JUDGMENT CH. KHURSH1D AHMAD, J.- The facts as admitted by both the parties that the disputed land belonged to Harcharan Singh, evacuee; the land w situated outside the Municipal Limits of Faisalabad City, then Lyallpur. T District Collector Faisalabad confiscated the grant from the date of abandonm along with all the improvements. He recommended to the Government for the of the land to premier Cloth Mills Ltd by Private Treaty.
2. Memorandum No.5765-C dated 23.10.52 was issued by A Secretary to the Government of Punjab, Resettlement and Colonies Department to the commissioner Multan Division informing him that Government of Punjab was pleased to sanction the sale by private treaty of crown land meas 119 acres 1 Kanal and 3 marlas (disputed land ) to M/S Premier Cloth Mulls.
3. The Directors of Premier Cloth Mills Ltd furnished undertakings requested and the possession was delivered to the company through Mian Bakhsh, Managing Director on 4.11.1952 and entry to that effect was incorporate in the roznamcha of Patwari of the estate on the said date.
4. The confiscation of land by the Collector was found fall actious the character of land as evacue was not allowed to be changed and directions issued that proper acquisition proceedings be initiated on the lines of instructions as contained in letter No.5042-Reh-ll-58.2699 dated 27.1.1953.
5. The Governor of the Punjab accordingly issued Notification No. 53/Development dated 16.7.1953, which was published in the official gazet Punjab on 24.7.1953. The notification purported to be one under Sub-Section (1) of Section 4 of Land Acquisition Act-I of 1894 and also under Sub-Section (1) of Section 17 of the said Act I of 1894 reads:- No. 3492-53/Development The 16th July, 1953.
Whereas it appears to the Governor of Punjab, that the land described in the schedule given below and measuring approximately 739 kanals and 16 marlas likely to be required for a public purpose, namely erection of Premier Textile Mill and ancillary buildings, godowns and quarters, the Governor of the Punjab is pleased to issued the Notification as required by Sub Section 1 of Section 4 of the Land Acquisition Act 1 of 1894, for the information of all whom it may concern.
Now, therefore, the Governor of the Punjab is pleased to authorise Sh. Mian Muhammad, Managing Director, Premier Cloth Mills Ltd. Lyallpur, alongwith his servants and workmen, to enter upon the aforesaid land and survey and land in that locality and do all other acts contemplated by Sub Section 2 of Section 4 of the said Act.
And whereas, in the opinion of the Governor of the Punjab, the Provisions of Sub Section 1 of Section 17 of the Land Acquisition Act 1 of the 1894 are applicable to the aforesaid land.
Now, therefore, the Governor of the Punjab is also pleased in exercise of the powers under Sub Section 4 of the said Section to direct that the provisions of Section 5-A of the Said Act shall not apply in the case of this land:- SCHEDULE District_______ Tehsil________ Locality Area layallnur Lvallnur Chak No.RB-220K.739 M.16.
A.M.K. Leghari Commissioner Development & Secretary to Government Punjab Industries.
6. The Rehabilitation Commissioner/Secretary to the Government of e Punjab refugees and Rehabilitation Department, Lahore requested for the proval of Acquisition vide letter No. 2-ll- Rehabilitation-53/763 dated 17.1.1954 and the approval, in exercise of powers conferred under Section 12(43)(b) of the Pakistan (Administration of Evacuee Properties) Ordinance, 1949 (XV of 1949) was conveyed vide letter dated 1.2.1954 which reads as under:- No. F.16(99)/53-R.II Dated 1.2.1954.
The Rehabilitation Commissioner, Secretary to Govt. Punjab Refugees & Rehabilitation Department, Lahore.
Subject: Acquisition of land for the Premier Cloth Mills, Lyallpur.
Sir, With reference to your letter No. 2-II-Reh-53/763 dated the 7th Jan,' 1954 I am directed to say that in exercise of the powers conferred by Section 12(43) (b) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (XV of 1949) the Central Government have been pleased to accord their approval to the acquisition by the Punjab Government under the provision of Land Acquisition Act 1894 of evacuee land measuring 107 acres 1 kanal and 5 marlas from Square No. 87, 93, 94 and 95 of Chak No. 220 RB situated in Lyallpur District for M/S Premier Cloth Mills Lyallpur on the condition that fair compensation in accordance with the principles laid down in the said Act will be assessed in consultation with the Custodian of Evacuee Property Punjab, Lahore, under paid to that officer for credit to the evacuee owner's account and that alternative land will be provided to the refugees settled on that land.
Yours Obedient Servant, Sd/- Deputy Secretary(P)"
A copy was enforced to the Custodian of Evacuee Property Punjab, Lahore with the request that the amount of compensation assessed and realised for credit to the evacuee owner's accounts may kindly be intimated to this Ministry in due course.
7. After the issuance of notification and approval by the Central Government/Custodian Evacuee Property under the Pakistan (Administration of evacuee Properties) Ordinance, 1949, the Land Acquisition Collector called upon he Mills to deposit Rs. 4,41,116 annas 13 as estimated cost of the land including administrative charges. The Company deposited Rs. 25000/- on 7.1.56, Rs. 85,000/- on 9.4.58 and Rs. 40000/- on 17.4.58 thus making a total of Rs. 50 ,000/-
8. The decision to charge rent was taken by the Rehabilitation commissioner and was conveyed vide letter dated 26.7.1954. The same reads as:- "In some cases the possession of the evacuee agricultural lands was given to the industrialists in advance of its actual acquisition. The Rehabilitation commissioner (Lands) Punjab, is therefore, pleased to order that in all such cases rent should continue to be charged until the land is actually acquired. The annual rent will be at 4 percent of the estimated price of the land in each case.
You are further requested to please asses and collect rents for the evacuee agricultural lands of which the possession has been given to the industrialists in advance of the actual acquisition accordingly."
9. In compliance of the orders of the Rehabilitation Commissioner, .C. Faisalabad worked out the price of all land being acquired for all the trialists including petitioners. The petitioners were issued demand notice for entitled of Rs. 1,23,999/- Per Annum for the Years 1953 and 1954. The ment was impugned vide Writ Petition No. 313-R-59. The same was dated on 29.4.66 and the petitioner company field an appeal from the entitled passed by the High Court. The appeal was accepted by the Hon'ble eme Court Vide judgment dated 23.12.1974 and the dispute regarding ated price and payment of rent was settled:- " We have seen that in proper acquisition proceedings the Land Acquisition Collector had estimated value of the land at Rs.4,41,116.15. The whole of. Which has now been deposited by company, this estimate has not been challenged by the Custodian and the Rehabilitation department. It would appear therefore that the estimated price of Rs. 31 lacks fixed by the learned Deputy Rehabilitation Commissioner, Lyallpur was not realistic and highly exaggerated. In the circumstances the Rehabilitation Department was not entitled to assess the rent of the land of 4% of this fancical figure. The High Court was, therefore, obviously right in suggestion that the rent should be fixed at 6% at the value of the land as determined by the Land Acquisition Collector, but unfortunately it failed to make an operational order in these terms. We now direct that the rent of the land for each of the two years in question shall be charged at the rate of 6% of the value estimated by the Land Acquisition Collector namely Rs.4,41,116/15. As the rent has remained unpaid for almost 20 years, the appellant company shall pay interest on the amount so determined from the date it fell due to the date of payment. We further direct that the payment shall be made by the appellant within one month from today.
The appeal is accepted in these terms but the parties are left to bear their on costs."
10. The Government of the Punjab was represented before the Supreme Court by Assistant Advocate General Punjab, instructed by Mr. Ijaz Ali Advocate on record. The copy of judgment of the Supreme Court was annexed by the respondents to the comments filed in this petition.
11. The estimated cost of the land acquired for the petitioner company was paid as also the rent in the sum of Rs. 1,37,634/- in the Treasury and the same was acknowledged by Government of Punjab, Board of Revenue (Settlement Wing) vide letter No.l227-AQN-Plots/SW/76 dated 16.11.76.
Deputy. Commissioner Faisalabad was also directed to effect necessary mutation of the land in favour of the Premier Cloth Mills Ltd in the revenue record as they had paid the rent and interest thereon as per judgment of the Hon'ble Supreme Court. The company insisted for incorporation of its name in the column of owners and in frustration filed Writ Petition No.70 of 1978 which was disposed of on 25.7.78 with the direction that the Revenue Authority concerned shall hear and to proceed in accordance with law. The company approached Board of Revenue who issued Memo No.888-AQN-Plots/SW/79 dated 9.1.1980 directing them to contact Deputy Commissioner to whom the orders, passed by Member Board of Revenue (S&R) for mutating the entries in the revenue record had earlier been issued.
12. The District Authorities took up the matter and the Colony Assistant Faisalabad passed order of resumption of land oh 17.5.1981. The operative paragraphs are reproduced:- "5. The request of the petitioner has been considered. The lan in question is state owned property and the Settlement an Rehabilitation Authorities have no concern, whatsoever with th disposal of this land. The Successor-in-interest of defunct M/ Premier Cloth Mills Ltd have sub It about 40 acres of land fo Agricultural purposes and some land it is learnt is bein disposed of for residential purposes which is a breach o conditions of allotment and is liable to resumption. More one heavy arrears of rent are outstanding against the defunct M' and the said Mills has also not paid the price of the land allottee to it.
6. In the circumstances explained above it is expedient t take action according to law. I, hereby, therefore, resume th land mentioned above from the possession of the defunct Mi Ltc. Forthwith."
The order is impugned as various ground as mentioned in the body of the petition.
13. It appears that subsequent to the passing of the impugned order of resumption the squatters settled-in like vultures and the Collector failed to impose the authority of law in not taking steps u/s 32 and 34 of the Colonization of the Government Lands (Punjab) Act, 1912 if be considered the despited land to be the Government land. Many applications were made for impleading as party to the present writ petition as respondents and were accepted and presently there are more than 296 private respondents in the writ petition.
14. The written para were comments and reports were filed by respondent No. 1 and 2 twice. Written statement was filed by the Government Pleader in office on 21.3.1993. Respondent No.3 did not i.e any written statement as his interests in land were similar to those of the petitioners. He supported the petitioners in all their contentions at the bar.
15. The learned counsel for the petitioners while narrating all the facts mentioned above, further submitted that the impugned order was without lawful authority and. The premises on which the impugned order was passed were nonexistent; that the acquisition proceedings once commencing would not come to an end unless the notification be withdrawn by the Government who issued the same u/s 17(4) of the Land Acquisition Act. It was denied that any property was sublet for agricultural purpose and rather submitted that encroachments on land were made and the company had to take necessary action for evicting the encroachers. Regarding the plea of the petitioners before the High Court in Ex. A.2-B-1985 it was submitted that the property of petitioner No. 1 and 2 was put to auction and petitioner No. 1 made the objection petition as in the revenue record the petitioners were not shown as owners. In any case they failed and the auction was confirmed by the High Court. Appeal filed by Hudaybia Textile Mills Ltd was also dismissed by the Supreme Court. The judgment in the said appeal was reported as "Hudaybia Textile Mills Ltd. Vs. Allied Bank of Pakistan and another" (PLD 198T S.C.512).
16. It was further submitted on behalf of the petitioners that there was absolutely no material on the i.e nor the same was mentioned in the order itself that the petitioner had sold out the land for residential purposes. The ground that heavy arrears of rent were outstanding had no validity as no amount was mentioned nor any demand for payment was stated to have been made and similarly the ground that the price of land was not paid by the petitioners had absolutely no basis.
17. It was also contended by the petitioners that the petitioners having entered into possession, which was delivered to them in due course, there can be no question of dropling of the acquisition proceeding. Reliance was placed on "Ahbab Cooperative Society vs. Commissioner" (PLD 1978 LHR 273). It was further submitted that the payment of price was mentioned in the order of the Supreme Court dated 23.12.1974 and placing reliance on "Faiz Ali Vs. Rafiq Jan" (PLD 1956 Lahore 94) submitted that it the price was paid, sale deed may not be necessary and the date of payment was the date of purchase. Referring to the judgments of the Board of Revenue reported as "Rehmatullah Vs. Muhammad Ismail (PLD 1958 West Pakistan (Revenue) 77) and also 'Mazhar Hussain Vs. Noor Ahmad) (PLD 1958 West Pakistan (Revenue) 17) it was submitted that similar was the view of the Revenue Officers in the matter to whom the Collector and Colony Assistant were subordinate. Reference was also made to "Ham Din Vs. Muhammad Din" (PLD 1964 S.C. 842) and "Zafamllah Khan Vs. Abdul Rehman's" (1985 MLD 1574).
18. Plea of locus poenitentiae was also raised by the learned counsel for the petitioners and he submitted that the land once having been granted for establishment of industry and the Mills having been established, the Government could never thereafter withdraw the concession.
Reliance was placed on "The State Vs. Muhammad Ismail & another (1980 SCMR 268), "Province of West Pakistan Vs. Muhammad Yasin" (PLD 1964 SC 438/503) "Alnoor Textile Ltd. Vs. Collector of Customs" (1990 ALD 356), Muhammad Ibrahim etc Vs. M. C. Chiniot (1990 ALD 655), "Mumtaz Hussain Vs. District Magistrate" (1990 P.Cr.L.J. 1784) and Muhammad Ayub Vs. Custodian of Evacuee Property" (PLD 1963 Karachi 551).
19. It was also contended that the Colony Assistant had not been delegated the powers of Collector under Section 24 of the Colonization of Government Lands (Punjab) Act, 1912 and even if the land be assumed to be the State land, its possession was delivered under the orders of the Governor an
20. It was contended by Mr. Muhammad Nawaz Kasure Advocate and Mr. Talib Hussain Awan Advocate, learned counsel for respondents No. 1 and 2 that property admeasuring 119 acres 1 kanal 3 marlas situated in Chak No.220 RB was evacuee agricultural land. The Same was sanctioned to be sold to Premier Cloth Mills through private treaty subject to the condition that the firm would pay the price of land as fixed by the Government. However, before that sale could be finalized, the resumption of property in dispute by Collector Faisalabad was declared void and it was ordered to be treated as evacuee property. Thereafter the decision was taken to acquire the land in dispute, for Premier Cloth Mills. Prior thereto possession of the land in dispute had been delivered to the company. The acquisition proceedings, though initiated, could not go belong notification u/s 4 and 17 of the Land Acquisition Act No. 1 of 1894 till 3.1.58 when the land in dispute assumed the status of State land by virtue of exchange, with the approval of the Federal Government along with other evacuee land situated in the vicinity of Faisalabad City. On the happening of these events the acquisition proceedings came to an end as the interest of the Government in property could not be acquired under Act I of 1894; the proceedings became unlawful and the provisions of Section 17(4) of the Land Acquisition Act 1894 could not be pressed into service. In was also contended that the acquisition proceedings never achieved their logical end and that proprietary rights in the land were never transferred to the petitioner company because acquisition proceedings were never concluded and that the impugned order was subject to appeal and revision which was not availed of by the petitioners and the writ petition was filed directly which was not maintainable; the petitioners having taken plea before the High Court in Execution Application No. 2-B-1985 that only the lease hold rights I the property were auctioned and not the title which vested in the Government. The other objections taken were the alleged breach of terms and conditions in selling out property; creation of collateral mortgage in favour of the banks. It was further contended that after the notification of exchange dated 3.1.1958, the acquisition proceedings came to an end because the interest of the Government could not be acquired under Land Acquisition Act, 1894. It was also pleased that as the possession of land was delivered before the issuance of notification u/s 4 of the said Act, the same could not be protected u/s 17(4) of the Act. The respondents admitted the issuance of directions vide memo No.l227/QN-Plots/SW76 dated 16.11.1976 but contended that the same could not be given effect to in view of general exchange after 3.1.1958 and the settlement authorities had become ineffective.
21. The learned counsel for the respondent asserted all the pleas raised in the written statement and submitted that the possession was delivered before notification u/s 4(1) of the Land Acquisition Act 1894 and therefore Section 48 of the said Act was not applicable and that the property had lost its evacuee character. Reliance was place on "Muhammad Yaqoob Vs. Municipal Corporation" (PLD 1971LHR 664).
22. It was further contended that till the proprietary rights were granted the petitioners were to remain as tenants under the Government and reliance was, placed on Section 15 of the Colonization of Government Lands (Punjab) Act, 1912. There was breach of terms and conditions of tenancy on the part of the petitioner and therefore the Collector had the jurisdiction to order the resumption.
23. The learned Advocate General Punjab Mian Abdus Sattar Najam appeared on court call on the last date of hearing. He supported the arguments as danced by Mr. Muhammad Nawaz Kasuri Advocate and Malik Talik Hussain wan Advocate who, according to him, were engaged by respondent No. 1 and 2 has he would adopt the arguments addressed by them.
24. I have considered the arguments of the learned counsel for the parties dressed at the bar and material placed before me. So far as the objection of attainability of the petition is concerned, the cases where the plea was that of absence and excess of jurisdiction or where the impugned order suffers from egality on the facer of the record, a writ may be granted even though the right of tabulatory appeal had not been availed and in the present case where the matter as reopened after almost 29 years, the speedy remedy available to the petitioners as in the form of writ petition and that was, in my view, the only efficacious remedy vailable. Reliance is placed on "Nagina Silk Mills Ltd Vs. I.T.O, and another" PLD.1936 SC 322), "Premier Cloth Mills Vs. Sales Tax Officer" (1972 SCMR 257) d "Salahuddin and two others Vs. Frontier Sugar Mills. & Distillery Ltd. Takht has and 10 others"
(PLD 1975 SC 244) and in view of the above it is held that the 't petition was maintainable.
25. The main contention of respondents No. 1 and 2 was that the land had lost its character as avacuee and had vested in the Provincial Government in view of general exchange notification dated 3.1.1958 and on the basis thereof it was argued that the proceedings in the present case were rightly taken by the Colony Assistant Faisalabad who had the jurisdiction in the matter.
26. Even if it be assumed, that the property had lost its character and had vested in the Provincial Government even then the Colony Assistant Faisalabad on 17.5.81 had no powers u/s 24 and 30 of the Colonization of Government Land (Punjab) Act, 1912 to pass the impugned order of resumption.
With the introduction of Sub Division system in Punjab all the powers u/s 10(3), 20(1), 24,25,26,32,33, (1)(2) and (3) of the above Act were delegated to the Assistant Commissioners in Rawalpindi, Lahore Sargodha, Multan and Bahawalpur Division and District Faisalabad at that time was within Sargodha Division, vide Board of Revenue West Pakistan Notification No.140/70/ 282-CV dated 23.1.1990 and, as such, the Colony Assistant was denuded of its powers of Collector. He was only to act as Staff Officer of the Deputy Commissioner and was not supposed to exercise the powers of Collect. The Deputy Commissioner Faisalabad requested the Board of Revenue vide his Memo No.452/HVC dated 26.5.81 for delegation of powers of Collector under the Colonization of Government Lands (Punjab) Act, 1912 to Colony Assistant Faisalabad but the Board of Revenue, vide its Memo No. 3640-83/2346-CV, dated 28.8.1983 directed that Assistant Commissioners Faisalabad District can exercise these powers in their respective jurisdiction. The Board of Revenue further directed that Colony Assistant cannot be allowed to exercise powers of Collector. It was only on 14.1.1987 that Colony Assistant in the Punjab were vested with powers of Collector under the Colony Act and the impugned order having been passed by the Colony Assistant assuming himself to be the Collector under the Colony act was without lawful authority and without jurisdiction and the impugned order suffering from lack of jurisdiction in the authority passing the order and was a nullity.
27. The arguments of the respondents the fallacious on yet another ground. The Hon'ble Supreme Court in judgment dated 23.12.74, in the matter between the parties held that the acquisition proceedings had already been completed. The observation of the Hon'ble Supreme Court has been reproduced supra and there is nothing left with me to hold otherwise but respectfully agree with their lordships. At least this Court shall not go behind the judgment of the Supreme Court and I do accept the argument of the learned counsel for the respondents and the learned Advocate General that the matter at that particular time before the Supreme Court was regarding payment of rent. The rent was payable only in connection with the acquisition proceedings and as such, the findings by the Hon'ble Supreme Court that the proceedings had acquired finality was absolutely in proper context, binding on the parties appearing before the Supreme Court and the Provincial Government was not only a party but was represented by one of its Law Officers.
28. The order of the Colony Assistant suffers from yet another infirmity. The impugned order was passed on the grounds as mentioned in para 5 of the said order. The respondents have not been able to prove that the petitioners had disposed of the area for residential purposes. This was based on an information as is clear from the words "it is learnt" and thus unless proved no action could be taken in any case on the said premises and could not be taken as breach of the condition of allotment. At least the Colony Assistant was aware of the allotment of the land in favour of the petitioner but which order of allotment contravened he has not been able to specify and there being no other order except the notification under Section 4(1) and u/s 17(1) and direction under Sub Section 4 of Section 17 of the Land Acquisition Act, 1897, no resumption could be passed by the Colony Assistant as the Land Acquisition Act was a special enactment and mechanism of resumption/dropling of the proceedings was mentioned in the said Act. Yet another ground was presumed to have existed for resumption by Colony Assistant. The respondents have failed to show the arrears allegedly outstanding against the petitioners even in this court. No demand for payment of arrears was ever made nor any such notice has been placed on the i.e. Simple presumptions not supported by material on record go a long way to prove the mala fide of the Colony Assistant passing the resumption order and mala fides cannot be allowed to sustain.
29. As referred supra notification under Section 4(1) and u/s 17(1) of Land Acquisition Act was issued in the name of the Governor, the terms and conditions/agreement settled has not been alleged to have been breached and that to cannot be agitated after a period of more than 29 years after the delivery of possession to the petitioners. The provisions of Section 48 of the said Act are effective and in view of the orders of their lordships in the Supreme Court passed in Civil Appeal No.6 of 1970, referred supra, I have the constitutional responsibility to give effect to the findings of their lordships under Article 190 of the Constitution of the Islamic Republic of Pakistan, 1973. Reliance is also placed on "Ahbab Co-Operative Society Vs. Commissioner" (PLD 1978 LHR 273), "Faiz Ali Vs. Rafia Jan" (PLD 1956 Lahore 94)."Rehmatullah Vs. Muhammad Ismail" (PLD 1958 West Pakistan Rev.77), "Mazhar Hussain Vs. Noor Ahmad" (PLD 1958 West Pakistan Rev.17), "akram Din Vs. Muhammad Din (PLD 1964 S.C. 842) and "Zafarullah Khan Vs. Abdul Rehman's (1985 MLD 1574).
30. Respondents No. 1, 2, and 3 never claimed the disputed property to be the ownership of the Provincial Government in view of exchange finalized on 3.1.58. It was most probably for the first time that they referred to the same in the impugned order and while passing the order the Colony Assistant also acted in disobedience of the orders/directions passed by the Board of Revenue Punjab wherein the Deputy Commissioner was directed to effect the mutation of ownership in the name of the petitioners and, therefore, the order is also declared to have been passed in excess of jurisdiction vested in the Colony Assistant, amounting to insubordination.
31. The concession acquiring the land for the petitioners to establish cloth mill could not be withdrawn after a period of almost 29 years. I do not agree with the learned counsel for the respondents that the disputed land stood transferred and was State land under the exchange letter dated 3.1.1958. The Federal Government as also the Provincial Government having given their consent to the acquisition of the disputed property for the petitioner company, in the public interest the land was not available to them for exchange. Both the Federal as well as the Provincial Government were thus estopped by their on acts, contract and agreements/notifications from treating the disputed property as one included in the schedule of exchanged lands. Reliance is placed on "Alnoor Textile Mills Ltd Vs. Collector of Customs" (1990 ALD 356), "Province of East Pakistan Vs. Muhammad Yasin" (PLD S.C.438), "Muhammad Nawaz Vs. Federation of Pakistan and others"
32. Respondents No. 1 and 2 allowed the squatters to enter the land. They also got the survey and list prepared for providing residential accommodations/sites to those persons. 1h efficiency on the part of the District Administration is very glaring. It was their duty, under the Colonization of Government Lands (Punjab) Act. 1912 if they assumed that the property is vesting in the Provincial Government, to take all steps in dispossessing the persons entering illegally upon the disputed land. They failed to take effective steps at the appropriate time and were thus under obligation to take care of them. It is hoped that they shall be provided alternate sites in some residential scheme within six months, before they are uproused.
33. In view of the above the writ petition is allowed and the impugned order is declared to be a nullity in the eyes of law, passed on the basis of mala fides and in the exercise of jurisdiction not vested in the Colony Assistant and ineffective against the rights of the petitioners and respondent No.3.
34. As the order has been held to be passed on the basis of mala fides and against the clear directions of the Board of Revenue, respondents are burdened with a cost of Rs. 1000/-