Muhammad Mohsin Ismial Vs Managing Director Punjab Daanish Schools etc

2018 M L D 205

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

SECRETARY, LOCAL GOVERNMENT---Petitioner

Versus

SIKANDAR HAMEED and 10 others---Respondents

I.C.A. No.64805 of 2017, decided on 13th November, 2017.

Land Acquisition Act (I of 1894)---

----Ss. 4, 23 & 24---Payment of compensation---Scope---Single Judge of High Court in constitutional petition passed order for payment of compensation to the land owners in lieu of land illegally taken over for construction of road---Validity---Respondents had purchased suit land by registered sale deed and mutation was sanctioned in the revenue record---Litigation with regard to land in question ultimately ended in favour of respondents up-to the Supreme Court--- Road was constructed on the land in question without acquiring the same and without making any payment to the land owners---No Court or authority could be allowed to deny a vested right accrued in favour of respondents by the Supreme Court---Nothing was on record that any proceedings were initiated under Land Acquisition Act, 1894 to acquire the land for the purpose of construction of the road---Every citizen had right to acquire, hold and dispose of property in any part of Pakistan---State could acquire land but not alien to the Land Acquisition Act, 1894--- Authorities, without acquiring land and payment of compensation illegally and unlawfully took over the possession of land and built the road in question---Acquisition of land by the authorities had rightly been held to be without lawful authority and of no legal effect---Authorities were directed to pay compensation forthwith to the respondents in lieu of land illegally taken over for construction of road---No illegality or perversity had been pointed out in the impugned order passed by single Judge of the High Court which had been passed in consonance with the spirit of law---Intra-court appeal was dismissed in limine in circumstances.

Abdul Majeed and 2 others v. Abdul Ghani and others 2013 MLD 565 rel.

Ch. Sultan Mehmood, Assistant Advocate-General for Appellant.

Imran Muhammad Sarwar for Respondents Nos.1 to 4.

ORDER

JAWAD HASSAN.J.-- Through the instant Intra Court Appeal filed under Section 3 of Law Reforms Ordinance, 1972, the Appellant has called in question the legality of impugned order dated 31.05.2017 passed in Writ Petition No.1630/2015 whereby the learned Single Judge

has allowed the writ petition filed by the Respondents Nos.1 to 4 (the "Respondents") and the order dated 04.12.2014 passed by the Appellant was declared to be without lawful authority and of no legal effect. It was also directed to the Appellant in the impugned order to forthwith pay compensation to the Respondents in lieu of the land measuring 2 Kanal 12 Marlas falling in Khasra No.32/3, situated in Chak No.439/E.D. Burewala District Vehari (the "Land") which was illegally taken over for construction of a road, without any compensation.

2.Learned Law Officer, appeared on behalf of the Appellant submitted that the impugned order is illegal as the same has been passed without taking into consideration the fact that the Respondents in their own suit had accepted that they were merely "Taeandar" and had no title over the Land; that infact the Land was in the ownership of the Provincial Government and was wrongly allotted to the persons from whom the predecessor of the Respondents purchased; that under Article 17 of the Limitation Act, 1908 the period for seeking compensation is one year but the Respondents filed the petition after about 15 years, as such the claim is time barred; that the impugned order is passed without any jurisdiction; that the road was construction for more than 13 years ago, as such a vested right has been accrued in favour of the Appellant/Government which cannot be taken away at this stage.

3.On the other hand learned counsel for the Respondents vehemently opposed the arguments advanced by the learned Law Officer and prayed for dismissal of the instant Appeal on the grounds that the impugned order has rightly been passed and does not warrant any interference by this Division Bench.

4.We have heard the arguments of both the sides and perused the record.

5.From the perusal of record it reveals that the case of the Appellant is that a Katcha road existed since long and in the year 1990-91 the road in question was metalled by the Defunct Municipal Committee, Burewala. At the time when the road was metalled Provincial Government was the owner of the land in question but the Respondents became the owner of the piece of land on 19.07.2000 after the judgment of the Hon'ble Supreme Court of Pakistan passed in Civil Petition No.2197-L of 1999 filed by the Appellant. As a result of ending the litigation ultimately in favour of the Respondents, mutation No.197 stood revived and the Respondents were entered as owners of the Land.

7.In this view of the matter, it is not denied that the predecessor of the Respondents purchased the Land through a registered sale deed dated 24.10.1974 and mutation No.197 dated 30.01.1975 was sanctioned in the revenue record and subsequently, inheritance mutation No.685 dated 16.05.1979 was also sanctioned in favour of the Respondents. It is also undisputed that regarding the Land the litigation was ultimately ended in favour of the Respondents up-to the Hon'ble Supreme Court of Pakistan and said mutation was revived in favour of the Respondents.

8.Admittedly, the road was constructed on the Land without acquiring the same and without any compensation to the Respondents. The Appellant alleged that when the road was constructed the Land was in the ownership of the Punjab Government but it is pertinent to note here that as the Respondents succeeded up-to the Hon'ble Supreme Court of Pakistan regarding the litigation of Land, therefore, no Court or Authority can be allowed to deny a vested right

accrued in favour of the Respondents by the Highest Court of the Country. Therefore, the same cannot be set aside mere on the whims and wishes of the Province of the Punjab or any Government Department. For the sake of arguments, in case the stance of the Appellant is admitted to be true it would tantamount to undo the orders of the Hon'ble Supreme Court of Pakistan which can never be allowed. Furthermore, there is nothing on record to show that any proceedings were initiated under the Land Acquisition Act, 1894 to acquire the Land for the purpose of construction of the disputed road. Under Article 23 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") every citizen has the right to acquire, hold and dispose of property in any part of the Pakistan. No doubt, the State can acquire the land, as has been provided under Article 24 of the Constitution but the idea of taking forcible possession of the land and that too without making any compensation is alien to the Land Acquisition Laws. The fact that no concrete steps have been taken towards acquiring of the Land for the construction of road is also violative of the Article 4 of the Constitution.

9.Moreover, the contention of the learned Law Officer that the Respondents remained silent and are seeking compensation after such a long period and cannot be held entitled for any compensation, is not instructive as the record reflects that the Respondents remained keep in touch with the litigation to declare their title over the Land.

10.In view of above, we fully agree with the findings of the learned Single Judge who in the impugned order has held that the title of the Respondents over the Land thus stood established from the date when their predecessor purchased the same through registered sale deed dated 24.10.1974. It was also rightly held by the learned Single Judge that the Respondents without acquiring the Land and payment of compensation to the Respondents illegally and unlawfully took over the possession of the same and built the road in question. The learned Single Judge has strengthened its order by relying upon the judgment passed in case titled Abdul Majeed and 2 others v. Abdul Ghani and others (2013 MLD 565).

11.It bears repeating that as the Respondents had been held lawful owners of the Land and admittedly the road was constructed thereon without acquiring the Land and without any payment of compensation to the Respondents, therefore, the learned Single Judge has rightly held that the order dated 04.12.2014 passed by the Secretary Local Government and Community Development/the Appellant is declared to be of without lawful authority and of no legal effect. In the result, the Appellant is directed to forthwith pay compensation to the Respondents in lieu of the Land illegally taken over for construction of a road. The learned Law Officer has failed to point out any illegality or perversity in the impugned order. We, therefore, fully agree with the findings of the learned Single Judge who has rightly allowed the writ petition filed by the Respondents. The impugned order does not call for any interference by us which has rightly been passed in consonance with the spirit of law.

12.In view of above, the instant appeal, being devoid of any merit is hereby dismissed in limine.

ZC/S-78/L Appeal dismissed