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Writ Petition No.551 of 1983, decided on 11th May, 1983.

‑‑‑Ss.2, 3 & 12(3)(4)‑‑Punjab Acquisition of Land (Housing) Act (VIII of 1973), S.4‑‑Provisional Constitution Order (1 of 1981), Art.9‑ Acquisition of land‑‑Repugnancy of Sharia‑‑Declaration‑‑Jurisdiction‑ Jurisdiction to declare any law repugnant to Islamic Law, held, pertained to Shariat Court. ‑‑‑[Jurisdiction].

P L D 1983 S C 151ref.

‑‑‑Ss.2(j), 3 & 12(3)(4)‑‑Punjab Acquisition of Land (Housing) Act (VIII of 1973), Ss.4 & 9(3)‑‑Land‑‑"Acquisition for Housing Scheme"‑ Definition‑‑Nature‑‑Land where construction was raised, was also to be included in definition of land acquired for housing scheme‑‑Such constructed land, held, could also be acquired for purposes of housing scheme subject to payment of compensation of such structure.

Athar Rehman Khan for Petitioners.

Tassaddaq Hussain Jilani, A.A.‑G. for Respondents.

Date of hearing: 11th May, 1983.

This is a petition under Article 9 of the Provisional Constitution Order, 1981 whereby, Ghulam Muhammad and 12 others petitioners want this Court to declare notifications, dated 22‑11‑1978 and 21‑7‑1981 passed by Multan Development Authority, respondent No.1, Deputy Commissioner/ Collector, respondent No.2 and the award of compensation determined by Land Acquisition Collector, respondent No.3, to be without lawful authority and of no legal effect.

2. The facts leading up to this petition in brief, are that the petitioners are residents of Rajput Colony situated in Mauza Taraf Jumma Khalsa, Multan Petitioners Nos.1 and 6 to 11 purchased plots from the original owners. Petitioners Nos.2 to 5 purchased constructed houses and petitioner No.12 got old constructed house as gift and also purchased 2 Marlas of land. Petitioner No.13 is occupying his own house since long. The petitioners who had purchased plots have also raised and completed constructions on their plots. The Multan Development Authority through impugned notifications Nos.23341MAD. E.M.‑78, dated 22‑11‑1978, declared 769 Acres, 5 Kanals and 14 Marlas of land in Mauza Mari Sital and Taraf Jumma Khalsa, Tehsil Multan as "controlled area" under section 3 of the Punjab Development of Cities Act, 1976. Thereafter, a scheme known as 'Shah Rukan‑e‑Alam Housing Scheme' was notified under section 12(3)(4) of the Punjab Development of Cities act. 1976 The Deputy Commissioner/ Collector respondent No.2 then through impugned notification No.41/ICA, dated 21‑7‑1981 published in Punjab Gazette on 19‑8‑1981 notified for information of all concerned that the land described therein is likely to be acquired for the purpose of 'Shah Rukan‑e‑Alam Housing Scheme' in exercise of powers under section 4(2) of the Punjab Acquisition of Land (Housing) Act, 1973, he authorised the officers of Multan Development Authority to enter into the proposed land and do all needful. Thereafter, the Collector Land Acquisition, respondent No.3, determined an award of Rs.84,80,719 as compensation for the land owners of 'Shah Rukan‑e‑Alam Housing Scheme'. Hence this writ petition.

3. The learned counsel for the petitioners has raised the following points: ‑----

(i) that since the petitioners had already constructed their houses on ‑the land, therefore, it was no more a land as defined by section 2 of Punjab Development of Cities Act, 1976, section 3(a) of the Land Acquisition Act, 1973 and section 4(1) of the Punjab Tenancy Act and as such the Deputy Commissioner, respondent No.2 was not competent to acquire the same through notification;

(ii) that the proceedings against the petitioners are on account of mala fide on the part of Multan Development Authority inasmuch as instead of providing housing facilities to the petitioners, Multan Development Authority has rendered the petitioners houseless. Moreover, pick and choose method has been adopted;

(iii) that the Constitution of Multan Development Authority is illegal. The Punjab Land Acquisition Act and the rules made thereunder are ultra vires of the Constitution of Islamic Republic of Pakistan, 1973 and repugnant of Islamic Law;

(iv) that the notification, dated 21‑7‑1981 issued by the Collector is illegal;

(v) that the award by respondent No.3 having been determined at the back of the petitioners, is arbitrary.

4. After hearing the learned counsel for the petitioners and going through the record which is available before me, I have not been able to persuade myself to agree with the learned counsel for the petitioners for the reasons that W.P.No.6323 of 1980 titled 'Syed Khurshid Abbas Gardezi v. Multan Development Authority and others' wherein identical notification issued by the Deputy Commissioner for the acquisition of land for 'Shah Shamas Colony' challenged by, the land owners on the similar grounds was dismissed by the learned Single Judge on 9‑3‑1981. Feeling aggrieved, the writ petitioners therein filed I . C . A . No.3 of 1981 wherein the Constitution of Multan Development Authority, the validity of the Act and the legality of identical notification issued by the Deputy Commissioner, Multan were question on the same points which have been raised before me but the learned Division Bench of the Lahore High Court Multan Bench vide its judgment, dated 15‑3‑1981 overruled the points and dismissed the appeal. Feeling still dissatisfied, Syed Khurshid Abbas Gardezi, the appellant therein filed petition for special leave to appeal before the learned Supreme Court wherein the Constitution of Multan Development Authority, the validity of the Act and the legality of the notification of the Deputy Commissioner were again challenged on similar contentions but the petition was dismissed vide judgment reported as P L D 1983 S C 151.

As for the submission that the Punjab Acquisition of Land (Housingl Act, 1973 is repugnant of Islamic Law, I am inclined to adopt the view which was taken by the Division Bench of this Court in I . C . A . No. 3 of 1981, that this contention pertains to the jurisdiction of learned Shariat Court.

As for point that since the constructions have been raised and completed on the plots owned by the petitioners, therefore, it is no more a land and as such, cannot be acquired for Housing Scheme. I am not inclined to accept this argument on the ground that since Of "land" has been specifically defined in section 2(j) of the Punjab Development of Cities Act, 1976, therefore, the definition of the land given in the Land Acquisition Act and the Tenancy Act are irrelevant in the case in hand. The word "land" has been defined as follows:

2(j). "land" includes earth, water and air above, below or on the surface and any improvement in the structure customarily regarded as land and benefits arising out of the land and things attached to earth or permanently fastened to earth."

Section 9(3) of the Punjab Acquisition of Land (Housing) Act, 1973 reads as follows:

9. (3) "the damage, if any, sustained by the person interested at the time of taking possession of the land by reason of severing such land from the other land."

The provisions of law reproduced above indicate that the land where the construction has been raised can also be acquired for the purpose of scheme subject to the payment of compensation of the structure.

As for the allegation that respondent No.3 has not determined the compensation arbitrarily, I find that the order is appealable. Furthermore, I have been informed that the petitioners have already challenged the award before a competent authority and the matter is still pending.

5. For what has been stated above, there being no merit in this petition, the same is dismissed in limine.

H.B.T. Writ refused.

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