PLJ 2024 Lahore (Note) 42
Present: Ch. Muhammad Iqbal, J.
BEGUM SHAHIDA AHMAD and 3 others--Petitioners
versus
REGISTRAR COOPERATIVE SOCIETIES and others--Respondents
W.P. No. 6783 of 1994, decided on 8.1.2024.
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4, 6, 18 & 30--Acquisition of land--Final award was issued--Non-availing of statutory remedy--Principle of laches--Past and closed transaction--Principle of approbate and reapprobate--Acquisition proceedings were attained finality--Entire amount of compensation was deposited—Maintainability--Statutory remedy--Petitioners had statutory remedy of filing a reference under Section 18 read with Section 30 of Act, but despite knowledge, said remedy had not been explored rather petitioners straightaway approached High Court without availing statutory remedy, instant writ petition was not maintainable--Matter regarding acquisition of land in question had attained status of finality and had become past and closed transaction which could not be reopened on whims and caprice of an indolent party--Land had been acquired through process of law, entire amount of compensation had been deposited before Collector concerned and final Award has been issued and it is settled law that after issuance of award ordinarily constitutional petition was not maintainable--Petition dismissed.
[Para 8, 9, 10, 11 & 12] A, B, C, D, E & F
2023 PLC (CS) 186, 2012 CLC 1729, 2023 SCMR 1247,
PLD 2013 Lahore 565, 2016 SCMR 14, 2007 SCMR 569 and
2005 SCMR 1320 ref.
Mr. Muhammad Atif Amin, Mr. Waqar A Khan, Mr. Irfan Dawood and Ch. Rizwan Sarwar, Advocates for Petitioners.
Mr. Tariq Masood and Hassan Tariq, Advocates for DHA.
Mr. Waseem Iqbal Butt, Advocate for Settlement Department for Respondents.
Date of hearing: 20.12.2023.
Judgment
Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioners have challenged the validity of notification [dated 30.04.1980] Gazetted on 06.05.1980 under Section 4 of the Land Acquisition Act, 1894, notification [dated 05.05.1981] gazetted on 09.05.1981 issued under Section 6 of the Act ibid and the Award dated 20.06.1979.
2. Brief facts of the case, as contended by learned counsel for the petitioners, are that the urban agricultural land measuring 14 Kanal 07 Marla falling in Khasra No. 123 of Moza Chohang Khurd, Tehsil Lahore Cantt, Lahore was allotted to Shams-ud-Din Ali Ahmad who died on 12.03.1988 and the petitioners are his legal heirs. The said land was acquired and award was issued on 20.06.1979. The petitioners filed a Writ Petition. [No. 4875/1992] challenging therein the acquisition of land in question. The said petition was disposed of
by this Court on 18.04.1993 with the direction to the Respondent
No. 2/Secretary, Lahore Cantonment Cooperative Housing Society, Lahore [now merged into Defence Housing Authority, Lahore] to complete the proceedings of inquiry and take final decision in the matter. Respondent No. 2/Defence Housing Authority finalized the proceedings on 28.12.1993. The petitioners obtained copy of the said proceedings on 04.04.1994 from where it revealed that Respondent
No. 2 stated that a sum of Rs. 287,000/-including compensation amount of land in question was received by Respondents No. 4 to 7 who are successors in interest of Muhammad Boota and the petitioners should recover the said amount from Respondents No. 4 to 7. That Muhammad Boota challenged the allotment of Shams-ud-Din Ali Ahmad before the Additional Commissioner (Settlement), Lahore through an appeal which was accepted on 08.05.1971 and land of Khasra No. 121 was allotted to said Muhammad Boota whereas land measuring 14 Kanal 07 Marla situated in Khasra No. 123 was allotted to Shams-ud-Din Ali Ahmad.
On 20.02.1979, Respondent No. 2 sent an offer letter to Shams-ud-Din Ali Ahmad to sell his land in question in its favour, which was replied on 05.03.1979. Respondent No. 3/Additional Deputy Commissioner, Lahore Cantt. Vide letter dated 23.12.1988 inquired from Respondent No. 2 to confirm the ownership of Shams-ud-Din Ali Ahmad but despite presence of the aforesaid correspondence and the document of ownership, the Respondent No. 2 handed over the compensation amount of the land in question to the Respondents No. 4 to 7. Against the above disbursement of the compensation amount, the petitioners filed the titled writ petition which was earlier disposed of by this Court on 03.04.2002 with the direction to Respondent No. 2 to settle the issue. The said judgment dated 03.04.2002 was assailed before the Hon’ble Supreme Court of Pakistan wherein the leave was granted on 18.12.2008 and the petition was converted into civil appeal. In the said appeal, the Respondent No. 2/DHA filed CMA No. 1290/2008 with the assertions that land owned by Shams-ud-Din Ali Ahmad and Muhammad Boota was acquired through process of law and the copies of notifications as well as award were placed on record. The Hon’ble Supreme Court of Pakistan vide judgment dated 10.02.2015 allowed the appeal, set aside the order dated 03.04.2002 and remanded the matter to this Court by allowing the parties to amend their memo of petition and parawise comments as well as to place on record the relevant documents in support of their respective claim. In compliance of the judgment dated 10.02.2015, the petitioners have filed amended writ petition and the respondents have also filed amended reply/parawise comments thereto.
3. Learned counsel for the petitioners submits that the petitioners are owner of land measuring 14 Kanal 07 Marla but their land had been occupied by the Respondent No. 2 without any compensation, thus a fair compensation may be determined as per the market value of the land and the earlier Award as well as acquisition proceedings be declared as illegal.
4. Learned counsel for the respondents inter alia submits that Khasra No. 123 was acquired under the provisions of the Land Acquisition Act, 1894 and the compensation of the said award regarding land measuring 14 Kanal 07 Marla was deposited in treasury and the owners of the said land may withdraw the said amount. That instant writ petition is hit by the principle of laches. That the matter of acquisition of land has been finalized and award had been announced. The said proceeding of acquisition as well as award whereof were assailed in different writ petitions which acquisition has been upheld in writ petitions as well as in the Intra Court Appeals as such the issue of acquisition as well as award whereof has become a past and closed matter which could not be re-opened. Adds that Ahmad Hassan Khan, Advocate who was duly authorized by the petitioners through power of attorney filed an application for inspection of record of Writ Petition No. 4063/1981, which petition was instituted against the impugned Award and accordingly, he inspected the file on 27.02.1982, thus since that day, the acquisition proceedings of the land in question as well as the issuance of the award were in the knowledge of the petitioners but they neither filed any objections nor reference under Section 18 of the Land Acquisition Act, 1894 against acquisition process within time. The learned counsel lastly prayed for dismissal of the writ petition.
5. I have heard learned counsels for the parties and have gone through the record.
6. Shams-ud-Din Ali Ahmad, predecessor-in-interest of the petitioners, filed Writ Petition [No. 4875/1992] with the prayer that the Registrar Cooperative Societies and Secretary of Lahore Cantonment Cooperative Housing Society (now DHA/Respondent
No. 2) may be directed to act in accordance with law and the possession of land in question [measuring 14 Kanal 07 Marla] may be restored in his favour. In the said writ petition, the Respondent No. 2 categorically stated that the land in question had been acquired in the year 1979 and compensation whereof had been deposited with the said authority and land for all legal intents and purposes stood vested with the acquirer. Even then, the legal heirs of Muhammad Boota also submitted reply in the said writ petition and acknowledged the acquisition of land in question in favour of Respondent No. 2. The said writ petition was disposed of with the consent of the parties on 18.04.1993 with the direction to the Respondent No. 2 to complete the proceedings of inquiry regarding payment of compensation. The Respondent No. 2 in its report stated that an amount of Rs. 2,87,000/-as compensation of the acquired land including the land measuring 14 Kanal 07 Marla was received by legal heirs of Muhammad Boota [Respondents No. 4 to 7].
7. Further, the petitioners before filing amended writ petition, prayed in the petition that the respondents may be directed to compensate the petitioners for land measuring 14 Kanal 07 Marla as per the prevalent market value of the land. The Writ Petition was disposed of on 03.04.2002 with the direction to the Respondent No. 2 to settle the dispute. The said order was assailed by the petitioners before the Hon’ble Supreme Court of Pakistan through Civil Appeal No. 2250 of 2008 which was allowed vide judgment dated 10.02.2015 and the matter was remanded to this Court with the following directions:
“7. Mr. Najam-ul-Hassan Kazmi, learned ASC for the appellants when confronted with all these facts of acquisition of disputed land and the documents in support thereof produced by Respondent No. 2, submits that in the writ petition these facts were not brought to the notice of the High Court by the respondents, so as to enable the petitioners to respond and rebut this material against them. He, therefore, urged that the impugned judgment may be set aside and the case may be remanded to the High Court with permission to both the parties to amend their respective memo of petition and parawise comments and also to place on record all the relevant documents as regards the earlier two suits instituted by the predecessor-in-interest of the appellants before the Civil Court, as well as record of earlier Writ Petition No. 4875/1992, and any other record of the Land Acquisition Officer, etc. relating to the disputed land, so that the claim of the appellants may be decided afresh in accordance with law. To this suggestion, learned ASC for Respondent No. 2 and other respondents have no objection for the reason that the documents placed on record through C.M.A No. 816/2009 have not been considered by the Lahore High Court during the pendency of the writ petition filed by the appellants, as the same did not form part of its record.
8. This being the position, by consent the impugned judgment is set aside and Writ Petition No. 6783/1994 (Re: Begum Shahida Ahmad and others versus Registrar Cooperative Societies and others) is remanded to the Lahore High Court, Lahore with the observation that the parties to the petition may be allowed to amend their memo of petition and parawise comments and also to place on record all the relevant documents in support of their respective claim within a period of two months, whereafter the petition may be heard and decided on merits and in accordance with law.”
In post-remand proceedings, the petitioners filed amended writ petition with the prayer as under:
“It is, therefore, prayed that the respondents be directed to compensate the petitioner for the land measuring 14 kanals 7 marlas wrongly taken over by them without any further delay. The compensation be determined according to prevalent rates and the so called alleged Award and also alleged acquisition proceedings inclusive of the alleged notification dated 06.05.1980, 05.05.1981 and 20.06.1979 be declared to be illegal, mala fide, without lawful authority and of no legal effect.”
Admittedly, Respondents No. 4 to 7/the legal heirs of Muhammad Boota filed Writ Petition [No. 4063/1981] claiming therein the ownership of Khasra No. 123 comprising land measuring 14 Kanal 07 Marla. The said writ petition was withdrawn on 16.02.1982. Mr. Ahmad Hassan Khan, Advocate, duly appointed counsel of the petitioners, filed an application on 16.02.1987 for inspection of the record of Writ Petition No. 4063/1981 [which application is available at page 88 of the reply filed by Respondent No. 2]. In the said writ petition Respondents No. 4 to 7 challenged the acquisition proceedings, notification dated 07.07.1981, notifications under Section 4 of the Land Acquisition Act, 1894 dated 11.04.1979, 20.05.1970, 30.04.1980 published 06.05.1980, notification under Section 6 of the Act ibid and all actions pursuant to those notifications. Furthermore, in reply of the W.P.No. 4875/1992 filed by Shamas-ud-Din the predecessor-in-interest of the petitioners, the aforesaid notifications were also brought on record by the respondents. Thus, the above documents show that the petitioners were well aware about the acquisition proceedings from the very beginning of the process but they did not challenge the same within reasonable time rather they filed instant writ petition in the year 1994 i.e. after lapse of about 14 years of the acquisition proceedings, as such the petition is hit by the principle of laches.[1]
8. As the petitioners prayed that the compensation may be determined as per the market price of the land in question, suffice it to say in this regard that the petitioners have statutory remedy of filing a reference under Section 18 read with Section 30 of the Land Acquisition Act, 1894 but despite knowledge, the said remedy has not been explored rather the petitioners straightaway approached this Court through writ petition without availing the statutory remedy, as such instant writ petition is not maintainable. Reliance in this regard is placed on Mian Azeem Waheed’s case[2] wherein the Hon’ble Supreme Court of Pakistan has held that “8. The writ jurisdiction of the High Court cannot be exploited as the sole solution or remedy for ventilating all miseries, distresses and plights regardless of having equally efficacious, alternate and adequate remedy provided under the law which cannot be bypassed to attract the writ jurisdiction. The doctrine of exhaustion of remedies stops a litigant from pursuing a remedy in a new Court or jurisdiction until the remedy already provided under the law is exhausted. The profound rationale accentuated in this doctrine is that the litigant should not be encouraged to circumvent or bypass the provisions assimilated in the relevant statute paying the way for availing remedies with precise procedure to challenge the impugned action, so as in this case, the Customs Act, which is in its own wisdom a complete set of law with regard to the genus of remedies, but the petitioners, rather than filing a Revision petition against the impugned Valuation Ruling under Section 25-D of the Customs Act, directly approached the learned Islamabad High Court where the writ petitions were ultimately dismissed due to lack of jurisdiction and the net result emerging from the entire litigation is that the impugned valuation ruling is intact. The extraordinary jurisdiction of the High Court under Article 199 of the Constitution cannot be reduced to an ordinary jurisdiction of the High Court ...” It is also settled law that in the absence of any objection on the part of the owner [of the acquired land] such land stands vested in the Acquiring Agency/Authority and the compensation ascertained and deposited in Government Treasury became the property of owner.[3]
9. The petitioners placed on record the detail of acquired land and also the compensation as well as the award of the compensation of land situated in Moza Chung Khurd [detail whereof is available at page No. 138 of this writ petition as well as page No. 77 of reply of DHA]. The aforementioned notifications were challenged in Writ Petition No. 1950/1982 & Writ Petition No. 953/1983 which were dismissed by this Court vide consolidated judgment dated 11.07.1983. The said judgment was challenged through Intra Court Appeal Nos. 200 and 251 of 1983 which were also dismissed vide consolidated judgment dated 27.04.2015. In these circumstances, the matter regarding the acquisition of the land in question has attained the status of finality and has become past and closed transaction which cannot be reopened on the whims and caprice of an indolent party.[4]
10. Another aspect of the matter is that the petitioners on the one hand are praying for grant of compensation of the land claimed to be owned by their predecessor, whereas on the other hand have prayed for setting aside the acquisition proceedings which assertion suffers from the principle of approbate and reprobate which is not permissible as held by the Hon’ble Supreme Court of Pakistan in Overseas Pakistanis Foundation’s case[5] that “It is also settled law that nobody is allowed to approbate and reprobate as law laid down by this Court in Ghulam Rasool’s case PLD 1971 SC 376.”
11. Even otherwise, as the land had been acquired through process of law, entire amount of compensation had been deposited before the Collector concerned and the final Award has been issued and it is settled law that after issuance of the award ordinarily constitutional petition is not maintainable. The Hon’ble Supreme Court of Pakistan in Habib Ullah’s case[6] has held that “... Admittedly the award in this case for orchards was announced on 4-6-1999. The petitioner in the circumstances had got statutory remedy of reference provided under Section 18 of the Act. The determination of compensation for trees is admittedly a question of fact which certainly cannot be made in the exercise of Constitutional jurisdiction.”
12. Learned counsel for the petitioners has not been able to Point out any illegality or material irregularity in the impugned orders/notifications and has also not identified any jurisdictional defect calling for interference by this Court.
13. In view of the above, this writ petition is hereby dismissed being devoid of any merits as well as on the following grounds:--
i. Being hit by the principle of laches.
ii. Availability of the statutory remedy of filing reference under Section 18 read with Section 30 of the Land Acquisition Act, 1894.
iii. The matter regarding the impugned Award/ Acquisition Proceeding has attained the status of finality and has become past and closed transaction.
(Y.A.) Petition dismissed
[1]. Abdul Ghafoor Va State Life Insurance Corporation of Pakistan through Chairman & 2 Others (2023 PLC (C.S.) 186] and Mian Aurangzeb Noor vs. Rent Controller, Lahore and another (2012 CLC 1729).
[2]. Mian Azam Waheed & 2 Others vs. The Collector of Customs through Additional Collector of Customs, Karachi (2023 SCMR 1247).
[3]. Sardar Dildar Ahmad Cheema vs. Board of Revenue, Punjab through Member (Revenue) and others (PLD 2013 Lahore 565).
[4]. Pakistan International Airlines Corporation vs. Aziz-ur-Rehman Chaudhary and another (2016 SCMR 14).
[5]. Overseas Pakistanis Foundation & Others vs. Sqn. Ldr. (Retd) Syed Mukhtar Ali Shah & Another (2007 SCMR 569).
[6]. Habib Ullah vs. Land Acquisition Collector & Others (2005 SCMR 1320).
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