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Civil Appeals Nos. 86 of 1973, 842 of 1984 and Civil Petition No. 1437 of 1980, decided on 10th November, 1985.

(On appeal from the judgments and orders, dated 12‑1‑1972, 28‑6‑1977 and 6‑5‑1980 of the Lahore High Court passed in Writ Petitions Nos. 273/ 62, 662/77 and 552/77 respectively).

----Art. 185(3)‑Thal Development Act (XV of 1949), S. 36‑Thal Development (Validating) Ordinance (XV of 1971), preamble ‑Acquisition of land‑Leave to appeal granted to consider whether appellants' land was exempted from acquisition under S. 36, Thal Development Act, 1949 pursuant to Provincial Government's Press Notes and as to the effect of Thal Development (Validating) Ordi nance, 1971 qua the acquisition.

‑‑ Ss. 21, 22 to 28 & 36‑Thal Development (Amendment) Act, 1955, S. 12‑Scope and application.

Section 21 of Thal Development Act, 1949 in terms gives power to the Thal Development Authority to frame a scheme for the development of any local area or part thereof and for achieving that purpose provides for the acquisition of the land. Sections 22 to 28 relate to the manner of publication, notice of acquisition to the owners, objections against the proposed acquisition and abandonment of the acquisition, if accepted, sanction of the Scheme by the Provincial Government and other ancillary matters. Section 36 gives power to the Provincial Government in urgent cases to declare any locality comprised in a local area to be required immediately for resettlement of refugees and directs the Authority to undertake work in respect of such locality or any such matter as may be included in the Scheme under section 21. This section further authorises the Authority, after the issuance of such notification,. to apply to the Collector who shall, after notice to the owners and occupiers, deliver possession of any land in such locality to the Authority and thereupon the land shall vest absolutely in the Authority free from all encumberances subject only to the payment of compensation. The Authority is further required to proceed to frame a Scheme under section 21 after such acquisition. The Act further provides for the constitution of Tribunals for the purpose of performing the functions of the Court in reference to the acquisition of land for the Authority under the Land Acquisition Act, 1894 as modified by the Act and to give an award which is subject to an appeal to the High Court. By section 12 of the Thal Development (Amendment) Act, 1955, promulgated on 25th of April, 1955, section 21 of the West Pakistan Thal Development Act, 1949, was amended and a new sub section (2) was added.

‑‑‑‑ S. 21‑Section 21, held, placed a limitation on powers of Authority in matter of acquisition of land which was less than 15 Acres and created a vested right against acquisition.

‑‑‑ Preamble‑Purpose and object of Ordinance‑All that Ordinance meant was to save illegal acquisitions prior to promulgation of Thal Development (Amendment) Act, 1955.

-----Press note‑‑Legal effect‑Press notes issued by Government having no statutory force, held, could not be given any legal effect to.

-----S. 21(2) (iii) (iv) [as amended]‑Acquisition of land‑Benefit of slab system as contained in S. 21(2) (iii) & (iv), held, created a vested right against acquisition in favour of land owners (appellants) of which they could not be divested of‑Authority while calculating was bound to give effect to such benefit.

Civil Appeal No. 86 of 1973

Sh. Ghias Muhammad, Senior Advocate Supreme Court of Pakistan and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Appellants.

Raja Abdul Razzaque, Advocate‑on‑Record for Respondent No. 1.

M. A. Bajwa, Advocate Supreme Court and Rao Muhammad Yousuf Khan, Advocate‑on‑Record for Respondent No. 2.

Civil Appeal No. 842 of 1984

Syed Muhammad Ali Zaidi, Advocate Supreme Court and Syed Inayat Hussain, Advocate‑on‑Record for Appellants.

Respondents : Ex parte.

Civil Petition No. 1437 of 1980

M. M. Saeed Beg, Advocate Supreme Court and Sh. Ijaz Ali, Advocate- on‑Record for Petitioners.

Iqbal Ahmed Qureshi, Advocate‑on‑Record for Respondent No. 7.

Date of hearing :10th November, 1985.

This judgment will dispose of Civil Appeals Nos. 86 of 1973, 842 of 1994 and Civil Petition No. 1437 of 1980. Civil Appeal No. 86 of 1973 arises from the order. of the Lahore High Court, dated 12‑1‑1972, whereas civil appeal No. 842 of 1984 from the order of Lahore High Court dated 28‑6‑1977, Civil Petition No. 1437 of 1980 also impugns the order of the same High Court dated 6‑5‑1980.

Leave to appeal, in Civil Appeal No. 86 of 1973, was granted to consider whether the appellants' land was exempted from acquisition under section 36 of the Thal Development Act, 1949. pursuant to the Press Notes issued by the Provincial Government and as to the effect of the Thal Development (Validating) Ordinance, 1971 qua this acquisition.

The facts are that one Muhammad Sharif owned 5,456 Kanals of agricultural land in Village Jhakkar Digar in Tehsil Bhakkar, District Mianwali. He sold some land out of it to the appellants which is reflected by the sale mutations sanctioned on 31st of August, 1951. The Thai Development Authority, by notification dated 4‑4‑1951, issued under section 3,) of the Thai Development Act, acquired some land, but not the one which forms the subject‑matter of this appeal However, subsequently by another notification, dated 1st of September, 1951, the land in dispute was also included in this notification. That each one of the appellants, according to the sale mutations, owned less than 15 acres.

It seems that in the course of the implementation of notification, dated 1st of September, 1951, in 1960, Muhammad Sharif was still regarded as the owner of the disputed land although he was not so and on that basis the acquisition formula was sought to be applied. In that connection Abdul Aziz Khan one of the appellants herein on his behalf and on behalf of the others protested against this treatment and his statement was recorded by the Naib‑Tehsilder, Colonization, Bhakkar, wherein he explicitly stated that before the issuance of the notification, dated 1st of September, 1951, he and the others had purchased the land from Muhammad Sharif. This statement alongwith his report was forwarded to the Extra Assistant Colonization Officer, Bhakkar. His recommendation was that the implementation of the notification, dated 1st of September, 1951, should be on the same basis as that of notification, dated 4th of April, 1951, i. e., that Muhammad Sharif should be treated as the owner of the disputed land. The Extra‑Assistant Colonization Officer reached the conclusion that this report should be accepted and the appellants, if aggrieved, should be left to seek such remedy as was open to them. Accordingly, on the basis of this decision a "fard" was prepared whereunder Muhammad Sharif was allowed only to retain 6 Kanals and 10 Marlas of land out of his original holding as according to the subsequent notification. The appellants, as a result of the said purchase of land, were consequently to get only a small area of 6 Kanals 10 Marlas for distribution amongst themselves with the result that ‑ of them would get any appreciable area of land. Being thus aggrieved by the decision of December, 1960, the appellants impugned this order in the High Court through a Writ Petition No. 273 of 1962, which was dismissed by the High Court on 12th of January, 1962.

Reliance in the High Court was placed on the Press Notes dated 7th of May, 1952 and 1st of May, 1954, for the readjustment of the acquired area in terms thereof namely that "the area acquired from small holders between owning 50 to 100 acres was to be returned to them on the basis of a specified formula, and the entire area was to be acquired only in case of large holdings." In this context, it was urged that the order, dated 5th of December, 1960, denied to them the benefit of the specified formula. The next limb of the argument was that the acquisition itself of the disputed I land stood vitiated as no scheme was prepared in terms of section 21 of the Act, and for that matter the further provisions contained in sections 22, 23 and 24 of the Act were also not given effect to as their observance was a condition precedent for a valid acquisition. Lastly, it was urged that the appellants being small holders and owning areas less than 15 acres were entitled to re‑adjustment in terms of the two Press Notes and subsection (2) of section 21 of the Act as amended by Act XX of 1955, The High court held that the acquisition of land was not dependent on the preparation of the scheme which was otherwise saved by the ‑ Thal Development (Validating) Ordinance, 1971. Adverting to the Press Notes the High Court next held that the Press Notes had no statutory force and it was for this reason that that the formula was embodied in subsection (2) of section 21 as amended in 1955, but that statutory protection was also taken away by Ordinance XV of 1971.

A reading of the Act shows that section 21 in terms gives power to the Thal Development Authority to frame a scheme for the development of any local area or part thereof and for achieving that purpose provides for the acquisition of the land. Sections 22 to 28 relate to the manner of publication, notice of acquisition to the owners objections against the proposed acquisition and abandonment of the acquisition, if accepted, sanc tion of the Scheme by the Provincial Government and other ancillary matters. Section 36 gives power to the Provincial Government in urgent cases to declare any locality comprised in a local area to be required immediately for resettlement of refugees and directs the Authority to under take in respect of such locality or any such matter as may be included in the Scheme under section 21. This section further authorises the Authority, after the issuance of such notification, to apply to the Collector who shall, after notice to the owners and occupiers, deliver possession of any land in such locality. to the Authority and thereupon the land shall vest absolutely in, the Authority free from all encumbrances subject only to the payment of compensation. The Authority is further required to proceed to frame a Scheme under section 21 after such acquisi tion. Z he Act further provides for the constitution. of Tribunals for the purpose of performing the functions of the Court in reference to the acquisition of land for the Authority under the Land Acquisition Act, 1894 as modified by the Act and to give an award which is subject to an appeal to the High Court.

By section 12 of the Thal Development (Amendment) Act, 1955, promulgated on 25th of April, 1955, section 21 of the West Pakistan Thal Development Act, 1949, was amended and a new subsection (2) was added which reads : ‑

"(2) Every provision made in a scheme for acquisition of land under clause (i) of subsection (1) after the coming into force of the That Development Act (Amendment) Ordinance, 1955 shall.‑be subject to the following limitations and conditions :‑

(i) The land which is outside the irrigation boundaries of the Thal Canal or is already irrigated by means of a well or any other means of irrigation other than the Thal Canal or which was not shown as Banjar Jadid, Banjar Qadim or Gbair Mumkin in the Khasra Girdawari of Rabi 1951 shall not be acquired.

(ii) If a person owns less than 15 acres of land within the irrigation boundaries it shall not be acquired.

(iii) If a person owns more than 15 but not more than 100 acres of land within the irrigation boundaries, nor more than 50 per cent of the land in excess of 15 acres shall be liable to be acquired.

(iv) If a person owns more than 100 acres of land within the irrigation boundaries not more than 75 per cent of the land in excess of 100 acres shall be liable to be acquired in addition to the land acquired under clause (iii) above in respect of the first 100 Acres."

As would appear from clause (ii) of subsection (2) of section 21 of the Amended Act, a limitation was placed on the powers of the Authority in the matter of acquisition of land which was less than 15 Acres In terms it created a vested right against acquisition.

It seems that earlier to the promulgation of Act XX of 1955, the Authority or the Provincial Government had acquired lands in violation of sections 21 and 36 of the Act which acquisitions were challenged on a large scale and avoided by the Courts. It was to give legal colour to such acquisitions that the That Development (Validating) Ordinance, 1971 was promulgated on 17th of July, 1971, and in terms, provides that "any Land or right acquires by, privilege accrued to or liability or obligation incurred by the Thai Development Authority before the promulgation of the Thal Development (Amendment) Act, 1955, shall be deemed to nave been validly acquired, accrued or incurred as the case maybe. However, the language of the Validating Act does not destroy or defeat the vested right conferred on the small land holders of less than 15 acres as that provision remains intact and is not touched by the validating provision. If, therefore, the Authority had given effect to the amended section.21 by recognizing the limitation not to acquire small holding after the promulgation of Act XX of 1955 by giving relief to the small land holders and occupiers by abandoning the acquisition, this validation could not have been read to have destroyed that exercise of function by that authority. All that it meant to save were illegal acquisitions prior to the promulgation of Act XX of 1955.

It appears that subsequent to the notification, dated 4th of April, 1961 issued under section 36 of the Act which did not, in any manner, affect the ownership of Muhammad Sharif, he sold a portion of his holding to the appellants through sale mutations sanctioned on 31st of August, 1951. The subsequent notification, however, included land sold to the appellants, Despite these sales this notification showed him to be the owner of the land and consequently the area returnable was very meagre against which objection was taken before the relevant authority. While these proceed ings were going on, the Provincial Government issued Press Notes wherein, as a policy matter, it bad agreed to the retention of 15 acres by the owners. But the authorities dealing with the proceedings did not give effect to it and passed an adverse order. Thereafter, this benefit was given a statutory recognition by clauses (ii) of subsection (2) of section 21 of the amended Act. At no time before us the respondents disputed the factual aspect of the case namely, that the appellants were small landholders of less than 15 acres of land.

The appellants feeling aggrieved that the land having wrongly been treated as that belonging to Muhammad Sharif under the notification, dated 1‑9‑1951 and that no effect having been given to the sales which took place before the issuance of this notification, they challenged the impugned order in the High Court. At this juncture we would like to mention that this notification was issued under section 36 of the Act, which purportedly referred to the framing of the Scheme under section 21 of the Act. If that was so then by reason of the sales, effect had to be given to the vested rights created by the relevant provision of section 21 on the promulgation of Act XX of 1955.

The High Court while giving wholesale validity to the acquisitions before the promulgation of Act XX of 1955 failed to notice that on the promulgation of this amended Act the Authority could not retain holdings which were less than 15 acres. And as to the giving of legal effect to the' Press Notes, we agree with the High Court that the Press Notes could not be given any legal effect as they had no statutory force.

Accordingly, we would allow the appeal with costs, set aside the order of the High Court, dated 12th of January, 1972, and issue the writ directing the respondents give effect to the claims of the appellants.

In Civil Appeal No. 842 of 1984, leave to appeal was granted as the points for consideration were the same as were in the earlier appeal.

Briefly stated the facts are that one Kazi Abdul Karim owned 18,532 kanals of agricultural land at Khata No. 166 of Mauza Shergarh, Tehsil Leiah, District Muzaffargash. Out of it 3,977 kanals of land falling within the irrigation limits of Thal Project were acquired under a notification dated 22nd of December, 1952 issued under section 36(1) of the Thal Development Act, 1949, This left 7,870 kanals within the irrigation limits beyond the purview of the notification. He thereupon gifted his entire holding to the appellants 1 to 21 and Amir, his son, who has since died and is represented by his legal representatives namely, appellants 2 to 4 and 22 to 25. After this gift, the first appellant gifted a part of his land to his wife Mst. Aisha, who is respondent No. 26 herein in 1953 as per Mutation No. 739. Two further notifications were issued under section 36(1) of the Act on 4th of March, 1955 and 18th of March, 1955, which included 6,548 kanals of land of the said Khata. Thus, in all 9,525 kanals as originally owned by Kazi Abdul Karim, which fell withih the irrigation limits, were included leaving 1,322 kanals. Here it would be pertinent to mention that the mutation regarding gift of land to the appellants was cancelled by Assistant Commissioner II, Leiah, which cancellation was set aside subsequently as a result of which gift Mutation No. 694 still holds the field as no appeal was filed against the restoration of the mutation.

In 1969 adjustment proceedings were taken in hand and proposals were submitted by the Extra‑Assistant Colonization Officer to the Coloniza tion Officer in his report, dated 13th of October, 1969 which were to the effect that the appellants were entitled to the return of 5539 kanals out of which 2,961 kanals had already been allotted to the appellants Nos. 1 to 21 and Amir Muhammad Khan and the balance of 2,528 kanals was yet to be adjusted, and in view of the cases pending in the High Court, the adjustment proceedings were suspended.

Accordingly, it was recommended that the land in Chak Nos. 490, 491 and 492/1'. D. A. should be kept in reserve for adjustment against the entitlement of the appellants and the heirs of Amir Muhammad Khan till after the decision of his case by the High Court. Two schedules were also prepared in regard to the returnable area pursuant to the directive of the Provincial Government on percentage basis as contained in memo randum. dated 5th of January, 1952 and in accordance with subsection (2) of section 21 of the Act as amended. According to the first schedule which was in accord with the directive of the Provincial Government, the appellants and the heirs of Amir Muhammad Khan were entitled to the return of 5,539 kanals and by the second schedule which was in terms of the statutory provision they were declared to be entitled to the return of 7.171 kanals 17 marlas of land The Colonization Officer by order dated 24th of March, 1970 approved the proposal and the appellants were, accordingly, proposed land measuring about 6,487 kanals in adjustment of their entitlement in Chak Nos. 368 and 490/T. D. A. They were also put into possession of this land.

The High Court in the meanwhile disposed of Writ Petition No. 1753 of 1965 filed by Gul Muhammad and many others holding that the acquisition of land was illegal on account of the contravention of sub section (2) of section 21 of the Act. The Thai Development Authority impugned the orders in the Supreme Court and during the pendency of the appeals, the Thal Development (Validating) Ordinance, 1971 was pro mulgated to give legal colour to the acquisitions.

Again in 1975, the work of adjustment was taken it hand. The appellants thereupon moved an application on 6th of August, 1976 praying therein that the land in their possession be kept in reserve till their entitle ment was finally determined. Nevertheless in the absence of the final determination as to the effect of the validating Act and the application of section 21(2) of the Act, the Settlement Officer, Leiah, by his memorandum, dated 8th of November, 1976 addressed to the Deputy Secretary, Colonies, Board of Revenue, Punjab, Lahore, sought orders from the Board of Revenue on the following points.

(1) Whether the claim of Kazi Abdul Karim should be settled ignoring his successors who stepped in 1953 ; or

(2) Whether Mr. Abdul Karim and his successors are to be granted land in accordance with marginal adjustment formula notification- wise according to which acquisition is to be made in 1951 and 1955 separately incorporating the gift mutation."

He also stated in the memorandum that the maximum concession that could be given to the appellants was in regard to 4,573 kanals and not 5,539 kanals which was provisionally worked out under the marginal system and reserved for them by the Colonization Officer, Bhakkar, till the final settlement of their claims and as this was unjustified, he had ordered for the resumption of land over and above 4,573 kanals. This was without notice to the appellants. The Board of Revenue against without hearing the appellants gave a decision on 11^th of February, 1977 in terms that :‑

"Original notification should form the basis of the grant of area to be worked out according to marginal adjustment formula and not according to slab system. The excess area in possession of the local landowners may be withdrawn as per policy of the Government."

Both these orders were impugned in the writ petition. Two questions were raised before the High Court. The first was that the entitlement to regrant should be worked out in accordance with the ownership as existing on the date of each notification and not on the basis of the first notification, dated 22nd of February, 1952, which violated the provisions of sec tion 36(1) of the Act. And the second related to the regrant in terms of slab system as introduced by the amended section 21 of the Act. The High Court rejected the consideration of the second point as without any substance and only issued notice for the consideration of the first point.

As has been held earlier in Civil Appeal No. 86 of 1973, the benefit' of slab system as contained in clauses (iii) and (iv) of subsection (2) of section 21 of the amended Act create a vested right in favour of the appellants of which they cannot be divested Accordingly, the respondents while calculating it are bound to give effect to it for the same reasons as have been given in the 'earlier appeal.

Accordingly, we would allow the appeal with costs, set aside the order of the High Court to this extent and direct that a writ shall issue to the respondents to give effect to the claim of the appellants.

Civil Petition for Leave to Appeal bearing No. 1437 of 1980 filed by the Board of Revenue fails and is dismissed. It is also barred by 118 days which again is a sufficient ground for its dismissal.

M.B.A. Appeal allowed.

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