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---S. 12--Multan Development Authority (Preparation of Scheme) Rules 1978, Rr. 3 & 4--Scheme prepared by Authority--Sanction of Government--- Sanction of Government for Schemes prepared by Authority was necessary in respect of these Schemes for which loan or grant was required or provisional estimated cost exceeded 20 lacs of rupees--Self financed scheme--Loan or grant from Government was neither required nor was requested--Such scheme, held, would not require Governments approval but sanction was to be accorded by Authority itself.

---Ss.3,4 & 6--Constitution of Pakistan (1973), Art. 24--Acquisition of land--Contention that Act VIII of 1973 was ultra vires of Art.24 of Constitution of Pakistan, held, could not be pressed into service as same fell in that part of Constitution which was in abeyance under Provisional Constitution Order, 1981--Contention was repelled in circumstances.

Hafiz Muhammad Ameen v. Islamic Republic of Pakistan P L D 1981 F S C 23 ref.

--Ss.6,7,8 & 14--Provisional Constitution Order (1 of 1981), Art.9-Acquisition of land--Objections regarding service of notice and award of compensation--Proper remedy--Constitutional jurisdiction--Questions, whether notices were served to landlords or not, whether compensation awarded to landlords was reasonable or not, were factual questions which required holding of inquiry That exercise could not be taken by High Court in constitutional jurisdiction -Such questions, held, could be agitated before relevant Authority by availing remedy provided by law in circumstances.

Hafiz Muhammad Ameen v. Islamic Republic of Pakistan P L D 1981 F S C 23; Lahore Improvement Trust v. The Custodian Evacuee Property P L D 1970 Lah. 257 and The Murree Brewery Company Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division P L D 1972 S C 279 ref.

-- Ss. 3 & 4--Land declared as controlled area--Purchasers from original owners--Notification declaring land in dispute as controlled area was never withdrawn--Purchasers from original owners of land in dispute, held, could not challenge implementation of scheme but could only claim compensation for construction, if any, on date of acquisition.

Lahore Improvement Trust v. The Custodian Evacuee Property PLD 1970 Lah. 257 and The Murree Brewery Company Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division PLD 1972 S C 279 ref.

Syed Sardar Shah Bokhari for Petitioners.

M. Sultan Alam for Respondents.

This order will dispose of writ petitions No. 23 of 1985 and 80 of 1985 as the questions of fact and law involved in both these petitions are one and the same. The petitioners who are owners of urban immovable property situated in revenue estate known as Taraf Jamma Khalsa Tehsil and District Multan, by invoking constitutional jurisdiction have called into question the acquisition of land, sanctioning of Shah Rukan-i-Alam Housing Scheme and the award made by the Collector and have prayed that the acts of acquisition and the notification issued in this respect and the award made be declared illegal and unlawful and consequently the respondents be restrained from implementing the acquisition notification and from transferring the possession of the land to any alleged allottees and from interfering with their possession. The grounds urged in support of these petitions are that neither any scheme was prepared nor sanction of any alleged scheme was obtained from the Government and as such the land in question could not be acquired under the Punjab Acquisition of Land (Housing) Act of 1973 (hereinafter called as the Act of 1973). In the alternative it was urged that even if any such scheme was prepared and approved the same was dropped and the so-called scheme could not be revived without adopting and following the procedure provided by the Act of 1973; that the execution of the scheme cannot legally be spread over into phases; that the Act of 1973 is ultra vires of Article 24 of the Constitution and as such all the proceedings held and the actions taken under the said Act are null and void; that the individual land owners were not served notices as required by sections 4 and 6 of the Act and as such the award made is invalid in law; that the entire proceedings of acquisition were mala fide in law and that in any case the compensation of Rs.20,000 per Acre fixed under the Act cannot be termed as compensation of the land acquired as compensation necessarily means fair and reasonable return or consideration for the property or thing acquired or taken over. It will be appropriate to mention at the outset that in view of the plea that no scheme was ever framed by the Multan Development Authority (hereinafter called as the Authority) was asked to produce the record at the motion stage. Learned counsel as well as the representative of the Authority took time to produce the file containing Shah Rukan-i-Alam Housing Scheme but ultimately the file of the Town Planning Branch was produced. This file contained copies of the scheme, survey plan of the scheme and lay out plan of Shah Rukan-i-Alam Colony. It was stated that the master file, however, is not now available as the same appears to have been misplaced. Despite production of this file learned counsel for the petitioners insisted that the scheme known as Shah Rukan-i-Alam Housing Scheme was not got sanctioned from the Government and as such all the acts taken, the notification issued and the other consequential steps taken by the Authority are without lawful authority. Parawise comments have also been submitted by the Authority.

2. The facts necessary for determination of the questions raised may now be stated. An area of land measuring '769 Acres 5 Kanals and 12 Marlas of Mauza Taraf Jumma Khalsa and Mauza Sital Mari, Tehsil and District Multan was declared as controlled area by the Authority in 1978 under section 2(f) of the Cities Development Act 1976. A proposal to prepare a scheme known as Shah Rukan-i-Alam Housing Scheme on an area of 720 Acres was approved by the Authority in its 7th meeting held on 11-6-1978. The scheme prepared was then placed before the Authority in its 9th meeting dated 5 12-1978. It is the case of the Authority that the survey plan, lay out plan and detailed scheme as per requirement of the relevant Rules was prepared and was approved by the Authority itself as in the cases of self-financed schemes obtaining of sanction of the government is not the requirement of law. However, in the meeting held on 19-4-1979 the Authority decided to drop this scheme as the Planning and Development Department had not agreed to include the scheme in the Annual Development Projects of the year 1979-80 and as about 42 land-owners had requested the Government to drop the scheme. However, the matter was again considered in the light of the decision of the Governor conveyed to the Authority and then in the 12th meeting, dated 5-8-1979 it was decided to resume the planning, implementation and development of 4 Areas development schemes including Shah Rukan-i-Alam Housing Scheme. The Authority ultimately issued the notification dated the 9th of February, 1981 which was published in the Punjab Gazette of February 1981 notifying the sanctioning of the said scheme for the purpose of section 12 (3) and (4) of the Punjab Development of Cities Act 1976. For the purposes of implementation, the land falling under the scheme was acquired in phases: An area measuring 170 Acres 3 Kanals and 5 Marias was acquired on 26-6-1982 which has been developed and allotted as per the allotment policy to various persons. The acquisition of the remaining area was started by issuing notification under section 4 (1) of the Act of 1973 vide notification dated 9-5-1984. The Collector Land Acquisition issued notification under section 6(1) of the Act of 1973 on 10-9-1984 for the area measuring 37 Acres 3 Kanals and 13 Marlas. Individual notices under section 6(2) and (3) of the said Act were issued Notices to some of the petitioners were also issued on 10-9-1984. The Collector, therefore, announced the award on 29-9-1984 for an area measuring 37 Acres 3 Kanais and 13 Marlas. The case of the Authority is that the possession of land so acquired was also taken over by the Collector on 27-10-1984 and necessary entries in the revenue record were also got incorporated on 7-11-1984 vide report No.507 and since then the physical possession of the scheme land was with the Authority which has also allotted the plots to its allottees. The relevant provisions of the Punjab Development of Cities Act, 1976 may appropriately be now reproduced below: -

Powers and Functions of the Authority

7. (1) subject to the provisions of this Act and any rules framed thereunder the Authority may exercise such powers and take such measures as may be necessary for carrying out the purposes of this Act.

(2) Without prejudice to the generality of the provisions of the foregoing subsection, the Authority may:-

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(vi) prepare, implement and enforce schemes for environmental improvements, housing, . urban renewal including siuons improvement and redevelopment, solid waste disposal, transportation and traffic, health and education facilities and preservation of objects or places of historical, archaeological, scientific, cultural and recreational importance.

Preparation and Execution of Schemes

12. (1) The Authority shall, in such form and in such manner as may be prescribed, prepare schemes for the area or any part thereof and execute or have them executed in the prescribed manner.

(2) All such schemes prepared by the Authority shall be submitted to the Government for its approval, except those schemes, the provisional estimated cost of which does not exceed such limit as may be prescribed by Rules or for which no loan or grant is required from the Government.

(3) The Authority shall publish the sanctioning of any scheme in the official Gazette.

(4) The publication of a sanction under subsection (3), shall be conclusive evidence that the scheme has bee duly framed and sanctioned.

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General

16. The Authority shall, in discharging its functions act and be guided, by such directions as Government may give to it from time to time.

The Rules on the subject are known as the Multan Development Authority (Preparation of Schemes) Rules 1978. Rules 3 and 4 being relevant may be reproduced below:-

3.(1) Schemes for which loan or grant is required:-

All schemes prepared by the Authority for which loan or grant is required from the Government but the provisional estimated cost of which does not exceed twenty lacs rupees shall be approved by the Director-General and copies thereof shall be supplied to the Planning and Development Department, Finance Department and Administration Department concerned for their information. .

(2) All schemes prepared by the Authority for which loan or grant from the Government is required and provisional estimated cost of which ranges from 20 lacs to 40 lacs shall be approved by the Development Committee and scheme over 40 lacs shall be presented to the Planning and Development Department, Government of the Punjab for necessary approval.

(3) All schemes prepared by the Authority for which loan or grant from the Government is required and the provisional estimated cost of which exceeds 50 lacs rupees shall be submitted to Government for sanction.

4. Schemes for which no loan or grant is required:-

All schemes prepared by the authority for which no loan or grant from the Government is required shall be approved by the authority or by such officers or Committees to whom such powers may be delegated by the authority under section 10 of the Act.

From a bare perusal of the afore-noted provisions of the Act and the Rules, it is manifest that the sanction of the Government is necessary in respect of those schemes for which the loan or grant is required or the provisional estimated cost exceeds 20 lacs rupees. The scheme under challenge is a self-financed scheme, loan or grant from the Government was neither required nor was requested. Such a scheme as such was not required to be submitted to the Government under section 12 of the aforesaid Act and as such the sanction of the scheme was to be, accorded by the Authority itself. The plea that no scheme as a matter of fact was ever prepared has been successfully controverted by producing the record of the Town Planning Branch. This plea is also devoid of merit as admittedly phases 1 and 2 have undoubtedly been implemented on the spot and this objection as to non-framing of the scheme has only been raised when phase 2-A is being put into execution. The alternate plea that the scheme having been sanctioned by the Authority itself is invalid in law and that the scheme required the sanction of the Government is also devoid of merit for the reasons already given above. There is also no force in the argument that the phase developed of the scheme is unauthorised as in the scheme itself the execution thereof was spread over a number of years. Again as no basis was disclosed for contending that the proceedings of acquisition held were mala fide in law this plea cannot succeed. Coming to the argument that the Act of 1973 is ultra vires of Article 24 of the Constitution suffice it to say the said Article cannot be pressed into service as the said Article falls in that part of the Constitution which is in abeyance under P.C.O. Moreover, in the case of Hafiz Muhammad Ameen v. Islamic Republic of Pakistan P L D 1981 F S C 23 while dealing with Article 24(4) it has been observed as under:-

"This takes away the power of the Court to declare invalid existing laws and other laws (e.g. Act II of 1974 Punjab Acquisition of Land (Housing) Act, 1973, Punjab Development of Cities Act, 1976), even if they fail to provide for any compensation for or provide for compensation which is much less than the market value of the land acquired under their provisions."

As regards the plea that individual notices were not served it is suffice to observe that this factual plea was controverted by the respondents by placing on record the copies of the notices served on the petitioners. This matter as is being disputed necessarily requires the holding of an inquiry. This exercise cannot be undertaken in constitutional Jurisdiction. The question whether the notices were served or not as well as the question whether the compensation awarded was reasonable can also be agitated before the relevant authorities by availing remedy provided by law. The petitioners, if so advised, are free to resort to the legs remedy available to them under the law.

3. As regards the plea that the compensation at the rate of Rs.20,000 per Acre is meagre and the same cannot be considered as a fair compensation for the land acquired is also without merit as the compensation at the aforesaid rate is fixed by the Statute itself.

4. The last plea urged was that because of the delayed action of the authority the land has been sold by executing sale-deeds at least 66 in number and these purchasers have built their houses, workshops and have raised other structures and because of the construction so raised the land has not remained fit for acquisition. It was also urged that in Civil Revision No. 243 of 1982 learned counsel for the authority made a statement that the 'impugned notification' has been withdrawn and in view of the aforesaid stand the purchasers who had purchased the property in view of the statement so made cannot now be made to suffer. It is true that in the order passed by the learned Judge of this Court the word 'impugned notification' appears but from the word 'impugned notification' it cannot be inferred that the notification sanctioning the scheme was stated to have been withdrawn. A perusal of the memorandum of revision petition would show that letter, dated the 6th of January, 1980 whereby a direction was issued by the Director/ General banning the attestation of mutations or registration of deeds in respect of land falling within the controlled area of the housing scheme. This impugned letter was withdrawn by making a statement by the counsel for the authority. Admittedly the notification declaring the land as controlled area was never withdrawn. In view of the above purchasers from the original owners of the land in dispute cannot successfully challenge the implementation of the phase 2-A of the scheme. They may, however, claim compensation for the construction, if any, existing on the date of acquisition.

5. In view of the afore-noted findings no assistance can be had from the judgments cited by the learned counsel for the petitioners viz. Lahore Improvement Trust v. The Custodian Evacuee Property PLD 1970 Lah. 257 and The Murree Brewery Company Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division P L D 1972 S C 279.

6. For the reasons given above there is no merit in these petitions and the same are dismissed in limine.

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