KARAMAT NAZIR BHANDARI, J. -- This judgment will dispose of Writ Petitions Nos. 34/82, 3628/82, 2212/83, 1925/83 and 522/84, as common question of law, viz. The power of the Commissioner under Punjab Acquisition of Land (Housing) Act, 1973 (VIII of 1973), (since repealed by Punjab Acquisition of Land (Housing) (Repeal) Act, 1985 (Act XII of 1985), hereinafter referred to as the Act, to exclude the land and/or exempt from operation of a residential scheme, is involved. It would be advantageous if the facts of each case are separately recorded in brief. But first the common facts.
2. The common facts in all but Writ Petition No. 3628/82 are that the petitioner, hereinafter referred to as LDA, is a statutory body created under the Lahore Development Authority Act, 1975 (Punjab Act XXX of 1975). The LDA framed a residential scheme known as Muhammad A.I Johar Town Scheme, which was sanctioned by the competent authority on 3.8.1980. The scheme was notified under Section 13 (3) of the Lahore Development Authority Act, 1975, in the Punjab Gazette of September 9, 1980. The Land Acquisition Collector (petitioner No. 2 in Writ Petition No. 34/84 and respondent in other petitions), commenced proceedings. A notification under Section 4 (i) of the Act was issued on 6.11.1980. Notice to persons interested as prescribed under Section 6 of the Act was issued in the Press on 15.12.1980. The possession of the land was taken over on 17.8.1981. The proceedings before the Land Acquisition Collector continued and resulted in the award dated 9.10.1982. The award dated 9.10.1982, besides dealing with various objections and difficulties of the land-owners, also fixed the amount of compensation to be paid to the landowners.
3. In Writ Petition No. 34/82, the private respondent made an application to Land Acquisition Collector on 20.12.1980 for exclusion of an area of about 29 kanals comprising of Khasra Nos. 11125 and 11282 situated in village Niaz Beg, Tehsil and District Lahore, on the ground that it was a garden having fruit bearing trees and was also part and parcel of the house. There is nothing on the file as to what happened to this application. However, the private respondent, in June, 1981, filed what is described as appeal/representation "under Section 14 of the Act with all other enabling provisions against the order of acquisition of land measuring 29 kanals bearing Khasra No. 11282 in village Niaz Beg, District, Lahore", before the Commissioner, Lahore Division, respondent No. 1. This was registered as Appeal No. 335/81 and was allowed on 18.7.1981. The learned Commissioner ordered exemption of the land from acquisition. LDA, feeling aggrieved, has tiled this Constitutional petition.
4. In Writ Petition No. 3628/82, respondents Nos. 3 to 92 sought exclusion of their land measuring 75 kanals situated in village Kark, Tehsil and District Lahore, bearing Khasra Nos. 35 to 47, 365-min and 368-min from the housing scheme known as Sahzazar Scheme, which was prepared and included by the petitioner. As asserted, the Deputy Commissioner issued notification under Section 4 (i) of the Act and the same was published in the official Gazette on 10.2.1981. Notification under Section 13 of the Act was issued on 14.6.1981 indicating that the land was urgently required for the purposes of above housing scheme. The land was physically taken over by the petitioner in July, 1981. It is stated that possession of the land bearing the above khasra numbers was not taken over due to stay order. Private respondents tiled a joint appeal under Section 14 of the Act against the order of acquisition of land. This appeal was contested, but was accepted by the learned Commissioner on 17.4.1982. It is this order which is impugned in this petition.
5. In Writ Petition No. 2212/83, respondents Nos.4 and 5, by way of an appeal/representation tiled before the Commissioner in July, 1982, prayed for exclusion of Khasra No. 13178 measuring 5 kanals, 8 marlas from the acquired area. The Commissioner registered this as appeal No. 482/82 and allowed the same on 29.1.1983. Against this order, the LDA has filed this Constitutional petition.
6. In Writ Petition No. 1925/83, respondent No. 4 sought exemption/exclusion of land measuring 37 kanals, 14 marlas consisting of Khasra No. 13176 situated in village Niaz Beg by tiling an application on 22.6.1981, before the Deputy Commissioner under Section 1 of the Act. The application was rejected by Deputy Commissioner, respondent No. 2, on 6.7.1981. Thereafter, in October, 1981, respondent No. 4 preferred an appeal before the Commissioner. This appeal was registered as Appeal No. 419/81 and was allowed on 15.5.1982. LDA, therefore, has preferred this writ petition against the order dated 15.5.1982.
7. In Writ Petition No. 522/84, application for exclusion of land was filed under Section 14 of the Act before the Commissioner. Another amended application under the same section for exemption of Khasra Nos. 13164, 13167, 13170, 13174 and 13175 was filed before the same Officer, viz., Commissioner. Vide order dated 18.6.1983, the Commissioner allowed this application and directed exclusion of the area from the scheme. Writ Petition No. 522/84 is filed by LDA and is directed against this order of the Commissioner. It may be noted that during pendency of writ petition, Mst. Roohi Zafar, tiled an application (C.M. 1728/91) for being impleaded as respondent on the ground that she is the allottee of the developed plot and she has interest in the outcome of the litigation. Another application (C.M. 2206/92) for the same purpose was filed by Haroon etc. But was not pressed. At the time of hearing full opportunity was granted to these applicants to say whatever they want to say. Their case is in line with the case of LDA.
8. As indicated above, the primary question involved is the question of power/jurisdiction of the Commissioner to grant exemption. As noted, the memo. Presented before the Commissioner in each of the above cases was described as "appeal-representation". In some cases the appeal- representation was expressed to have been filed under Section 14 of the Act. Mr. Azmat Saeed, Advocate, appearing for LDA-petitioner, has taken me to the provisions of the Act to submit that neither under Section 14 nor under any other provisions of the Act, the Commissioner could have passed orders of exclusion of the area or exempting the same from the scheme. He asserted with vehemence that the impugned orders are void.
9. In reply, Mian Nisar Ahmad, Advocate, appearing for private respondents in Writ Petition No. 522/84, has argued that the appeal/representation was competent under Section 14 of the Act and the Commissioner could pass the impugned order. Ch. Muhammad Farooq, Advocate, appearing for respondent No. 4 in Writ Petition No. 1925/83, has raised the further argument that even if the impugned order be described as void or illegal, this Court should withhold issue of the writ on the ground that impugned order does justice between the parties and cures and undoes grave injustice perpetuated upon the land-owners under the oppressive provisions of the Act. He has relied on large number of cases including Nawab Syed Raunaq A.I, etc.v. Chief Settlement Commissioner and others (PLD 1973 SC 236); Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 SC 691); Begum Shams-un-Nisa v. Said Akbar Abbasi and others (PLD 1982 SC 413); Syed A.I Shah v. Abdul Saghir Khan Sherwani and others (PLD 1990 SC 504) and Muhammad Umar v. Member, Board of Revenue and others (1985 SCM R 1591). By inviting attention to Annex R/1 and R/2 attached with written statement of this respondent, he has further argued that with the offer and acceptance of the proposal, fresh agreement between the LDA and respondent No. 4 has come into existence and in view of the agreement, LDA is precluded from challenging the legality of the Commissioner's order. He has relied on number of judgments including Khiali Khan v. Haji Nazir and others (PLD 1997 SC 304); Pakistan through Secretary Ministry of Commerce and others v. Salahuddin and others (PLD 1991 SC 546); Asif !OW v. Karachi Metropolitan Corporation and others (PLD 1995 Karachi 60); and Provincial Urban Development Board v. Mst. Shireena and others (1995 CLC 1606) to highlight the doctrine of promissory estoppel and to show that the doctrine is equally applicable to the facts and circumstances of this case.
10. Mr. Naveed Rasool Mirza, Advocate, appearing for Mst. Roohi Zafar, while supporting the submissions of Mr. Azmat Saeed, Advocate, in favour of the petitions, argued that only Deputy Commissioner under Section 19 of the Act, could withdraw from acquisition under the order of Government or Official Development Agency and even if the appeal before Commissioner was competent, the appellate authority was bound by the same constraints which existed on the power of the Deputy Commissioner. Learned Assistant Advocate-General opposed the petitions and contended that the Commissioner could pass the impugned orders. Other learned counsel appearing in the case have and large followed and adopted the above arguments.
11. It would be advantageous to examine the provisions of the Act. The Act was enforced with the express purpose of making provisions for the acquisition of land for housing scheme in Urban and Rural areas of the Province. All lands situated within the Province were liable to acquisition, notwithstanding anything contrary contained in Land Acquisition Act, 1894. Section 4 empowers the Deputy Commissioner to issue a notification in the official Gazette indicating the intention to acquire the land provided it appears to the Deputy Commissioner that the land was tit for any housing scheme. The Collector would thereafter give public notice of the substance of the notification at convenient places in the locality. Upon the issue of the notification, the official authorized by Deputy Commissioner could take certain preliminary steps regarding survey etc. Of the land. After survey and marking of the land has taken place, a notice is issued under Section 6 to the persons interested indicating that the Government intends to take possession of the land and calling upon the interested persons to lay their claims for compensation. The interested persons were also to he invited to appear before the Collector on a date, time and place fixed. The Collector then holds enquiry into the claims under Section 7 and makes an award indicating the true area of the land to he taken over, compensation and the amount thereof and the apportionment of compensation amongst the persons interested. The criteria for assessment of compensation is provided for in Sections 9 and 10 of the Act. The manner of payment of compensation is laid in Section 11. Under Section 12, when the Collector has made an award under Section 7, subject to the acceptance of the award by Government or the Official Development Agency, as the case may be, within a period of fifteen days from the date of announcement of award, take possession of the land which thereupon was to vest absolutely in the Government, or as the case may he, in the Official Development Agency. Section 13 deals with acquisition in cases of urgency. Section 14 deals with appeal and review and as the controversy turns around this section, the same is reproduced in full:- "14. Appeal and review. - The person entitled to compensation under the award and Government or the Official Development Agency, as the case may be, may accept the award and intimate their acceptance in writing to the Collector within the period described in Section 12.
(2) The Government, or as the case may, the Official Development Agency or any person aggrieved by an award of the Collector may within one month of such award appeal to the Commissioner.
Where the affected party had no intimation of the award the appeal may be filed within six weeks of the award. The Commissioner may after giving the Government or as the case may be, the Official Development Agency and the persons affected by the award an opportunity of submitting any objection to the appeal and of being heard, make such order as he may deem fit.
(3) The order of the Commissioner made on appeal shall be final and shall not he called into question in any Court.
(4) The Collector or the Commissioner either of his own motion or on an application made in this behalf by the Government, or as the case may be, Official Development Agency or any affected person may, at any time, review an order made by himself or his predecessor, insofar as it corrects an arithmetical, clerical or patent error or mistake only.
(5) Any amount paid to any person who is found for any reason including fraud or misrepresentation not to be due or in excess of the amount he is entitled to under the award shall be recoverable as arrears of land revenue and the Collector shall call upon such person to refund it."
Sections 15 and 16 are not relevant. Under Section 17, the Government has been authorized to give directions to the Deputy Commissioner with respect to the exercise of his powers and the discharge of functions under the Act and the Deputy Commissioner is required. To he guided by an act in accordance with such directions. Section 18 empowers the Collector etc. To exercise the powers of a Civil Court in the matter of discovery and production of documents and summoning and enforcing the attendance of any person in manner stated in the section. Section 19 is material and relevant and is reproduced:- "19. Powers to withdraw, from acquisition proceedings. - The Deputy Commissioner shall be at liberty to withdraw from the acquisition proceedings of any land, notified under this Act, of which possession has not been taken: Provided that Government or an Official Development Agency, as the case may he has informed the Deputy Commissioner in this behalf in writing: Provided further that in case of non-acceptance of the award even as a result of the appeal made to the Commissioner the right of withdrawal from the acquisition may he exercised by the Government or an Official Development Agency, as the case may be."
Other sections (Sections 20 to 22) are not relevant.
12. From the language of Selion 14 (2) it is clear that the appeal to the Commissioner can be filed by the Government or the Official Development Agency or any person aggrieved from an award of the Collector. The appeal has to he filed within thirty days and if the affected party had no intimation of the award, the appeal could he filed within six weeks of the award. The Commissioner, after giving the Government, the Official Development Agency or the persons affected by the award in opportunity of submitting any objection to the appeal and of being heard, make such order as he may deem fit. This order of the Commissioner is made final under sub-section (3). Arithmetic and clerical errors or mistakes in the appellate orders could he corrected in review under sub-section (4).
13. Undisputedly the award was announced on 9.10.1982. The memos. Of appeal/representation in some of the cases were tiled prior to the announcement of the award and even in cases in which they were filed subsequent to the award, the memorandum did not state that the appeal was being preferred against the award. In fact the tenor of the impugned orders passed in each of the above cases shows that learned Commissioner was only concerned with exclusion of the area from the scheme. From this point of view, it is clear that Section 14 of the Act did not authorize the Commissioner to pass the impugned order as the appeals/representations before him were not preferred against the award dated 9.10.1982. In Writ Petition No. 1925/83, the appeal to the Commissioner was expressly tiled against order dated 6.7.1981 by which the land owner's application dated 22.6.1981 filed under Section 19 of the Act for withdrawal froim acquisition, was rejected. It is clear that no provision of the Act provides for filing of appeal in such cases. The order of the Commissioner, therefore, is without jurisdiction and as such void.
14. Mian Nisar Ahmad, Advocate, appearing for land owners in Writ Petition No. 522/84, has attempted to show that the appeal before Commissioner was competent under Section 14 (2) of the Act as the decision to take over the land by virtue of notifications issued under Sections 4 and 6 is part of the award.
15. This argument has inherent weakness. As noted, the appeals/representations were filed before the Commissioner before the announcement of award on 9.10.1982. In fact in Writ Petition No. 34/82, the Commissioner had allowed the appeal on 18.7.1981, an year before the award. In Writ Petition No. 1925/83, the appeal was allowed on 15.5.1982, about five months before the award. It is, therefore, incorrect to state that the Commissioner in these cases was hearing appeals against the award. In fact no occasion arose in these cases to tile an appeal because no award had come into existence by that time. Similarly, in Writ Petition No. 522/84 what was presented before the Commissioner on 16.6.1982, about four months prior to award, was "application under Section 14 and all other enabling provisions of the Punjab Acquisition of Land (Housing) Act, 1973" (Annex "G"). Annex "G/1" in this case is amended petition under Section 14 of the Act and bears the date 18.11.1983. In Para 7 of the amended petition, reference is made to the announcement of award on 9.10.1982 and even if one leans in favour of land-owners and attempts to construe this as an appeal under Section 14 (2) of the Act against the award dated 9.10.1982, same will have to he held as barred by time as under Section 14 (2), the appeal could be filed within thirty days or within six weeks at the most. It is well-settled that decision on merits without adverting to the question of limitation is not permissible. I, therefore, hold that in all these cases, the impugned orders could not he said to have been passed under Section 14 (2) of the Act. On this finding, the orders of the Commissioner will have to he held as void.
16. Now I come to Section 19. As noted, it is this section which authorizes the Deputy Commissioner to withdraw from the acquisition. Under proviso (1) the Deputy Commissioner can do so only if the "Government or Official Development Agency, as the case may he, has informed the Deputy Commissioner in this behalf in writing". The second constraint is that Deputy Commissioner could withdraw only from the land of which possession has not been taken. No appeal/revision is provided against the order passed by Deputy Commissioner under Section 19. Only land-owners in Writ Petition No. 1925/83 invoked Section 19 but their application was rejected by Deputy Commissioner on 6.7.1981. Since no appeal lay before the Commissioner against this order, it has to he concluded that appellate order of the Commissioner dated 15.5.1982 in this case is completely without jurisdiction and, therefore, void. The settled principle of law that right of appeal is always a creation of statute, and has to be specifically conferred, has not been questioned by any of the learned counsel, and rightly so.
17. In view of the above finding, no occasion arises to examine the scope of appellate power.
However, Mr. Naveed Rasool Mirza, Advocate, is not incorrect in submitting that even if appeal before Commissioner against rejection of application under Section 19 of the Act by Deputy Commissioner was competent, the Commissioner, as appellate authority, would suffer the same constraints as the Deputy Commissioner. There is nothing on tile to show that the Government or Official Development Agency intimated about withdrawal from acquisition as laid down in proviso to Section 19. Without such intimation, even the Commissioner as appellate authority could not have passed the order of withdrawal. For this reason as well, the impugned order is illegal.
18. On the above finding, the impugned orders of the Commissioner are required to be declared as without lawful authority and as such of no legal effect. However, as noted above, learned counsel appearing for land- owners, in particular, Ch. Muhammad Farooq, Advocate, appearing for respondent No. 4 in Writ Petition No. 1925/83, has strenuously argued that this Court should withhold issue of writ on the ground that the impugned order of the Commissioner does justice to the land-owners. He has argued that his client's land is located in one corner of the Scheme and its exclusion will not adversely affect the Scheme. He has also raised the question of discrimination by pointing out that lands belonging to Mr. Tariq Sehgal and Malik Ghulam Mustafa Khar have been excluded and there is no reason why his client be treated differently. He has also referred to Annexures R/1 and R/2, the offer made to his client by the LDA on 10.2.1992, and its acceptance by her on 15.2.1992 to show that the petitioner has itself resiled from its previous stance and should he disallowed from prosecuting this Constitutional petition against his client. This line of argument has been adopted by other counsel appearing for the land-owners. In Writ Petition No. 34/82, husband of respondent No. 2, claiming to be her attorney, also has placed on record the site plan to show that exclusion of the land will be just and proper.
19. It is true that the exercise of writ jurisdiction is discretionary and nobody can claim an order under this jurisdiction, as a matter of right. There is plethora of case-law on the point. Similarly, there is ample case-law for the proposition that exercise of jurisdiction under Article 199 of the Constitution is meant to promote justice. These norms and principles are well-settled. The difficulty, however, arises in the application of these norms. In this case the application of principle is dependent upon a finding that the acquisition of land by LDA, even if it be legal and according to the provisions of erstwhile Act, is unjust. This would take me to the question as to whether this Court can return a finding of acquisition being "Unjust". If the purpose of judicial review is to administer law, and this cannot be disputed, I am of the view that a finding of justness/unjustness of the acquisition would not be relevant, because, otherwise this Court would be acting as the acquisition agency itself. In Nawab Syed Raunaq A.I, etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236), the verification of claims by the Deputy Claims Commissioner had been found to be illegal and on this finding, the High Court refused to set aside the order of Officer On Special Duty (Central Record Office), even though the latter was clearly without jurisdiction. It was in these circumstances that the Court held that the impugned order does not work any injustice. Applying this principle, I will have to hold that the order of the Deputy Commissioner refusing to withdraw from acquisition was illegal and the Commissioner's order, even though void, cured a manifest illegality and as such I refuse to quash the latter order.
20. It has not even been argued much less shown that the order of Deputy Commissioner in Writ Petition No. 1925/83 refusing to withdraw - was illegal. On the contrary, the said order is perfectly legal since neither the Government nor the Official Development Agency intimated the Deputy Commissioner in respect of withdrawal from acquisition. In my humble view, therefore, the principle pressed into service by Ch. Muhammad Farooq, Advocate, is not applicable to these cases.
21. The claim of discrimination has been denied by Mr. Azmat Saeed, Advocate, on behalf of the petitioner by asserting that both M/s. Tariq Sehgal and Malik Ghulam Mustafa Khar were granted permission under Section 13 of the Lahore Development Authority, 1975, to privately develop the housing scheme and, in these circumstances, it is wrong to assert that their lands were simply excluded from the operation of the Scheme. Be that as it may, no material has been placed on record by any of the parties to make a definite finding, possible.
22. The argument based on the strength of Annexures R/1 and R/2 is again of no avail inasmuch as this proposal and acceptance took place in 1992, well after a decade of the impugned void order of the Commissioner. It cannot save the void order nor render any legitimacy to the same. The subsequent development, however, may furnish an independent cause to the land-owners who may proceed to enforce the agreement in accordance with normal law. I refrain from commenting any more on this aspect of the case lest it may prejudice the determination of any action which one or the other party may bring, on the strength of Annexures R/1 and R/2.
23. For all the above reasons, all these petitions are allowed and the impugned orders in all these cases are hereby declared as having been passed without lawful authority and consequently of no legal effect. In the circumstances of the case, parties are left to bear their own costs.