Behrawar Khan Vs Govt of KPK

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) C.R No. 258-M/2025 With C.M 846/2025

Behrawar Khan............................................................(Petitioner) vs Government through Chief Secretary Khyber Pakhtunkhwa at Peshawar and other......................................(Respondents) Present: Mr. Aziz Ahmad Hashmi, Advocate for the petitioner.

Mr. Rahimullah Chitrali, Asst:A.G for the official respondents alongwith Mr. Tauseef Ahmad (Litigation Officer) in person.

Date of hearing: 13.08.2025

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- This case is quite rich in factual contents. Initially, it was on 04.09.2012 that present petitioner Behrawar Khan and 2 others had filed Suit No. 168/1 of 2012 seeking employment in Class-IV posts in lieu of donating land to the Education Department of the Govt.

of Khyber Pakhtunkhwa for establishment of Government Middle School at village Safaray. This suit was contested by the official respondents by way of filing an application for rejection of the plaint. The aforesaid application was heard and allowed by the learned Senior Civil Judge / A”ala Ilaqa Qazi, Dir Lower, on 13.03.2013, whereby the claim of petitioner was turned down and the plaint was ordered to be rejected under the provisions of Order VII Rule 11 CPC. Against this Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

rejection of plaint, the petitioner had sought indulgence of the District Appeal Court by way of filing Civil Appeal No. 20/13 of 2013 which also met the same fate and was dismissed on 19.09.2013. He had then sought indulgence of this court through filing of C.R No. 626-M/2013. However, no relief was granted to him in the matter and his petition was dismissed on 07.03.2016 with the following observations;

“4. Admittedly, appointment against the vacant posts is yet to be made by the respondents, therefore, no cause of action has accrued to the petitioners / plaintiffs and on this score alone their suit was not maintainable. Record also shows that the private parties have entered into the alleged agreement in private capacity wherein neither the official respondents were party nor had they shouldered any responsibility at the time of execution of the deed, as such in no way can they be held responsible in this regard because the petitioners / plaintiffs have got any cause of action against them. Moreso, in view of the various judgments of the superior Courts, making any appointment against a post in consideration of land is tantamount to sale of the public post which has been declared illegal. Therefore, on this score too the plea of the petitioners / plaintiffs is not legally sustainable. Reliance is placed on 1993 SCMR 1287.”

Thereafter, petitioner had approached the Supreme Court of Pakistan by way of filing Civil Petition No. 194-P of 2016, which was ultimately withdrawn by him by stating before the apex court that petitioner wanted to avail an appropriate remedy for compensation in lieu of acquisition of his land.

Resultantly, the aforesaid petition was disposed of as withdrawn, on 29.10.2024, in the following manner;

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

“Counsel for the Petitioners submits that the issue before the Court is limited to the appointment against two government posts.

However, he does not wish to pursue this matter any further and seeks permission to withdraw the instant Petition as he would like to avail his remedy under the law with respect to the monetary compensation against the land acquired by the government. Dismissed as ”withdrawn.

2.Consequently, in the second round of litigation, Suit No. 65/1 was filed by the petitioner, on 11.01.2018, with the ;following prayer

دوعی رمباد دصور ڈرگی ارقتسار قح دبںی ومضمن ہک دمیع ےن اکی "افل۔ ٰ ہعطق ارایض دپری ذایت ہصح ردسی دماعمہیلع وک رباےئ وکسل ڈمل رفسے وک دےدیاوردماعمہیلعےنودعہایکہکالکسوفرونرکیدمیعاکوہاگ۔وکسل ٰہذاڈمل ےس اہیئ وکسل اکدرہج دایایگ سج ںیم الکس وفر یک ونرکی اک آاسیم آیئ وت اس رپ اقمیم حطس رپایسیس اینبد رپ یسک اور صخش یک رقتری ایکایگ۔ اب وکسل ٰہذا ںیم اچردویاری اک اکی وصنمہب رشوع ایکایگےہ۔ وکس ل ٰہذا ےک اچروں رطف رشًاق، رغًاب،امشًال،ونجًابدمیع یکوعیسارایضوموجدےہاوراچردویارییھبدمیعرفقیےک ارایضرپدماعمہیلعرکاتےہاوراچردویاریںیمدمیعیکتہبزایدہارایضیھبہضبق رکےناوروکسلےکہصحںیماشلمرکانےہ۔دمیعوکوکسلےکےئلدییئگارایض رپ ونرکی یھب ںیہن دایایگ اور ہن اس اک اعموہض اداایک سج اک دمیع اقونین و رشیع دقحار ےہ۔ اب ینعی دو/نیت دن لبق دماعمہیلع ےن اکی یئن اسزش اک وصنمہب رشوع ایک سج ںیم دلیصحتار اخل اور دماعمہیلع ربمن 5،6ےن اجرک ( boundary )wallاچردویارییکاشنانتاگلےئںیہ۔دماعمہیلعوکوکیئاقونینقحاحلصہنےہ ہکاقونیناقتےضوپرےئکریغبدماعمہیلعاایتخراتاکاناجزئاامعتسلرکےکدمیعوکریغب اعموہضاطمبقبامرٹیکرٹیدمیعوکاینپذایتارایضےسرحمو رکںی۔ایھبک دماعمہیلع ےن اقونن وصحل اراایضت land acquisitionےک تحت احلص ںیہن ایک ےہسج اک دماعمہیلع اقونًانورشًاع اپدنبےہ ہک ارایض وک اطمبقب اقونن وصحل اراایضت احلص رکےک اطمبقب امرٹیک رٹی قحب دمیع اویارڈ اجری رکںی۔ ایس رطح دماعمہیلع اقونًان اجمز ہن ےہ ہک تیکلم دمیع اوراعموہض ےس ااکنر رکںی۔

ب۔دصورمکحدالاپےناعموہضاطمبقبامرٹیکرٹی۔

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

ج۔دصورمکحدالاپےن/اویارڈاجریرکےنقحبدمیعربالخفدماعمہیلع۔ د۔دصورمکح اانتمیع دوایم ربالخف دماعمہیلع ہک دماعمہیلع ارایضںیم رہمسق دلخ دماتلخےسابزوعنمرےہ۔

ر۔دصورمکحامسمریڈلبگنوکسلوصبرتدع ادایگیئاعموہض۔" This subsequent suit brought by the petitioner was contested by the official respondents by way of filing their written statement, wherein it was averred that the land beneath the school in question was dedicated / donated by the elders of the village, including the present petitioner, free of cost and so petitioner had no entitlement to claim any compensation or consideration whatsoever in lieu of such grant. As regard the plea of taking possession of some extra land beyond what was acquired for the purpose of construction of the school in question, the claim of petitioner was also specifically denied in ;the written statement and it was stated as under دوعی طلغ اور ےب اینبد ےہ ۔ وجاًاب رعض ےہ ہک دماعمہیلع "2۔ رقفہ ربمن 2رعیض ٰ ےن دمیع تیمس یسک اکارایض ہضبق ںیہن رکرےہ ںیہ ہکلب اسل -79 6775ےسوفقدشہزنیم 068/-اگ ےکدحودےکادنروکیسریٹرطخاتےک شیپ رظن اچردویاری ریمعت رکرےہےہ۔ سج ےک اسھت دمیع اییسک درگی اک تبسن تیکلم وہضبق وکیئ قلعت وواہطس ہن ےہ۔ زیندمیع ایرشمان دمیع ےن وبتق وفق رکےنارایضتحتوکسل068/-اگ رپیسکمسقاکارتعاضںیہنایکاھت۔دماعمہیلع وکیئ این ارایض احلص ںیہن رکراہےہ ہکلب وکحتم یک اجبن ےس ڈنف دی یئگ وتدماعمہیلعکینیتینےسوکیسریٹدخاشتےکشیپرظناینپابہضبقیتیکلمارایضےک ادنر اچردویاری ریمعت رکریہ ےہ۔ سج رپ اکیف اک لمکم وہاکچےہ۔ زین ارایض زری وصحلاراایضتاکوصحلاقونینوطررپالبوجازےہ۔"

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Upon receipt of divergent pleas so raised by both sides in their respective pleadings, the learned Trial Judge had been pleased to frame as many as 11 issues. With respect to the claim of petitioner of taking possession of some extra land by the official respondents, a specific Issue No. 8 was drawn in the ;following manner

“8. Whether defendants have encroached upon plaintiff”s property and they are constructing ”?boundary wall on plaintiff”s property

Thereafter parties were allowed to adduce their respective evidence and upon conclusion of the suit, it was decided / decreed by the learned Senior Civil Judge / A”ala Ilaqa Qazi, Dir Lower (at Timergara) vide judgment / decree dated 30.10.2021. While adjudicating upon the afore-referred issue, ;it was held as follows

"اہشدت ےس واحض وہ اکچ ےہ ہک ارایض دتم وعہی رپ رعدیض وع ٰی الےن ےس ھچک رعہص لبق دماع مہیلع ےن اناجزئ ہضبق رکان رشوع ایک بج ہک اس ےس ےلہپ ارایض دتموعہی دمیع ےک ہضبقو رصتفںیم یھت وج ہک ادتبایئ میسقت ںیم دمیع وکیلم ےہ۔ دماعمہیلعےنارایضدتموعہیرپاجزئاوراقونینےضبقیکتبسنوکیئ وبثتای داتسوزی تیکلم شیپ ہنایک ےہ۔ اےئلس رقار دای اجات ےہ ہک دماع مہیلع ےن اناجزئاور ریغاقونین وطر رپ دمیع ےک ولمم ہک ارایض رپ ہضبق رک ےک اچر دویاری ریمعت یک ےہ۔ اہیں اس ارماکذرکیھبدعاتلانمبسیتھجمسےہہکدماعمہیلعیکاالطایعیبرپالعہقاسیاچی او ےن ارایض دتموعہی یک تیکلم اور ہضبق وریغہ یک تبسن اانپ اکی یلیصفت روپرٹ شیپ ایک اھت سج وک دمیع ےن اےنپ اہشدت ںیم وطبر Ex. CW1/1ات Ex.CW1/3شیپ ایک ایگ ےہ۔ ذموکرہ داتسوزیات /روپرٹ ےس ایعں ےہہک دمیع ارایض دتم وعہی اک امکل ےہ سج رپ دماع مہیلع ےن اناجزئ ہضبق ایک وہا ےہ۔ ذہلا شیپ رکدہ اہشدت یک روینش ںیم دمیع ابر وبثت اثتب رکےن ںیم اکایمب وہا ےہ Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

ہکبج رتددی ںیم دماع مہیلع ےک اپس وکیئ اقلب وغر اہشدت ںیہن ےہ۔ حیقنت ٰہذا اک "ہلصیفتبثمںیمایکاجاتےہ۔

In the relief clause of the judgment (i) the petitioner was held to be owner of the suit property, and (ii) official respondents were directed to demolish boundary wall around the acquired land within a period of one month, (iii) they were also directed to invoke the provisions of Land Acquisition Act, 1894 (“the Act”) if any land was required by the government for public purpose, and (iv) provincial govt. was also held to be within its rights to proceed departmentally against its official who had inflicted loss upon the exchequer by allowing money to be spend on illegal construction of boundary wall.

3.Against this particular judgment / decree passed by learned trial Judge, the respondents have filed Civil Appeal No. 12/13 of 2024, which was allowed vide the impugned judgment / decree dated 08.03.2025 and the suit of the petitioner was ordered to be dismissed for want of proof.

Interestingly, while dismissing the suit of the petitioner, the counter-claim of the official respondents to the effect that land forming subject matter of the litigation was donated / given to them free of cost by the petitioner and other owners of the village, was also not subscribed1 to and it was held that this particular plea was not established too by the official respondents as they had failed to produce cogent, reliable and Paragraph-4 of the impugned judgment at page-85 of Civil Revision file.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

unimpeachable evidence in support of their position. Now these findings are under challenge before this court through the instant Revision Petition.

4.Arguments of the learned counsel for the parties have been heard in detail and record of the case has also been gone through with the invaluable assistance of both sides.

5.From the pleadings of the parties and documents produced by them during the course of trial, the fact that official respondents had taken over some land from the native owners (including the present petitioner) of the village Saparay has gone undisputed. Initially, this land was acquired with an understanding that petitioner and other native owners would be provided government job on Class-IV posts in the school. This commitment was not honoured by government and so petitioner and 2 others had filed a suit for seeking employment in the school. Such pursuit of the petitioner had remained unsuccessful because apex court had discouraged the practice of selling government jobs in consideration of land acquisition and so petitioner was left with no other choice but to bring a fresh suit by claiming entitlement for land compensation. As observed above, that during the course of trial, acquisition of land by the official respondents from the petitioner and other landowners of the village was not at all disputed. All that it was disputed and contested by the official Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

respondents was that (i) land was donated to them free of cost and (ii) it measured 850 Gaams and not 600 Gaams2.

6.Regarding the plea of the official respondents of having taken over the land in question from the petitioner and others free of cost, the appellate court has specifically rejected such plea while deciding their appeal3 and they appear to have felt contended with such adverse finding and that is why they did not file any challenge against such adverse observation of the appellate court which goes to the root of their case. Findings of the appellate court to that extent have gone unchallenged and have thus attained finality. Reliance is placed on the judgment of the apex court rendered in the case of ‘Muzaffar Khan vs. Sanchi Khan and another’ reported in 2007 SCMR 181.

7.Even otherwise, acquisition of private land by State free of cost has been specifically prohibited by the Constitution of Islamic Republic of Pakistan, 1973. It is in Art. 23 and 24 of the Constitution that rights of citizens regarding ownership of property have been safeguarded and protected in specific terms. Art. 23 of the Constitution entitles a citizen to acquire, hold and dispose of property in any part of Pakistan, subject of course to the Constitution and any reasonable restrictions imposed by law. Property has been interpreted to mean and include a right to proprietorship and includes every possible One Gaam measures 160 Sq.ft as per customary unit of measurement prevailing in District Dir where no settlement of land has taken place.

Paragraph-4 of the impugned judgment at page-6 thereof.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

right or interest abstract or concrete. It includes the right to own, possess and enjoy property (Pakcom Limited and others v.

Federation of Pakistan and others PLD 2011 SC 44). The right to own property being a fundamental right is inclusive of the right to possession, right of control and right to derive income from the property. Accordingly, the right to own property under Art. 23 of the Constitution means the right to own economically productive property associated with agriculture, commerce, industry and business. Hence, it is a source of livelihood and provides economic security to a person. This goes to the underlying right to dignity of an individual and their home as prescribed in Art. 14 of the Constitution4. In matters relating to acquisition of private land or taking over of the same by the State functionaries, Art. 24 of the Constitution further regulates the relationship of the State with citizens and provides as follows;

24.Protection of property rights.--- (1) No person shall be compulsorily deprived of his property save in accordance with law.

(2)No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.

[Emphasis added]

“Federation of Pakistan v. Zakia Begum and others” PLD 2023 SC 277.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Sub-Art. 2 above makes it abundantly clear and conspicuous that (i) no property can be compulsorily acquired or could be taken over by the State except for public purpose, and (ii) save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given. This obviously means that if at all a property is to be taken over and acquired by the State, same could only be done for public purpose; and that too under the authority of law, not through some administrative or contractual arrangement contractual5.

Besides, in consideration of such acquisition and taking over the land from a citizen, the latter has to be compensated adequately. This particular Article of the Constitution rules out two things. Firstly, there can be no free acquisition of land for public purpose and behind such acquisition there must be an authority of law which either fixes the amount of compensation or the principles on the basis of which compensation is to computed and paid to the landowners. This particular interpretation of Art. 24 of the Constitution finds support from the authoritative ruling of the Supreme Court of Pakistan in the case of ‘Abdul Sattar vs. Land Acquisition Collector Highways Department and others’ reported in 2010 ‘Mir Abdul Hussain Khan v. Province of West Pakistan” reported in PLD 1958 Karachi 175.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

SCMR 1523. For the facility of reference, relevant paragraph- 11 from this judgment of the apex court is reproduced below;

“11. The learned ASC has also relied upon the provisions as enumerated in Article 24 of the Constitution of Islamic Republic of Pakistan by ignoring the well-entrenched proposition of law that "before the State can deprive a person of his property, it has first to arm itself with a "law". Even where the law authorizes the Executive to deprive a person of his property under certain circumstances the Executive is bound to strictly follow the procedure which is laid down by the "law" for the taking of the property. Where a person is deprived of his property under the authority of law and according to the provisions of law, he has no ground for complaint under the Constitution." (Shankarlal v. Additional Deputy Commr., Nagpur AIR 1951 Nag. 22, Amar Singh v. Custodian, E. P. AIR 1957 SC 599, Basti Sugar Mills Ltd. v. State of U.P. AIR 1954 All. 538). The land in question was acquired by adopting the prescribed procedure as envisaged under the Land Acquisition Act and no illegality or infirmity could be pointed out showing that the prescribed procedure was ever violated.” [Emphasis supplied]

8.In the instant case, however, the official respondents are resting their case upon free of cost expropriation of land which they could neither establish nor was the same supported by any express authority of law. It is quite established in this case that the land was taken over by them, no doubt for public purpose, but initially it was with a commitment to provide jobs to the petitioner and other landowners. When such verbal contractual arrangement fell foul to the dicta laid down by the superior courts6, and petitioner was denied such relief by the ‘Munawar Khan vs. Niaz Muhammad and 7 others’ 1993 SCMR 1287.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

courts of law; he and other landowners (if any) were relegated to a position where land was expropriated and taken over from them by the State without legal backing and without providing them any compensation for that. This particular treatment was specifically prohibited and discouraged by Art. 24 ibid and so it was quite open and shut that for such acquisition of land at the hands of official respondents, the petitioner and all other persons entitled under the law are to be reimbursed and paid due compensation. The State is thus under an obligation to make use of the Act without fail and is bound to issue formal Award for acquisition of land in this case. It is in no manner entitled to free of cost expropriation even if it is assumed that there was any donation of land by petitioner and others in consideration of government job which condition was not found legal in the first round. If such consideration fixed by the parties fell against the law, it does not mean that landowners would be left deprived of their property without compensation.

9.The learned Asst:AG representing the official respondents argues that land in this case was taken over and acquired by the government as back as in the year 1996 under some contractual arrangement, and so the belated claim of the petitioner for compensation was hit by law of limitation. I am afraid, this particular argument of the learned Asst:AG is also not correct in view of law laid down by the apex court in the Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

case of “Messrs Pfizer Laboratories Limited vs. Federation of Pakistan and others”7. In this very case-law, a tax matter was decided by the apex court where a collection was made from the appellant by the Revenue Authorities which was not warranted in law, but for its refund the claim was rendered time-barred. Dealing with such a peculiar situation, following legal principles were authoritatively laid down;

“13. [...] (i) That if one party under a mistake, whether of fact or law, pays some money to another party (which includes a Government department) which is not due by law or contract or otherwise, that must be repaid in view of section 72 of the Contract Act, 1872.

(ii)That the Customs duties and charges referred to in section 33 of the Act should be chargeable and payable by an importer or exporter and that due to inadvertence, error or misconstruction, more amount was paid or recovered than what was due and payable, the claim for the refund of such an excess amount should be made within six months as envisaged in above section 33, but where the duty or tax charged and recovered was not payable at all, above section 33 has no application.

(iii)That if the customs duty or any other levy was realised and its realization was outside the statutory authority, the provisions of section 27(1) of the Indian Customs Act, 1982, providing limitation of six months was not attracted.

(iv)That when any excise duty is recovered which was not leviable, limitation of one year provided in Rule 11 of the Central Excises and Salt Rules, 1944 is not applicable nor an alternate remedy by way of a suit will be a bar to a Constitutional petition.

(v)That payment of excise duty or any other tax without knowledge that the same is exempted under a notification is refundable on the same footing as if there was no lawful imposition.

PLD 1998 SC 64.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

(vi)To return what has been taken wrongly is as much a duty and grace of Government to levy relentlessly and fully what is due as remarked by V.R. Krishna Iyer, J.

(vii)That where some money is received by the Government not lawfully due, the plea of limitation by its departments is one which the Court always looks upon with disfavour as it is violative of the principles of morality and justice.

(viii)That when moneys are paid to the State which the State has no legal right to receive, it is ordinarily the duty of the State, subject to special provisions of any particular statute or special facts and circumstances of the case, to refund the amount so received and in case of failure, a superior Court in exercise of its Constitutional jurisdiction can direct the refund of the same if no disputed questions of facts are involved.

(ix)That there may not be legal liability on the part of a Government functionary to refund any amount received by it as a tax or other levy by virtue of certain special provisions under the special law but keeping in view that we are living in a democratic society governed by the rule of law and every Government, which claims to have ethical and moral values, must do what is fair and just to the citizens regardless of legal technicalities.

(x)That as per Indo-Pak laws the fact that the amount of tax of which refund is claimed was voluntarily paid, does not preclude the right to claim refund, if it was not lawfully payable.

(xi)That the money paid by a citizen to a public authority in the form of taxes or other levies paid pursuant to an ultra vires demand by the authority is prima facie recoverable by a citizen as of right. Lord Bridge of Harwich of the House of Lords in the case of Tower Han-flets Borough Council (supra) remarked "that the retention of moneys known to have been paid under a mistake at law, although it is a course permitted to an ordinary litigant is not regarded by the Courts as a 'high-minded thing' to do but rather as a 'shabby thing' or a 'dirty trick'.

14.The above resume of the case-law of Indian, English and Pakistani jurisdictions indicates that the latest judicial trend is to deprecate and to discourage withholding of a citizen's money Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

by a public functionary on the plea of limitation or on any other technical plea if it was not legally payable by him. It is also evident that claims for the refund of the amount paid as a tax or other levy on account of mistake as to want of constitutional/legal backing or because of exemption are at par. It is also apparent that such payments are held to be not covered by Rule 11 of the Central Excises Rules, 1944, or section 27(1) of the Indian Customs Act, 1951, or section 33 of the Act etc. The refunds of such amounts are allowed by the superior Courts inter alia in India on the basis of section 72 of the Contract Act which provides that "a person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it". Such refunds can be claimed either by filing a suit for the recovery of the amount for which the period of limitation applicable would be three years under Article 96 of the First Schedule to the Limitation Act (which provides period of three years from the date mistake becomes known to the plaintiff) or the same can be recovered through a Constitutional petition if no disputed fact is involved. The Indian Supreme Court and the various Indian High Courts referred to in the cited case-law hereinabove had ordered the refund of the amounts involved in exercise of their Constitutional jurisdiction under Article 226 of the Indian Constitution. In Pakistan, Sindh and Lahore High Courts have also allowed the refund of such amounts under Article 199 of the Constitution in exercise of their constitutional jurisdiction in the cases of Ghulam Abbas v. Member (Judicial), Central Board of Revenue (supra) and Kohinoor Industries Ltd., Faisalabad v. Ministry of Finance (supra), respectively.

However, we may clarify that the object of providing limitation inter alia, in sections 32 and 33 of the Act is to finalise the transactions within the period specified therein so that there may not be any adverse financial implication after the expiry of the period mentioned therein, for which provisions for contingency are made in a yearly budget. Though we have held that the instant case is not covered by section 33 of the Act by approving the view taken by a Division Bench of the High Court of Sindh in the above case of Ghulam Abbas v. Member (Judicial), Central Board of Revenue referred to hereinabove, but it may not be understood that Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

we are laying down that a party is free to claim refund of a tax or any other levy paid under a mistake of fact or law at his sweet will at any time even after the expiry of 20 years. If a suit is to be filed for the refund, it should be within the statutory period provided under the relevant Article of the First Schedule to the Limitation Act, or if the refund of the same is to be claimed by invoking in aid the Constitutional jurisdiction of a High Court, the petitioner should approach the Court promptly. The petition should not suffer from laches which may defeat the claim. We cannot approve the view that a party can claim the refund of an amount paid to a Government functionary under a mistake without any constraint of limitation as it would adversely affect the good governance in financial matters.”

[Emphasis supplied]

When the above principles of law are applied to the facts and circumstances of the instant case by way of analogy, it becomes obvious that land has been expropriated by the State for which it undoubtedly owes compensation in the form of money to the landowners. This compensation, the State could not withhold on the plea of limitation or any other technical plea of acquiescence etc. The State itself is found to be in default of setting Land Acquisition laws in motion while endeavoring to take over land from the petitioner and others. So, it could not be given benefit of its own fault. All that the State / official respondents are obliged to do in this case is that they are suppose to issue a formal Award for acquisition of land from the petitioner etc. by following all legal requirements of law.

Such Award must provide adequate compensation for acquisition of land in terms of sections 23 and 24 of the Act Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

and if at all the petitioner”s side is contesting the amount of compensation fixed in the Award, it shall be at liberty to question the same in accordance with law.

10.As regards the second inter se dispute of the parties to the present case concerning how much land was taken over, the record finds specific documentary evidence in the form of official correspondence of the respondents in the form of letter Ex PW 1/3 (available at page-91 of the revision file). The same requires reproduction for the purposes of proper understanding the matter in issue;

Office of the Distt: Education Officer (Male) District Dir Lower.

No. 14885/ dated Timergara the 15.11.2017 To The Deputy Commissioner, Dir Lower.

Subject: ISSUE Of BOUNDRY WALL AT GHS

SAFARAY KHALL.

Memo:

It is stated that GMS Safary Khall had been constructed on donated land as per the custom of the area. The land had been donated by Mr. Karim Khan, Baharawar Khan and Bahadar Shah, all residents of safary. The piece of land was worth 600 (Gams Local) 96000 sft. The school had been upgraded on non-developmental basis to GHS Safary. As per the school record Mr. Ikram-ul-Haq had donated 200X200 sft. piece of land on stamp paper.

Office of the DEO had allocated funds for provision of water supply, installation of solar system and construction of boundary wall but Baharawar Khan had appealed in the courts and his appeal had been dismissed under Order 7 Rule 11 of the Supreme Court of Pakistan.

The undersigned accompanied by the Deputy DEO and ASDEO Timergara had visited the school Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

to resolve the issue as there are 50% girls students too in the classes with no drinking water and other facilities. The issue of solar installation / provisional water supply was resolved on the spot and permanently start on the digging on well was ordered. Local elders committee was constituted to resolve issue of the boundary wall in a given timeframe and the committee secured the stamp paper on the basis of the previous record of the school to re-affirm the position of their elders from the Class-IV of the school named:

1.Ijaz-ul-Haq N. Qasid

2.Liaqat Zaib Chowkidar

3.Gul Zaib Khan Sweeper The stamp paper having 104000 sft. land had been forwarded to Tehsildar Khall for registration while construction of the boundary wall was ordered in the meanwhile. "Bari Malkyat and Nuqsi Malkyat" was the responsibility of the donors. Mr. Ijaz-ul-Haq Naib Qasid and Liaqat Zaib Chowkidar is not fulfilling their respective responsibilities as other share-holders in their tribe is not allowing the school staff to construct the boundary wall. Tehsildar Khall may be directed to finalize the registration process as soon as possible. Quarters concerned may be directed to provide Levy personnel (Ali Akbar S/O of Fazal Hassan, Ibrahim S/O Toor Bacha and Hayam-ud-Din residents of UC Sultan Khail Payeen) to GHS Safary for protection and smooth proceeding of the construction of the boundary through PTC / School staff. Assistant Commissioner Timergara may be directed to initiate criminal proceedings against Mr. Ijaz-ul-Haq Niab Qasid and Liaqat Zaib Chowkidar.

-----sd----- District Education Officer (M) Dir Lower at Timergara.

No. 14886 Copy forwarded to

1.Commandant Dir Scouts at Timergara.

-----sd----- District Education Officer (M) Dir Lower at Timergara.

[Emphasis added]

The aforesaid letter not only mentions the name the petitioner as one of the landowners but also the total measurement of the land which the respondents are claiming to have taken. The specific mention of petitioner”s name in the aforesaid letter Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

(Ex PW 1/3) as one of the landowners of the acquired land establishes that the impugned judgment of the learned appellate court has completely ignored this particular piece of unimpeachable and documentary evidence relating to title of the suit property and therefore, its findings on the issue of title rendered adverse to the petitioner are untenable. Moreover, according to this very letter respondents have taken over a land measuring 600 Gaams. This document clearly negates the stance of the respondents to have acquired 850 Gaams of land from the petitioner with free consent of the latter.

Nevertheless, once the official respondents would press the provisions of the Act for pronouncing a formal Award, they would obviously conduct survey and measurement of the acquired land which would clarify the position as to how much land was taken over or was required by them in furtherance of the public purpose of setting up or extension of school on the land in question. After such measurement and survey, the Land Acquisition Collector shall fix the amount of compensation by making sure that each and every inch of the acquired land is to be taken upon payment of compensation to the landowners strictly in accordance with the provisions of the Act.

11.As a sequel to above discussion and in view of afore- stated clear legal position, findings rendered in the impugned judgment of the learned Appellate Court are found to be not in Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

consonance with law. The same are set-aside and the petition in hand is allowed and disposed of on terms noted in Paragraphs-9 and 10 above. The official respondents are directed to initiate and commence the acquisition proceedings for the purpose of payment of compensation to the petitioner and all other owners of land forming subject matter of this case within a period of one month from the receipt of this judgment.

Announced Dt: 13.08.2025 Sd/-

JUDGE

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah