Case law on de-acquire of land by commissioner
Stereo. H C J D A 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
JUDGMENT
W.P.No.8177/2023
Lahore Development Authority
through its Director General
and another
VS.
Chaudhary Hamayun Mahmood
and another
Ch. Muhammad Iqbal, J:- Through this constitutional
petition, the petitioners/Lahore Development Authority has
challenged the validity of order dated 16.11.2022 passed by the
Commissioner, Lahore Division, Lahore who accepted the
application of the respondent No.1 and de-notified the acquired
land measuring 17 Kanal 02 Marla of Khasra No.635 & 636
situated at Moza Bhobtian, Tehsil Raiwind, District Lahore.
2.
Brief facts of the case are that the notification under
Section 4 of the Land Acquisition Act, 1894 was issued on
28.04.2003 [gazetted on 29.04.2003] for acquisition of land for
establishment of “LDA Avenue Housing Scheme” and thereafter
notifications under Section 17(4) & 6 of the Act ibid bearing
No.2385 & 2386 were issued on 04.07.2003 [gazetted on
08.07.2003] and accordingly award was announced on
24.10.2003. On 18.05.2022, respondent No.1 filed an application
under Section 48 of the Land Acquisition Act, 1894 for de
W.P.No.8177/2023
2
notification of the land measuring 17 Kanal 02 Marla comprising
Khasra No.635 (08 Kanal 18 Marla) and Khasra No.636 (08
Kanal 04 Marla) situated at Moza Bhobtian Tehsil Raiwind,
District Lahore. The said application was accepted vide order
dated 16.11.2022 by the Commissioner, Lahore Division who denotified the acquisition of the said land which resulted into filing
of this petition.
3.
Learned counsel for the petitioners submits that the suit
land was acquired in the year 2003 against which the assessed
amount of compensation was deposited with the Land
Acquisition Collector. The master plan of the housing scheme
had finally been drawn and substantial development work for the
infrastructure of the scheme has been accomplished and
possession of the khasra numbers have already been obtained by
the petitioners upon which plots have been carved out and
allotted to different persons, as such the impugned order has been
passed without any reasoning therefore same is liable to be set
aside.
4.
Respondent No.1 filed reply to the writ petition and
pleaded that possession of the land was not completely obtained
by the Lahore Development Authority since acquiring of the
land, thus the Commissioner was well within jurisdiction under
Section 48 of the Land Acquisition Act, 1894 to de-acquire/denotify the land. Learned counsel for the respondent No.1 has
supported the impugned order and prayed for dismissal of instant
petition.
5.
I have heard learned counsels for the parties and have
gone through the record.
6.
Admittedly, petitioners/L.D.A acquired land of Moza
Bhobtian Tehsil Raiwind, District Lahore for establishment of
“LDA Avenue-I Housing Scheme” and notification under Section
8177/2023
3
4 of the Land Acquisition Act, 1894 was issued on 28.04.2003
[gazetted on 29.04.2003] in which Khasra Nos.635 & 636 of
Moza Bhobtian Tehsil Raiwind District Lahore were included.
Thereafter, notification under Section 17(4) and 6 of the Act ibid
was issued on 04.07.2003 [gazetted on 08.07.2003] wherein
khasra Nos.635 & 636 of the respondents’ predecessor were duly
mentioned. On 24.10.2003, Award No.6 of the acquired land was
issued including the impugned Khasra Numbers and
compensation was also deposited with the Land Acquisition
Collector concerned. This shows that the land of Khasra Nos.635
& 636 was also acquired in accordance with law. After taking
possession of Khasra Numbers 635 & 636 on 25.09.2003, the
petitioner/L.D.A. carved out as many as 27 plots in the said
khasra numbers. The detail whereof is as under:-
Khasra No.635
Sr. No.
Plot No.
Name of Allottee
1
685-L
Syed M. Imran
2
686-L
Abbad Ali Javaid
3
687-L
Fakhira Zia
4
688-L
Muhammad Kamil
5
689-L
M. Ahmad
6
690-L
Areeba Iqbal
7
691-L
Muhammad Fiaz
8
711-L
Azra Parveen
9
712-L
Saeed Ullah Khan
10
713-L
Khalid Zaman
W.P.No.8177/2023
4
12
714-L
Jamila Begum
13
715-L
M. Yaqoob
Khasra No.636
Sr. No.
Plot No.
Name of Allottee
1
74
Asfaa Birayat
2
745
Malik Zafar
3
746
M. Naeem Akhtar
4
747
Shahbaz Khan
5
478
Nuzhat Zubair
6
758
Saima Ashfaq
7
773
Kausar Wahid
8
797
Malik Aziz
9
796
Bashir Ahmad
10
798
Shakil Ahmed
11
799
M. Naseer Khan
12
796-A
Hafiz Muhammad Saleem
13
797-A
Malik Aziz Ahmed
14
798-A
Khalid Pervaiz
And above said plots of both Khasras number were allotted to
different allottees who had paid the cost of land as well as
development charges to the acquiring agency and after payment
of consideration amount a tangible right / title had stood accrued
in their favour and no hearing was afforded to the said lawful
allottees by the Commissioner and nor their vested interest has
W.P.No.8177/2023
5
been safeguarded. Even no request was made by the acquiring
agency for de-acquisition of the said acquired land. Further it is
worth mentioning here that all the surrounding khasra numbers to
khasra Nos. 635 & 636 were under litigation through W.P.
No.16022/2003 filed by Dilawaz Iqbal etc. and ICA whereof but
in the said litigation, the impugned khasra numbers were not sub
judice but due to pendency of the above litigation the
development work of the said housing scheme remained
incomplete over the said Khasra numbers. Another lis was
instituted by Dilawaz etc. by filing W.P. No.4504/2007 and
against the decision of the writ petition an Intra Court Appeal
No.806/2009 is still pending in this Court, thus the main hurdle in
completion of the work was due to pendency of the above
litigation.
7.
The main controversy in this petition is that as to whether
under the land acquisition enactment, the Commissioner has any
jurisdiction to issue declaration regarding de-acquisition of an
acquired land, suffice it to say that as per Section 48(1) of the
Land Acquisition Act 1894, the government has the power to
withdraw from acquisition of any land of whose possession has
not been taken. For reference, Section 48(1) of the Land
Acquisition Act, 1894 is reproduced as under:
“48.Completion of acquisition not compulsory, but
compensation to be awarded when not completed.– (1)
Except in the case provided for in section 36, the Government
shall be at liberty to withdraw from the acquisition of any land
of which possession has not been taken.
As expounded from the above provision, the Commissioner has
no jurisdiction to exclude the acquired land under the Land
Acquisition Act, 1894 rather it is only the Government who is
shown competent to de-acquire the land. This Court while
dealing with an alike matter regarding de-notification of the
acquired land by an Executive District Officer (Revenue) has
W.P.No.8177/2023
6
elaborately discussed this issue in a judgment cited as
Muhammad Nawaz Vs. Government of Punjab, through Chief
Secretary, Lahore and others (2017 MLD 1719). The relevant
portion whereof is as under:
“9.
It is an admitted fact that the land measuring 142-Kanals 13-
Marlas of Village Wasu and measuring 451-Kanals 09-Marlas of
Village Sohawa Bulani, Tehsil & District Mandi Baha-ud-Din was
acquired for “Construction of State of the Art, District Headquarters
Hospital and allied facilities, Mandi Baha-ud-Din near District
Complex Mandi Baha-ud-Din. In this regard Award has already been
announced on 04.06.2007 and thereafter a Mutation was duly
sanctioned in favour of the Health Department. The respondent No.8
challenged the Notification under Section 4 of Land Acquisition
Act,1894 through Writ Petition No.1782/2006 which was disposed of
on 15.06.2006. The respondent No.8 withdrew his Reference under
Section 18 of the Land Acquisition Act,1894 from the Court of
Learned Senior Civil Judge Mandi Baha-ud-Din and filed the
application in the office of Executive District Officer(Revenue) for
de-notification of the acquired land measuring 142-Kanals 13-
Marlas during the pendency of Intra Court Appeal and the acquired
land has been de-notified by the then Executive District Officer
(Revenue) Mandi Baha-ud-Din vide Order dated 14.09.2010.
10.
Under Section 48 of the Land Acquisition Act, 1894 only
Government has an exclusive jurisdiction to withdraw the acquisition
process and Executive District Officer (Revenue) is not stand
anywhere. Section 48 is as under:-
Completion of acquisition not compulsory, but compensation
to be awarded when not completed:- (1) Except in the case
provided for in Section 36, the Government shall be at liberty
to withdraw from the acquisition of any land of which
possession has not been taken.
11.
Under Section 48 Ibid, the Government is at liberty to
withdraw acquisition proceedings of any land on which possession
has not been taken whereas there is no intention of the Government
to withdraw the acquisition proceedings is on record. The
Government acquired the land in question for the welfare of the
public at large/for construction of a Hospital. The Executive District
Officer (Revenue) passed the impugned Order without obtaining any
permission or instructions from the Government, as such, the
impugned Order is a classic example of misuse of official power, as
such, it is illegal, without lawful authority. Reliance is placed on the
cases reported as National Police Foundation Co-operative Housing
Society Ltd Versus Board of Revenue, Government of Punjab, Lahore
and 2 others (PLD 1984 Lahore 191) Fida Hussain and 2 others
Versus Province of Punjab through Secretary, Settlement, Board of
Revenue Punjab Lahore and 4 others,(2002 CLC 790)
W.P.No.8177/2023
7
16.
In latest Judgment of the Hon’ble Supreme Court of Pakistan
titled as Province of Punjab through A.D Fisheries Sialkot Versus
Rana Abdul Hameed and others (2014 SCMR 1187) it was held that
no Court/forum with the Revenue hierarchy can set aside the
acquisition of land or the order which have been passed including
Notification under Section 4 & 17 of the Land Acquisition Act, 1894
which is as under:-
The revenue forums in nutshell have proceeded to
decide the case by holding that the land acquired should be
returned to respondent Rana Abdul Hameed etc. It is quite
clear that the revenue hierarchy does not figure anywhere in
land acquisition proceedings. No Court/forum within the
revenue hierarchy can, therefore, set aside the acquisition of
land or the orders which have been passed including
notifications under Section 4 and 17 of the Land Acquisition
Act pursuant to which title in the land stood transferred to the
Fisheries Department of the Province.
Considering the above, we are clear that the orders
including the impugned judgment proceeded on the erroneous
premise, that the revenue forums had jurisdiction in the
matter. Learned counsel representing the respondents
acknowledged that the Revenue forums had no jurisdiction to
interfere in land acquisition proceedings, or to direct the
Government to return the acquired land to the respondents.
The orders of the Revenue authorities, therefore, being
without jurisdiction, are set aside. This petition, as a
consequence, is converted into appeal and the same is
accordingly allowed. It is stated, however, that compensation
for the acquired land has not yet been paid to the respondents
land owners. The said respondents subject to law, may avail
whatever remedies are available to them under the law
because the learned Law Officer states that the compensation
awarded by the LAC was deposited with the Collector in 1976.
17.
Muhammad Khalid Nazir, the then Executive District Officer
(Revenue), was not competent to de-notify the acquired land.
According to the Award and other relevant record it is crystal clear
that the land has been delivered to the Health Department, which is
still intact. The Health Department filed comments in this Writ
Petition and prayed that the impugned De-Notification No.550-A
dated 14.09.2010 may kindly be declared illegal, malafide, without
lawful authority and of no legal effect. It means that the Health
Department never surrendered the acquired land and it is required to
be Health Department for the construction of hospital. The Acquired
land could not be de-notified. The Mutation has already been duly
sanctioned in favour of the Health Department. During process of denotification, the Department never summoned, nor heard any person,
all the process was kept in secret and the impugned order was also not
endorsed to the acquiring Department.”
Further, the Hon'ble Supreme Court of Pakistan in a recent
pronouncement titled as Government of Pakistan through
W.P.No.8177/2023
8
Secretary Ministry of Defence Rawalpindi and another Vs.
Akhtar Ullah Khan Khattak and others (PLD 2024 SC 218) has
held that once possession of acquired land has been taken, that
land could not be de-notified. Relevant portion of the judgment
(supra) is reproduced as under:
“10. In the position of law stated above, since the
appellants/petitioners had taken possession of the land in
pursuance of the award under Section 11 of the Land
Acquisition Act, 1894, the acquisition had become past and
closed, denuding the Commissioner of the right to withdraw,
rescind, recall or amend any notification regarding the
acquisition. Therefore, he could not rely on Section 48 merely
because the acquiring department had no funds to pay for the
compensation.”
8.
Here in the lis in hand, the entire compensation amount
under the award has been deposited and possession of the
acquired land has been obtained by the acquiring agency /L.D.A
who has carved out plots over it and also allotted the said plots to
different persons, as such the Commissioner, Lahore Division,
Lahore was denuded from any jurisdiction to de-notify the said
acquired land.
9.
Even otherwise, notification under Section 4 of the Act
ibid of land in question was issued on 28.04.2003, notification
17(4) and 6 of the Act ibid was issued on 04.07.2003 whereas
award was issued on 24.10.2003 but the respondent No.1
purchased the land falling in Khasra Nos.635 & 636 through
registered sale deed No.50915 dated 03.10.2011 in Moza
Bhobatian and mutation No.664 was incorporated in the revenue
record, whereas at the time of entering into sale transaction exowner/ vendor was not holding any title of the land as after
acquisition, title of the land vested free from all encumbrances in
favour of the petitioner/ LDA whereafter no sale transaction of
the said land could be made by ex-owner and even if any
transaction of sale was made by ex-owner after issuance of
W.P.No.8177/2023
9
notifications and award whereof, that transaction could not
convey any right or title in favour of the subsequent purchaser.
The issuance of notifications under Land Acquisition Act, 1894
was a caution for public to stay away from entering into any
sale/purchase transaction subsequent to the issuance of the
notification and if any alienation is made then it would be at the
risk and cost of the said vendee. This Court has elaborately
discussed this issue in its judgment titled as Wali Rehman Vs The
Additional Commissioner (Revenue) Gujranwala Division & 7
Others (2022 CLC 106), the relevant portion whereof is
reproduced as under:
“5. The object of Notification under Section 4 of the Act is
to disclose the intention and need of the Govt. and also to give
notice to public at large that land subject matter of Notification
is required for public purposes. The Notification under the above
provision is merely an introductory measure, tentative in nature
and furnishes the foundation of carrying out the subsequent
proceedings of acquisition as well as it is amounting to a
cautioning the public that any transaction/alienation made
subsequent to the issuance of notification would be at the risk
and cost of the respective parties as held by this Court in a
judgment cited as Messrs Eden Developers (Pvt.) Limited Vs.
Government of the Punjab and others (PLD 2017 Lahore
442). Further the said Notification empowers the officer
concerned to carry on preliminary investigation in order to reach
the final conclusion whether said land is required for the public
purpose or otherwise. Through Notification under Section 4 of
the Act ibid only the primary tentative intention of the
Government is expressed and it could not be considered as
conclusive / ultimate decision of the government rather it is a
precautionary notice/warning to the public at large. Reliance is
also placed on a case cited as Sardar Dildar Ahmad
Cheema Vs. Board of Revenue, Punjab through Member
(Revenue) and others (PLD 2013 Lahore 565) wherein it is
held as under:-
“11. It is settled principle of law that purpose of
issuance of Notification under Section 4 of the Act of
1894 is to give a notice to the public at large that land
subject matter of the notification is required for a
public purpose, and it further means that there will be
“an impediment to any one to encumber the land
acquired thereunder”, this mean any encumbrance
W.P.No.8177/2023
10
created after the gazette notification, all encumbrances
will be void against the State…….”
6.
The issuance of notification under Section 6 of Act ibid is
a conclusive declaration that the land is needed for public
purpose and the object of the Section 17 of the Act ibid is to
allow an authority to proceed with the matter without waiting
completion of other formalities. Once possession of the land is
taken under Section 17 of the Act ibid, whereafter the title of the
land for all intents and purposes vests free from all
encumbrances in the name of the government and the ownership
of the previous proprietor by operation of law stand ceased /
extinguished whereafter the land owner was stripped off from
the legal authority / right to make any transaction of the said
acquire land and any person who purchases the acquired land
during or after the acquisition proceedings is debarred to
challenge the acquisition proceedings and if any sale/alienation
of the land so acquired is executed that would be void and nonexistence in the eyes of law. Reliance in this regard is placed on
a recent case law rendered by the Supreme Court of India cited
as Shiv Kumar and Ors. Vs. Union of India (UOI) and Ors.
(AIR 2019 SC 5374) the relevant portion whereof is reproduced
as under:
6. First, we advert to the legal position concerning the
purchases made on 5.7.2001, made after notification
under Section 4 had been issued under the Act of 1894.
Law is well settled in this regard by a catena of
decisions of this Court that an incumbent, who has
purchased the land after section 4 notification, has no
right to question the acquisition.
6(a). In U.P. Jal Nigam, Lucknow through its
Chairman & Anr. v. Kalra Properties (P) Ltd.,
Lucknow & Ors. (1996) 3 SCC 124 it was observed :
3. ...That apart, since M/s. Kalra Properties, the
respondent had purchased the land after the
notification under Section 4(1) was published,
its sale is void against the State, and it acquired
no right, title, or interest in the land.
Consequently, it is settled law that it cannot
challenge the validity of the notification or the
regularity in taking possession of the land
before the publication of the declaration under
Section 6 was published."
6(b). In Sneh Prabha (Smt.) & Ors. v. State of U.P. &
Anr. (1996) 7 SCC 426 it has been laid down that
subsequent purchaser cannot take advantage of land
policy. It was observed:
"5. Though at first blush, we were inclined to
agree with the appellant but on a deeper probe,
we find that the appellant is not entitled to the
benefit of the Land Policy. It is settled law that
W.P.No.8177/2023
11
any person who purchases land after the
publication of the notification under Section
4(1), does so at his/her peril. The object of
publication of the notification under Section
4(1) is notice to everyone that the land is
needed or is likely to be needed for a public
purpose, and the acquisition proceedings point
out an impediment to anyone to encumber the
land acquired thereunder. It authorizes the
designated officer to enter upon the land to do
preliminaries, etc. Therefore, any alienation of
land after the publication of the notification
under Section 4(1) does not bind the
Government or the beneficiary under the
acquisition. On taking possession of the land,
all rights, titles, and interests in land stand
vested in the State, under Section 16 of the Act,
free from all encumbrances, and thereby,
absolute title in the land is acquired thereunder.
If any subsequent purchaser acquires land,
his/her only right would be subject to the
provisions of the Act and/ or to receive
compensation for the land. In a recent
judgment, this Court in Union of India v. Shri
Shivkumar Bhargava and Ors. [1995] 1 SCR
354 considered the controversy and held that a
person who purchases land subsequent to the
notification is not entitled to an alternative site.
It is seen that the Land Policy expressly
conferred that right only on that person whose
land was acquired. In other words, the person
must be the owner of the land on the date on
which notification under Section 4(1) was
published. By necessary implication, the
subsequent purchaser was elbowed out from
the policy and became disentitled to the benefit
of the Land Policy."
6(c). In Meera Sahni v. Lieutenant Governor of Delhi
& Ors. (2008) 9 SCC 177, the Court had relied upon
the decision described above and observed thus:
"21. In view of the aforesaid decisions, it is by
now well-settled law that under the Land
Acquisition Act, the subsequent purchaser
cannot challenge the acquisition proceedings
and that he would be only entitled to get the
compensation."
6(d). In V. Chandrasekaran & Anr. v. Administrative
Officer & Ors. (2012) 12 SCC 133, the Court has
considered various decisions and opined that the
purchaser after Section 4 notification could not
challenge land acquisition on any ground whatsoever.
The Court observed:
P.No.8177/2023
12
"15. The issue of maintainability of the writ
petitions by the person who purchases the land
subsequent to a notification being issued under
Section 4 of the Act has been considered by
this Court time and again. In Leela Ram v.
Union of India AIR 1975 SC 2112, this Court
held that anyone who deals with the land
subsequent to a Section 4 notification being
issued, does so, at his own peril. In Sneh
Prabha v. State of Uttar Pradesh AIR 1996 SC
540, this Court held that a Section 4
notification gives a notice to the public at large
that the land in respect to which it has been
issued, is needed for a public purpose, and it
further points out that there will be "an
impediment to anyone to encumber the land
acquired thereunder." The alienation after that
does not bind the State or the beneficiary under
the acquisition. The purchaser is entitled only
to receive compensation. While deciding the
said case, reliance was placed on an earlier
judgment of this Court in Union of India v.
Shiv Kumar Bhargava and Ors. (1995) 2 SCC
427.
18. In view of the above, the law on the issue
can be summarized to the effect that a person
who purchases land subsequent to the issuance
of a Section 4 notification with respect to it, is
not competent to challenge the validity of the
acquisition proceedings on any ground
whatsoever, for the reason that the sale deed
executed in his favour does not confer upon
him, any title and at the most he can claim
compensation on the basis of his vendor's title.
(emphasis supplied)
6(e). In Rajasthan State Industrial Development and
Investment Corpn. v. Subhash Sindhi Cooperative
Housing Society, Jaipur & Ors. (2013) 5 SCC 427, it is
laid down:
13. There can be no quarrel with respect to the
settled legal proposition that a purchaser,
subsequent to the issuance of a Section 4
Notification in respect of the land, cannot
challenge the acquisition proceedings, and can
only claim compensation as the sale transaction
in such a situation is Void qua the Government.
Any such encumbrance created by the owner,
or any transfer of the land in question that is
made after the issuance of such a notification
would be deemed to be void and would not be
binding on the Government. (Vide: Gian Chand
v. Gopala and Ors. (1995) 2 SCC 528; Yadu
Nandan Garg v. State of Rajasthan and Ors.
W.P.No.8177/2023
13
AIR 1996 SC 520; Jaipur Development
Authority v. Mahavir Housing Coop. Society,
Jaipur, and Ors. (1996) 11 SCC 229; Secretary,
Jaipur Development Authority, Jaipur v. Daulat
Mal Jain and Ors. (1997) 1 SCC 35; Meera
Sahni v. Lieutenant Governor of Delhi and Ors.
(2008) 9 SCC 177; Har Narain (Dead) by L.Rs.
v. Mam Chand (Dead) by L.Rs. and Ors.
(2010) 13 SCC 128; and V. Chandrasekaran
and Anr. v. The Administrative Officer and
Ors. JT 2012 (9) SC 260)."
(emphasis supplied)
6(f). A Three−Judge Bench in Rajasthan Housing
Board v. New Pink City Nirman Sahkari Samiti Ltd. &
Anr., (2015) 7 SCC 601, in the context of section 4 as
well as section 42 of the Rajasthan Tenancy Act which
also prohibited the transactions from being entered into
with SC/ST persons, has observed:
33. The other decision relied upon by the
Society is V. Chandrasekaran and Anr. v.
Administrative Officer and Ors. 2012 (12) SCC
133] wherein this Court laid down thus:
17. In Ajay Kishan Singhal v. Union of
India: AIR 1996 SC 2677; Mahavir and
Anr. v. Rural Institute, Amravati and
Anr. (1995) 5 SCC 335; Gian Chand v.
Gopala and Ors. (1995) 2 SCC 528; and
Meera Sahni v. Lieutenant Governor of
Delhi and Ors. (2008) 9 SCC 177, this
Court categorically held that a person
who purchases land after the publication
of a Section 4 notification with respect
to it, is not entitled to challenge the
proceedings for the reason, that his title
is void and he can at best claim
compensation on the basis of vendor's
title. In view of this, the sale of land
after issuance of a Section 4 notification
is void, and the purchaser cannot
challenge the acquisition proceedings.
(See also: Tika Ram v. the State of U.P.
(2009) 10 SCC 689).
18. In view of the above, the law on the
issue can be summarized to the effect
that a person who purchases land
subsequent to the issuance of a Section
4 notification with respect to it, is not
competent to challenge the validity of
the acquisition proceedings on any
ground whatsoever, for the reason that
the sale deed executed in his favour
does not confer upon him, any title and
W.P.No.8177/2023
14
at the most he can claim compensation
on the basis of his vendor's title.
34. Reliance has been placed on Dossibai
Nanabhoy Jeejeebhoy v. P.M. Bharucha 1958
(60) Bom.LR 1208] so as to contend that the
'person interested' in the land under Section 9
of the Land Acquisition Act would include a
person who claims interest in compensation to
be paid on account of acquisition of land ad the
interest contemplated Under Section 9 is not
restricted to legal or proprietary estate or
interest in the land but such interest as will
sustain a claim to apportionment, is the owner
of the land. In our opinion, the decision is of no
avail. The instant transaction being void as per
Section 42 of the Rajasthan Tenancy Act, and
the property was inalienable to non-SC.
Obviously, the logical corollary has to be taken
that no right in apportionment to compensation
can be claimed by the Society."
6(g). In M. Venkatesh & Ors. v. Commissioner,
Bangalore Development Authority, etc. (2015) 17 SCC
1, a three Judge Bench has opined:
“16. That brings us to the question of whether
Prabhaudas Patel and other respondents in SLP
(C) No.12016 of 2013 were entitled to any
relief from the Court. These respondents claim
to have purchased the suit property in terms of
a sale deed dated 22-8-1990, i.e., long after the
issuance of the preliminary Notification
published in July 1984. The legal position
about the validity of any such sale, postissuance of preliminary notification, is fairly
well settled by a long line of the decisions of
this Court. The sale in such cases is void and
non-est in the eye of the law giving to the
vendee the limited right to claim compensation
and no more. Reference may in this regard be
made to the decision of this Court in U.P. Jal
Nigam v. Kalra Properties (P) Ltd, wherein
this Court said: (SCC pp. 126-27, para 3)
“3. … It is settled law that after the
notification under Section 4(1) is
published in the gazette, any
encumbrance created by the owner does
not bind the Government, and the
purchaser does not acquire any title to
the property. In this case, Notification
under Section 4(1) was published on
24-3-1973; possession of the land
admittedly was taken on 5-7-1973, and
the pumping station house was
constructed. No doubt, declaration
under Section 6 was published later on
8-7-1973. Admittedly power under
Section 17(4) was exercised dispensing
15
with the inquiry under Section 5-A and
on service of the notice under Section 9
possession was taken, since urgency
was acute viz. pumping station house
was to be constructed to drain out
floodwater. Consequently, the land
stood vested in the State under Section
17(2) free from all encumbrances. It is
further settled law that once possession
is taken, by operation of Section 17(2),
the land vests in the State free from all
encumbrances unless a notification
under Section 48(1) is published in the
gazette withdrawing from the
acquisition. Section 11-A, as amended
by Act 68 of 1984, therefore, does not
apply, and the acquisition does not
lapse. The notification under Section
4(1) and the declaration under Section
6, therefore, remain valid. There is no
other provision under the Act to have
the acquired land divested, unless, as
stated earlier, notification under Section
48(1) was published, and the possession
is surrendered pursuant thereto. That
apart, since M/s Kalra Properties, the
respondent had purchased the land after
the notification under Section 4(1) was
published, its sale is void against the
State, and 10 it acquired no right, title,
or interest in the land. Consequently, it
is settled law that it cannot challenge
the validity of the notification or the
regularity in taking possession of the
land before the publication of the
declaration under Section 6 was
published.
7. It has been laid down that the purchasers on
any ground whatsoever cannot question
proceedings for taking possession. A purchaser
after Section 4 notification does not acquire any
right in the land as the sale is ab initio void and
has no right to claim land under the Policy.”
(emphasis supplied)"
10.
As regard the claim of the respondent No.1 who asserted
to be bona fide subsequent purchaser of the property in question
and has protection of Section 41 of Transfer of Property Act,
1882, suffice it to say that admittedly, the respondent No.1 is a
subsequent purchaser of the property which had already been
acquired in the year 2003 and title of the said land had been
vested in favour of the petitioner and thereafter the vendors / ex-
W.P.No.8177/2023
16
owner had no right or title to alienate the same, thus the sale
transaction in favour of the respondent was void in nature as the
vendor was not holding any title of the land in question and the
subsequent vendee has to soar and sink with his vendor and he is
debarred to claim any better title than that of his vendor. Reliance
can be placed on the cases titled as Muhammad Yamin and others Vs.
Settlement Commissioner and others (1976 SCMR 489), Province of
the Punjab through Collector, Sheikhupura & Others Vs. Syed
Ghazanfar Ali Shah & Others (2017 SCMR 172) and Abdul
Hamid Vs. M.B.R. and others (1994 CLC 1160).
11.
Furthermore, the award was announced on 24.10.2003
whereas the respondent No.1 filed application under Section 48
of the Act ibid before the Commissioner, Lahore Division,
Lahore on 18.05.2022 i.e. after lapse of about 18 years and no
convincing reason has been expounded for such an inordinate
delay, thus the application for de-acquisition was hopelessly
barred by laches.
12.
Nutshell of the above discussion is that the Commissioner,
Lahore Division, Lahore while passing the impugned order, did
not consider the law applicable on the case as well as the dictum
laid down by the Hon'ble Supreme Court of Pakistan as well as
that of this Court, thus the impugned order suffers from patent
illegality, irregularity and without jurisdiction as such the same
deserves reversal.
13.
Resultantly, this writ petition is allowed and order dated
16.11.2022 passed by the Commissioner, Lahore Division,
Lahore is hereby set aside.
(Ch. Muhammad Iqbal)
Judge
Approved for reporting.
Judge
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