IRSHAD HASAN KHAN, ACTG. C.J.- Through this common order we propose to dispose of Civil petitions for Leave to Appeals Nos. 1112-L of 1999 and 1169-L to 1173-L of 1999, which are directed against the consolidated judgment dated 28-6-1999, passed by a learned Division Bench of the Lahore High Court in I.C.A. No. 257 of 1993, whereby I. C.As. Nos. 354, 257, 475, 476, 477 and 642 have been decided and the judgment of the learned Single Judge dated 16-6-1993 passed in Writ Petition No. 5972 of 1989 alongwith other writ petitions, has been set aside by accepting the Intra- Court Appeals.
2. The petitioner is a Co-operative Society duly registered under the Co-operative Societies Act, 1925. It is pleaded that the petitioner moved District Collector, Lahore, to acquire the land measuring 2194 Kanals, 8 Marlas, 1814 Kanals. 3 Marlas and 468 Kanals, situate in villages Malikpur, Shevpur and Sehjppal, Tehsil Cantt. Lahore, totaling 4476 Kanals and 11 Marlas for a residential Colony to meet the chronic shortage of houses in Lahore District for its Members. The District Collector, Lahore, issued a preliminary notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter called the Act), on 30th August, 1988 and corrigendum dated 22-3-1989 forwarded estimated cost of the land, to the tune of Rs. 8,90,92,250 including the compulsory acquisition charges by the approval of the Board of Revenue, Punjab, Lahore. The total area was 3506 Kanals and l2 Marlas. However, land measuring 345 Kanals and 3 Marlas belonging to the Central Government was deleted. The Society purchased 268 Kanals and 5 Marlas. Hence the total area finally acquired was 2533 Kanals and 4 Marlas.
3. It is claimed that after observing due formalities, the final award was announced on 27-5-1990 in respect of 2533 Kanals and 4 Marlas. In addition to this compensation of standing crops and delivery of possession of land, a sum of about Rs. 10 million was paid to the landowners.
4. It is further claimed that the petitioner Society deposited a sum of Rs.7,32,99,201 towards total price of the land acquired under the notification. Most of the landowners have received amount and no appeal or further proceedings, were taken against the Award.
5. Being aggrieved, respondents Nos. 1 to 10 tiled Constitutional petitions, challenging the acquisition proceedings but all the writ petitions in regard thereto, were dismissed vide order dated 16-6-1993. Six Intra- Court Appeals filed against the said order were accepted vide impugned order dated 28-6-1999 whereby the order of the learned Single Judge was set aside and acquisition notification was declared as without lawful authority. The petitioner now seeks leave to appeal.
6. Raja Muhammad Anwar, Senior Advocate Supreme Court for the petitioner Society contends that under Section 15 of the Act, an appeal has been provided against the original order, therefore, Intra-Court Appeal was not competent. In consequence, the impugned order dated 28-6-1999 is a nullity in the eye of law and the proceedings taken therein were coram non judice. He conceded that this question was not raised before the Division Bench. Nevertheless, being a question of law, going to the very root of the case and concerning jurisdiction of the Court, it could be raised at any time.
He argued that the petitioner-Society deposited a sum of Rs.7,32,99,201 towards total price of the land acquired under the notification. The writ petitioners have taken out the money, therefore, they could not challenge the order of acquisition before the High Court. The learned Intra-Court Appellate Benches not been taken notice of it. Thus visualized, the I.C.A. Bench should not have interfered in the matter being a transaction past and closed. He next argued that the learned Division Bench of the High Court has set aside the acquisition of 2533 Kanals and 4 Marlas, which was in excess of the land involved in the I.C.As, pending before it and that the impugned order was beyond the pleadings of the parties, therefore, wholly without jurisdiction. He argued that the I.C.A.
Bench had fallen into error in holding that one member has been allotted more than 10 plots. In fact, the record shows that no member has been allotted more than one plot. The members purchased the plots from the allottees and they have become transferees.
He further argued that the I.C.A. Bench had made out a new case for the owners and set aside the acquisition proceedings, which were legally carried out and an amount of Rs.7,32,99,201 had been deposited with the Collector, it was contended that the acquisition proceedings were started by the Collector and the Commissioner was appointed Inquiry Officer under Section 4 of the Act, who was Additional Deputy Commissioner General of Lahore Cantt., who gave the report to the effect that to meet the shortage of houses in Lahore the Committee has undertaken to allot plots for construction to its members to overcome the shortage, therefore, this acquisition was for different purpose, which can be allowed. The Commissioner issued notification under Section 17(4) of the Act fulfilling all formalities. Learned counsel lastly contended that an appeal before this Court is competent as a matter of right under Article 185(2)(d) of the Constitution, inasmuch, as the amount/value of the subject-matter of the land, in dispute, in the writ petitions, which was also in dispute in Intra- Court Appeals, was not less than Rs.50,000 each and the final order passed by the learned Single Judge appeal from has been set aside by the judgment passed in I.C.A.
7. At the outset, we are inclined to agree with Mr. Aitzaz Ahsan, learned counsel for the respondents caveators in Civil Petition No. 1173-L of 1999, that Article 185(2)(d) of the Constitution is not applicable in this matter, inasmuch as, the above clause applies only to those matters, which were in the form of suits petitions and arising out of judgments, decrees or final orders of the Court immediately below the Court of appeal and the amount or value of the subject-matter of the dispute in the Court of first instance as well as in dispute in appeal, was not less than Rs.50,000.
Here, the impugned order having been passed by the Intra-Court Appellate Bench of the High Court and the order impugned before said Bench being not an order passed by the Court immediately below it. The contention raised by Raja Muhammad Anwar, in this behalf is, therefore, repelled.
8. Mr. Aitzaz Ahsan controverting the submissions made by Raja Muhammad Anwar, vehemently argued that repeated directions/exclusions made,by the Land Acquisition Authorities proved that no proper and dispassionate mind had been applied while acquiring the land, in dispute. Strong reliance was also placed on the inquiry report submitted hy Assistant Registrar, Co-operative Societies (Housing-1), Lahore, under Society, has been acquired, inasmuch as, the Society sought acquisition of 1385 Kanals only as their requirement and the original notification under Section 4 of the Act was for the same area of land but when the cost was being estimated the area was increased to 4476 Kanals and then after some modifications the Collector sought the appointment of an Inquiry Officer.
11. After hearing Raja Muhammad Anwar, learned Senior Advocate Supreme Court for the petitioners, Ch. Aitzaz Ahsan, learned counsel for the respondents/Caveators in Civil Petition No. 1173-L of 1999 and Mr. Saeedur Rehman Farrukh, learned Advocate Supreme Court for the respondent in Civil Petitions Nos. 1169-L and 1172 of 1999, who adopted the submissions made by Ch. Aitzaz Ahsan. We are inclined to grant leave to examine the above points and also to examine whether in the facts and circumstances of the case the learned I.C.A. Bench was justified to pass the impugned order. Meanwhile, status quo shall be maintained till the final disposal of the appeals.
12. Office is directed to fix. These appeals during the month of February, 2000.
13. Needless to point out that this order shall not prejudice litigation between the parties, pending in different Courts, detail whereof has been given at pages 15-17 in the supplementary Paper Book filed on behalf of respondents in C.P. 1112-L of 1999. These matters shall be decided on their own merits and in accordance with law without being prejudiced by any observation made in this order.