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Writ Petition No. 3823 of 1978, heard on 10th May, 1982,

‑‑ S. 4 (1)‑Notification before formulation of Housing Scheme Deputy Commissioner issuing notification under S. 4 originally in respect of some land for Housing Scheme but subsequently including petitioners'. land also in notification‑Land Acquisition. Collector making award pertaining to petitioners' land, as well‑Deputy Commissioner dismissing petitioners, appeal under S. 7 of Punjab Housing Facilities for Non‑Proprietors' in Rural Areas Act (V of 1975)‑No Housing Scheme under S. 4 of Act V of 1975 ,prepared before issue of notification under S. 4 of Act. VIII of 1973 Held, framing of Housing Scheme under S. 4 ,of Act V of 1975 condition precedent for issue of notification under S. 4 of Act VIII of 1973 Notification being contrary to law, entire superstructure resting thereon including award, held further, suffered from same illegality and cannot be sustained.

Muhammad Hanif Khatana for Petitioners.

Nemo for Respondents.

Date of hearing : 10th May, 1982.

The necessary facts constituting the background of this case are that the Deputy Commissioner. Gujranwala in exercise of the powers vesting in him under section 4 of the Punjab Acquisition of Land (Housing) Act, 1973 (Act Vill of 1973) issued Notification No. L. 1. 2/8073 D. R. A. dated 25th March, 1975, in respect of land measuring 1909 Kanals 14 Marlas situate in various villages described therein for the purposes of a Housing Scheme known as "Housing Facilities for Non‑Proprietors In Rural Areas". The petitioners are owner of land bearing Khasra Nos. 1717, 1718 and ' 1719, measuring 19 Kanals 14 Marlas, as per registered 'haqdaran' for the year 1973‑74 for village Matto Bhaicke Tehsil and District Gujranwala. This land was not included in the notification. However, the Deputy Commissioner. issued a Corrigendum and Addendum under No. L. 1/27861/M/DRA dated 22nd April, 1976 which reads as under :‑

"The following villages shall be deemed to have been included in the notification under section 4 of the Punjab Acquisition of Land (Housing) Act, 1973 issued,‑‑‑vide No. L.1. 2/8073/M/DRA dated 25th March, 1975."

The petitioners land was mentioned at Serial No. 153 in the latter notification. Later on, the Land Acquisition Collector, pursuant to the provisions of section 7 of the Act made an award dated 26th January, 1977 which pertained to the petitioners, land as well. The latter preferred an appeal under section 7 of the Punjab Housing Facilities for Non‑Proprie tors in Rural Areas, Act 1975 (Act V of 1975) which was dismissed by the Deputy Commissioner by his order dated 12th March, 1978, as barred by time. The petitioners have now invoked the writ jurisdiction of this Court.

2. It is argued that formulation of Housing Scheme, in contemplation of section 4 of Act V of 1975. is sin‑qua‑non for issue of a notifi cation under section 4 of Act VIII of 1975 but no such Scheme was framed. 1n this connection my attention has been drawn to Annexures D, D/1 & D/3' of the writ petition to point out that despite peti tioners' repeated requests a copy of the Scheme was not issued to them. The inference thus drawn, from the respondents' failure to issue the copy of the Scheme, was that no such Scheme had been formulated. The validity of the award was also assailed on the ground that no notice as required under section 6 of Act VIII of 1975 was issued to the petitioners. In the same wake it was urged that the petitioners are residents of village Khiali Shahpur Tehsil Gujranwala and whereas the authorities all along took them as residents of village Matto Bbaieke where the land in dispute lies but they do not reside in that village. In the submission of the learned counsel, the petitioners became aware of all these proceedings, when steps were taken by the respondents to take possession of the land and immediately thereafter they filed the appeal. It was thus contended that from the date of their knowledge of the impugned orders, the appeal was within time, and its dismissal on the question of limitation was' uncalled for.

3. Notices by registered post were sent to the respondents which have not been received back. The presumption is that they were served. No one has entered appearance on their behalf They are, therefore, proceeded against ex parte. The contentions of the learned counsel have thus remained uncontroverted. In para. 4 of the writ petition, a specific ground was urged that no Housing Scheme under section 4 of Act V of 1975 had been formulated before the issue of the notification under A section 4 of Act VIII of 1973. In the parawise comments filed on behalf of the Department, these averments have not been refuted and the only reply given to this paragraph is "no comments". It also transpires from Annexures D, D/1 and D/3 that the petitioners applied to the authorities concerned for issue of a copy of the Housing Scheme but it was never furnished to them. This would also lead to the inference that no Scheme as required by law was formulated. It can hardly be denied, that framing of a Housing Scheme under section 4 B of Act V of 1975 is the condition precedent for issue of notification under section 4 of Act VI II of 1973. But it is evident that no such Scheme was framed. The Notification under sec)ion 4 in respect of the petitioners land is thus liable to be struck down.

4. As regards the submission that notices under section 6 of Act, VIII of 1973 were never issued to the petitioners by the Land Acquisition Collector, a reference to, Paragraph 5 of the comments would provide that according to the respondents such notices were issued to them which were refused. Since neither the notices nor the reports of the Process Serving Agency evidencing refusal have been placed on the record by the respondents, no weight can be given to them and that service was refused by the petitioners. Even otherwise, as the notifica tion under section 4 of Act VIII of 1973 is contrary to law, the entire superstructure resting on this notification, including award, suffers from the same illegality and cannot be sustained.

5. For the foregoing reasons, this writ petition is accepted, the impugned notifications and the Land Acquisition Collector's award dated 26th January, 1977 so far as these affect petitioners land are declared to have been issued and made without lawful authority.

Before parting with this case I may observe that it has categori cally been stated at the bar, that the land in dispute is still in the petitioners' possession and the Scheme has not so far been implemented. Since the respondents are absent and there is not refutation of the petitioners claim, I have accepted the same. In case this assertion is found incorrect and it is subsequently discovered that the petitioners were physically dispossessed and the Scheme executed at the site, the writ petition would be deemed to have been dismissed, for, writ jurisdiction is discretionary and in such an eventuality I would not like to exercise this discretion in the petitioners' favour.

The parties are left to bear their own costs.

K. M. A. Petition accepted.

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