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H C J D A 38
JUDGMENT SHEET
LAHORE HIGH COURT,
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
C. R. No. 1003-D / 2011
Multan Development Authority
Versus
Muhammad Abdullah Shah (deceased) through L.Rs
JUDGMENT
Date of Hearing: 08.06.2022
Petitioner By: Barrister Malik Sohail Ashiq Shujra, Advocate
Respondents By: Mr. Muhammad Maalik Khan Langah, Advocate
ABID HUSSAIN CHATTHA, J: This Civil Revision is directed against
the impugned Judgments & Decrees dated 19.04.2010 and 08.04.2011
passed by the Civil Judge, Multan and Additional District Judge, Multan,
respectively.
2. Briefly, the Respondents instituted a suit for recovery of Rs.
1,595,909/- with interest against the Petitioner contending therein that they
were owners-in-possession of the land measuring 07-Kanals, 02-Marlas
and 13-Yards fully described in paragraph No. 1 of the plaint (the
“Property”) and the Petitioner had no right to construct the road without
acquiring the Property and payment of adequate compensation. It was
alleged that the Property was utilized by the Petitioner during the
construction of the road after demolishing the wall of the house of the
Respondents in defiance of status quo order dated 31.07.1988 granted by
the Court in a previous suit for declaration and permanent injunction. As
such, the Petitioner without carrying out acquisition proceedings and
payment of compensation deprived the Respondents from their Property. It
was prayed that the Respondents are entitled for compensation regarding
the price of the Property as well as for mental torture to the tune of Rs.
2 C. R. No. 1003-D / 2011
1,595,909/- with interest from September, 1988 till the realization of the
claimed amount.
3. The Petitioner contested the suit by filing written statement and
raised a number of legal objections. On merits, it was submitted that the
Respondents were not owner-in-possession of the Property and a
thoroughfare for a private colony existed since 1969. The Petitioner had
merely constructed the road on the existing road. As such, the Respondents
were not entitled to any compensation.
4. Out of divergent pleadings of the parties, the following issues were
framed:-
1. Whether the plaintiffs are entitled to recover Rs.
1,595,909/- from the defendant? OPP
2. Whether the plaintiffs have no cause of action? OPD
3. Whether the plaintiffs suit has been formerly dismissed,
if so, its effect? OPD
4. Whether the Civil Courts have no jurisdiction to try the
suit in hand? OPD
5. Relief?
5. After recording the respective evidence of the parties, the Trial Court
decreed the suit in the following terms:-
“Suit is hereby decreed for compensation of mental
torture at Rs. 100,000/-. For the remaining claims
Court cannot itself award compensation because it is
authority of Commissioner only. Collector and
Commissioner are hereby directed to acquire the
property in accordance with rules as it should had
happened before the construction of the road and taking
possession then hear the objections and proceed in
accordance with law. The compensation if awarded
would be subject to penalties for delay in making award
under Para-VIII of Land Acquisition Act. Suit is
decreed accordingly with cost. Decree sheet be drawn
up. File be consigned to record room after its due
completion.”
6. The Petitioner filed an Appeal against the aforesaid Judgment which
was dismissed by the Appellate Court vide Judgment & Decree dated
08.04.2011.
7. Learned counsel for the Petitioner submitted that the impugned
Judgments passed by the Courts below are result of misreading and non-
reading of evidence and are based on misinterpretation and misapplication
3 C. R. No. 1003-D / 2011
of law. He further contended that there was no evidence on record on the
basis of which the suit of the Respondents could be decreed. Moreover, the
Trial Court was not authorized to issue direction to the Collector to
determine compensation regarding the Property as the Petitioner had
merely constructed the metalled road on an existing unpaved road.
8. On the other hand, learned counsel for the Respondents defended
and supported the impugned Judgments on the ground that it was
conclusively established that the Property of the Respondents was illegally
possessed and utilized in the construction of road without acquisition and
payment of due compensation. In fact, the Trial Court should have itself
awarded the compensation as claimed in the suit. The impugned Judgments
do not call for any interference as the Respondents are entitled to due
compensation.
9. Arguments heard. Record perused.
10. The examination of evidence on record reveals that Manzoor
Hussain, Qanungo appeared as PW-1 and stated that the Property of the
Respondents was included in the controlled area which was notified by the
Petitioner vide notification dated 22.08.1988. He further stated that the
Petitioner did not acquire the Property or other land on which the road was
constructed. The Petitioner had approved a scheme for the construction of
inner bypass. As a component of inner bypass, an unpaved road passing
through a private colony was also metalled. Since it was public
thoroughfare, therefore, there was no need for acquisition. The witness
produced by the Respondents was declared hostile and was allowed to be
cross-examined. He admitted that the alleged colony of the Respondents
was never approved by the Petitioner and no land had been acquired
regarding the same. He admitted the fact of demolishing the portion of the
house of the Respondents. He also deposed that initially a letter was written
to the Collector regarding acquisition of land for construction of road but
later not pursued as acquisition was not required. Muhammad Ashraf,
Halqa Patwari entered in the witness box as PW-2 and stated that he had
seen the Property. A road was constructed by the Petitioner which passed
through the Property of the Respondents. Residence of the Respondents
4 C. R. No. 1003-D / 2011
was built in Khasra No. 1348 and a portion of it was demolished. He
confirmed that an area of 07-Kanals, 02-Marlas and 13-Yards belonging to
the Respondents was utilized in the construction of road by the Petitioner.
During cross-examination, he deposed that the Respondents had launched a
private colony and were also selling the plots to their clients as depicted
through various mutations. Respondent No. 1, namely, Muhammad
Abdullah Shah appeared as PW-3 and stated that he had never got any
formal approval of a residential colony from the Petitioner and did not sell
any land around the Property. On 09.08.1987, he had filed an application
for payment of compensation stating therein that the Property was
agricultural in nature but despite repeated demands he has not been paid
any compensation. He stated that he had submitted a map for approval of a
housing scheme before the Housing Department but the same was not
approved. The road was constructed forcibly in the presence of stay order
granted in the earlier suit. He categorized the claimed compensation in line
with the pleadings in the plaint with reference to prevailing price of the
Property and prayed for decree of his suit with interest at the bank rate.
11. The Petitioner produced Ch. Abdul Jabbar, SDO as DW-1 who in his
testimony deposed that the Respondents approved a private colony between
Nawabpur Road and Gulgasht colony from the Housing Department. The
original scheme was produced as Exh. D-2 alongwith letter Exh. D-1. He
further deposed that in 1987, the Petitioner planned and approved to
construct a road from Octroi No. 9 to MDA Chowk and used the proposed
public way for construction of the road. At that time, the Respondents were
happy for construction of road as they believed that the value of their entire
land will increase significantly. He confirmed that boundary wall of the
Respondents was demolished to straighten the road. He further stated that
the road was constructed on the proposed public way and as per Register
Haqdaran-e-Zameen 1984-85, the area through which it passes is shown as
Ghair Mumkin Abadi which confirms the existence of a colony and a
thoroughfare. He also testified that Mark D-1 and Mark D-2 as well as Aks
Shajra D-4 depicts that a road passed through the area and the same was
5 C. R. No. 1003-D / 2011
used for the construction of metalled road. As such, there was no need to
initiate acquisition proceedings regarding the Property.
12. The evaluation and appreciation of evidence on record leads to the
conclusion that no acquisition proceedings were carried out by the
Petitioner regarding construction of the road. It was proved by the
Respondents that their Property measuring 07-Kanals, 02-Marlas and 13-
Yards was utilized in the construction of the road which had not been
acquired. The assertion regarding demolishing of the boundary wall of the
house of the Respondents was also proved. The Petitioner also could not
conclusively establish its right to build a road on land not owned by it or
the Government without acquisition or compensation in the notified area.
The Respondents had denied that they had launched a residential colony
around the Property but in cross-examination, admitted that an application
(Exh. P-5) was filed before the Director Estate Management, MDA in
which it was mentioned that a road is proposed to pass through their
proposed colony of Sultanabad and they had no objection for construction
of the road through their Property, if the Respondents were duly
compensated. It proved that the Property of the Respondents was not a part
of public thoroughfare since 1969. Further, even in the referred letter, the
Respondents specifically sought compensation. It demonstrated that the
Respondents did not forego their right of compensation even though they
may have consented to the passing of the road through their Property.
Hence, if it is assumed that the road was built on a passage which had been
earmarked by the Respondents as public thoroughfare yet it did not give a
right to the Petitioner to build a road thereon without acquisition and due
compensation since no title or right regarding the Property was conferred
by the Respondents upon the Petitioner. It was also proved that initially the
Respondents had filed a suit for declaration and perpetual injunction
against construction of road without acquisition but later when the road
was forcibly constructed, the instant suit was filed seeking compensation. It
is worth noting that while confirming stay order on 31.07.1988 in the
previous suit, the Presiding Officer himself visited the spot and verified
that the Property of the Respondents was utilized in the construction of the
6 C. R. No. 1003-D / 2011
road without acquisition and no evidence of any existing unpaved street
was found (Exh.P-11). Hence, this Court is in agreement with the
concurrent findings recorded by the Courts below to the effect that the
Property of the Respondents was illegally possessed by the Petitioner
without acquisition and due compensation.
13. The Respondents had sought compensation in paragraph No. 4 of the
plaint in line with the principles of determination of compensation
stipulated in various provisions of the Land Acquisition Act, 1894 (the
“Act”) as under:-
i Compensation for loss to constructed house: Rs. 200,000/-
ii Compensation of the Property utilized in road: Rs. 1,126,909/-
iii Compulsory acquisition charges @ 15%: Rs. 169,000/-
(compensation of above from September, 1988 with
interest as per bank rate till realization as per decree)
iv Compensation for mental torture of the Respondents: Rs. 100,000/-
Total: Rs. 1,595,909/-
The Respondents consistently deposed in line with the pleadings and stated
prevalent market price of the Property. The same was merely rebutted by
the Petitioner to the extent that the Respondents were not entitled to any
compensation but the figures for compensation in terms of price of the
Property and demolished construction were not specifically controverted
either in written statement or in evidence. Hence, the Respondents
successfully proved their claim in terms of item Nos. (i), (ii) and (iii)
above. They are also entitled to compound interest at the rate of 8% per
annum in accordance with the principle enshrined in Section 34 of the Act
from the date of taking possession of the Property with effect from
September, 1988. For reference see case titled, “Nisar Ahmad Sabri
through L.Rs. and others v. Government of Punjab through Secretary,
Labour Department and others” (2015 YLR 2095).
14. Notwithstanding that the Courts below concurrently held that the
Respondents were entitled to due compensation regarding their Property
acquired or possessed without following due process of law, the
compensation was not determined and given to the Respondents but the
matter was referred to the Collector. In this behalf, the Trial Court directed
the Collector to initiate the process of acquisition of the Property in
accordance with law following the process and procedure stipulated in the
7 C. R. No. 1003-D / 2011
Act. The Appellate Court did not agree with the nature of directions given
by the Trial Court but at the same time concurred that compensation can
only be awarded by the Collector. This Court is mindful of the fact that the
Respondents did not file Appeal or Civil Revision against the Judgment &
Decree passed by the Trial Court. Hence, the following questions are posed
for determination by this Court:-
i. Whether the Courts below were justified to refer the
proved claim of compensation of the Respondents
against illegal acquisition to the Collector by initiating
a fresh process of acquisition? and
ii. Whether relief can be modified in favour of the
Respondents who did not file an Appeal or Civil
Revision despite the fact that they successfully proved
their claim for compensation?
15. Article 24 of the Constitution of the Islamic Republic of Pakistan,
1973 provides protection to proprietary rights by recognizing and declaring
the same as a fundamental right. It ordains that no person shall be deprived
of his property save in accordance with law and no property shall be
compulsorily acquired or taken possession of save for a public purpose, and
save by the authority of law which provides for compensation therefor and
either fixes the amount of compensation or specifies the principles on and
the manner in which compensation is to be determined and given. The Act
provides a complete code in terms of acquisition and determination of
adequate compensation of property acquired for public purpose. However,
there is no provision in the Act to deal with a situation where land is
possessed and utilized by the Government or its instrumentalities without
triggering the mechanism of acquisition under the Act. In such a scenario,
the Respondents were well within their lawful right to institute a suit for
recovery of due adequate compensation. Needless to state that even where
acquisition proceedings are initiated in accordance with the provisions of
the Act, the reference under Section 18 of the Act is adjudicated by the
principal civil court of original jurisdiction in terms of objections regarding
measurement of the land, the amount of the compensation and the persons
8 C. R. No. 1003-D / 2011
to whom it is payable against the ‘Award’ rendered by the Collector.
Hence, a civil suit for recovery of compensation was a proper remedy for a
person whose property is taken away or usurped by the State or any of its
instrumentalities for public purpose without initiating the process of
acquisition and payment of due compensation under the Act. The fact
remains that the Respondents have been deprived from due compensation
since the initiation of lis in 1989. The decision to refer the matter to
Collector for determination of due compensation would therefore, be
unjust, unfair and in violation of fundamental right of the Respondents. It
would tantamount to give a license to the Government or its
instrumentalities to compulsorily acquire properties without following due
process of law. It follows that where the acquiring agency usurps the right
of a person by forcibly occupying his property, the aggrieved person may
bring a suit for recovery of compensation in line with the principles of
determination of compensation under the Act since there is no mechanism
to trigger the provisions of the Act to seek compensation after forcible
possession and consumption of property. In case titled, “Muhammad Afzal v.
Executive Engineer and another” (2009 MLD 82), the suit for compensation
regarding land admittedly not acquired was decreed. For reference also see
case titled, “Syed Qaiser Hussain v. L.M.C.” (1994 CLC 1471).
16. The jurisdiction vested in this Court under Section 115 of the Code
of Civil Procedure, 1908 (the “CPC”) is remedial, corrective, supervisory,
discretionary and equitable. The Court is empowered to remedy errors of
illegality or irregularity in the lawful exercise of jurisdiction to ensure that
complete and substantial justice is done between the parties. In case titled,
“Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and
another” (PLD 1975 Supreme Court 678) at page 697, it was importantly
observed as follows:-
“The scope of the revisional powers of the High Court though
circumscribed by conditions of excess of jurisdiction, failure
to exercise jurisdiction, illegal exercise of jurisdiction, is
nevertheless very vast and corresponds to a remedy of
certiorari and in fact goes beyond that at least in two respects
inasmuch as: Firstly, its discretionary jurisdiction may be
invoked by the Court suo motu, and Secondly, the Court “may
make such order in the case as it thinks fit”.
9 C. R. No. 1003-D / 2011
In case titled, “Haji Wajdad v. Provincial Government through Secretary
Board of Revenue Government of Balochistan, Quetta and others” (2020
SCMR 2064), the Honourable Supreme Court of Pakistan observed that
the Revisional Court under Section 115 of the CPC can exercise
jurisdiction either on an application of an aggrieved person or suo motu to
effectively correct any material error of facts or law committed by any
subordinate Court. Once the High Court was presented with the Revision
Petition, the entire case (trial and appellate proceedings) was open for
consideration to the Court, without being restricted to the question of
limitation of filing of appeal before the Appellate Court. Seen in this
perspective, the Revision Petition could be deemed as an “information” to
the Revisional Court, and in furtherance thereof, this Court can exercise
suo motu power in its revisional jurisdiction with regard to the Judgment of
the Trial Court, which it found to suffer from material irregularities. In case
titled, “Mst. Banori v. Jilani through Legal Heirs and others” (PLD 2010
Supreme Court 1186), it was held by the August Supreme Court that the
power under Section 115 of the CPC was basically a power exercisable suo
motu. Therefore, no restriction whatsoever was placed on the sources from
which the information regarding any error, illegality or irregularity of the
kind mentioned in Section 115 of the CPC could reach the High Court. It
was further held that the jurisdiction under Section 115 of the CPC is
essentially a supervisory jurisdiction of superintendence and control meant
to ensure correction of illegalities and irregularities found in the decisions
of the Courts subordinate to the Revisional Court and in the discharge of its
obligation, the Revisional Court was not placed at the mercy of the parties
to a lis or of some other person and was required to act even suo motu. In
case titled, “Muhammad Feroze and others v. Muhammad Jamaat Ali”
(2006 SCMR 1304), it was reiterated by the Honourable Supreme Court of
Pakistan that the scope of revisional powers of the High Court is very vast
and corresponds to a certiorari allowing the Revisional Court to exercise
its discretionary jurisdiction suo motu and the Court may make such order
in the case as it thinks fit. The above referred case law leads to the
conclusion that there are no fetters imposed on the powers conferred upon
10 C. R. No. 1003-D / 2011
this Court in revisional jurisdiction to correct errors of illegality found in
the Judgments & Decrees passed by the Courts below and the relief can be
adequately moulded to provide complete and substantial justice keeping in
view the peculiar facts and circumstance of the case. Even otherwise Rule
7 of Order VII of the CPC empowers the Court to modify the relief.
17. In view of the above discussion, the instant Civil Revision instituted
by the Petitioner is dismissed; the impugned Judgments & Decrees dated
19.04.2010 and 08.04.2011 passed by the Courts below are modified in the
manner that the suit of the Respondents is decreed for Rs. 1,495,909/- with
compound interest @ 8% per annum from September, 1988 till realization
of amount due. The finding of the Courts below to the extent of award of
Rs. 100,000/- for mental torture is maintained. No order as to costs. Order,
accordingly.
(Abid Hussain Chattha)
Judge
Approved for reporting.
Judge
*Ahsan
