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.

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

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.

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.

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.

I have heard learned counsels for the parties and have

gone through the record.

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

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

685-L

Syed M. Imran

686-L

Abbad Ali Javaid

687-L

Fakhira Zia

688-L

Muhammad Kamil

689-L

M. Ahmad

690-L

Areeba Iqbal

691-L

Muhammad Fiaz

711-L

Azra Parveen

712-L

Saeed Ullah Khan

713-L

Khalid Zaman

W.P.No.8177/2023

714-L

Jamila Begum

715-L

M. Yaqoob

Khasra No.636

Sr. No.

Plot No.

Name of Allottee

Asfaa Birayat

745

Malik Zafar

746

M. Naeem Akhtar

747

Shahbaz Khan

478

Nuzhat Zubair

758

Saima Ashfaq

773

Kausar Wahid

797

Malik Aziz

796

Bashir Ahmad

798

Shakil Ahmed

799

M. Naseer Khan

796-A

Hafiz Muhammad Saleem

797-A

Malik Aziz Ahmed

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

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.

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

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

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

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.”

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.

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

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

created after the gazette notification, all encumbrances

will be void against the State…….”

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

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

"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

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

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

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

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

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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