On 16-7-1991 respondent No. 1 filed a suit against the petitioner and 'respondent No.2. In the plaint it was stated that respondent No.1 purchased land measuring 3 Kanals, 7 Marlas mentioned in para. 1 of the plaint by means of a registered deed, dated 25-2-1979 and the sale was nicorporated in the Revenue Records. This land was acquired by respondent No.2 for Muhammad Ali, Jauhar Town Scheme and respondent No. 1 made an application for exemption of plot against the said land. This application was filed on 24-7-1984. It is then stated that 1816 Kanlas, 15 Marlas of the said land was then made over to the Revenue Employees Cooperative Housing Society Ltd., Lahore and thereafter Award No.5 for land measuring 738 Kanals and 4 Marlas was given by the Collector on 25-11-1985 in favour of the present petitioners and that it was made clear that the landowners shall have an option either to accept the price or to get 30% land exempted; that 2 or 3 months ago respondent No. 1 approached - the office of respondent No.1 when he was told that the land is to be exempted by the petitioner. The request for exemption was refused. With these averments a declaration was sought that respondent No.1 entitled to allotment of an exempted plot in lieu of his land from the petitioner. The suit was resisted by the petitioner. The allegations in the plaint were denied. It was stated that the entire amount of assessed compensation has been deposited with the Land Acquisition Collector. It was denied that the landowners had an option to get the land exempted.
Following issues were framed by the learned trial Court:--
(1) Whether this suit is barred by time? OPD 1.
(2) Whether the notice under section 70 of the Cooperative Societies Act, 1925 was required to be served upon the defendant No. 1 by the plaintiff before filing this suit, and has not been served? If so, its effect? OPD 1.
(3) Whether this Court lacks jurisdiction to try this suit? OPD 2.
(4) Whether this suit cannot proceed in its present form? OPD 2.
(5) Whether this suit has been under--valued for the purposes of court-fee and jurisdiction? If so, then what is the correct valuation with what effect". OPD 2.
(6) Whether the plaintiff is entitled to a plot in lieu seven Marlas, acquired by the defendant No. 1?
OPP
(7) Whether the plaintiff has come to the Court with unclean hands? OPD 2.
(8) Whether the plaintiff has filed this suit without any cause of action and locus standi? OPD 2.
(9) Whether the defendant No.2 is entitled to recover special costs from the plaintiff under section 35-A, C.P.C.? OPD 2.
(10) Relief.
Evidence of the parties was recorded. Vide judgment and decree, dated 14-12-1993 the learned trial Court decreed the suit and directed the petitioners to exempt a plot in a compact block. A first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Lahore on 4-7- 1994.
2. Learned counsel for the petitioner contends that the land was lawfully acquired by the Provincial Government for the petitioner and the entire amount of the assessed compensation was deposited. There was no condition and there is no law under which the petitioner can be called upon to surrender the land which vests in it under the law. According to the learned counsel the impugned judgments are result of gross irregularity in the exercise of their respective jurisdiction by the learned Courts below. Learned counsel for the respondents, on the other hand, has tried to support the impugned judgments and decrees with reference to documents Exhs.P.4 and P.5 on record.
3. I have gone through the copies, record appended with this Civil Revision, with the assistance of the learned counsel the parties. Exh.D.1 is the award. According I to this document 733 Kanals, 3 Marlas land was notified for acquisition under section 4 of the Land Acquisition Act, which notification was published in the official Gazette on 8-8-1985. Provisions section 17(4) of the said Act were invoked. After issuance of notification under section proceedings commenced. A total sum of Rs.91,64,375 was assessed as compensation as also 25 % compulsory acquisition charges.
This amount was deposited and possession was delivered vide Exh.D.2. Thus the land came to vest in the petitioner subject to the provisions of the said Land Acquisition Act. 1894. Now the respondents demanded that 4 plot be allocated to him from the said land admittedly vested in the petitioner. Now an owner of a land cannot be divested of the same otherwise than in accordance with law. Both the learned Courts below have virtually conceded that there is no legal provisions obliging the petitioner to allocate the land, as claimed by the respondent, to him. However, both the learned Courts below have relied upon Exhs. P.4 and P.5 in support of their respective judgments. These are letters issued by the petitioner to some of the landowners asking them that if they wished to negotiate with the petitioner for exemption of plot equal of 30 % of the holding they may enter into an agreement with the petitioner: Now to my mind in case the petitioner had agreed to exempt the plots after negotiations with some landowners, the same does not at all mean that they were under a legal obligation to allot the land to respondent No. 1 as well. Both the learned Courts below have also acted under the impression that the Rules and Regulations of the LDA would be binding upon the petitioner in the matter of acquisition of the said land. It may be stated that the provision for 30% exemption was contained in Martial Law Instruction No.23 issued on 17-8-1977. Para. 12 of the said MLI provided that 30% of the acquired land is to be exempted in favour of the landowners. This MLI stood withdrawn upon lifting of the Martial Law in the year 1985.
This Court in the case of Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd.
(PLD 1983 Lahore 552) has held that the said provisions would not at all be applicable to acquisition of land by a Housing Society as the petitioner is.
4. For all that has been discussed above I do agree with the learned counsel for the petitioner that the impugned judgments and decrees have been passed without lawful authority and cannot be sustained. This Civil Revision accordingly is allowed. Both the impugned judgments and decrees are set aside and the suit filed by respondent No.1 is dismissed without any orders as to costs.