' Muhammad Taqi petitioner purchased Plot No,8 measuring 2 Kanals out of Khasra No, 591, in auction held by the Settlement Department on 3rd April, 1982. Land of this Khasra number alongwith some other land in all measuring 515 Kanals situate in the revenue estate of Ajudhiapur, Tehsil and District Lahore, was evacuee property and as such vested in the Provincial Government.
This land was disposed of by Administrator, Residual Property, Lahore Division, Faridkot House, Lahore, through auction. The highest bid of the petitioner in respect of the aforesaid Plot No,8 was confirmed on 8th April, 1982, and a mutation conveying 40/1408 share in Khasra No,591 was attested in favour of the petitioner on 28-8-1982. This petition was filed by the petitioner on 16-1- 1988 seeking declaration to the effect that all the steps taken by the respondents be declared as having been taken without lawful authority and the respondents be restrained from taking any further steps and also from interfering in the enjoyment and peaceful possession of the petitioner over the plot in dispute. The steps which according to the petitioner had been taken were that the respondent L.DA. Had decided to acquire the land including land of Mauza Ajudhiapur for Jauhar Town Scheme but the land of the Central Government was excluded from notification dated 15-12- 1981 issued by the Collector and as such the evacuee property stood excluded from the operation of acquisition. It was asserted that despite exclusion of evacuee property notice dated 2-4-1986 (Annexure G) issued to the petitioner shows that the respondents are threatening the petitioner of acquisition of his plot at the rate of Rs,103.30 per Marla against the wishes of the petitioner and established principles of law.
2. The picture painted in this petition was not the whole truth as the petitioner failed to narrate full and complete facts of the acquisition proceedings. The facts omitted are that the L.DA. Had prepared a housing scheme in respect of vast tract of land including land of Khasra No,591 under section 13 of the Lahore Development Authority Act, 1975. This scheme was approved by the Provincial Government on 28-8-1980 and in order to execute the said scheme notification under section 4 of the Punjab Acquisition of Land (Housing) Act, 1973, was published in the official Gazette dated 6th November, 1980. In this notification land of Khasra No,591 and other land being evacuee property vesting in the Provincial Government was not included. The aforesaid evacuee land was acquired by publishing a notification in the Punjab Gazette dated 9th July, 1985 as the evacuee land meanwhile had been purchased by different persons in auctions held by the Administrator, Residual Property, Lahore. It will be recalled that the petitioner had purchased 2 Kanals out of Khasra No,591 in the auction held in the year 1982. The notification dated 9-7-1985 was followed by taking further proceedings in respect of the said land. The notification under section 6 of the Act was published in newspapers followed by a notice under section 6(2)(3) of the Act to the petitioner but the same could not be served personally on him as his address available in the Revenue Record was incomplete. Notice was published in two newspapers for information of interested land owners but despite that the petitioner did not join the proceedings before the Collector who ultimately made the Award on 15th September, 1985. The petitioner was then admittedly served with a notice dated 2-4-1986 (Annexure G). Despite this notice the petitioner took one year and nine months to file this Constitution petition on 16-1-1988. This completes the factual history of the controversy.
3. The only point urged by the learned counsel for the petitioner in support of this petition is that the acquisition proceedings stand vitiated as the Collector failed to give publicity of the substance of the notification in the concerned locality after publication of notice in the official Gazette. In support of this submission learned counsel relied on Khub Chand v. State of Rajasthan (AIR 1967 SC 1074), Narinderjit Singh v. State of U.P. (AIR 1973 SC 552) and Abdul Ghani v. Province of Balochistan (PLD 1982 Quetta 63).
4. Learned counsel for the respondents in reply submitted that the formalities as prescribed in Act VIII of 1973 were complied with, notification under section 4(1) of the aforesaid Act was published in the official Gazette; public notice as envisaged by law was publicised in the locality; these were also published in the local newspapers and even notice under section 6(2)(3) was given to the petitioner but the same could not be served personally on him as his address available in the Revenue Record was incomplete. He also submitted that the question whether or not the Collector had given publicity to the substance of the notification in the concerned locality is primarily a question of fact and the said fact having not been asserted in the petition itself this plea may not be allowed to be raised at the time of arguments. It was next contended that the petition suffers from inordinate delay and laches as the notification of acquisition was published in the official Gazette on 9-7-1985; the Award was made by the Collector on 15th September, 1985 and despite receipt on notice dated 2-4-1986, the petitioner waited for almost two years to -:.Challenge the acquisition proceedings while meanwhile L.DA. Had incurred huge expenses on developing the area, on demarcation of plots, construction of roads, laying water pipelines, sewerage and on electricity. It was pointed out that it will not be in the interest of vast majority of land owners to set at naught the acquisition proceedings at the behest of the petitioner, the only objector, who holds interest in 2 Kanals out of total acquired land measuring 515 Kanals.
5. I have considered the respective submissions of the learned counsel for the parties. The plea that the Collector failed to give public notice of the substance of the notification at the convenient places in the locality should have been taken in the petition so as to provide opportunity to the respondents to meet the said plea which is primarily a question of fact. The plea at best taken in ground (d) of para. 9 of the petition was "that the land of the petitioner cannot be taken away arbitrarily without following the mandatory provisions of law as to the notices and hearing of objections. The steps taken by the respondents are without lawful authority and jurisdiction". This ground obviously failed to raise specific plea as was argued during the arguments. Such a factual plea so raised cannot be allowed to be raised for the first time during arguments addressed after about 8 years of the notification dated 9-7-1985. Since a notice might have been removed from the file by now. Assuming that public notice of the substance of the notification was not given by the Collector still no prejudice can be claimed by the petitioner in the instant case as admittedly he was not in physical possession of the land in dispute. It will be recapitulated that in the Revenue Record mutation was entered conveying 40/1408 share to him. He was not delivered physical possession over the plot in dispute by the Settlement Department. It will be seen that in the judgments relied upon the non-publication of notice by the Collector was declared to be fatal to the acquisition proceedings as the purpose behind such a notice was that the interested persons should know that the land is being acquired so as to prefer objections under section 5(a) of the Land Acquisition Act. This position does not prevail under the Punjab Acquisition of Land (Housing)
Act, 1973, as no such provision has been made in the Act. The judgments relied upon are as such distinguishable.
6. Be that as it may, it will not be appropriate in the peculiar facts and circumstances of the case to allow raising of such a factual plea after such inordinate delay. The vast tract of land including 2 Kanals out of Khasra No,591 purchased by the petitioner was acquired in the year 1985. The possession of the said land alongwith other land was taken over by the respondent authorities on 7-10-1985 but the petitioner waited for almost two years to challenge the said acquisition.
Meanwhile much of the development work has been carried out at great expense and as such it will be inequitable to set at naught the acquisition proceedings at the behest of the petitioner. It is also pertinent to note that the petitioner purchased only 40/1408 share of Khasra No,591 measuring 2 Kanals. Physical possession of the said land was neither delivered nor could possibly be delivered to the petitioner as the Settlement Department had not demarcated the land by preparing any housing Scheme. The land so auctioned, in fact, was a share out of Khasra No,591. There was no plotting of the land so auctioned giving boundaries or measurement of each plot. In fact the plots auctioned were not provided with any road or any access. In fact, delivery of physical possession would have caused problems to the purchasers from the Settlement Department. The inclusion of this land in Jauhar Town Scheme has benefited these auction-purchasers as now they are entitled to have a developed plot with all modern facilities. The challenge to the acquisition proceedings by one owner having interest in 2 Kanals out of 515 Kanals as such could not be allowed to succeed on a technical ground as setting aside the acquisition proceedings would cause great prejudice to all other land owners who have accepted the acquisition and have received exempted plots in lieu of the land purchased/owned by them. The cause of justice will suffer if technical objection of the petitioner is allowed to prevail.
7. For all these reasons, no case for interference in exercise of extraordinary Constitutional jurisdiction is made out. The petition, therefore, fails and is dismissed. The parties are, however, left to bear their own costs. The petitioner, of course, will be entitled to receive exempted plot in accordance with the policy of the respondent-Authority.