PLJ 2010 SC 1064
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present: Javed Iqbal, Mian
Shakirullah Jan & Muhammad Sair Ali, JJ.
Mst. ASMAT-UN-NISA and another--Appellants
versus
GOVERNMENT OF NWFP through
Secretary Industries and others--Respondents
Civil Appeal No. 19 of 2001 in C.P.
No. 1191 of 1998, decided on 22.10.2009.
(On appeal from the judgment dated
13-07-1998 passed by the Peshawar High Court, Peshawar in W.P No. 190 of 1996)
Constitution of Pakistan, 1973--
----Art. 184--Leave to
Appeal--Leave to appeal was granted to consider the following propositions:--
(i) Whether
by virtue of Para 66 of Land Acquisition Circular No. 54 dated 6.12.1912 issued
by the Government of NWFP, the said Government is under an obligation to return
the land to the owners appellants as it is no longer required for the purpose
for which it had been acquired earlier ?
(ii) Whether, by virtue of Notification dated 16.10.1995, the
Government of NWFP had abandoned the object for which the land had been
acquired, the appellants are entitled to the restitution of land under the Land
Acquisition Circular No. 54 ibid?
(iii) Whether the stand of the Government of the NWFP in its parawise
comments as well as in the written, is vague inasmuch they had proposed to
utilize the land for "some other public purpose" and is not
entertainable on two-fold grounds that--
(a) it
was patently mala fide as the property had been given over to the NWFP Police
Welfare Trust;
(b) when
the purpose is sought to be altered it can only be done by a separate
Notification with reference to the law laid down in Yaqoob Khan and 41 others
v. Member (Colonies) Board of Revenue, Punjab etc. (PLD 1979 Lahore 882) and
Union of India New Dehli and others, v. Nand Kishore and another (AIR 1982
Delhi 462).
(iv) Whether the object of Para 66(1) ibid, of the NWFP Circular
No. 54 ibid would be defeated because the classification/character of the
"agricultural and postoral and "has since undergone changes by afflux
of time for its utilization for the purpose for which it was acquired? [P. 1066] A
Land Acquisition Act, 1894 (I of
1894)--
----S. 4--Constitution of Pakistan,
1973, Art. 184--Acquisition of land--Use of acquisition land for purpose other
than the one for which it was originally acquired--Land in-question was put to
use for the purpose for which the same was acquired for 40 years--Such land was
later converted for construction of hospital which was now functional and in
operation--Original owner would have no cause of action to object to such a
use--Land in-question had vested in Provincial Government on completion of
acquisition process--Respondent authority could in use of bonafide exercise of
discretion put the same to any other public purpose on abandonment or
frustration or change or non-requirement of land for the original purpose of
acquisition--Petition dismissed. [P.
1073] B
Kh. Muhammad Farooq, ASC for
Appellants.
Mr. M. Bilal, Sr. ASC for
Respondents No. 1 & 2.
Ex-parte for Respondent No. 3.
Date of hearing: 22.10.2009.
Judgment
Muhammad Sair Ali, J.--In this
appeal by leave appellants call in-question judgment dated 21.5.1998 passed by
Hon'ble the then Chief Justice of the Peshawar High Court dismissing appellants'
Writ Petition No. 190 of 1996.
2.
Leave to appeal was granted on 1.1.2001 by this Court to consider the
following propositions:
"(i) Whether by virtue of Paragraph 66 of Land Acquisition
Circular No. 54 dated 6.12.1912 issued by the Government of NWFP, the said
Government is under an obligation to return the land to the owners appellants
as it is no longer required for the purpose for which it had been acquired
earlier ?
(ii) Whether, by virtue of Notification dated 16.10.1995, the
Government of NWFP had abandoned the object for which the land had been
acquired, the appellants are entitled to the restitution of land under the Land
Acquisition Circular No. 54 ibid?
(iii) Whether the stand of the Government of the NWFP in its
parawise comments as well as in the written, is vague inasmuch they had
proposed to utilize the land for "some other public purpose" and is
not entertainable on two-fold grounds that--
(a) it
was patently mala fide as the property had been given over to the NWFP Police
Welfare Trust;
(b) when
the purpose is sought to be altered it can only be done by a separate
Notification with reference to the law laid down in Yaqoob Khan and 41 others
v. Member (Colonies) Board of Revenue, Punjab etc. (PLD 1979 Lahore 882) and
Union of India New Dehli and others, v. Nand Kishore and another (AIR 1982
Delhi 462).
(iv) Whether the object of Paragraph 66 (1) ibid, of the NWFP
Circular No. 54 ibid would be defeated because the classification/character of
the "agricultural and postoral and "has since undergone changes by
afflux of time for its utilization for the purpose for which it was acquired?
3.
Kh. Muhammad Farooq, ASC for the appellants recounted the facts of the
case and repeated the submissions made before the High Court. On the
propositions formulated for consideration in the above quoted leave granting
order, he though relied upon the principles settled in the judgment in the case
of "Province of Punjab through Collector, Lahore and another, v. Saeed Ahmad and 4
others. (PLD 1993 S.C. 455)" but clarified that the judgment related to
Paragraph 100 of the Punjab Financial Commissioner's Order 28 read with
Paragraph 493 of the Land Administration Manual but the instant matter pertains
to NWFP to which Paragraph 66 of Land Acquisition Circular No. 54 of NWFP
applied. And that it necessarily obliged the NWFP Government to return the
acquired land on frustration of the purpose of acquisition to the land owners.
And that the High Court should have applied the said circular to
non-agricultural and non-pastoral land by corollary instead of denying the land
owners of the urban land. The right of return and restoration of the acquired
property on frustration of the purpose of acquisition. He also relied upon the
cases of "Government of Sindh and others, v. Mst. Sirtaj Bibi and
another" (PLD 2001 Karachi 442), "Shahbaz and another, v. Azad
Government of the State of Jammu and Kashmir through Chief Secretary,
Muzaffarabad and 5 others" (1992 MLD 2121), "Muhammad Aslam Khan,
etc. v. Province of Punjab, etc" (PLD 1979 Lahore 843), "Union of
India, New Dehli and others, v. Nand Kishore and another" (AIR 1982 Dehli
462). He supported his above referred contentions with the first two judgments
while later two judgments were cited to contend that the purpose of acquisition
could be changed only by fresh acquisition proceedings.
4.
In the contrary arguments Mr. M. Bilal, Sr. ASC for the respondents
relied upon the case of "Syed Nazar Abbas Naqvi v. Commissioner, Sargodha
Division, Sargodha
and 29 others". (1996 SCMR 1277) to state that once the acquisition
proceedings/process was completed, the land vested absolutely in the Provincial
Government who can thereafter use it for any other public purpose as well. He
further submitted that the land in-question was used for 40 years by Government
Transport Service, Peshawar for the purpose of acquisition and thereafter on
winding up of GTS through Notification dated 31.10.1995, the same was utilized
as per notification dated 8.10.2002 for another public purpose i.e. building of
a hospital which was completed and inaugurated on 31.03.2009 and was presently
functioning.
5.
Heard.
6.
For construction of GTS Bus Stand etc, land in-question was acquired.
The process of acquisition was completed through award dated 14.11.1955. Litigation
on the compensation between the land owners and erstwhile Government of West
Pakistan concluded on this Court's judgment dated 4.10.1982 in Civil Appeals
No. 21-P of 1978 and 22-P of 1978. The compensation so determined was received
by the appellant land owners.
7.
Undisputedly the parties admit and jointly state that the acquired
property was utilized and put for the purpose of acquisition for a period of
good forty years till dis-investment and dis-banning of Government Transport
Service, Peshawar (GTS) through Notification No. SO.II (Imd)TPT/7-99/88.VI
w.e.f. 31.10.1995. Whereafter Government of NWFP started working on various
propositions qua the acquired property.
8.
It was then that the appellants' filed Writ Petition No. 190 of 1996
allegedly against the proposal of sale through auction by the Government and
also prayed for return of the acquired land to them purportedly on abandonment
and frustration of the object of acquisition. The respondent Government etc in
their contesting reply denied abandonment/frustration of the purpose, the
proposal for auction of the said property and persisted that the land was
needed for other public purposes. Through impugned judgment dated 13.7.1998,
this writ petition was dismissed, hence the present appeal through leave.
9.
The then Hon'ble Chief Justice of the Peshawar High Court dilating upon
the controversy, in depth analyzed the applicable provisions and Paragraphs of
the Land Administration Manual on the right of the land owners to be returned
or restored the land acquired from them on non-requirement of the same for the
purpose of its acquisition. The import and impact of the judgment of this Court
in "Province of Punjab through Collector, Lahore and another, v. Saeed Ahmad and 4
others" (PLD 1993 S.C. 455) was also examined. After detailed discussion
it was observed that:--
(i) Para
100 of Financial Commissioner's Order 28 and Para 493 of the Land
Administration Manual were examined by the Supreme Court in Saeed's case (above
referred) and it was held that the said provisions related to agricultural or
pastoral land only and not to the non-agricultural and non pastoral land like
in the present case where the acquired land was located in the heart of
Municipal Area. Wherefor Saeed's case was of no help to the petitioners because
acquired land in this case was agricultural and the Government had itself
notified its return to the previous owners. Even otherwise the Government could
not be compelled to restore the land as a matter of right to the previous land
owners.
(ii) The provisions in Para 66 of the Revenue Circular No. 54 of
the NWFP were similar to those of Para 100 of Financial Commissioner's Order 28
and Para 493 of the land Administration Manual
on the subject of return of the land to the previous owners. Para 66 also
related to the agricultural and pastoral land and it conferred no right on the
previous owners to claim return of the acquired land on abandonment of the
purpose of acquisition because it only provided that agricultural and pastoral
land should in the first instance be offered to the original owners if its
de-acquisition was decided by the Government.
10.
It was not denied by the learned ASC for the appellants that the land
sought to be returned by the appellants as successors-in-interest of the
previous owners, was an urban land located in the center of the Municipal Area,
Peshawar. It
was also admitted that above referred Para 100, Para
66 and Saeed's case related to the agricultural and pastoral land. It was also
admitted that the present case did not fall within the scope of the above
referred provisions but the learned ASC for the appellants pleaded for applying
the said provisions to the non-agricultural and non-pastoral lands as well.
11.
No convincing reason or credible grounds could however be advanced for
such a plea and no provision of law or principle of interpretation or precedent
was shown to us to enlarge the provisions of above paras by stretching their
applicability to non-agricultural and non-pastoral lands when the said
provisions were circumscribed and confined only to the agricultural and
pastoral lands.
12.
Admittedly, the case of "Province of Punjab through Collector,
Lahore and another vs. Saeed Ahmad and 4 others" (PLD 1993 SC 455) related
to agricultural land acquired by the authority who decided and thus notified to
restore the non-utilized part of such land to the original owners instead of
selling the same through open auction or using the same for a notified public
purpose. And this Court on threadbare analysis of the provisions of Paragraph
100 of Financial Commissioner's Order No. 28 and Paragraphs 493 to 495 of the
Land Administration Manual concluded that:--
"A perusal of the above-quoted
para, indicates that when agricultural or pastoral land has been permanently
acquired for public purpose by any department of Government and is no longer
required for such purposes, the disposal of the same shall be guided by the
general considerations mentioned in Paragraphs 493 to 495 of the Land
Administration Manual, hereinafter referred to as the Manual. It may further be
noticed that Paragraph 493 of the Manual has two parts; the first part
envisages that the land permanently acquired, which is no longer required, is
to be handed over to the Deputy Commissioner of the district for disposal under
the orders of the Commissioner, whereas, the second part of it lays down that
as a matter of grace, Government is usually willing to restore agricultural and
pastoral land to the persons from whom it was acquired or to their heirs on
their refunding the amount paid as compensation less 15 per cent, granted for
compulsory acquisition...........
If the competent authority decides
to give the option to the previous owner of the land to have a portion of
un-utilized acquired land, it will not violate the language or spirit of the
above Paragraph. On the contrary, it will be equitable and just to give
preference to the previous owners as compared to the strangers who may be
interested in purchase of the above portion of un-utilized land.
........it may be stated that there
is no doubt that the Government has the option either to put the land to
auction or as a matter of grace, restore the same to the previous owner in
terms of Paragraph 100 of the Order. It, therefore, must follow that a previous
owner cannot compel the Government to restore the unutilized land as a matter
of right. However, we may observe that the discretion vested in the Government
under the above Paragraph is to be exercised fairly and reasonably, and not
arbitrarily or capriciously. The present case stands entirely on different
footing inasmuch as the competent authority decided to restore the unutilized
land to the previous owners,.......
---------- There seems to be no
prohibition in law for the Government to utilize land for any other public
purpose than for which originally it was intended, so long as the action is
bona fide........"
13.
Another referred case was "Shahbaz and another vs. Azad Government
of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 5
others" (1992 MLD 2121) wherein acquisition of 2 Kanals 10 Marlas was
completed and award was announced. Whereafter the previous owners sold it to
the writ-petitioner who sought de-acquisition of the same. The learned Single
Judge of the High Court of Azad Jammu and Kashmir
held that such vendee had no right as an aggrieved person and the writ petition
was dismissed. On the question of restoration of the acquired land, it was
observed that:
"9. -------------------an
acquired land when no longer is required for the stipulated purposes, it may be
disposed of by its return to the petitioners who are successors-in-interest of
the last owner of the land. The Land Acquisition Act provides no specific
scheme or formula for the disposal of the land when it was not required for the
stipulated public purpose. Nevertheless, in such situation, it was desirable
that it should be restored to the last owner either on payment of price
assessed as compensation at the time of award or its market value or by an open
auction, as it may be deemed expedient. In such respect, the discretion vested
in the School authorities or Education Department or Ministry of Education or
the Government, to come to the rescue of the petitioners by restoring necessary
portion of the land to them to enable them to utilize their house, without any
hardship or inconvenience. As the discretion primarily vested in the
authorities mentioned above, this Court was not allowed to usurp the discretion
of such authorities, by granting any relief in the case."
14.
The case of "Muhammad Aslam Khan etc vs. Province of Punjab
etc" (PLD 1979 Lahore 843) was a case where prior to completion of process
of acquisition and award therein, the purpose for which the land was proposed
to be acquired had been fulfilled. It was therefore, held that the impugned
notification issued under Section 4 had lapsed and could not be given effect to
and if the land under question was needed for another public purpose, the
acquiring authority had the powers to issue fresh notification.
15.
The above judgments were heavily relied upon by the learned ASC for the
appellants with a rider that under Para 100, Punjab Government's offer of
restoration depended entirely upon the good grace and discretion of the
Government but he contended that in the Province of NWFP, the acquiring
authority, on abandoning the purpose of acquisition, was bound under Paragraph
66 of NWFP Circular No. 54 to offer the same to the private owners. Learned ASC
however, admitted that the above referred Para 100 and NWFP Para 66 identically
applied only to agricultural and pastoral land and not to any other
classification of land like non-agricultural, non-pastoral, urban, or town land
etc; for which he neither referred to any provision of law or policy orders or
scheme. It is also clear that on non-requirement of the acquired land for the
purpose of its acquisition or on frustration or change or abandonment of such
purpose, the decision will be that of the acquiring authority or the Government
to use it for another public purpose or to return it to the original owners,
who otherwise have no vested right to compel restoration of such land to them.
16.
The case of Government of Sindh and others vs. Mst. Sirtaj Bibi and
another" (PLD 2001 Karachi
442) was a case of withdrawal from the acquisition of the proposed land by the
Government before the possession was taken over and not applicable to the case
of the appellant.
The learned single Judge of the
High Court had however held that the discretion primarily vested in the
acquiring authorities to return or restore or de-acquire the property to the
original owners and the Court could not usurp the discretion of authorities by
ordering restoration or de-acquisition of the land.
17.
In the case of "Syed Nazar Abbas Naqvi vs. Commissioner Sargodha
Division, Sargodha and 29 others" (1996 SCMR 1277), 17 Kanals 8 Marlas of
land being used as Bus Stand/Adda by New Khan Transport etc, was acquired in
1961/62 by Town Committee Bhakkar for the public purpose of "construction
of Town Hall, Public Library and Recreation Park". In 1980, the
acquisition of land and diversion of public purpose was challenged by the
original owners through constitutional petition which was dismissed for
non-prosecution on 06.04.1982. Yet another constitutional petition was filed to
claim that the Town Hall etc had been constructed by the Municipal Committee on
some other land wherefor the acquired land be restored to the original land
owners. Writ petition was dismissed by the High Court and the decision thereof
was affirmed in the Intra Court Appeal. On appeal, an honourable four member
bench of this Court held that:
"9. Section 16 of the Land Acquisition Act shows
that on acquisition being completed the property vests in the Government free
from all encumbrances. After such vesting the land acquired could be put to any
use which the law authorizes and is relatable to public purpose or to statutory
duties. In the case of "Union of India, New Dehli and others vs. Nand
Kishore and another" (AIR 1982 Dehli 461) and "Secretary of State v.
Amulya Charan Banerjee and others" (AIR 1927 Calcutta 874) such use has
been held to be permissible. The precedents cited by the learned counsel for
the appellant all relate to the stage where the proceedings for acquisition had
not been completed, the land had not vested in the acquiring authority and
before that the diversion of the public purpose had taken place. There the
Court intervened to say that the diversion of the purpose demanded that the
notification under Section 4 should issue de novo giving out the exact public
purpose so that objections could be filed.----------"
18.
The rule laid down in the case of "Union of India, New Dehli and
others v. Nand Kishore and another" (AIR 1982 Dehli 462) being pertinent
is reproduced hereunder:--
"35A. Thirdly counsel argued that public purpose is
a very wide term and the Government is entitled to change one purpose to
another. We cannot accept this submission. Public purpose is the foundation of
compulsory acquisition of land. Compulsory acquisition is the taking of land
from the owner without his agreement. This can be done for a stated public
purpose. S.6 (2) says that the Government has to declare the public purpose.
The proceedings can be continued for that given public purpose. The only course
open to it is to start fresh acquisition proceedings (sic). This was the view
which the Punjab Division Bench took. I am in respectful agreement with this
view.
36.
Counsel referred us to Lajya Ram Kapur v. Dehli Administration. ILR
(1972) Dehli 517 for the proposition that it is open to the Government to
change the purpose at any time it liked. I do not agree. In Lajya Ram Kapur,
Rangarajan J. relied on Baldev Singh v. State of U.P., AIR 1965 All. 433 and Secy. Of State
v. Amulya Charan Banerjee, AIR 1927 Cal
874. These are cases where the land had vested in the Government. The Courts
held that after vesting the Government can put the land to such purpose as it
likes. From the Dehli decision it is not clear whether the land had vested in
the Government in that case or not. The principle of law is, as I have said,
this. There is a clear line of demarcation. On one side of the line are cases
where the land had not vested in the Government. The Courts held that the Government
cannot change the purpose and the acquisition is invalid. Jaipal Singh (supra)
decided by the Punjab Division Bench vividly examplifies it. On the other side
of the line are cases where the land had vested in the Government. The Courts
held that the owner cannot come to Court for re-conveyance of the land on the
ground that the Government is using his land for a purpose other than that for
which it was acquired. The Supreme Court decision in Ghulam Mustafa (supra) is
an illustration of this class of cases.
37. --------On taking possession
private ownership will end and public ownership will begin. Long after the
transference of property from private ownership to public ownership the
acquiring authority can use it for any other purpose if the motive of the
acquiring authority at the time of compulsory acquisition was pure."
19.
In the present case on completion of acquisition process, the acquired
land absolutely vested in the Provincial Government who in bona fide exercise
of discretion could put the same to any other public purpose on abandonment or
frustration or change or non-requirement of the land for the original purpose
of acquisition. The acquired land was originally utilized for the object of
acquisition and was so used for a period of forty years. On dis-investment of
GTS, Peshawar,
Government of NWFP through Notification No. Rev: V/MISC: Pesh: dated 1.10.2002
decided to utilize the acquired land for constructing and setting up a
hospital. We have ben informed that the hospital after construction/completion
was inaugurated on 31.3.2002 and was since functional providing health
facilities to the general public.
20.
In view thereof, we do no find any merit in this appeal. The same is
accordingly dismissed with costs.
(A.A.) Appeal dismissed.
