its buildings and roads according to its own plans, in the case of the Development Scheme, the construction though in accordance- with desires of the University would h the been in the execution of the Development Scheme.
Under the Act, the Trust can make a scheme of its own, or it may make a scheme at the instance of the Municipal Committee or at tie instance of members of the Union Committee within the Municipal Committee, and if it refuses to do so the Government may ask the Trust to do so. There is no provision that any of the statutory bodies like the Punjab University or any other University or the WPIDC or the WAPDA or the State Bank of Pakistan can also ask the Trust to frame a scheme. The incorporation of the provisions in the Act for making the scheme at the instance of the Municipal Committee and the non-corporation of the provisions for making the schemes at the instance of other statutory bodies is, we think strong evidence to shove that the powers contained in the Improvement Act of 1922 were not intended to be exercised at the instance of such bodies. That it was not so intended is, we, think more evident from the circumstances that if such statutory bodies needed the land for their own benefit they could acquire it compulsorily by resorting to the provisions under the Land Acquisition Act. We are bound, therefore, to consider that the Legislature did not mean directly to give statutory bodies the right to ask the Trust to acquire land for the construction of their works. Can we then suppose that the Legislature intended indirectly to give this power by enabling such statutory bodies to approach the Trust to acquire land colourably in the name of a Development Scheme. The power of the Trust depends upon the Act. The Trust has no right to exercise its compulsory power to take the land and hand over to the University. The undeniable position is that the acquisition under the Town Improvement Act of 1922. Has many advantages for those who acquire the property and has corresponding disadvantages to the owners whose property is acquired. An owner, under subsection (2) of section 23 of the Land Acquisition Act is, besides compensation, entitled to the payment of 15 "/ on the market value of his property. He is paid this amount for being deprived of a right to deal with the property in such manner as he may consider it to be in his interest. It is provided in section 59 of 1922 Act that for the purpose of acquiring land under the Land Acquisition Act, 1894, for the Trust------------..(b) the said Act shall be subject to the further modifications indicated in the Schedule to this Act." In paragraph 10 of the Schedule, it is provided that subsection (2) of section 23 providing for acquisition "shall not apply to any land acquired under the Town Improvement Act, 1922." In Province of West Pakistan v. Salim Ullah (PLD 1966 SC 547), it was held that this provision being a "confiscatory measure" "to that extent the Punjab Town Improvement (Amendment) Act (II of 1953) was equally ultra vires of subsection (2) of section 299 of the Government of India Act" but was saved as an existing law. By sub-para. (3) of paragraph 10 of the Schedule another subsection (3) was added to section 23 of the Land Acquisition Act, under which, "for the purposes of clause first of subsection (1) of that section "the market-value of the land shall be the market-value according to the use to which the land was put at the date with reference to which the market-value is to be determined under that clause". In dealing with this provision it was observed in Province of West Pakistan v. Salim Ullah, that "introducing a new definition of market-value, has the effect of reducing it invariably by superseding the advantage of situation". It has the effect of completely ignoring potential value of the land acquired. In interpreting this clause in Salim Ullah v. Province of West Pakistan (PLD 1960 Lah. 450), (it was in appeal against this judgment that the above- mentioned judgment was delivered by their Lordships of the Supreme Court) it was observed by M.
R. Kadyani, C. J., that "under section 23, Land Acquisition Act, the Court, in determining the amount of compensation takes into consideration `the market value of the land at the date of publication of the notice under section 4', and that under clause 1('(3) of the Schedule attached to the Punjab Town Improvement Act, market-value assumes an artificial definition as `the market-value according to the use to which the land is put at the date with reference to which the market-value is to be determined. In other words, if the land is actually used for agriculture, but within twenty yards of it fashionable buildings are springing up, and in open market its potentiality as a building site has increased its value, then although for the purposes of the Land Acquisition Act the value of the land will be that which it will fetch in the market, for the purposes of the Punjab Town Improvement Act, it will be treated as ordinary agricultural land and naturally fetch less price. For the market value of land is not determined merely by the use to which it is put, nor even by the quality of the land alone, but also by the situation it enjoys, which may confer upon it an additional advantage over other land. Generally speaking, it may be possible to determine market value by a consideration of the prices that have been obtained in the past for similar land. `But sometimes it happens', said their Lordships of the Privy Council in Gajapatlraju v. Divisional Officer Vizagapatam (AIR 1939 P C 98), "that the land to be valued possesses some unusual, and it may be, unique features as regards its position or its potentialities. In such a case, the arbitrator, in determining its value, will have no market-value to guide him, and he will have to ascertain as best he may from the materials before him, what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities. For it has been established by numerous authorities that the land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, . . . . . But also by reference to the use to which it is reasonably capable of being put in the future. No authority indeed is required for this proposition; `and we may be forgiven for citing this authority' it is a self- evident one. No one can suppose in the case of land which is certain, or even likely, to be used in the immediate or reasonably near future for building purposes but which at the valuation date is waste land or is being used for agricultural purposes: that the owner, however willing a vendor, will be content to sell the land for its value as waste or agricultural land, as the case may be. It is plain that in ascertaining its value, the possibility of its being used for building purposes would have to be taken into account'."
It is a basic and fundamental right of an owner to hold the property and to deal with it in such manner as he may deem it to be in his interest. The owner doubtless suffers a great injury by a compulsory acquisition. The law of compulsory acquisition, therefore, calls for a strict interpretation and it is to be interpreted as far as the language of the Statute permits in favour of the owner rather than the State. If there is any doubt in the matter, the Statute has to be construed in favour o if the land owners.
The act gave the Trust the power to acquire the land only if it was required for executing one of the schemes under the Act. Their willingness to exercise the power at the request or the Government for the benefit of the University is ultra vires, the intent of the Act itself. It will be most dangerous to allow a corporate body like the Trust to use the provisions of the Act for private purposes. The Trust is authorised to take landi compulsorily for definite purposes. It cannot exercise its power for different purposes and if it does so the Courts can interfere. Manick Chand Mahata v. Corporation of Calcutta (AIR 1921 Cal. 159is a case on all fours. Manick Chand in that case received a notice from the Land Acquisition Collector that the premises in his occupation were to be acquired by the Government for the widening of a street. The Corporation of Calcutta sanctioned the proposal to acquire the property under the Land Acquisition Act at the cost of the Trust. The action was challenged by Manick Chand on the ground that the Corporation was acquiring the property not for any of its own purposes, and, that the special powers given to the Corporation for acquiring land for certain purposes named in the Act were being used to enable another body to acquire land through the medium of the Corporation, however estimable the purpose. On behalf of the Corporation an affidavit was submitted that the Board of Trustees had in contemplation a scheme for a proposed public street under section 63 of the Calcutta Improvement Act affecting that property and that they requested the Corporation to take steps to acquire those premises to keep down the expenses of acquiring the same later on and that accordingly the resolution of the Corporation was passed and it was arranged with the Board of Trustees that the Board should pay the cost of acquisition to the Corporation, which had been done. It was held that "the powers of acquisition of land under the Act are limited to cases in which the Corporation itself is going to widen a street or effect an improvement" and that the action taken by the Corporation to acquire the property for the purpose was invalid. It was further observed: "Again I do not think that the Legislature. When under the Calcutta Improvement Trust Act, it conferred powers of acquisition of land with certain well-defined safeguards ever intended that the Trust should abrogate those safeguards and acquire land in this manner through the medium of the Corporation for the purpose of street widening and street "improvement". Again, in Calcutta Improvement Trust v. Mst.
Meherunisa (AIR 1932 Cal. 178), it was held: "It is quite true that if an acquisition of certain premises is not justified by the provisions of the Act, the trustees a statutory body, cannot notify their intention to make the acquisition and under colour of proceedings taken under the Act enter into a transaction either for their benefit or to their prejudice". In Municipal Council of Sydney v. Campbell (1925 A C 338) their Lordships of the Judicial Committee restrained the Municipal Council of Sydney from acquiring the land on the ground that they were exercising their power of acquisition for a purpose different from those specified in the statute. The Municipal Council liad a statutory power in that case to acquire compulsorily the land required for the purpose of making or extending streets, also land required for carrying out improvements in or remodelling any portion of the city'.
In connection with the extension of a street, they resolved to acquire the respondents' land for the latter purpose. It was provided in the statute, applicable to that case, that with the approval of the Governor, the Council may cause a notice of the 'resumption' of any land to be published in the Government Gazette and in each of the daily papers : and that a plan showing the separate parcels may be deposited at the Town Hall, Sydney, and at the Department of Lands, Sydney, for public inspection : and that on the publication of the notice and description, the land to which it relates is to become vested in the council in fee simple, while the owner acquires a title to be compensated in the manner provided by the statute. The Municipal Council maintained that it had a right to resume the land as it was acquired for the purpose of remodelling and improving the city "within the sense of section 16 of the Sydney Corporation Amendment Act The Judicial Committee by observing that "no plan for improvement or remodelling was at any time decided uponand, indeed, no such plan was ever considered by or proposed to the Council" held : "Their Lordships think it not reasonably disputable that at the time of the passing of the resolution in June, the Council conceived it to be within its powers to resume lands not needed for the extension itself, but solely for the purpose of appropriating the betterments arising from the extension ; and that, as Street C. J. E. Found, the Council had not at that time applied itself to the consideration of any other object in connection with the resumption of the residual lands. It is not at all inconsistent with this that individual members of the counsel may have been actuated by some more or less definite expectation that the lands so 'resumed' would be dealt with not by re-sale to purchasers, but by leasing them and that some advantage, arising from that mode of dealing with them, would lie in the fact that the Council would thereby retain control over the use to which the resumed lands might be put." It was further held that the lands were not really required for any purpose of the Act and that "a body such as the Municipal Council of Sydney, authorized to take land compulsorily for specified purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the Courts will interfere". The Commissioners of Sewers in Lynch v.
Commissioners of Sewers of the City of London ((1885) 32 Ch. D 72), gave a notice to the owner for compulsory purchase of his four houses on the ground that they were needed for widening the street. The owner examined the plans and found that only a part "of Butler's Alley which lay at the back of the four houses in G. Mace was" "to be widened by a strip tapering from the width of twelve inches to a point". He, therefore, moved for an injunction on the ground that the purpose of widening the street for which the Commissioner could exercise the power to purchase compulsorily was only colourable and the real purpose was to alter the levels of the adjoining properties. It was observed by Cotton, L. J., in appeal that there was no power at all to take, against the will of the owners, houses which were required only for the purpose of raising or lowering the streets, and not for the purpose of otherwise altering them.
9. We have no doubt that the Trust was exercising its power not for statutory purpose of executing a scheme, but that the land should be handed over to the University for building the new Campus.
The Trust, it appears, was conscious of this position. They had been asked by the Government to acquire the land for the University. They could not legally do so, but to carry on the wishes of the Government which they thought, though wrongly, they could not ignore, they, by giving the transaction an ostensible name of Development Scheme, proceeded to acquire the land under the Act. The Trust did not act bona fide. They have, through this petition, only persevered in their intention merely under colour of acquiring the land for a Development scheme although the fact is that the scheme has never been prepared and it does not exist in point of fact even today. This is the device to benefit the University at the expense of the owners. The acquisition was not done within the powers granted by the Act.
10. It is also contended on behalf of the respondent-Society that even if the scheme had been validly sanctioned by the Government under section 41 then too the entire proceedings which took place before the sanction was accorded by the Central Government in April1957 for the acquisition of the property, were a nullity. Reliance was placed on section 12 of Ordinance XV of 1949 which reads as follows -- "12. Exemption from legal process.-(1) Property which has vested in, or of which possession has been taken by, the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of Court or any other authority, and no injunction or other order of whatever hind in respect of such property shall be granted or made by any Court or any other authority.
(2) Upon the commencement of this Ordinance, any such legal process as aforesaid subsisting immediately before such commencement shall cease to have effect and all evacuee property in custody of any Court, or Receiver, guardian or other officer or person appointed by it, shall, upon delivery of the same being called for by the Custodian, be delivered to the Custodian.
(3) Nothing contained in the foregoing subsections shall--
(a) prevent the Registering Officer from ordering registration of a deed of sale or exchange relating to evacuee immovable property, or a Civil Court from ordering specific performance of contract of sale or exchange of any such property where the sale or exchange or the contract of the same has been duly confirmed or approved by the Custodian and their required certificate has been granted by him ; or
(b) affect any power conferred on the Central Government by or under any law for the time being in force to requisition or acquire property, and it is hereby declared that if by or under such law or any other law for the time being in force a like power is conferred upon or delegated to a Provincial Government the Provincial Government may exercise the same in relation to evacuee property with and only with the previous approval of the Central Government and subject to such direction as the Central Government may at any time seem fit to give.
Clause (b) of this subsection shall be deemed to have taken effect on the day this Ordinance came into force."
It was not disputed by the learned counsel for the Trust and the University that without the previous approval of the Central Government the property could not be acquired. They, however, contended that the preparation of a scheme, the notices under sections 36 end 38, the sanction by the Government under section 41 and the notification under section 42 were all steps prior to the acquisition and that being so they were not hit by section 12 aforementioned. Preparation of a scheme under section 24 may be z step prior to the acquisition, but the moment the notice under section 36 is issued, the acquisition proceedings commence. To understand the scope of a notice under section 3611 and notification under section 42, it is necessary to refer to clauses 2(1) and (2) of the Schedule to the Punjab Town Improvement Act, 1922, the same being .- "2. Notification under section 4 and declaration under section 6 to be replaced by Notification under sections 36 and 42 of this Act.-(1) The first publication of a notice of any improvement scheme under section 36 of this act shall be substituted for and have the same effect as publication in the official Gazette and in the locality of a notification under subsection (1) of section 4 of the said Act, except where a declaration under section 4 of section 6 of the said Act has previously been made and is still in force.
(2) Subject to the provisions of clauses 10 and 11 of the Schedule, the issue of a notice under subsection (1) of section 32 in the case of land acquired under that subsection and in any other case the publication of a notification under section 42 shall be substituted for and have the same effect as a declaration by the Provincial Government under section 6 of the Said Act, unless a declaration under the last mentioned section had previously been made, and is still in force.
Thus, it will be abundantly clear that the preparation of a scheme under section 24 may be a step prior to the acquisition, but the same is not the case when a notice under section 36 is issued. The first publication of notice of an improvement Scheme under section 36 is deemed to be a publication of a notification under subsection (1) of section 4 of the Land Acquisition Act. A notification under section 4 of the Land Acquisition Act is the basis of the acquisition proceedings. It is a public announcement that the land is needed for acquisition. It further authorises certain persons an entry upon the land to make its survey and to carry out other preparatory work. In Romeswa r Singh v. Secretary of State for India (I L R 34 Cal. 470), it was held that "in order to give validity to the proceedings and finality to the award in which they terminate, the power of acquisition with all statutory limitations, and directions for its use, must be strictly pursued ; every essential pre-requisite to the jurisdiction called for by the Statute, must be strictly complied with. It is an elementary proposition that statutory provisions in respect of acquisition of lands must be strictly complied with, and the burden of proof of compliance rests upon those, who claim statutory powers or base their title upon the exercise of statutory provisions". Moreover, the compensation had to be determined according to the market value of the property as was on the date of such notice. Notice 'under section 4 is like a "Notice to treat" in the English Law. It is stated at page 63, Volume X, 3rd Edition by Lord Halsbury in his Laws of England that the effect of serving a notice to treat is to establish a relation analogous in some respects to that of a purchaser and vendor, a relation which binds the undertakers to take the land and binds the land-owner to give up the land subject to his being paid compensation. In Mercer v. Liverpool, St. Helens, and South Lancashire Rail Co. ((1903) 1 K B 652), it was held that the rights and obligations createdby the service of the notice are legal as distinct from equitable, and they bind all persons claiming under the owner, whether with notice of the service or not. In the same case it was held by House of Lords (vide Report in 1901 A C 461, at page 465) that a land-owner who has received a notice to treat in respect of his land held therewith, cannot deal with the land or with land so as to increase the burdens of the undertakers as regards the compensation to be made in respect of the land or any of it. In Associated Hotels of India Ltd.. Etc. v. Jodha Mal Kothalia (PLD 1954 FC 35), the precise question as to what is the effect of noticeunder section 36 of the Town Improvement Act came up for consideration and it was held that it constituted a material defect in title of the property and that the title of a vendor becomes imperfect. Cornelius, J. (as he then was) observed at page 71 of the Report:''------------..Once the notice was issued under the Punjab Town Improvement Act, declaring that a scheme had been framed and that the intention of the scheme was no other than the compulsory acquisition of titles in a large area of land including this suit property, a proceedings was set on foot which, in the eye of law, reduced the title-holders to the position of mere spectators, whilst it was decided between the authorities whether or not a proposal, presumably framed by the Improvement Trust after mature consideration, that their titles should be compulsorily acquired, would or would not be carried out. Certainly, the threat to those titles would become more acute as the proceedings matured to the stage at which acquisition was in fact directed by the competent authorities, but the liability to be compulsorily acquired commenced from the time when the notice under section 36 was issued, and that liability was nonetheless real on account of its being at that stage contingent upon the conclusion of certain further formalities. I say ---real' from the point of view of the title-holders, for as I have observed already, the title-holders did not in law possess the slightest locus standi, much less any right, to assert their titles against the expressed intention of the Improvement Trust that they should be taken away. It was, of course, still open to the Improvement Trust not to proceed with the scheme or even to exclude from the scheme properties belonging to particular persons, but this was dependent entirely upon the arbitrary will of the Trust itself, and the title-holders were in law, completely devoid of resource whereby to influence the Trust to act in this particular way . . . . . The initial notice under section 36 being clearly sine qua non, eventual acquisition, and therefore, the liability to acquisition might clearly be traced to it, and though the passage of time and the taking of further proceedings might have had the effect of rendering enforcement of the liability more imminent, the fact of the liability would not thereby become traceable to these later incidents, but would in my opinion, still derive its origin from the issue of the original notice. From that time onwards, the title-holder's right to retain his property against the world, suffered a material derogation. It became a matter of conjecture, a precarious prospect whether he would or would not be preserved in his proprietorship of the property, because circumstances had arisen which tended to render his title terminable, and were wholly outside any power of resistance vested in himself". It was further observed that by the issuance of a notice under section 36 "material imperfection had appeared and the title had become defective". It is, therefore, wrong to contend that a notice under section 36 is a proceeding prior to the acquisition proceedings. In Feroze Din v.
Government of West Pakistan (PLD 1961 Lab. 304), it was observed by S. Anwarul Haq, J., that "the machinery of the Land Acquisition Act is set into motion by publishing a notification under section 4 of the Act" and that the "notification is the foundation of the basis of the proceedings which have to follow" under the Land Acquisition Act. His Lordship in that case found that the notice under section 4 of the Land Acquisition Act was defective, and, therefore, held that "all the subsequent proceedings would also stand vitiated as there will be no valid foundation for them".
11. Under clause (b) of subsection (3) of section 12 the Provincial Government could exercise the power of acquisition "in relation to evacuee property with and only with the previous approval of the Central Government". Thus, the notification under section 4 which being "a foundation of the basis of the proceedings, which have to follow" under the Land Acquisition Act, could not be issued without the previous approval of the Central Government. The provision as to previous approval according to the tenor of clause (b) ibid which is couched in an emphatic language, viz ; "with and only with the previous approval of the Central Government" leaves no manner of doubt that the Provincial Government could not initiate proceedings for the acquisition before the approval was accorded by the Central Government.
The Central Government gave its approval for the acquisition of the evacuee property on the 18th of April 1957 but before that notice under section 36 had been issued on the 23rd of March 1954. The Scheme was sanctioned by the Provincial Government on the 24th of January 1957. It means, all the proceedings for acquisition except the proceedings for the determination of compensation had been completed before the approval of the Central Government was obtained. The notice under section 36, the sanction of the Government under section 41 and its publication in the official Gazette under section 42 are all prior to the approval which the Central Government gave for the acquisition of the evacuee property under subsection (3) of section 12 of Ordinance XV of 1949, and they, therefore, were invalid.
12. Learned counsel for the Trust, however, contended that the sanction given by the Central Government to the acquisition of the property ratified all the steps or the action taken in respect of the property. In support of his this contention, he relied on Firth v. Staines ((1897) 2 Q B 70), in which case the notice given by a committee was challenged as bad by reason of the vestry's approval not having been given till after its issue. Hawkins, J. Observed:" . . . . . What the vestry are, under the proviso, required to approve is the `acts' of the committee ; and until the committee have acted there is nothing for the vestry to approve. What I think the proviso means is that, if the committee are called upon to justify their acts, they will be unable to do so unless they shew an approval of the vestry given at some time or other". Wright, J. The other member of the Bench observed : "1'o constitute a valid ratification three conditions must be satisfied : first, the agent whose act is sought to be ratified must have purported to act for the principal ; secondly, at the time the act was done the agent must have had a competent principal ; and thirdly. At the time of the ratification the principal must be legally capable of doing the act himself. I think that all those conditions were satisfied here. Therefore, upon the approval of the vestry being given, the acts of the committee became valid as from the time when they were done". It is obvious that the dictum laid down in that case is not applicable to the present case. In that case the vestry were competent to appoint a committee for doing certain things. The committee so appointed were, therefore, competent to do those acts. The committee had to submit their acts to the vestry for approval which meant that the committee could act and there could be no objection to their so doing, but in order that their actions should be valid the approval was necessary. So the approval could be given by the vestry even afterwards, and on the approval the acts of the committee became valid. So far as the evacuee property is concerned the power for acquisition could not be exercised at all unless the previous approval had been obtained. It means that the steps necessary for acquisition could be done only after the approval had been given. If same acts are done for acquisition before the approval, the same shall be without lawful authority and they would be void ab initio. There is no provision for ratification of the void acts. The sanction given by the Central Government subsequent to those acts, in the absence of any provision for ratification of earlier actions, in our view, could not validate an action which was void. In this view of the matter, the entire proceedings of acquisition which were based on invalid proceedings under sections 36 and 42 are a nullity in the eye of law. It was held in Yousaf A.I v. Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104), that "where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded".
12. Under section 12 of Ordinance XV of 1949 no order of whatever kind in respect of an evacuee property could be made by any Court or any other authority. In view of the statutory bar so created and the protection so afforded to the evacuee property, it could not be requisitioned or even compulsorily acquired. It was for this reason that a special provision in this behalf was made in clause (b) of subsection (3) of section 12 that notwithstanding this provision the Central Government could requisition or acquire property and if the Provincial Government wanted to exercise the like power in relation to an evacuee property, it could do so "with and only with the previous approval of the Central Government". If we accept the contention of the learned counsel appearing on behalf of the Trust that the acquisition proceedings commence only after notifications under sections 4 and 6 of the Land Acquisition Act or a notice under section 36 and a notification under section 42 of the Town Improvement Act are issued (which position is not correct) then too the proceedings so taken will be hit by the provisions of subsection (1) of section
12. It was held in Associated Hotel's case that a notice under section 36 constitutes a material defect in the title of the owner and that a material imperfection is set into it as a result of the notice.
The notice under section 36 in respect of an evacuee property shall be hit by the provisions of subsection (1) of section 12 because, if valid, it would affect the evacuee property which is otherwise vested in the Custodian. It will also be bad, for it will fetter the power of the Custodi in to deal with the property. By virtue of subsection (2) of section 4 of the Land Acquisition Act, it becomes lawful for a person authorised by the Government or the Trust, as the case may be, in this behalf to enter upon and survey and take levels of any land in such locality ; to dig or bore into the subsoil ; to do all other acts necessary to ascertain whether the land is adopted for such purpose ; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon ; to mark such levels, boundaries and line by placing marks and cutting trenches : and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle In doing any of the acts authorised by section 4, if any body wilfully obstructs any person or wilfully fills up, destroys, damages or displaces any trench or mark made, he shall on conviction before a Magistrate be liable to imprisonment. If it be held that it is competent for the Government or the Trust to issue notice under section 4 or 36 in respect of an evacuee property the exercise of power by them will come into direct conflict with section 24 of the Ordinance which provides that "any person who wilfully causes damage or allows damage to be caused to any evacuee property or unlawfully converts it to his own use, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both".
It is obvious that whereas the Punjab Town Improvement, Act, authorises the causing of damage to the evacuee property for the purpose of carrying out the acts mentioned above, the Pakistan Administration of Evacuee Property Ordinance makes such acts as an offence. If we refer to section 46 of the Land Acquisition Act, it makes obstruction to the acts mentioned in its section 4(2) as an offence, whereas section 43 of Ordinance XV of 15`49 makes the Custodian immune from prosecution "for anything done or in good faith intended to be done in pursuance of this Ordinance or any rules or orders made thereunder or for any damage caused or likely to be caused by any such thing as aforesaid". It is also provided in section 20(2)(m) of the Ordinance that the Custodian can sell any evacuee property notwithstanding anything contained in any law or agreement to the contrary relating thereto with the previous approval of the Central Government. Thus, if a notification under section 36 of the Town Improvement Act can be issued in respect of an evacuee property it will have the effect of restraining the Custodian from carrying on any one of the above functions. To this extent, since the provisions of section 4 of the Land Acquisition Act and section 36 of the Town Improvement Act are quite inconsistent with the provisions of the Pakistan Administration of Evacuee Property Ordinance XV of 1949, the latter Ordinance shall have to prevail.
In Clyde Engineering Company Limited v. Cowburn (37 C W L R 466), it was observed: "----------- -..Things are inconsistent when they cannot stand together at the same time and one law is inconsistent with another law when the command or power or other provision in one law conflicts directly with the command or provision in the other". In section 4 of 1949 Ordinance, it is provided that the "provisions of this Ordinance and any rule or order made thereunder, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law". The provisions of section 4 of the land Acquisition Act and section 36 of the Town Improvement Act, if they are applied also in respect of an evacuee property, they being inconsistent with the provisions of the Evacuee Law, will have no effect. In this view of the matter also, notice issued under section 36 in respect of the evacuee property will be invalid. It will, at any rate, be hit by the provisions of subsection (1) of section 12.
13. Learned counsel for the Trust and the University next contended that even if the Trust had not acquired any title in the property, the sale in favour of the Society was invalid. They based their contention on section 25 of Act XII of 1957 which provided that the Custodian could transfer any immovable evacuee property with the previous approval of the Central Government, and that the Central Government had given approval to the Department of Social and Welfare to purchase property and not to the Rizwan Co-operative Society Limited, Lahore. It is clear from the correspondence to which we have already referred to that the West Pakistan Government had been dealing with the Central Government for the sale of the property to the Society, and the Ministry of Social Welfare had unmistakably stated that it was needed for Rizwan Society the document; on record leave no doubt, whatsoever, that the Central Government was aware of the fact that it was giving sanction for the sale of the property to the Society. The Custodian had, after obtaining sanction, concluded the sale deed in favour of the Society and we find the transaction unquestionable. Furthermore, the Government in its letter dated the 13th of July 1959 addressed to the Custodian had given approval for the sale of the land "in favour of the Social Welfare and Local Government Department, Government of West Pakistan, for construction of houses, education institutions, play grounds, etc., by the Rizwan Co-operative Society Limited, Lahore". This leaves no doubt that the Central Government knew that it was according approval for the sale of the land to the Society through the Social Welfare and Local Government Department.
14. For the foregoing reason5, we are of the opinion that the land in dispute has not vested in the Lahore Improvement Trust at any time and the sale made by the Custodian in favour of Rizwan Cooperative Society Limited, Lahore, was valid. The petition fails and is hereby dismissed with costs.