' MUNIR A. SHEIKH. J.---This judgment will also dispose of IntraCourt Appeal No,279 of 1984 as in both the appeals questions of facts and law are common.
2. The dispute relates to property No,78. Upper Mall, Lahore. It was owned by Mst. Sardar Begum. She had two sisters namely Mst. Dara Tasleem and Begum Alamas Daultana.
3. In the year 1965 the Lahore Improvement Trust as it then was started proceedings for the acquisition of this property for NIPA. These proceedings culminated in an Award dated 30-1-1965.
Mst. Sardar Begum challenged these proceedings before this Court through Writ Petition No,1530 of 1967. During the pendency of this Constitutional petition Mst. Sardar Begum petitioner died issuless on 1-10-1967. Mst. D.Ara Tasleem and Begum Almas Daultana her two sisters were substituted as petitioners as her legal heirs. It may be mentioned here that subsequently Dara Tasleem also died issueless. In pursuance of these acquisition proceedings, the possession of the property was taken over by the Government. The said writ petition was accepted through judgment dated 13-8-1971. It was declared that part of all such proceedings from the stage of section 9 of the Land Acquisition Act onward were without lawful authority and of no legal effect. The authorities were directed to commence fresh proceedings from section 9 of the Act as a consequence of which the possession of the property was restored to Begun: Almas Daultana. She was also paid approximately an amount of Rs,1,30,000 by NIPA as arrears of rent for the period Begum Almas Daultana remained out of possession. Begum Almas Daultana remained in possession of the house till the year 1982.
4. In pursuance of the said judgment dated 13-8-1971 passed in Writ Petition No,1530 of 1967, the Lahore Improvement Trust started fresh proceedings by issuing a Notification under section 17 of the Act. An award was made on 31-8-1973 according to which an amount of Rs,1,30,000 was declared to be compensation of the house and Begum Almas Daultana was declared to be entitled to receive the said compensation as heir of Sardar Begum.
5. As observed above possession of property remained with Begum Almas Daultana till the year 1982 as the same was not taken over by the authorities till the said year even after the award was made on 31-8-1973. Since the owner of the acquired property is divested of the title thereof under the law only on his dispossession and taking over of the possession of the same by the acquiring authority. In the year 1975 she wanted to sell the property and invited the offers through advertisements in Pakistan Times dated 24-8-1975. She also got similar advertisement published in the other newspapers also.
6. Mian Atta Ullah the appellant purchased this house from Begum Almas Daultana through registered sale-deed dated 3-4-1980 for an amount of Rs,8,00,000. The then President visited the Civil Service Academy when it was complained to him that there was no adequate space with the said Academy to continue its activities effectively. The President observed that in order to provide sufficient space to the Academy the properly in dispute which was adjacent to the premises of NIPA should be acquired. It was on the directive of the then President that the Government of Punjab issued orders for the commencement of fresh acquisition proceedings.
7. The appellant coming to know about this got an appeal published that the property in dispute should not be acquired as he wanted to construct a hospital for deaf and dumb. This appeal attracted the then Governor of Punjab who arranged a meeting between himself and the appellant in which an agreement was signed on 28-11-1981. One of the terms of this agreement was that the possession of the property would be delivered to the Government by the appellant who would not challenge the fresh acquisition proceedings in any Court and in lieu thereof the appellant would be given a suitable plot of the equivalent value. As a consequence of this Notification under section 4 of the Land Acquisition Act, 1894 for the acquisition of this property was issued on 2-12-1981 in pursuance of which the possession of the property was taken by the Government on 3-2-1982.
However, on 14-2-1982 another Notification was published under section 48 of the said Act for withdrawal of the Notification dated 2-12-1981 issued under section 4 stating that the property had already been acquired, and the said fresh Notification was issued in ignorance of the same.
8. On 31-3-1982 the Private respondents made a reference to Collector under sections 18 and 30 of the Land Acquisition Act, 1894 alleging that they being the heirs of Ghulam Muhammad deceased who was real brother of Mst. Sardar Begum the original owner of The property as such were entitled to share the compensation awarded by the Collector regarding property in dispute to the extent of one half as residuary under the Muhammadan Law. This reference was referred to L.D.A Tribunal for decision as reference No,45 of 1982. In this reference Begum Almas Daultana only was impleaded as the respondent and not the appellant who as observed above had already purchased the property from Begum Almas Daultana through registered sale deed dated 3-4-1980 and the Governor of Punjab had already entered into an agreement to award him compensation in the form of suitable plots of equivalent value.
9. The Governor of Punjab simultaneously constituted a committee consisting of the Chief Secretary, Mayor of Lahore Corporation, Commissioner, Lahore Division and Director-General, NIPA to consider the feasibility of allotment of a plot to the petitioner in lieu of this property in implementation of agreement dated 28-11-1981. On 13-4-1982 a meeting of this committee was held in which it was pointed out to the appellant that fresh acquisition proceedings initiated through Notification under section 4 of the Act dated 2-12-1981 had already been withdrawn therefore, the appellant should seek remedy before the L.D.A. Tribunal in accordance with law if he was aggrieved of the quantum of compensation already granted under the award delivered on 31- 8-1973 in pursuance of the earlier acquisition proceedings. The appellant filed Writ Petition No,4077/1984 before this Court which was dismissed in limine on 27-11-1984 by the learned Single Judge. This judgment/order has been challenged in the connected I.C.A. No,279/1984. In the said writ petition (W.P. No,4077/84) from which said I.C.A. Has arisen a declaration was sought that the acts done and proceedings taken by the respondents in reviving the abandoned acquisition proceeding of the disputed property was without lawful authority.
10. On coming to know that the private respondents i,e, heir of Ghulam Muhammad deceased had filed a Reference under sections 18 and 30 of the Land Acquisition Act, the appellant filed Writ Petition No,11038/91 praying that the proceedings before the L.D.A. Tribunal in the said reference may be quashed. This writ petition was dismissed in limine through judgment dated 27-11-1991 which has been challenged in this Intra-Court Appeal No,24 of 1992.
11. It appears that on the other hand, the Provincial Government was convinced that the undertaking given by the Government through agreement dated 28-11-1981 to the appellant should be honoured. The Chief Minister in 1994 constituted a committee and the appellant on 16-10-1994 was transferred Plots Nos.619 to 659 of seven Marlas each total land of which comes to 16 Kanals in Block G/I of Jauhar Town Scheme in lieu of the property in dispute which was measuring 14 Kanals on the Mall Road. An agreement was executed between the L.D.A. And the appellant on 25-1-1995 in which the allotment of the said plots to the appellant was confirmed being in full and final settlement of the matter.
12. Begum Almas Daultana died during the pendency of the said reference made by respondents/heirs of Ghulam Muhammad deceased. The said reference remained pending for about 10 long years. It was decided ultimately on 7-11-1992 on the basis of consent/concession made by the heirs of Begum Almas Daultana that Ghulam Muhammad deceased predecessor-in- interest of the respondents was the brother of Sardar Begum deceased as such his heirs were also entitled to a share in the compensation payable regarding the property in question.
13. Before proceeding further, it may prominently be observed here that Mst. Sardar Begum died on 1-10-1967 whereas Ghulam Muhammad deceased predecessor-in-interest of respondents alleged brother of Sardar Bibi had earlier died on 29-3-1967. Mst. Sardar Begum having left no male heir having died issuless therefore, the respondents as heirs of Ghulam Muhammad are claiming the share in the inheritance of Sardar Begum as residuary alongwith Begum Almas Daultana who was the sister of Sardar Begum and was entitled to inherit from Sardar Begum as her sister the other sister namely Mst. Dara Tasleem having also died issueless.
14. It is clear from the above facts that the part of initial acquisition proceedings which commenced in 1965 from the stage of section 9 of the Act were declared to be without lawful authority and of no legal effect and the respondents were directed to take fresh proceedings from the said stage in pursuance of which Notification under section 17 was issued which culminated in the award dated 31-8-1973 but the possession of the property which had earlier been restored to Begum Almas Daultana in compliance with the judgment dated 13-8-1971 passed in the said writ petition remained with her to whom an amount of Rs,1,30,000 as arrears of rent for the period during which she remained out of possession was paid and she continued to retain the possession of the property till 1982. On 28-11-1981 in furtherance of negotiation between the appellant and Governor of the Punjab an agreement was executed by which the appellant undertook not to challenge the fresh acquisition proceedings in any Court and that in lieu of the property in question he would be given a suitable plot of the equivalent value. It was in pursuance of this agreement that fresh Notification under section 4 of the Land Acquisition Act was issued on 2-12-1981 and possession of the property again taken over on 3-2-1982 from the appellant. Under section 48 of the Land Acquisition Act acquisition could be withdrawn therefore the execution of agreement dated 28-11-1981 and issuance of fresh Notification under section 4 of the Act on 2-12-1981 and taking over of possession in pursuance thereof on 3-2-1982 of the property from the appellant is sufficient to hold that the earlier acquisition proceedings commenced in 1965 which culminated in the award dated 31-8-1973 were abandoned and withdrawn. The omission of the authorities from taking over the possession of The property after 31-8-1973 i,e, the date on which the award was delivered under the original acquisition proceedings till 3-2-1982 when possession was taken over after issuance of fresh Notification under section 4 dated 2-12-1981 also furnishes strong evidence that the previous/acquisition proceedings had consciously been abandoned and withdrawn and a valuable right had accrued in favour of the appellant. The agreement dated 28-11-1981 was acted upon in the manner that fresh acquisition proceedings were initiated through Notification dated 2- 12-1981. These fresh proceedings can very safely be held to be acquisition proceedings based on agreement between the appellant and the authorities therefore, Notification dated 14-2-1982 issued under section 48 of the Act for the withdrawal of these fresh acquisition proceedings cannot be sustained as it was contrary to what had been agreed upon between the appellant and the authorities through agreement dated 28-11-1981 in pursuance of which a suitable plot of equivalent value was to be given to the appellant in lieu of this property as compensation. The said fresh acquisition proceedings therefore could not have been withdrawn unilaterally and the rule of locus poenitentiae was attracted with full force in this case, as the appellant could not have been deprived of the valuable right which had accrued to him.
15. Even if it is assumed that the withdrawal of fresh acquisition proceedings initiated through Notification dated 2-12-1981 had been validly made, nothing turns as the same did not adversely affect the rights created in favour of the appellant for in the original acquisition proceedings it shall be deemed that the parties had agreed for payment of compensation to the appellant in the form of suitable plot of equivalent value instead of payment of the same in cash as determined by the award and that the said acquisition proceedings were converted into acquisition proceedings through agreement where the owner of property had agreed to get a suitable plot in lieu of the property in dispute.
16. Reverting to the question of legality and maintainability of proceedings before the L.D.A. Tribunal under sections 18 and 30 of the Land Acquisition Act at the instance of private respondents as heirs of Ghulam Muhammad deceased the alleged brother of Begum Sardar Begum and jurisdiction of the said Tribunal to entertain the same, it is significant to note that the application for making the reference by the respondent was filed on 31-3-1982 after about nine years of the date of making of the Award dated 31-8-1973. Section 18 of the Land Acquisition Act provides that an application for making reference to the Tribunal for determining the objections as to the measurement of the acquired land, the amount of compensation, the persons to whom it was payable or the apportionment of the compensation among the persons interested is to be made within six weeks from the date of Collector's award in case the person making the reference was present or represented before the Collector when the said award was made and in other cases within six weeks of the receipt of the notice from the Collector under section 12(2) of the Act or within six months from the date of the Collector's award, whichever period shall first expire.
17. The case of the respondents in the said reference was that they were not present before the Collector when the award dated 31-8-1973 was made therefore, the maximum period for making the said reference was six months from the date of the said award. This being so, the L.D.A. Tribunal was not vested with jurisdiction or authority to entertain the said reference and the reference made by private respondents in 1982 was liable to be dismissed on this short ground. Learned counsel for the said respondents submitted that they were not joined in the said proceedings by the Collector and it was concealed from him that they were also entitled as heirs of Mst. Sardar Begum through her alleged brother Ghulam Muhammad deceased their predecessor-in-interest to receive the compensation and share the same with Mst. Almas Daultana therefore, the period of limitation to make reference in these circumstances should be held to start from the date of knowledge of the said respondents. This argument cannot be accepted without doing violence to the mandatory provisions of section 18 of the Land Acquisition Act which as seen above does not provide the limitation/period in access of six months in any case. Even if a person making reference was not present before the Collector when the award was made and he did not receive notice from the Collector under section 12(2) of the Act even then the maximum period of limitation for making award was six months from the date of the award. In our view there was justification for making such a provisions for acquisition proceedings under the Act are always initiated through Notification published in the official Gazette. The land/property is measured for which purpose the authorities after issuance of initial Notification under the Act are empowered to enter upon the property and subsequently the possession of the property is also taken over from the owner/occupant. It was presumed by the law makers that any person who claims any right in the property could not remain unaware of all these proceedings, in particular when the change of possession at the spot of the property takes place therefore the maximum period of six months was provided to such person to make reference.
18. The private respondents as alleged by them were closely related to Mst. Sardar Begum the original owner of the property being the heirs of her alleged brother Ghulam Muhammad deceased as such could not raise a plea that they remained unaware of the acquisition proceedings initiated in 1965 and dispossession of the owner from the premises, filing of Writ Petition No,1530 of 1967 by Mst. Sardar Begum, substitution of Begum Almas Daultana and Mst. Dara Tasleem as her only heirs on her death during the pendency of the said writ petition, restoration of possession of the property to Begum Almas Daultana in pursuance of judgment dated 13-8-1971 passed in the said writ petition, payment of an huge amount as rent for the period during which Begum Almas Daultana remained out of possession and on the death of Mst. Sardar Begum the continuation of writ petition by Begum Almas Daultana alone as the only heir, the purchase of property by the appellant, the taking over of possession by him and his dispossession in pursuance of agreement dated 28-11-1981 between him and the Governor of the Punjab.
19. We have no hesitation in holding that the L.D.A. Tribunal in these circumstances, was not vested with the jurisdiction to entertain the reference at the instance of respondents made after six months of the date of Collector's Award therefore the proceedings initiated through the said reference suffered from jurisdictional defect and are liable to be quashed being void, ab initio and the decision made therein being superstructure raised on such void proceedings is equally void and not sustainable.
20. Learned counsel for the private respondents argued that the appellant has not challenged the final order of the L.D.A. Tribunal dated 7-11-1992 in these proceedings therefore question of legality or otherwise of the said order should not be gone into for which the appellant should be directed to seek remedy independently. The Constitutional Petition No,11038 of 1991 was filed by the appellant to challenge the very commencement of the proceedings in the reference made by the respondents before the L.D.A. Tribunal, before final order in the same had been passed. As we have already held that L.D.A. Tribunal was not vested with the jurisdiction to entertain the said reference after a period of six months from the date of award of the Collector as such the said proceedings were void ab initio therefore, the final order being superstructure raised on the said void proceedings .Automatically has to fall on the ground as such it is of no merits to say that the said order should be challenged independently. For the same reasons, we do not feel ourselves in agreement with the learned Single Judge that the appellant should have waited for the decision in the said reference for the appellant was aggrieved of the very initiation of the said reference and jurisdiction of the L.D.A. Tribunal had been challenged to entertain and decide the same. The appellant being a third party claiming rights in the property not as one of the heirs of the owner therefore, could maintain the Constitutional petition to question the legality of the very institution or filing of the reference and the jurisdiction of the L.D.A. Tribunal to entertain and deal with the same instead of waiting for final decision to be made in the said reference therefore, Writ Petition No,11038 of 1991 could not have been dismissed on the ground mentioned in the judgment dated 27-11-1991 passed in the said petition by the learned Single Judge.
21. Faced with this difficulty, learned counsel for the respondents argued that reference had also been made before the L.D.A. Tribunal under section 30 of the Land Acquisition Act, 1984 which provision of law does not prescribe any period of limitation for making reference under the said provision of law.
22. Under section 30 of the Act, it is only the Collector who in his discretion can make reference for decision of disputes to the Court as regards the apportionment of the compensation determined under section 11 of the Act or as to the person to whom the same or any part thereof is payable. It is clear from the bare reading of this provision of law that at the time of settlement of compensation under section 11 of the Act if any dispute is raised or arises before the Collector as to the person to whom the compensation was payable, the Collector could make the reference. This provision of law does not confer any right on a party to get a reference made thereunder as a matter of right whereas under section 18 of the Act a party has a right to make a reference and once an application was made under the said section, the Collector was bound to make the reference and no discretion is vested in him in this regard. We therefore, hold that the reference made on the application of the respondents by the Collector to L.D.A. Tribunal was a reference under section 18, as such the same having been made long after the expiry of maximum period of six months prescribed thereunder, the L.D.A. Tribunal was not vested with the jurisdiction to entertain and decide the same.
23. Apart from what has been discussed above, after examining the record of the reference decided by the L.D.A. Tribunal which was summoned and is available there are convincing reasons that making of the same lacked bona fides and the initiation of the same was motivated by a desire to grab the property. It was alleged in the reference that the proceedings were kept secret from the respondents and it was not brought to the notice of the Collector while making the award that they were also entitled to share the compensation as residuaries of Mst. Sardar Begum being heir of his alleged brother Ghulam Muhammad deceased. As we have already pointed out proceedings for acquisition of property under the Act could not remain secret from any person muchless a person who was claiming rights directly in the property as alleged heirs of the owner being his nephews and nieces (heirs of owner's alleged brother) for the property is acquired through publication of a number of Notifications in the official Gazette which also involve the taking of measurements at the spot and dispossession of the owner from the same. On the death of Mst.
Sardar Begum, the original owner in Writ Petition No,1530 of 1967 only Begum Almas Daultana and Mst. Dara Tasleem sisters of Sardar Begum were brought on record as her heirs. Begum Almas Daultana remained out of possession as Mst. Sardar Begum deceased was dispossessed in pursuance of the acquisition proceedings and possession was restored to Mst. Almas Daultana after the decision of the said writ petition to whom an huge amount on account of rent of the property for the period she remained out of possession was also paid. The physical dispossession and restoration of possession to Mst. Almas Daultana from the property could not by any mean remain secret from any person who was his near relative like nephews and nieces. The conduct of the respondents of not appearing on the scene at any stage of the proceedings which remained pending for many years is such from which it can safely be inferred that in fact Ghulam Muhammad deceased their predecessor-in-interest was not brother of Sardar Begum as alleged.
Ghulam Muhammad deceased as pleaded by Mst. Almas Daultana in her statement made in the reference was an employee and not her brother. This conduct of inaction on the part of the private respondents furnishes strong evidnce to establish the said plea in defence.
24. The reference remained pending for many long years but no substantial proceedings were taken. In the written statement Begum Almas Daultana denied the relationship of Ghulam Muhammad deceased predecessor-in-interest of the respondents with Mst. Sardar Begum as her alleged brother. Begum Almas Daultana before her death appeared before the L.D.A. Tribunal and got her statement recorded in which also she denied that Ghulam Muhammad deceased was the brother of Mst. Sardar Begum she stated that he was merely an employee. After the death of Begum Almas Daultana, written statement was also filed by her heirs including Mian Mumtaz Muhamad Khan Daultana deceased in which they categorically denied that Ghulam Muhammad deceased was the brother of Mst. Sardar Begum. An application was moved on their behalf to file second written statement before L.D.A. Tribunal which was allowed and in the second written statement they made an admission that Ghulam Muhammad deceased as alleged by him was the brother of Mst. Sardar Begum. It was on the basis of this admission that L.D.A. Tribunal decided the reference through order dated 7-11-1992, therefore it is not a decision made by the Tribunal on merits on the basis of its own findings on the disputed question but the same was passed mechanically on the basis of the said admission/concession/consent. It is firmly settled law that any decree or order based on an agreement/admission or concession does not have legal efficacy greater than the admission or concession on which the same rested therefore, the admission made by heirs of Begum Almas Daultana in the second written statement was the result of fraud and collusion between them and the respondents as such even the order of the L.D.A.
Tribunal based on that also suffered from the same legal infirmity as such did not create any right.
Heirs of Begum Almas Daultana in fact reiterated the stand taken by her about the alleged claim of Ghulam Muhammad deceased being the brother of Mst. Sardar Begum in the first written statement therefore, it could not have been departed from through collusion by them in the second written statement. For these reasons also the order of the L.D.A. Tribunal can justifiably be ignored having no legal value in the eye of law. This is apart from the fact that the said respondent did not challenge directly the sale of property made in favour of the appellant at any stage.
25. The appellant was given a solemn undertaking by the authorities that he would be compensated by giving him a suitable plot/land in lieu of the property in dispute if he did not object to the acquisition proceedings. The appellant did not challenge the acquisition proceedings with a hope that the said undertaking shall be implemented in letter and spirit. He continued making efforts to get the same implemented for which he was made to run from the pillar to post.
After a long period he has been allotted plot in the Jauhar Town Scheme of L.D.A after getting an agreement executed by him that he would not further claim the compensation as the same should be treated to be sufficient compensation for the property acquired. He accepted the transfer of the said plots and signed the agreement as failing which he would not even given these plots. The appellant in these circumstances has a justification to raise the question of adequacy of the compensation. The property acquired was situated at Mall Road the area of which was 14 Kanals whereas he has been granted plots of an area of 16 Kanals in Jauhar Town Scheme. Taking judicial notice of the value of the property at Mall Road and in the Jauhar Town, in our opinion the grievance of the appellant that he has not been adequately compensated in terms of solemn undertaking given by the authority has substance in it. According to the Injunctions of Islam any party to an agreement muchless State is under solemn obligation to abide by the covenants made by him to the other therefore the State Authorities were required to act in a maker that no injustice was done to a citizen who was deprived of his valuable property, therefore, we direct the authorities to consider the case of the appellant for grant of further compensation in the form of allotment of some more plots.
26. Civil Miscellaneous Nos.2584/1986 and 2866/1986 moved in I.C.A. No,279 of 1984 by the applicants under Order I, rule 10, C.P.C. For impleading them as respondents in the said I.C.A. For reasons stated above stand disposed of.
27.
27. For the foregoing reasons, both the appeals are accepted. The proceedings commenced on the reference made by the respondents under sections 18 and 30 of the Land Acquisition Act are hereby declared to be without lawful authority and of no legal effect and the order of the L.D.A.
Tribunal dated 7-11-1992 passed in that are hereby declared to be without lawful authority and of no legal effect and quashed. The act of the respondents of issuance of Notification dated 14-2-1982 for the withdrawal of the fresh acquisition proceedings is also declared to be without lawful authority and the respondents 1 to 3 are directed to further compensate the appellant in terms of agreement dated 28-11-1981 as observed above. The parties are left to bear their own costs.