Petitioners were the owners of Killas Nos.3 to 8, Rectangle No.93/13 measuring 6 acres situated in village Darwar Wah, District Bahawalpur, and the Assistant Commissioner, Saddar Sub-Division Bahawalpur issued an order on 22-3-1975 exercising his powers as vested in him under the Government of the Punjab, Colonies Department, Notification No.2704-74/2079-CL IV dated 11th of June, 1974 read with Notification No.10077-74/1492 dated 14th of September, 1974, that the. Above land was recommended by the Tehsildar Bahawalpur in connection with implementation of 5 Marlas Residential Sites Scheme for Housing Facilities to Non-Proprietors in Rural Areas. On 25th of March, 1976, Notification was issued by the Assistant Commissioner regarding the same land under section 6 of the "Punjab Housing Facilities for Non--Proprietors in Rural Areas Act (Act V) of 1975", that abovesaid area was required for the purpose and notification under section 4 of the Punjab Acquisition of Land (Housing) Act, 1973, to all whom it may concern, was published in the Punjab Gazette (Extraordinary) of April 1976. The petitioners filed an appeal under section 7 of Act V of 1975, before the Deputy Commissioner/Collector, Bahawalpur wherein they inter alia submitted that 48 Kanals land which was notified for acquisition was owned by three families and was purchased sometime earlier by them whereas they have sown numerous trees on the said land and have made improvements and were the small owners as against big land-holders of the estate who had, by recommending the acquisition of the said land, made the petitioners landless and they have been deprived of their source of livelihood; that sufficient area being Bunjar and uncultivable was available in the estate and a few of the landlords were prepared to give the said land for the scheme. It was also contended before the Collector that the people's village committee was not formed in Jalsa-e-Aam and the decision was not taken in the Ijlas-e-Aam. The appeal was dismissed by the Collector on 3-8-1976. A suit was filed which was withdrawn and the present writ petition was filed.
2. While repeating the averments made before the Collector it has been inter alia contended that the notice dated 22-3-1975 and notification dated 25-3-1976 were collusive, mala fide, passed at the back of the petitioners and that the decision in (sic) as the Collector condoned the omissions/commissions of the lower field staff who were under the influence of the big landlords rather than the petitioners who were strangers in the estate; that the compensation payable to the landowners under section 6(2)(iii) of Act V of 1975 was not paid to the petitioners and information having been lodged with the Deputy Commissioner, Bahawalpur he got case F.I.R. No.142/77 registered against Sarfraz A.I, Field Qanungo, Muhammad Rafiq Clerk of Muhammad Hussain, Advocate, Bahawalpur etc. Under section 420/406 P.P.C. Which sufficiently proved that the amount payable to the petitioners was not paid to them ever and injustice was perpetuated upon the petitioners by the Revenue Field Staff. Field Qanungo being one of the accused persons nominated in the said F.I.R. Regardless of the decision by the Court in the said F.I.R., it was a fact that the accused were found involved in the case by the investigating agency and report under section 173, Cr.P.C. Was filed wherein the accused were requested to be convicted for the commission of offences. It was also contended that all the proceedings were fictitious and none of the private respondents was in possession of the property and that the petitioners still continue to be in possession. Respondents Nos.1 to 3 filed a written statement. It was admitted that the F.I.R. Was lodged for commission of fraud and misappropriation by Sarfraz A.I, Field Qanungo and others and F. I. R. No.142/77 was got registered by the Deputy Commissioner, Bahawalpur on 20-5-1977. It was however contended that the competent Court had acquitted the accused in the said case. It was also contended that the petitioner had gone to the Civil Court to seek the redress of their grievance wherefrom the suit was withdrawn which rendered the petitioners not entitled to filed the instant writ petition and the same was not maintainable. The private respondents also filed their written statement and they almost repeated the same version which was taken by the official respondents. They however denied that contents of grounds (i), (ii), (iv) and (v) of the writ petition for lack of knowledge. The written statement was not helpful for disposal of the present writ petition as the same was simply a repetition of the stand taken by the official respondents.
3. I have heard the learned counsel for the parties and have also given my anxious consideration to the pleas raised at the Bar. The official respondents have not appended with their written statement the proof of complying with the requirements of section 4 of Act V of 1975. They have also not appended any proof of service of the petitioners of formation of People's Village Committee wherein proper representation appeared fulfilling the requirement of Letter No.1445- 75/799 HI dated 28-4-1975 issued by the Board of Revenue, Punjab, Lahore, to all the Deputy Commissioners. Instruction No.8 as contained in the said letter reads as under:--- "8. Peoples Village Committee.--(1) The People's Village Committee is to consist of not more than 5 persons. You should ensure that the members of the Committee are persons who command respect in the revenue estate and who are men of integrity and honesty. The representative of the landless tenants must be included in the People's Village Committee as a member.
(2)-------"
4. The contention of the petitioner that illegalities were committed in selection of site for the scheme by the staff of respondents Nos. l to 3 and they committed violation of Instruction No.7 which reads as under:--- "7. Selection of site for the Scheme.--(1) In the selection of the area for housing scheme it should be ensured that the land is such as is going to cause least dislocation in the continuance of agricultural operation, and that it is preferably Banjar or Shamlat land where such Shamlat exists.
(2) The selection of the site will be gone in consultation with the People's Village Committee. If the number of applicants for allotment of 5 Marla sites is very large and no Shamlat land is available adjacent to the Abadi but non-Shamlat land is to be acquired and the Banjar land to be acquired is found located away from the main village Abadi, the acquired Banjar land will form the site for subsidiary village Abadi.
(3) It is desirable that the housing scheme thus prepared should be announced by the Collector in the village in Ijlas-e-Aam and objections of people, if any, taken into account. An effort should be made that, subject to principles and guidelines laid down by the Government, selection of the site is done as much by consenus of the people as possible so as to avoid protests and representations in the implementation of the scheme."
The petitioners have placed on the file proof of the fact that there was available Banjar/uncultivable land in the Chak. A copy of the Khasra Girdawari of the disputed land from Rabi 1975 onwards shows that the disputed land was under cultivation whereas "Ghair Mumkin Tibba "consisting of Killas Nos. 13 to 25 of Square No.93/10 could be made available for the purpose as mentioned in para. 7 of Press Note and Condition No.7'mentioned supra.
5. It was contended by the learned counsel for the petitioners on 7-2-1996 that the disputed land was not covered by the scheme and none had raised any construction thereon and that the petitioners were in possession of the same. On denial by the respondents and insistence by the petitioners Mr. Muhammad Ayyaz Malik, Advocate who was present in Court in connection with his own brief was appointed as Local Commissioner. He visited the spot the same day and filed report which was placed on record as mark ' C' . According to the said report only an area measuring 7 Marlas 256 S.Ft was not under cultivation and in the said area construction was raised by Atta Muhammad respondent and his sons and rest of the area was not in possession of any of the respondents.
6. In view of the fact that Banjar area was proved to be available for the Scheme in the estate and that the petitioners are small landowners as against big landowners of the estate and were strangers-purchasers the acquisition under the Punjab Acquisition of Land (Housing) Act, 1973, was ex facie an act of mala fide; the proceedings were proved to have been taken collusively; the petitioners were not paid even a penny as compensation; and Collector of the district admittedly lodged F.I.R. On 20-5-1977 at Police Station Civil Lines, Bahawalpur. I am of the view that the impugned order of the Assistant Commissioner dated 22-3-1975 and the notification dated 25-3- 1976 was published in the Punjab Gazette (Extraordinary) April, 1976, and the order of the District Collector dated 3-8-1976 were based on mala fides and were illegal, unjust and ultra vires of the Act and the instructions issued.
7. Resultantly it is declared that all the exercise was taken with mala fide and without lawful authority and was ineffective against the rights of the petitioners and the respondents are restrained from interfering in the proprietary and possessory rights of the petitioners except to the extent of area measuring 48' x 41' situated in Killa No.6 of the disputed land which shall be retained by Atta Muhammad respondent without payment of any consideration.
7-A. The writ petition is accepted in the above terms with no order as to costs.