IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
FA)
CIVIL APPEAL NO.401 of 2015
(Against the judgment dated 12.12.2014 passed by
the Lahore High Court, Rawalpindi Bench, Rawalpindi
in Civil Revision Petition No.437-D of 2001).
Province of Punjab through Secretary
Housing and Physical Planning Department,
Government of the Punjab, Lahore and others
APPELLANTS
VERSUS
Syed Zia Ui Hassan Zaidi and others RESPONDENTS
For the Appellant(s): 
Barrister Qasim Ali Chohan, Addl.AG, Pb.
Zaheer Ahmed, Dy. Director (PHATA)
Ismail Ch. Head Draftsman
For the Respondent(s): 
Syed Moazarn Ali Rizvi, ASC
Syed Rafaqat Hussain Shah, AOR
Date of Hearing: 
19.0 1.2022
JUDGMENT
IJAZ UL AHSAN, J-. Through this appeal, the
Appellants have challenged the judgment of the Lahore High
Court, Lahore dated 12.12.2014 passed in Civil Revision No.
437-D of 2001 (hereinafter referred to as "Impugned
Judgment"). The Respondents through their Civil Revision
Petition had challenged the judgment and decree dated
03.05.2001 whereby the Appellate Court set-aside the
judgment and decree dated 2 1.01.1998 passed by the learned
trial Court and decreed the suit for declaration and
consequential relief filed by the Respondents.
2. The brief facts giving rise to this its are that the
Respondents filed a suit for declaration challenging the
acquisition of land measuring 09 Kanals 16 Marlas failing in
Khasra No. 505/62 situated in Khawaspur, Jhelum
(hereinafter referred to as the "Disputed Land"). The
Respondents belonged to the Shia community and started
using the Disputed Land as "Karbala". It was claimed by the
Respondents that the Disputed Land was transferred to the
predecessor-in-interest of the Respondents. After the death of
the said predecessor-in-interest, Respondent No. 01 (Syed Zia
ill Hassan Zaidi) was appointed as the Administrator of the
Disputed Land. In 1973, the Appellants acquired the land for
the purpose of Area Development Scheme-I for low-income
housing at Jhelum (hereinafter referred to as the "Scheme").
This gave rise to protests by the Shia community of Jhelum.
Resultantly, a revised layout plan for the Scheme was placed
before the Director of Housing and Physical Planning,
Rawalpindi on 17.10.1973. The said Director approved the
revised layout plan on 09.01.1974. Ultimately, vide letter
dated 29.03.1982, it was recommended that the Disputed
Land should be kept as open space and not included in the
Scheme and, vide letter dated 03.09.1986, it was approved
that the Disputed Land would be excluded from the Scheme.
On the contrary, the Disputed Land was transferred to the
Education Department vide letter dated 15.09.1987 for the
construction of a school. The letter dated 15.09.1987 was
challenged by the Respondents by filing a suit for declaration
along with consequential relief. The trial Court after framing
a
issues and recording evidence, dismissed the suit of the
Respondents vide judgment and decree dated 21.01.1998.
Aggrieved, the Respondents filed an appeal before the learned
District Judge which was allowed vide judgment and decree
dated 03.05.2001. The Appellants filed a Civil Revision
Petition thereagainst which was dismissed vide the Impugned
Judgment. Aggrieved thereof, the Appellants have approached
this Court.
3.
Leave to appeal was granted by this Court vide
order dated 11.05.2015 in the following terms: -
"Learned Additional Advocate General has inter alia
contended that the land in dispute was acquired with other
land in the year 1973 for Area Development Scheme-I to
provide houses to low income citizens and subsequently its
possession was transferred to Education Department for
establishment of Elementary College on 3.2.1990; that the
claim of the respondents is that the land is being used by the
Shia sect for the purpose of 'Karbala' etc and could not be
transferred for establishment of College; that the land was
¶Banjar Qadeem' and was never shown or entered as
'Karbala' in the revenue record at the time of acquisition; that
in the present case the courts below have gone beyond the
pleading that Khasra No. 505-62 was never acquired in the
year 1973; that the learned Single Judge in Chambers of the
High Court has not discussed the case and has erroneously
reproduced the findings of the learned Appellate Court and
affirmed that the suit was rightly dismissed by the learned
trial Court."
4.
The learned Additional Advocate General, Punjab
has argued that the Disputed Land was acquired as part of
the Scheme in respect of which compensation was paid to the
Respondents and the possession of the land was
subsequently delivered to the Education Department on
03.02.1990 for construction of Elementary College, Jhelum.
He has further argued that the land was shown as 'Banjar
Qadeem' and not as 'Karbala' in the revenue record. He has
further argued that an amended notification was issued in
supersession of the Notification issued under Section 4(1) of
the Punjab Acquisition of Land (Housing) Ordinance, 1973
dated 27.03.1973 (hereinafter referred to as the
"Notification"). It has been argued that the purportedly,
through the amended notification, the Disputed Land was
acquired for the Scheme.
5. The learned ASC for the Respondents has argued
that the Disputed Land was mentioned as 'Karbala' in the
revenue record and that Moharram processions were taken to
the said land for the past many years. He has further argued
that the Director of Housing and Physical Planning
specifically excluded the Disputed Land from the Scheme. As
such, it could not have been transferred to the Education
Department because the Disputed Land belonged to the
Respondents and not to the Appellants. The learned ASC has
relied upon the notification dated 29.03.1982 whereby the
Disputed Land was declared as 'open space' by the A.0 (D)
acting on behalf of the Commissioner, Rawalpindi. He has
further relied upon the notification dated 03.09.1986 whereby
the Chief Minister Punjab excluded the Disputed Land from
the Scheme. The learned ASC has argued that the Disputed
Land was not mentioned in the Notification under Section 4 of
the Land Acquisition Act, 1894. He has argued that if the
Disputed Land was to be mentioned in the Notification, the
prescribed procedure starting from the notification, inviting
objections, providing a hearing and then issuing an award
ought to have been followed, which was not done in the case
at hand. The learned Counsel has further argued that the fact
that the Disputed Land was not mentioned in the Notification
is admitted by witnesses/ revenue officials.
6. We have heard the learned Counsel for the parties
and have perused the record. The issues which fall before this
Court for determination are as follows: -
(i)
Was the Disputed Land mentioned in the
Notification?
(ii)
Could an Award transferring the Disputed Land in
favour of the Education Department be made?
WAS THE DISPUTED LAND MENTIONED IN THE
NOTIFICATION?
7. We have on record the Notification issued by the
Office of the Deputy Commissioner, Jhelum which reads as
follows:-
"No. 3401 -G/DRA - Whereas it appears to the undersigned
that the land is needed by the Government for a housing
scheme known as Area Development Scheme for Low Income
Housing at Jhelum. It is hereby notified under Section 4(1) of
the Punjab Acquisition of Land (Housing) Ordinance, 1973 for
information of the public that the Land in the locality in the
schedule below is to be required for this purpose...."
The Notification was issued under Section 4(1) of
the Punjab Acquisition of Land (Housing) Ordinance, 1973
(since repealed) (hereinafter referred to as the "Act of 1973"),
which reads as under: -
Publication of preliminary notification and power of
officers thereupon. - (1) Whenever it appears to the Deputy
Commissioner that land in any locality is needed or is likely
to be needed for any housing scheme a notification to that
effect shall be publish in the Official Gazette and the collector
shall cause public notice of the substance of such notification
to be given at convenient places in the said locality."
It is mentioned in the Notification that the Land in
the locality mentioned in the schedule to the Notification was
being acquired for the development of the Scheme. We have
gone through the said schedule and are unable to agree with
the argument that the Disputed Land was mentioned therein.
The said schedule mentions various khasra numbers which
were acquired in the locality of Khawaspur. However, the
Disputed Land is not mentioned anywhere in the said
schedule. The entire acquisition for the Scheme was carried
out based on the Notification which has no mention of the
Disputed Land. When confronted with this, the learned AAG
submitted that an amended notification was issued in
supersession of the Notification whereby, the land in question
was acquired for the Scheme. We have repeatedly asked the
learned AAO to show us any such notification from the
record. He has been unable to do so.
8. On the contrary, there is a notification dated
21.05.1973 on the record issued by the Office of the Deputy
Commissioner, Jhelum which reads as follows: -
'No. 4696-41DRA - Whereas the land measuring about 100
acres which was required for housing scheme known as
Area Development Scheme for Low Income Housing at
Jhelum in the revenue estates of Rajipur, Khawaspur and
Shahpur is no longer required for the said purpose. Now
therefore, I, Mr. Muhammad Parvez Masood, C.S.P. Deputu
Commissioner, Jhelum herebu withdraw notification No.
3401-GIDRA issued under Section 4(1) of the Punjab
Acquisition of Land (Housing) Ordinance, 1973 in the
EXTRAORDINARY  GAZETTE Punjab Gazette of 27th March
1973 at pages 533 to 538" (Underlining is ours)
The alorenoted notification establishes two facts;
that the land mentioned in the Notification was no longer
required for the purpose mentioned in the Notification, and,
that the Notification was withdrawn by the competent
authority i.e., the Deputy Commissioner, Jhelum as provided
in Section 4(1) of the Act of 1973. There is nothing on the
C
record to show that the aforenoted notification was ever
challenged by the Appellants or, that a subsequent
notification was issued in supersession of the ibid
notification. The learned High Court has correctly held that
since the Disputed Land was purportedly acquired by the
Appellants, it was for them to positively prove through cogent
evidence that it was included in the Notification. The learned
High Court has further held that the revised map of the
locality was issued without approval and notification of the
competent authority. The Notification was issued for a specific
purpose. The said purpose was that land was required by the
Government for a Scheme. The fact that the said Notification
has been withdrawn shows that the Government changed its
intention and decided that the land in question measuring
800 acres was no longer required.
9. The subsequent notification was issued by the
Deputy Commissioner who, as per Section 19 of the Act of
1973 was perfectly empowered to do so. Section 19 of the ibid
Act reads as under: -
"The Deputy Commissioner, shall be at liberty to withdraw
from the acquisition proceedings of any land, notified under
this Act, of which possession has not been taken:
Provided that Government or an Official Development
Agency, as the case may be, has informed the Deputy
Commissioner in this behalf in writing:
Provided further that in case of non-acceptance of the
award even as a result of the appeal made to the
Commissioner the right of withdrawal from the
acquisition may be exercised by the Government or an
Official Development Agency, as the case may be."
The first part of Section 19 of the Act of 1973
establishes that the Deputy Commissioner was at liberty to
withdraw from the acquisition proceedings. The fact that a
subsequent notification withdrawing the earlier Notification
was issued further shows that possession of the land sought
to be acquired was not taken by the Appellants. It is worth
mentioning that, in the absence of any material suggesting
that the subsequent notification was challenged, this Court
under Article 129(e) of the Qanun-e-Shahadat Order, 1984
may presume the existence of the fact that the Disputed Land
was not required by the Appellants. Article 129(e) of the ibid
Order reads as follows: -
"129. Court may presume existence of certain facts: The
Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common
course of natural events, human conduct and public and
private business, in their relation to the facts of the particular
case."
The allegedly amended notification through which
the land was statedly acquired or transferred to the
Education Department has neither been brought on the
record nor has it been shown to us that the said purported
notification was published in the Official Gazette. Section 4(1)
of the Act of 1973 uses the word "shall" making it obligatory
upon the Appellants to publish any and all notifications in
respect of acquisition under Section 4(1) of the Act of 1973.
The requirement of publication of a notification under Section
4 is an essential requirement in acquisition proceedings
because it is likely that the rights and interests of landowners
will be adversely affected. Reliance in this respect is placed
on Saghir Ahmed through Legal Heirs p. Province of
Punjab through Secretary, Housing and Physical
Planning Lahore and others (PLD 2004 Supreme Court
261) wherein, this Court held as follows: -
"However, a notification under section 4 of the Act
specifically requires its publication in the official Gazette, if it
appears to the Deputy' Commissioner that a particular land
of a particular locality is needed or is likely to be needed for
any housing-scheme. This is followed by another legal
requirement of a public notice of the substance of such
notification to be given at convenient places in that locality.
The publication of notification under section 4 in the official
Gazette has been made necessary as the rights and interests
of the land owners are likely to be adversely affected by the
acquisition proceedings. According to definition of word
"notification" as given in section 2(41) of West Pakistan
General Clauses Act, 1956, "it shall mean a notification
published under the proper authority in the official Gazette"
in the absence of anything repugnant in the subject or
context."
The fact that no such notification has been shown
from the record leaves no doubt in our minds to hold that the
said subsequent notification, as per the record, was never
issued by the Appellants. In the absence of such documentary
evidence, this argument of the learned AAG fails and is
accordingly held to be unsustainable. On the contrary, we
have on record two other notifications, the effect of which is
that acquisition of the Disputed Land was withdrawn by the
Appellants.
COULD AN AWARD TRANSFERRING THE DISPUTED LAND
IN FAVOUR OF THE EDUCATION DEPARTMENT BE
MADE?
10. The learned Counsel for the Respondents has
argued that the Disputed Land was transferred to the
Education Department through the impugned Award
whereby, inter alia, the entire Khasra No. 62 was transferred
to the Education Department for the construction of a school.
It has been argued that the Award made in favour of the
Education Department , was illegal because there was no
notification published in the official gazette to support the
transfer as required by Section 4 of the Act of 1973. It has
further been argued that even if it is assumed that the land
was acquired, the Disputed Land could not have been used
for any other purpose other than the one which is mentioned
in the Notification. The learned High Court in this respect has
held that the Assistant Director of the Appellant-Department
appeared as DW-3 and admitted that the Disputed Land was
not mentioned in the Notification. The learned High Court has
held that this fact has been admitted by other DWs as well
and these admissions were not taken into consideration by
the trial Court. As such, the Respondents could not have
been compelled to receive compensation through notice
tendered in evidence as Exh.PW-9/1 1.
11. We have on the record various letters from the
revenue authorities and the Director of the Appellant-
Department, one of which is a letter issued by the A.0 (D) for
the Commissioner, Rawalpindi Division dated 29.03.1982
paragraph 2 of which reads as follows: -
"The proposal of the Deputy Commissioner, Jhelum, referred
to in your office memorandum No. SOD-1-7-4179 dated 8th
July 1979 to keep the area as an open space after excluding
the same from the Scheme is supported by this of with
the condition that it does not lead to the impression that any
community has got the license to make any construction on
it." (underlining is ours)
Another letter in this respect is dated 18. 10. 1973
undersigned by the Director of the Appellant-Department
which reads as follows: -
I tie siae PUITLt&U (JILL UL4 tiLe IJCLtLLUHW IL UCL(L4 L4'U. lAO
'Karbala' has been adjusted in the recentl y revised layout
plan. A copy of the layout plan had already been submitted
to you for approval vide this office memo No. 2332 dated
17/x/73."  (Underlining is ours)
The aforenoted letters establish that the Disputed
Land was in possession of the Respondents and, that the
Appellant-Department itself excluded it from the Scheme.
This is further supported by the letter dated 06.11.1978
issued to the Deputy Director of the Appellant Department by
the Director-General of the Appellant Department wherein it
was stated that the Disputed Land may be kept as an open
space and, the viewpoint of the Deputy Commissioner,
Jhelum may be obtained as well. The fact that the Disputed
Area was excluded from the Scheme is also mentioned in the
letter of the Section Officer (D-II) dated 03.09.1986 stating
that the Chief Minister had excluded the Disputed Land from
the Scheme.
12.
The fact that the Disputed Land was included in
the Award despite the availability of various letters including
the letter of the Chief Minister stating that the Disputed Land
was excluded from the Scheme leaves us in no manner of
doubt that the inclusion of the Disputed Land in the Award
was illegal and could not have been done, especially without
issuing any notification under Section 4 of the Act of 1973.
13.
The Notification mentions that the Disputed Land
was being acquired for the Scheme. Subsequently, the
Disputed Land was transferred to the Education Department
for the construction of a school. The learned Counsel for the
Respondents has argued that the Appellant-Department, even
in a best-case scenario, could not have transferred/ used the
land for any other purpose except that which is mentioned in
C
the Notification. The intent and purpose of the Government
were unambiguous as seen from the Notification. There was
no room for the Appellant Department to read something into
the Notification, which was not there. Reliance in this regard
is placed on Province of HP through Chief Secretary,
Peshawar and others v. Farasatullah and others (2020
SCMR 1629).
14. The Notification is specific in its purpose and
object and any interpretation of the Notification which is not
in line with its terms would be violative of the law. The
purpose for which the land has been transferred to the
Education Department is entirely different from that which is
mentioned in the Notification. A notification issued by the
Government essentially reveals its intention. One of the
purposes of publishing a notification is so that those who may
be affected by it can know the intention of the Government as
mentioned in the notification itself. Essentially, a notification
is a means used by the Government to communicate with the
general public regarding inter alia, any projects et cetera that
it might prospectively undertake. The intent behind the
notification or, the purpose for issuing the same must be
mentioned because, as noted above, the rights of different
stakeholders are involved. This is one of the reasons that
there are various safeguards provided in the Act of 1973 such
as Section 6 which requires, by using the words "Shall", the
publication of a notice to make the intention of the
Government to possess a certain piece of land clear.
15. If the said intention of the Government or the area
sought to be acquired changes after the Notification under
Section 4 has been issued; a fresh notification or an
addendum to the earlier notification can be issued to enable
the parties affect by it to avail remedies provided by the law.
Further, the acquisition of the land does not ipso facto mean
that the Appellant-Department could use the acquired land
for any purpose that it considered appropriate. The acquiring
agency/ department/ entity is restricted in its use of the land
to the purpose mentioned in the notification and for no other
purpose. Further, no additional land can be included in the
award which was not mentioned in the Notification under
Section 4 or any addendum or fresh notification after fulfilling
all legal and procedural formalities required to be fulfilled in
this regard. That being so, and land comprised in Khasra No.
505/62 having not been included in the Notification under
Section 4 or any subsequent notification for addendum
issued thereto, the Award could not include Khasra No.
505/62. The Appellant-Authority exceeded its jurisdiction in
doing so and it is therefore held that the Award was, to the
extent of the inclusion of Khasra No. 505/62, illegal. There is
nothing in the Act of 1973 to the effect that the Deputy
Commissioner/ Collector had the authority to add a Khasra
number to either a notification or the Award of his own
volition without following proper rules and procedure. As
such, the Award could not have been issued without first
complying with the mandatory provisions of the law.
1
found to be without merit. It is accordingly
I16.
The Impugned Judgment of the learned High
Court dated 12.12.2014 is well reasoned, proceeds on the
correct factual and legal premises and has correctly applied
the relevant law, rules and regulations to the facts and
circumstances of the cases before us. No legal, or
jurisdictional defect, error or flaw in the Impugned Judgment
has been pointed out to us that may furnish a valid basis or
lawful justification to interfere in the same. The Learned AAG
has not been able to persuade us to take a view different from
the High Court in the facts and circumstances of the instant
Appeal. We accordingly affirm and uphold the Impugned
Judgment of the Learned High Court.
17.
For the reasons recorded above, this appeal is
Islamabad, the
191h January 2022
.Haris Ishtiaq LC/*
7Qt A pproved For Reporting