' SARDAR MUHAMMAD RAZA KHAN, J.--- Faisalabad Development Authority and Municipal Corporation, Faisalabad in Civil Petitions Nos.946/L and 1012/L of 2000 respectively, seek leave to appeal against a common judgment, dated 28-2-2000 passed by a learned Division Bench of Lahore High Court in Intra-Court Appeals Nos.935 of 1997 and 256 of 1998 whereby Raja Jahangir Nasir etc. The writ petitioners, were held entitled to the transfer with possession of a land which, during acquisition proceedings, was agreed to be transferred in their name in lieu of the land acquired by the Collector from them for the construction of Satellite Town, Faisalabad.
2. The petitions aforesaid were still pending when an application (C.M. No,1 of 2002) under section 12(2) of the C.P.C. Was filed before the High Court on the ground that the writs aforesaid were obtained through misrepresentation and fraud. A learned Division Bench of Lahore High Court vide judgment announced on 4-8-2003, while accepting application under section 12(2), C.P.C., set aside the impugned judgment, dated 28-2-2000 with direction, that:- "(i) The respondents/writ petitioners shall appear before the Member (Colonies), Board of Revenue, Punjab on 8th September, 2003 who shall determine the question whether Raja Ali Bahadur, predecessor-in-interest of the respondents/writ petitioners was, ever granted proprietary rights of the land by the competent authority against which compensation was being claimed by the respondents/writ petitioners.
(ii) Whether the respondents/writ petitioners ever made any claim before the Land Acquisition Collector in terms of section 9 of the Land Acquisition Act, 1884?
(iii) The afore-referred exercise shall be completed within three months of the receipt of this order.
(iv) In case the title of the respondents/writ petitioners qua the land in question is valid, they shall be at liberty to pursue their remedies before a Court of plenary jurisdiction."
' Raja Jahangir Nasir etc., were then constrained to file a Civil Petition for Leave to Appeal No,2142/L of 2003 against the judgment dated 4-8-2003. Involving one and the same subject.Matter all the three petitions shall be disposed of through this common judgment.
3. A brief and relevant resume of the prolonged litigation is necessary to be given. Raja Jahangir Nasir, Raja Tariq Pervaiz and Raja Khalid Pervaiz sons of Raja Ali Bahadar filed writ petitions with the averments that their father acquired proprietary rights in a land in Chak No,2/9/RB, Tehsil and District Faisalabad vide Mutation No,5568 attested on 13-1-1952. That the father transferred the land in the name of aforesaid writ petitioners vide Mutation No,5580 on 2-12-1952. That 124 Kanals, 6 Marlas out of the aforesaid land owned and possessed by the respondents was acquired by the department of Housing and Physical Planning for Satellite Town, Faisalabad, After the issuance of notification under section 4 of the Land Acquisition Act another notification under section 17(1) of the Act war, also issued owing to the urgency involved.
4. Out of the aforesaid land measuring 124 Kanals, 6 Marlas, only 44 Kanals and 13 Marlas was utilized by the department for the scheme and the remaining land, after approval by the Chief Minister, was returned to the land owners with remarks by the Chief Minister to take utmost care in safeguarding the interest of the Government. Pursuant thereto, a Committee was constituted which made recommendations that an area measuring 35 Kanals, 11 Marlas be given to the respondents as an alternate land with undertaking that no more demand would ever be advanced. Subsequently, the proposed land of 35 Kanals,11 Marlas was reduced to 17 Kanals, 8 Marlas. This proposal was accepted by the Committee, as well as, the owners.
5. The proposal aforesaid was sent to the Deputy Commissioner/ Collector alongwith a draft agreement to be signed by the Provincial Government and the land owners. At this stage the Secretary Housing and Physical Planning Department vide his letter, dated '12-4-1992 directed that the proposal for the grant of alternate land as compensation to Raja Ali Bahadur may not be implemented till the title of Raja Ali Bahadur and his sons qua the land under acquisition, was verified by the Deputy Commissioner and approved by the Government. On reference by the Deputy Commissioner to the Tehsildar, the Patwari Halqa and the Tehsildar verified the title of the land owners but still the proposal in question was not materialized and implemented.
6. The land owners filed writ petitions which were allowed by a learned Single Judge holding that despite re-verification of title of theland owners, the matter of transfer of alternate land was not finalized. That the Law Officer had also conceded that the Government was prepared to give alternate land to the land owners as mentioned in memo. No,H/586, dated 17-4-1995. The Court further held that the alternate land proposed to be transferred to land owners belonged to Housing and Physical Planning Department and thus, Faisalabad Development Authority or the Municipal Corporation had no locus standi to contest the matter. The Authority and the Corporation filed Intra-Court Appeals Nos.935 of 1997 and 256 of 1998. Government of the Punjab also filed an application for impleadment as party. The learned Division Bench, through the impugned judgment dismissed both the Intra-Court Appeals and also disallowed impleadment. The learned Division Bench, in addition to following the arguments of the learned Single Bench advanced various reasons of their own for upholding the judgment including the ground that the learned Assistant Advocate-General had very candidly stated that the claim of the land owners for alternate land was quite legitimate and the Government was willing to transfer the land in the alternative as mentioned in memo. No,H/586, dated 17-4-1995. The same findings were recalled by a learned Division Bench of the Lahore High Court under section 12(2), C.P.C. In addition to exercising their power of review.
7. Technically speaking the decree, dated 28-2-2000 challenged in Civil Petitions Nos.946 and 1012 of 2000 stands already recalled under section 12(2), C.P.C. As well as by invoking the power of review and hence the fate of the case depends upon the decision in Civil Petition Nc.2142 of 2003 where the judgment, dated 4 -8-20C3 of recall and review is challenged by Raja Nasir Jahangi etc. Any how, the circumstances of the case and the law points involved are such that we propose to discuss the case in its totality and on merits.
8. It should not be disputed, that application under section 12(2), C.P.C. Was wrongly filed before a Division Bench against judgment rendered in Intra-Court Appeal and that it ought to have been filed before a Single Bench that decided original writ petition, for, an application of the nature is always filed before the Court that rendered final judgment. The very section is clear thereabout and the same was determined by this Court in Abid Kamal's case 2000 SCM R 900.Be that as it is, the application under section 12(2), C.P.C. Is based, to be very fair, on the ground of misrepresentation by the learned Law Officer who with reference to a Memo. No,H/586, dated 17-4- 1995 conceded before the First Court that the grant of alternate land by the Government in favour of the land owners was still in field. This was totally a misrepresentation because the memo.
Aforesaid had already stood rescinded through a subsequentMemo. No,8-105/AM/2764, dated 27- 4-1995, only ten days after the issuance of the former one. By the time the learned Law Officer made concession, the subsequent memo. Was already in existence. Such concession whereby the Court primarily got influenced was certainly a misrepresentation.
9. The matter was argued from a different angle, as well, that the Law Officer without the permission of competent authority had no authority to make any concession detrimental to the vested interest of the Government.In this behalf PLD 2003 Journal 95 (at page 99) was placed reliance upon. These are certain recommendations made through Notification No,F.5(2)/2003 by Attorney-General for Pakistan pursuant to directions issued by this Court in Pakistan Railways v.
Muhammad Sharif Javaid Warsi PLD 2003 SC 6. Recommendation No,8.0 concerning concessions is reproduced below:-- "Concessions 8.0 The Law Officers must not make any statement conceding an issue or a case in Court unless they have been duly instructed in writing by the Competent Authority and an officer not below Grade-17 is present in Court to verify and reiterate such instructions. In all such cases the presence of the officer must be recorded in the order of the Court and the written instructions made a part of the record of the Court."
' These recommendations, for the present concession in question, may be treated as a rule of common sense but cannot be strictly applied against the Law Officer in question because he had made the instant misrepresentation during the hearing of writ petition somewhere in the year 1997 whereas the recommendations/ instructions (supra) have been issued in the year 2003. Thus, we can only observe that had the Law Officer exercised the rule of abundant caution, he ought to have asked the Government whether or not to make concession.
10. The second contention in application under section 12(2), C.P.C. Was that the land owners had no title in the property acquired for Satellite Town Faisalabad. This plea, frankly speaking, could not be made in the application in question because the same could be taken in the writ petition and which in fact was so taken. The allegation of concession by misrepresentation carries a lot of force because it materially affected the decision in the writ petition.
11. The suppression of memo. Dated 27-4-1995 aforesaid has led to cumulative suppression of another Memo. No,SO(P)-1-2/85-II, dated 6-7-1993 alluding to the decision of the. Chief Minister Punjab conveyedto the Director-General, Faisalabad Development Authority, the relevant part whereof is reproduced below:- .... The decision of the worthy Chief Minister was conveyed by the Government of the Punjab in H&PP Department vide Memo. No,SO(P)-1-2/85-II, dated 6-7-1993 to the Director General Faisalabad Development Authority, Faisalabad as well as H&PP Department Punjab Lahore which contains a specific decision regarding the claim of Raja Ali Bahadur in para. No,2(I) and (ii) which are reproduced below for ready reference:--
(i) Only letter of intent of allotment had been issued to Raja Ali Bahadur against his claim of compensation. This is still to be accepted by the allottee, hence the land measuring 17 Kanals, 13 Marlas allotted to him by the H&PP Department should be withdrawn and cancelled. The plots falling under the land would be reverted back to the F.D.A. The claim would be examined on receipt of report from the Deputy Commissioner, Faisalabad and in case it was ultimately accepted, the F.D.A. Would allow land of equivalent value on the basis of his claim of compensation at the time Ghulam Muhammad Abad Housing Scheme was prepared for allotment to Raja Ali Bahadur in its new housing scheme known as Faisalabad Town Housing Scheme, Faisalabad. .... Since the position of the case has not been changed and that there is no land (free from encumbrances) available with the II&PP Department. At the moment, therefore, it is proposed that the Government of the Punjab H&PP Department may please be approached with the request to stress upon the Director-General, Faisalabad Development Authority, Faisalabad for mplementation of the orders, dated 6-7-1993 so as to close an old outstanding case of Raja Ali Bahadur.
' Although the Deputy Director II&PP Division Faisalabad has submitted a report vide his Memo.
No,HC/586, dated 13-4-1995 (appears to be a typographical mistake date is 17-4-1995) suggesting three pieces of land at para. No,8(i)(ii)(iii) but the undersigned desired that it is a vicious style report which cannotbe matured because of the facts that the pieces of landintroduced by him are not free from encumbrances and are also of different categories regarding financial aspectsdue to location." (Emphasis is supplied).
12. In the impugned judgment, dated 4-8-2003 numerous letters have either been mentioned or reproduced which seriously tell upon the title of the claimants qua the land acquired for Satellite Town Faisalabad. Such title was disputed by the department even prior to the institution of the writ petition and hence it was incumbent upon the alleged land owners that once their title was disputed, they ought to have had resorted to the Court of plenary jurisdiction. As a Court exercising Constitutional jurisdiction under Article 199 of the Constitution cannot go into the disputed question of title and cannot have the opportunity of recording evidence of the parties, the resort in the circumstances must have been made to the Court of original jurisdiction having power to declare or not declare title of a party. In the circumstances the High Court, under section 12(2), C.P.C. As well as under its power of review, had rightly recalled the judgment, dated 28-2-2000.
13. Coming to the other two petitions and to the real merit of the case, we are constrained to observe at the very outset that the claimants of alternate land in lieu of money compensation have no right at all under the law to be so compensated through a transfer of any other land in the alternative. The entire scheme of the Land Acquisition Act, 1894 is devoid of such arrangement. It would be appropriate to have in this regard a relevant overview of the Act itself.
14. The present claimants, according to the title alleged, fall within the definition of "person interested" as shown in section 3(b) of the Act. Their entity as "person interested" is to be kept in view. Section 4 deals with the publication of preliminary notification indicating intention of the Government to acquire certain property. Section 5 deals with payment of damages; 5-A with the hearing of objections to the acquisition and thereafter a declaration, that land is required for public purpose, is made under section 6. Under section 7 the Collector takes order from Provincial Government for acquisition, while markings, measurement and planning are done under section 8.
Another relevant is section 9 under which notice is issued to the "persons interested" that they should file claims to compensation for all interests in such land while statements as to making or enforcement of names and interests are published under section 10 whereafter a final award is rendered qua the "persons interested", under section 11.
15. Section 15 provides, that matters to be considered while awarding compensation should be in accord with sections 23 and 24 of the Act. Needless to mention that the matters concerning compensation are elaborately dealt with by sections 23 and 24 of the Act. This entire overview of the Act right from the issuance of a notification under section 4 of the Act upto section 25 thereof, it is nowhere mentioned that a "person interested" within the contemplation of section 3(b) of the Act can also be granted any land in the alternative for the land acquired from him for a public purpose. The entire law envisages the grant of compensation in terms of money and money alone.
Raja Nasir Jahangir etc. Claim themselves, as owners to be "persons interested" and hence they can or could have claimed compensation in terms of money alone. Even if the Government, outside the purview of Land Acquisition Act comes with a gesture acceding to owners wish that compensation should be in form of land instead of cash, it is or would be an agreement not through Court. M. Salim Ullah's case PLD 1960 (W.P.) Lah. 450 was relied upon in this behalf.
16. Every Court deciding in favour of the claimants have relied upon section 31 of the Land Acquisition Act. In our view this section has utterly been misconceived by all concerned and even those in the Government who wanted to favour the alleged owners. In view of the importance thereof subsection (3) of section 31 of the Land Acquisition Act is reproduced below:-- "(3) Notwithstanding anything in this section the Collector may, with the sanction of the (Provincial Government) instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned."
17. Before going into the interpretation, it may be observed at this juncture that sections 30, 31 and 32 presuppose the determination, existence and the availability of amount of compensation in terms of money as finalized by the award under section 11 of the Act . Sometimes when there is no complication, the amount is paid to the "persons interested". At times, it is deposited in Court and under certain conditions other arrangements are resorted to. Such other arrangements are the subject-matter of subsection (3) of section 31 of the Act.
18. The Collector under aforesaid section with the sanction of the Provincial Government (now Commissioner), instead of making payment of money compensation in respect of some land, can make any arrangement with person having a limited interest in such land. Such arrangements are of the following three kinds:-
(a) by the grant of other lands in exchange,
(b) by the remission of land revenue on other lands held under the same title i.e, limited interest, and
(c) in such other way as may be equitable having regard to the interests of the parties concerned.
19. The most important ingredient of the section has to be kept in view that all the aforesaid arrangements or anyone thereof can be made with person having a limited interest in such land. It requires no effort to hold that the present claimants, in their mind, claim to be full owners of the land acquired and fall accordingly within the definitions of "person interested" as defined by section 3(b) of the Act and have nothing at all G to do with person having a limited interest in such land. The very claim is unfounded and void ab initio. No Court can grant such relief for alternate land in lieu of money compensation. The Court seized of the writ petition and the Court hearing Intra-Court Appeals have totally ignored the very basic concept of law laid down in section 31(3) of the Act.
20. The interpretation of aforementioned is not a novel one to have been taken up for the first time.
Only five years after the enactment of Land Acquisition Act a case Sheo Rattan Rai v. Mohri came up before Mr. Justice Slayer and Mr. Justice Burkitt of Allahabad High Court ILR 1899 All.
354. In that case the respondent Mst. Mohri as a Hindu widow had a limited interest in the property having no power to alienate except for legal necessity. The reversioners had come up with objection that they were entitled to the payment. The Court resorted to the provisions of section 32 of the Act directing the investment of money in the purchase of other land to be held under the like title and conditions of ownership (limited interest) or if suchpurchase could not be effected forthwith then the amount to deposited in such Government or other approved securities as the Court would think fit. The point to be noted is that the person involved in that case was not a "person interested" but a person having limited interest in such land. The necessary arrangements were directed by the Court in the circumstances of that case.
21. The case of Sheo Prasad Singh v. Jaleha Kunawar ILR 1901 All. AWN 1902, 9 again came before Allahabad High Court with reference to section 31 of the Land Acquisition Act. The section was applied because in there too, the limited interest of two Hindu widows was involved and who had no power to alienate the property in question. In that case too the Court resorted to certain adjustment appropriate in the situation and ordered the compensation money to be invested as provided by section 32 of the Act.
22. Last case that we could lay our hands upon was Mst. Gangi v. Santu AIR 1929 Lah.
736. The only difference was that in first two cases the ladies holding limited interest were Hindu ladies while in the instant case it is a Muslim lady. There is no point of distinction between the limited estate of a widow governed by Hindu Law and that of a Muslimwidow governed by Customary Law. It was held that a widow holdinglife estate was a person having a limited interest while her reversioners were the "persons interested" within the meaning of section 3 of the Act.
Sections 31 and 32 of the Act apparently provide for the case of persons not having absolute power to alienate the property as was a widow holding a life estate under the Customary Law. These sections are intended by the Legislature to protect the interest of reversioners when land is taken from the possession of a person who holds it only on a life estate.
23. Seen from any angle whatsoever, the case of the present claimants is not at all covered, by any stretch of interpretation, by section 31 or 32 of the Land Acquisition Act. The learned High Court, in writ petitions as well as in the Intra-Court Appeals have wrongly issued a writ to that effect in favour of the claimants. Consequently, Civil Petition No,2142/L of 2003 is hereby rejected and leave to appeal refused while Civil Petitions Nos.946/L and 1012/L of 2000 after conversion into appeals are hereby accepted, the impugned judgment, in addition to being recalled under section 12(2)
C.P.C. Is hereby set aside on merits as well. In view of what has been held above, the claimants, if advised, may resort to Court of competent jurisdiction for money decree after proving their title to the land acquired for Satellite Town, Faisalabad.