1. MUHAMMAD AFZAL ZULLAH, CJ. ---These four appeals through leave of the Court relate to the same subject-matter. They are being disposed of together.
2. The facts, circumstances and points noted in the leave grant order are as follows:-- The respondents in all these appeals claimed to be occupancy tenants of Chak No.24 Janubi, Tehsil and District Sargodha. It is their case that in 1942 their lands were requisitioned under the Defence of India Act, 1939, and the Rules thereunder, for the construction of an aerodrome and they were paid yearly lease money as compensation upto 1946. It is further alleged by them that after 1946 the yearly lease money was not paid, under the pretext that the lands had been acquired and that though no notification of acquisition had been issued/gazetted the Appellants/acquiring authorities appointed an arbitrator who had worked out compensation payable to them. All these actions, it was claimed from the respondents' side, were illegal and without lawful authority.
3. The respondents filed separate suits seeking declaration that the acquisition assumed to have been made of the suit lands, arbitration proceedings and all other proceedings relatable to the acquisition were illegal and without lawful authority. By way of consequential, relief they also prayed for decree for recovery of lease money,, in accordance with their plea, vis-a-vis, the period prior to 1946. The amount claimed was at the rate of Rs.52 per killa for three years preceding the institution of the suits, till their decision. One out of 4 suits only, was decreed by the trial Court. The appeal Courts held in favour of the appellants/defendants and against the respondents/plaintiffs but the High Court on further appeals decreed all the suits.
4. Although it is a-very old case and relates back to 1946 yet in so far as this Court is concerned the petitions for leave to appeal were filed in 1989, leave to appeal was granted in February, 1990 and the hearing of the appeals took place in May, 1991.
5. One main question on which leave to appeal was granted was as follows:------- "It appears that the Pakistan Government was not able to locate and file the relevant notification under the Defence of India Act, 1939, or the Requisitioned Land (Continuance of Powers) Ordinance, XIII of 1946, acquiring the lands of the respondents in question for the purpose of the construction of the aerodrome in Sargodha. Since the aerodrome has been constructed and the only question that remains is as regards whether legal formalities were complied with when the acquisition proceedings were initiated, we grant leave to appeal in all these cases to look into the whole case.
6. The appeals shall be heard on the basis of the present record. The Deputy Attorney-General is directed to trace out the old record relating to the acquisition proceedings from the offices of the Collector, Sargodha and the Commissioner, Sargodha, and to place the same on record. He should also trace out of the relevant notifications that they were issued in connection with the acquisition proceedings and also place the same on the record. Both the parties shall be at liberty to file such further documents which they consider necessary for the full and final disposal of the cases."
7. The Deputy Attorney-General did place on record some documents, but in real and practical terms the said documents do not add anything substantial to the material already available on the files of these cases. One letter from the Deputy Commissioner to the Military Estate Officer dated 28-7- 1990 shows that the "land in question was temporarily acquired under the Defence of India Rules during the year 1942-43. The area under Pucca Runway, Taxi Track etc. Was permanently acquired under the Punjab Land Acquisition (Defence of India) Rules, 1943 and a Public Notice was issued under Rule 4 of the said Rules on 4-11-1946 (Photostat copy enclosed)". Another letter dated 12-8- 1990 sent by Assistant Commissioner, Sargodha to the Military Estate Officer, Sargodha repeats the same position with the addition that no notice was gazetted as required under section 5(1) of the Requisitioned Land (Continuance of Powers) Ordinance XIX of 1946. In yet another letter, the Assistant Commissioner/Land Acquisition Collector Sargodha, wrote to the M.E.O. Sargodha that the record maintained by the said office showed that no notice under Rule 4 of 1943 Rules nor any other notice was issued (for purpose of gazette) under section 5(1) of the Requisitioned Land (Continuance of Powers) Ordinance XIX of 1946 nor any other notice under section 75-A of Defence of India Rules, 1939 regarding acquisition of subject land was ever published in the official Gazette.
8. Hence it was "regretted that no printed copy of the aforesaid Notification published in the official Gazette" was available in the office of the Assistant Commissioner. Therefore, no such copy could be provided. And the latest document dated 24-4-1991 is a copy of a noting signed by the Assistant Commissioner returning requisition, for supply of documents with the remarks that "no such record is available in this office as already discussed verbally". The requisition dated 15-4-1991 from the Military Estate Officer had asked for "requisite record/file regarding the acquisition of the lands."
9. The above resume would show that the matter being half a century old and further the main event having happened before the partition and the ensuing upheavel and that too in relation to the files and records which were subject to movement and division, vis-a-vis, the Military assets and records between the two countries, it is understandable that all the records as would have been available within reasonable time would not be now available. And if at all in existence, it would not be easy to trace them in the circumstances of this case. Although there is no direct evidence to support a supposition; but after such long time some intentional suppression of the record cannot be easily excluded, if the stakes involved are kept in view. It is unfortunate that in some similar cases where the value of the property and the stakes have gone sky high, it has come to the notice of the Courts that attempts are some times made to meddle with the record in one way or the other. This remark should only remain general and no further inference would be drawn in this case or should be drawn in any other case in respect of any party involved herein.
10. All the judgments rendered in these cases---several separate minds have been applied to the facts and the law involved herein. There is undobutedly considerable confusion and that is due to the paucity of record.
11. Both the learned counsel in their written concise, statements submitted under the orders of the Court, have tried to remove the confusion.
12. Before dealing with the submissions made in this Court the approach of the learned lower Courts can safely be summarised as follows:-- The High Court in all the 4 cases and the trial Court in one case out of 4 cases held that the acquisition took place on 4-11-1946 by which date the relevant change of law had taken place, therefore, although earlier the acquisition could be made without gazetting the notice or notification representing the act of acquisition, on the said date i.e. 4-11-1946 it was not possible without gazetting the same in the official gazette. Reliance was placed on the amended law (Section 5(1) of the Requisitioned Land (Continuance of Powers) Ordinance, 1946). All other Courts when deciding the question of fact did not give any such .Finding in so far as the factual aspect date-wise is concerned. On the other hand the approach was somewhat different in an alternative mixed form. One learned trial Judge (CA-185) observed as follows:-- "The suit land was admittedly requisitioned by the defendants under the Defence of India Act, 1939.
13. As alleged by the defendants, it was later on permanently acquired in the year 1947. After the acquisition was necessary for the Government to issue a notice under rule 4 of the Punjab Land Acquisition (Defence of India) Rules, 1943 as amended by Notification No.1444 H.M.44/19-1-1924 published in the Punjab Gazette Part I dated the 17th March 1944, Home Department the 10th March, 1944. According to this rule, the Collector was to cause public notice to be given at convenient place on or near the land that has been taken stating that the land had been acquired permanently and that claims to compensation for all interest in such land might be made to him. If the acquisition was done after 1-10-1946, the notice was to be made through a Gazette Notification issued under section 5 of the Requisitioned Land (Continuance of Powers) Ordinance, 1946. In both the. Cases the aprocedure for giving compensation to the owners of the land acquired was to be followed a/s 19 of Defence of India Act, 1939. According to this section firstly the Collector was to assess the compensation and offer it to the persons being interested in the suit land and then in case of rejection of that offer, the arbitrator was to be appointed for awarding the compensation.
14. Against the said award, an appeal to the Honourable High Court was to be preferred. In the instant case the evidence on the file is the copy of the order of Collector dated 21-2-1947 P-2, and the copy of the award dated 30-5-1971, P-3. The perusal of these documents shows that after the acquisition of the land, the Collector assessed the compensation of the suit land at the rate of Rs.323-9-4 per acre vide order dated 21-2-1947 and the same was not accepted by the plaintiffs. It, therefore, means that the suit land had been acquired prior to 21-2-1947. P-3 shows that the suit land had been permanently acquired by the Collector, District Shahpur and a notice to that effect was issued, the copy of which was P-1 before the arbitrator. There is no evidence, one is not left, but to rely on the award by the arbitrator dated 30-5-1971, according to which a notice was certainly issued for the acquisition of the land and the same being an official act is presumed to have correctly been done. It is, therefore, proved that the notice was either issued under Rule 4 of the Punjab Land Acquisition (Defence of India) Rules, 1943 or was issued under section 5 of the Requisitioned Land (Continuance of Powers) Ordinance, 1946. Thus it is presumed that the suit land was rightly acquired. This act of acquisition having come into existence in the year 1946, it should have been challenged as being illegal and without jurisdiction within six years under Article 120 of the Limitation Act. To that extent the suit is time-barred.--------------------------------------- --------------------------------------------- The reference in the above quotation to the defendants' (present appellants) plea that the suit land was "permanently acquired in the year 1947" appears to be based on some misconception because as it appears from the subsequent narration of facts in the above quotation the year was 1946. It could also be a typing mistake and/or in any case a clerical error on the part of the Court and/or some Draftsman:-In the same case the learned District Judge on the same material which is by and large the same in all the four cases adopted another but similar approach, as follows:- "The land was requisitiond by the Government and it remained as requisitioned till 1946. In the meantime, the Defence of India Act carne into force in 1939 and rules thereunder were framed in 1943. An acquisition could and might be (and the contention of the learned counsel for the respondents [appellants herein] before me is that the one. Involved in this case had actually been) made under section 19 of the said Act. This averment seeks support from copy of Collector's order Exh.P-3 dated 21-2-1947. There being nothing to the contrary on record, the argument of the learned counsel for the appellants (respondents herein) is without basis that the acquisition was under the Land Acquisition Act. Section 16 and Section 19 of the Defence of India Act reproduced below should be kept in view, for proper appreciation of the matter in controversy: "16.---(1) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court.
(2) Where an order purports to have been made and signed by any authority in exercise of any power conferred by or under this Act, Court shall, within the meaning of the Indian Evidence.
15. Act1872, presume that such order was so made by that authority.
16. 19.---(1) Where by or under any rule made under this Act any action is taken of the nature described in subsection (2) of section 299 of the Government of India Act, 1935, there shall be paid compensation the amount of which shall be determined in the manner and in accordance with the principles, hereinafter set out, that is to say:--
(a) where the amount of compensation can be fixed by agreement, it shall be paid in accordance with such agreement.
(b) where no such agreement can be reached, the Central Government shall appoint an arbitrator, a person qualified under subsection (3) of section 200 of the above-mentioned Act for appointment as a Judge of a High Court.
(c) The Central Government may, in any particular case, nominate a person having expert knowledge as to the nature of the property acquired, to appoint the arbitrator, and where such nomination is made, the person to be compensated may also nominate an assessor for the said purpose.
(d) At the commencement of the proceedings before the arbitrator, the Central Government and the person to be compensated shall state what in their respective opinions is a fair amount of compensation.
(e) The arbitrator in making his award shall have regard to (i) the provisions of subsection (i) of section 23 of the Land Acquisition Act, 1894, so far as the same can be made applicable and (ii) whether the acquisition is of a permanent or temporary character.
(f) An appeal shall lie to the High Court against an award of an arbitrator.
17. "The remedy available to the plaintiff appellants and so the forum (i.e. Appeal to the High Court) in the matter so far as it related to the proceedings conducted by the arbitrator and the compensation awarded and the award given by him was thus provided in section 19 reproduced above. The learned Civil Judge consequently held under issues Nos.1 and 3 that the plaintiff should have gone in appeal against that order before the High Court under section 19 of the Defence of India Act. By virtue of rule 23 of the, rules framed under the said Act, however, no right of appeal was available in this case because the compensation was less than Rs.10,000. Moreover, the Act expired in 1946. The effect of the rules was however there. In this way the plaintiffs were left without any remedy in the matter to the said extent so far as Civil Court was concerned. The learned counsel for the appellants has nothing to add in this behalf."
18. Another learned District Judge (in Civil Appeal No.184) gave the following finding on the aforestated controversy.
19. "It is evident from notice D-3 that the land in dispute was acquired in 1946. According to the learned counsel for the plaintiff it was acquired on 4-11-1946 whereas learned counsel for the defendants states that it was acquired before that because the notice D-3 was required to be issued after the acquisition. I need not go into the exact date of the acquisition because the question of limitation can be decided even by the year of acquisition to which the parties have absolutely no dispute.
20. From the order dated 21-2-1947 of the Collector Ex.D-2 it appears that the plaintiff did not challenge the legality of the acquisition at that time but merely wanted the land to be given to him in exchange. He did not challenge the order of acquisition by way of a suit at that time ------------- ------------ One learned trial Court and the only one which gave finding in favour of the respondents on the difficult question of the time when the acquisition took place---whether before or after 4-11-1946 observed as follows:-- "It is a common ground between the parties that the disputed land was held by the plaintiff on occupancy tenancy and the same was requisitioned by the Central Government for purposes of defence on yearly lease amount. The counsel for the defendants has submitted that the occupancy rights of the plaintiff had ceased to exist in his favour after the disputed land had been acquired by the defendants. There is no direct evidence on the point of acquisition of the property and the fact of its acquisition by the defendants is not incorporated in the Revenue Record but from Ex.P-4, copy of the order passed by Collector Shahpur on 21-2-1947 it transpired that the land in dispute was compulsorily acquired by the Central Government under section 19 of Defence of India Act and since the plaintiff had refused to accept any compensation in cash and showed his desire to be given other land in lieu of this land the said Collector was constrained to refer the matter to the Commissioner Rawalpindi Division (as District Shahpur now District Sargodha was then having its Divisional headquarters at Pindi) for the appointment of an arbitrator by the Central Government to work out compensation of the suit land. It therefore appears that some steps, though not brought in the limelight in this case had been taken for the acquisition of the suit land.
21. The counsel for the defendants has by inviting in aid the provisions of section 114(B) of Evidence Act submitted that judicial and official acts are to be presumed to have been regularly performed and that on the basis of this presumption of law which had not been dislodged by the plaintiff it had got to be presumed that acquisition of the disputed land was completed after observing all the formalities of law and as such the plaintiff was left with no vested right in the suit land excepting the award of compensation.
22. On the other hand, the counsel for the plaintiff has submitted that the land in suit was acquired between 1946 and 1947 and for that reason acquisition proceedings of this land were governed by the provisions of the Requisitioned Land (Continuance of Powers) Ordinance (XIX of 1946) which remained in force from 1-10-1946 upto 24-3-1947 by converting the Ordinance XIX of 1946 into the Act of 1947 which remained in the field upto 30-3-1955. It has thus been submitted on behalf of the plaintiff that under section 5 of the Ordinance of 1946 or Act of 1947 no requisitioned land could be acquired without publishing in the official Gazette a notice to the effect that such Government has decided to acquire such land in pursuance of that section.
23. For the sake of convenience, the relevant portions of section 5 are reproduced below:-- Section 5:--Power to acquire requisitioned land.
(1) Subject to the provisions of subsection (3), the appropriate Government may, at any time, when any requisitioned land continues to be subject to requisition under section 3; acquire such land by publishing in the official Gazette notice to the effect that such Government has decided to acquire such land in pursuance of this section,
(2) When a notice as aforesaid is published in the official Gazette, the requisitioned land shall, on and from the beginning of the day on which the notice is so published, vest absolutely icy .The appropriate Government free from all encumbrances and the period of requisition of such land shall end.
24. It is, therefore, clear that the land in suit could be acquired on 21-2-1947 or sometime before it under the aforesaid Ordinance/Act and no other law relating to acquisition of lands including the Land Acquisition Act of 1894 was applicable to this land.
25. "The counsel for the plaintiff has submitted that the land in dispute was never acquired in accordance with the provisions of section 5 because no notice in this regard was ever published in the official Gazette as required by section 5 nor its publication has been proved by the defendants.
26. He has added that publication of notice was a question of fact which was got to be proved as a fact and no presumption in this regard could be drawn. He has further submitted that the very record of the defendants regarding acquisition of the suit land was expressly denying the publication of such a notice. In support of this argument, the learned counsel for the plaintiff has drawn my attention to the copy Ex.P-10 of the statement of Muhammad Nazir P.C.S. G.A.I, Sargodha which he made before the arbitrator on 30-5-1971 by closing his evidence regarding compensation of the suit property and the copy of the impugned award of compensation Ex.P-1 made by the arbitrator on 30-5-1971. The copy of the statement Ex.P-10 of Mr. Muhammad Nazir P.C.S. Indicates that he tendered in evidence a copy of notice issued by the District Collector Shahpur for the permanent acquisition of this land which bore signatures of the plaintiff as token of his having received that notice. He further stated that in pursuance of that notice, order was issued by the District Collector Shahpur on 21-2-1947 acquiring this land permanently. It has thus been pointed out by the counsel for the plaintiff that instead of publishing a notice in the official Gazette in connection with the acquisition of the suit land the District Collector Shahpur contented himself by only serving such notice on the person of the plaintiff which was not in conformity with the provisions of section 5. The copy of the award Ex.P-1 dated 30-5-1971 further shows that on the evidence of the defendants before the arbitrator to prove acquisition of the suit land notice was relied upon by the defendants which showed that its service was made by proclamation by beat of drum. In consequence of this notice the orders for permanent acquisition of the suit land were passed by the District Collector Shahpur on 21-2-1947.
27. Since copy of an order of acquisition dated 21-2-1947 has not been produced before this Court nor the copies of the relevant notices preceding the order of acquisition have been placed on the record, therefore, we have got to draw our conclusions from the material on the record which has been made available by the parties.
28. The statement of Muhammad Nazir P.C.S. Before the arbitrator copy Ex.P-10 indicates that a notice of acquisition was personally served on the plaintiff whereas the award of the arbitrator Ex.P-1 shows that such a notice was served by proclamation by beat of drum. Both these situations do not fulfil the conditions of service of such notice as provided by section 5 of the Requisitioned Land Ordinance, 1946. Subsection (2) of section 5 of the aforesaid Ordinance provides that acquisition of requisitioned land shall be complete only when notice of acquisition was published in the official Gazette and not otherwise."
29. The afore reproduced conflicting views, at the initial stage, of the learned trial Judges clearly show that on account of non-availability of the relevant record, much more was inferred from much less material. One learned Judge did come very close to a finding that the acquisition had been done before 1-10-1946, the target date when everybody knew that thereafter the procedures would become different. The others either relied on the argument of one learned counsel or the other. The learned counsel as well as the parties were themselves not clear about the dates obviously because original records were not available.
30. In this state of findings it will have to be seen: whether the only positive finding in favour of the respondents on the question of the date of acquisition being after 1-10-1946 in Civil Appeal No.183 is worth affirming.
31. The answer after careful consideration of the arguments submitted by the learned counsel including the written concise statements and perusal of the record has to be in the negative. A very important document a reference to which has been made ealier in the form of exhibit mark or otherwise is the notice dated 4-11-1946. It was issued by Mr. B. R.I, Collector/District Magistrate Shahpur and it is admitted that the same related to the said land. This document has not been given due attention either by the learned counsel or by the learned trial Judges. It was also produced in the case out of which Civil Appeal No.183 has arisen. It reads as follows:-- "Whereas it has been decided to permanently acquire 243 acres of land, as per schedule given below, under pacca runways, dispersal areas, taxi tracks, roads, hardstand bags, dispersal tracks and other items of equivalent specification on Bhagtanwala Airfield in the Shahpur District which were temporarily acquired under the Defence of India Rules in the year 1942-43. This public notice is now being given under Rule 4 of the rules made under the Punjab Land Acquisition (Defence of India) Rules, 1943, to all persons interested in the aforesaid land to the effect that the aforesaid land has been permanently acquired by the Central Government and that applications to compensation for all interest in such land may be made to the undersigned in writing personally or through an agent on 4th December, 1946 at 10-00 A.M. At Sargodha specifying the nature of their respective interest in the land and the amount and particulars of their claims to compensation for all such interest. Such application with the above statement should be made in writing and signed either by the person interested in the land or his duly authorised agent.
32. Sd/ C O L L E C T O R District Magistrate Shahpur District 4th November, 19464 (underlining is ours)
33. SC H E D U L E District Tehsil Shahpur SargodhaVillage Chak No, 23 and 24/SBArea in Acres 243 acres "A copy of this notice with an Urdu translation should be pasted in a conspicuous place in the village Chaupal and another copy with Urdu translation should be personally served by the Patwari on all the persons interested in the land. One copy of the notice should be pasted on the notice board outside my Court.
34. Sd/ B. R.I C O L L E C T O R "
35. This notice in its first line undoubtedly gives an impression as if the act of acquisition was done by this notice. The words "it has been decided" perhaps were taken to mean that the decision was being taken contemporaneously when the notice was being drafted. But in this interpretation it was ignored that the notice was not of the acquisition itself. The underlined part thereof shows that certain other notices were also issued one of them being for award of compensation. If correctly read this notice clearly meant that the act of acquisition itself had already been completed. In other words the decision regarding acquisition had already been taken and finalized. This supposition gets support from the language used in the middle part of the notice wherein it is stated "that the aforesaid land has been permanently acquired by the Central Government". The acquisition in this case was by the Central Government. This would further strengthen the view that the Collector was not issuing this notice when acquiring the land. It had already been acquired by the Central Government. Once it is determined that the land had in fact been acquired before 4-11- 1946, the next question; whether it was before 1st October 1946 or not becomes easier to answer.
36. Besides the presumptions in section 114 of the Evidence Act which are undoubtedly available to the appellants, as already noted, war having ended quite sometime earlier laws were being changed so as to return to normalcy. It is un--imaginable that the District Magistrate without any ill-will or motive against the owners whose land was already under the acquisition, would not have completed the remaining formalities of gazetting the notice if the acquisition had taken place after 1-10-1946. Therefore, the different pleas taken by the parties at different stages notwithstanding the fact remains that in this case the acquisition had taken place prior to 1-10-1940. That being so, its gazette was not necessary.
37. In so far as this last mentioned proposition of law is concerned the learned counsel for the respondents in his submission stated as follows:-- "The Defence of India Act, 1939 was not in force in November, 1946 on which date, the land is alleged to have been acquired. Even otherwise, the acquisition is not being challenged but the case of the plaintiffs is that the land has not been (legally) acquired. The fact of acquisition is being challenged, not the act of acquisition.-------------------------------------------- The presumption of section 114, Evidence Act has nothing to do with this case. Under section 114, it can only be presumed that notice was given to the interested persons but it cannot be presumed that the notice was published in the official Gazette which under the law was necessary to acquire the land. Similar is the reply to the argument under section 90 of the Evidence Act although section 90 has no application. But at the maximum both under section 90 and section 114, Evidence Act only this fact can be presumed that the notice was given to the land-owners. But the requirement of law was the publication of notice in the official Gazette."
38. We agree with the learned counsel that if the acquisition was made after 1-10-1946 and the notice of acquisition as distinguished from the notice of compensation dated 4-11-1946 was also given after 1-10-1946 then the acquisition/the notice of acquisition should have been gazetted. It is admitted from the respondents' side that the notice of acquisition was given to them. Besides this admission there is considerable cogent evidence including that of conduct their asking for the land in exchange instead of compensation, that they did receive the notice of acquisition. In our view, this notice of acquisition must have been issued prior to the notice of compensation issued on 4- 11-1946. If it was issued as admitted and found above, why a copy of the notice of compensation is available on record while the copy of the acquisition is not available. Despite best efforts and searches made by scores of officials who dealt with these cases for several decades no notice of acquisition said to have been received by the respondents before 4-11-1946 has either been produced by them, nor a copy thereof found in the records. The presumption that the disappearance of all copies of the notice of acquisition, is not without a lot of meaning in it as indicated in the earlier part of the judgment can be raised but it is not necessary to go that far in this case as there is more than enough material on the record to hold that the acquisition had in fact taken place before 1-10-1946, therefore, the notice/notification of acquisition was not, gazetted.
39. It is also pertinent to note that the number of days between 1-10-1946 and 4-11-1946 is only 35. It must have been some time before 4-11-1946, so as to achieve the next stage of notice about compensation on said date. To reach respondents' hands, the notice must have been issued with sufficient margin. The order for acquisition must have been passed still earlier so as to give margin for the notice to be issued formally. Hence we are certain the acquisition was of a date prior to 1- 10-1946.
40. Although this closes the discussion of the main vital question of fact in this case, yet we deem it necessary to remark that in the facts and circumstances of this case the issuance of notice and the decision about acquisition having been admittedly established, rather admitted, even if it would have been held by us that the acquisition took place between 1-10-1946 and 4-11-1946, much difference would not have been made in so far as the result, vis-a-vis, the effectiveness of the acquisition in law is concerned. We would have then in that eventuality permitted the said notice of acquisition actually made, completed and signed in 1946 to be gazetted now. If it would have been gazetted now the objection that it could not have been given retrospective effect would not have been valid in such a case. The question of retrospectively does not arise and the Gazette would have only completed a formality of consequential nature not going to the basic substantial act of acquisition which admittedly did take place in 1946.
41. In a recent judgment of this Court in Muhammad Siddique v. Market Committee, Tandlianwala (1983 SCMR 785) it was held that depending upon the circumstance of each case the mere fact that publication in the Gazette was delayed, could neither invalidate the notification nor make its operation retrospective as such vis-a-vis date of actually signing it. In the said case the notification concerned was prepared on 30th July, 1975 but was published in the Official Gazette on 20th November, 1975--- 4 months later. The signing of the notification on 30th of July 1975 was treated as having curative effect even it the publication in the Gazette was delayed by 4 months.
42. Although this rule may not be applicable to all situations where publication in the Gazette is necessary but in the facts and circumstances of this case we would have certainly applied the rule laid down, in the case of Muhammad Siddique. If a need would have arisen it would have advanced the cause of justice; namely, that factual acquisition of land in this case not having been denied and the same having been acted upon for nearly 50 years and that there is an air field in the land for such a long time, we would not have annulled all that on the ground of technicality namely that although the notice notification had been signed and issued to, all concerned, which had not been gazetted. In other words the purpose of the publication in the ordinary sense was practically served in this case almost contemporaneously when the acquisition took place. In fact it was more substantial publication in so far as the owners were concerned than if it would have been in the official Gazette. This is so, vis-a-vis, the practical side of the matter.
43. Be that as it may, as the need has not arisen for adopting this course of action, we refrain from proceeding any further in this behalf. The land having been acquired at the time when the publication in the official Gazette of the notice/notification of acquisition was not necessary, the suits filed by the respondents were liable to be dismissed on this ground alone. The questions of jurisdiction and limitation though raise very substantial and vital issues in this case yet need not to be examined as on merits the suits filed by the respondents had to - fail and were liable to be dismissed. These appeals, accordingly, are allowed and the judgments and decrees in favour of the respondents/plaintiffs are set aside. The parties shall bear their own costs.
44. Before closing this judgment it needs to be observed that during the course of the hearing of these appeals m this Court, on directions from the Court the parties were required to enter into meaningful discussion for settlement out of Court. It seems that various proposals were examined by them in a real meaningful discussion for settlement out of Court of which the Court was also kept informed; but either on wrong advice or wrong assessment of the case the matter was not settled amicably out of Court. We, therefore, proceeded to examine it on merits.