CANTONMENT EXECUTIVE OFFICER, M.E. SECTION, CANTONMENT BOARD, BAHAWALPUR vs Syed IQBAL MUSTAFA and 2 others

' MUNIR A. SHAIKH, J.---This judgment will also dispose of ICA Nos15/91 and 16/91 as common questions of law and facts have arisen in all of them.

2. Land measuring 2,046 acres 5 Kanals one Marla situated in Chak No,12/BC and Chak No,10/BC in villages Hoatwalla and Dera Izzat, Tehsil and District Bahawalpur was acquired under the Land Acquisition Act through notification under section 4 of the said Act published in the official Gazette on 11-1-1985 for extension of Cantonment and establishment of Dairy Farm. Admittedly no further proceedings were taken under section 5 of the said Act, within one year from the date of publication of the said notification and the department for whose benefit the same was acquired deposited an amount of Rs, 81,11,883.35 on 30-6-1986 after about one year and five months of the publication of the said notification.

3. The Department for whose benefit the land was acquired approached the Commissioner for publication of notification under section 17(4) of the Act. The Commissioner intimated the Department that in view of operation of Rule 7 of the Punjab Land Acquisition Rules, 1983 the acquisition had come to an end therefore, no further proceedings could be taken unless there was fresh notification for acquisition. In spite of that according to the respondents the said Department issued an order that the land could not be used by the owneRs, Feeling aggrieved of which they filed Writ Petitions Nos,695/90/BWP, 696/90/BWP and 343/91/BWP before this Court which have been accepted through judgment dated 1-6-1991 by the learned Single Judge which has been assailed in these I.C.As.

4. The main burden of argument presented by Mr. M.M. Bhatti, Advocate, learned counsel for the appellant in support of these appeals was that under section 48 of the Land Acquisition Act, power was vested with the Provincial Government to withdraw from acquisition and Commissioner was not authorised to pass an order to that effect. He placed reliance on judgments reported as Ahbad Cooperative Housing Society Ltd. v. Commissioner etc. 1990 ALD 612(2) and National Police Foundation Cooperative Housing Society Ltd. v. Board of Revenue, Government of Punjab, Lahore and 2 others (PLD 1984 Lah. 191). In the latter case it was held that the Board of Revenue was not the Provincial Government in the matter of withdrawal from acquisition.

5. There is no cavil with the porposition that under section 48 of the Land Acquisition Act, it is Provincial Government which could withdraw from the acquisition. The fact remains that the Punjab Land Acquisition Rules, 1983, have been framed by the Provincial Government in pursuance of power derivable from section 55 of the Act. These rules have been interpreted in jugdment reported as Kh. Zubair Ahmad and others v. Collector and others (1990 MLD 1941) to mean that Rule 7 constitutes withdrawal from acquisition within the contemplation of section 48 of the Land Acquisition Act. It was held in this judgment that not only under the Land Acquisition Act, any notification or order issued by the Provincial Government' could also be rescinded in exercise of like power under the General Clauses Act. Rule 7 of the said Rules provided that in case no steps were taken under section 5 of the Land Acquisition Act, within one year of the publication of notification under section 4 thereof the acquisition proceedings shall come to an end. This rule was A construed to have the effect of an order as provided in section 48 of withdrawal ' from acquisition.

6. Learned counsel for the appellant argued that the order under section 48 for withdrawal from acquisition should have been passed in each and every case after application of mind and no general order in the nature as envisaged by Rule 7 could be issued.

7. We are afraid the argument has no force. The Provincial Government could exercise powers under section 48 in any manner permissible under the law. There is no bar if as a matter of policy a general order had been issued in the form of Rule 7 that in all cases in which no steps were taken within one year of the publication of notification under section 4 of the Act, the acquisition would come to an end instead of passing order in'each and every case separately. Such a course of action was not prohibited, under any express provision of law, therefore, we would hold that the said rules are intra vires of the said Act.

8. The argument that the Commissioner was not vested with the power to withdraw the notification is not applicable in this case as the Commissioner had only intimated to the Department in response it their application for taking further steps that such steps could not be taken as by operation of Rule 7 the acquisition had come to an end. It was not an order passed by the Commissioner for withdrawal from acquisition. The withdrawal from acquisition had already been made by operation of Rule 7 which shall be deemed to have been done by the Provincial Government as stated above.

9. For the foregoing reasons the order under appeal does not suffer from any legal infirmity. The appeals for the foregoing reasons have no merits which IC arc accordingly dismissed with no order as to costs.