The relevant facts for the decision of this Constitutional Petition are that land of the petitioners measuring 5 Kanals and 1 Marla situated in Chak No. 123/RB, Tehsil and District Faisalabad was acquired under the provisions of Punjab Acquisition of Land (Housing Act, 1973), (hereinafter to be referred as "Act of 1973"), by the Housing and Physical Planning Department, Government of Punjab, for constructions of multi-storey flats. The notifications under section 4 was issued on 24-5-1973 ,and under section 13 of the Act of 1973 on 31-5-1973. The possession was assumed on 11-6-1973 while the Award was announced by the Collector on 8-8-1973, according to which the petitioners were either to receive compensation of Rs.12,625 or they could have a 10 Marlas plot at the rate of Rs.1,200 per Marla. The petitioners moved an application on 25-11-1991 for exemption of the entire land. They were allowed exemption to the extent of 63.45 % by the Secretary of the Department and as a result of that they were to get 13 lots of 5 Marlas each. However, it was subsequently, pointed out that the Secretary had no such power, therefore, a summary for this purpose was sent to the then Chief Minister who approved the same on 11-12-1995. Thereafter, 13 plots were earmarked and allotted to the petitioners and they were asked to pay the price of the same. The price was deposited and thereafter, the possession of the plots was also delivered. Subsequently, it was pointed out that the exemption to the extent of 63.45 % was not possible under the law and rules, therefore, the summary was again moved to the then Chief Minister, who proceeded to order for cancellation of allotment of the petitioners on 8-7-1996. This order has been challenged through the present petition, which was admitted to hearing. Notices were issued to the respondents, who were represented by Rana Muhammad Arif, Additional Advocate-General.
2. Learned counsel for the petitioners argued that once the relaxation was allowed, plots were allotted, price paid and possession delivered, thereafter, the respondents lost right to repent and cancel the allotment of the plots from the names of the petitioners. It was added that after completion of all formalities cancellation of allotment in the name of petitioners is illegal. In this behalf reliance is placed on Sadiq Hussain v. Lahore Development Authority, Lahore through Director-General and 2 others PLD 1995 Lah. 339. It was argued that decisive steps having been taken. The allotment could not be cancelled and that too without hearing and serving a notice on the petitioners. In this behalf reliance is placed on Chairman, Selection Committee/Principal, King Edward Medical College, Lahore v. Wasif Zamir Ahmad 1997 SCMR 15, Muhammad Tufail v. Lahore Development Authority and others 1997 MLD 2642.
3. On the other hand, Rana Muhammad Arif, Additional Advocate---General argued that neither the Secretary nor the Chief Minister had any authority or jurisdiction to relax the provisions as to grant of exemption to the owners, therefore, order, dated 11-12-1995 was void ab initio. It was added that Chief Minister could not deal with the public property arbitrarily and illegally. In this behalf reliance is placed upon Rao Khalid Anwar Khan and 3 others v. Mst. Zaib-un-Nisa and 13 others 1997 CLC 97 (Karachi) and Shahid Javed v. Government of the Punjab and others 1998 PLC (C.S.)
122. It is added that even any such policy against the word of the Statute would be void ab initio. It was argued that at the relevant time even the then Chief Minister and the Secretary of the Department did not even care to find out whether 13 plots measuring 5 Kanals were available or not. The petitioners got undue and illegal benefits and now the whole effort was to protect the same. It was added that to the circumstances of the case no hearing to the petitioners was required before passing of order, dated 26-6-1996 by the Chief Minister.
4. I have given my anxious consideration to the arguments and gone through the record as well as precedents. The precise question for determination is that what was the entitlement of the petitioners in accordance with law. The admitted position is that the land was acquired in 1973 and award was announced on 8-8-1973. Section 11 of Punjab Acquisition of Land (Housing Act, 1973 read as under:-- "11. Payment of compensation.--- The payment of compensation may be made in the form of cash, bonds, debentures, annuities over a period not exceeding 20 years or in the form of developed sites or in a combination of such forms in such manner as may be prescribed:-- Provided that--
(i) payment in cash to each landowner shall be-------- (b)---------------------------- .
(d) ---------------------------- .
(e) ---------------------------- .
(f) ---------------------------- .
(g) ---------------------------- .
(ii) the maximum payment of compensation in cash to any individual landowner shall not exceed rupees one lac, the balance being payable in other forms: Provided further that a landowner whose total land acquired does not exceed eight Kanals shall have the option to select the form of payment of compensation."
It is clear from the above provision that an owner was entitled to exemption of land to the extent of compensation awarded to him. In the present case compensation awarded by the Collector was Rs.12,625 and accordingly Collector proceeded to hold that the landowners were entitled to purchase 10 Marlas land at the rate of Rs.1,200 per Marla. It is noteworthy that this award was not challenged by the landowners in any forum. The Punjab Acquisition, of Land (Housing) Act, 1973 specially section 11 was amended in 1986 and as result thereof the owners were permitted to exemption to the extent of 30% of their land acquired. The petitioners by virtue of the order of the C.M., dated 11-12-1995 got land exempted to the extent of 63.45 % equal to 13 plots of 5 Marlas each.
This was done in relaxation of the rules. I have gone through the Act amended as well as the original. The C.M. Or the Secretary, respondent No. 1, did not enjoy any power, whatsoever, of relaxing the limit of exemption. The order was, therefore, patently illegal and it was rightly recalled/cancelled. Moreover, relaxation could not be in utter disregard of the law.
5. Now the question whether the petitioners were entitled to exemption in accordance with the award of the Collector, dated 8-8-1973 or in accordance with the Punjab Acquisition of Land (Housing) (Amendment) Ordinance, 1985. The amendment is, therefore, governed by the original Act and they were entitled to 10 Marlas land as held by the Collector in his award which was not challenged in any forum and, thus, had attained finality.
6. Now coming to the relief. The petitioners were entitled in accordance with the law as in 1935 and per award of the Collector, dated 8-8-1973 and not in accordance with the subsequent amendment. In this background, learned Additional Advocate-General rightly argued that the rule laid down by the Honourable Supreme Court of Pakistan that illegal and ill-gotten benefits were not to be protected and illegalities should not be perpetuated by Courts whether by suit or in Constitutional jurisdiction. In this behalf, reference can be made to Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236, Wali Muhammad v. Sakhi Muhammad PLD 1974 SC 106, Syed Nazim Ali and others v. Syed Mustafa Ali and others 1981 SCMR 231, Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal 1986 SCMR 1071, Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166, Syed Ali Shah v. Abdul Saghir Khan Sherwani PLD 1990 SC 504, Nagina Cotton Mills Ltd. v. Pakistan 1990 CLC 1337 and G.M.
Malik, Chairman Board of Intermediate and Secondary Education, Faisalabad v. Province of Punjab 1990 CLC 1783. The principle of locus poenitentiae would not be applicable in the present case as the order of the C.M. Was void ab initio. This way the petitioners were entitled to plots equal to 10 Marlas. They have the choice to retain two plots out of the plots allotted to them, of course, subject to the adjustment of area already sold by them to third party. They were further entitled to refund of amount forthwith received by the Department in pursuance of the order of the C.M., dated 11-12- 1995.
7. The petition is disposed of with these observations. No order as to costs.