2002 Y L R 2970

[Lahore]

Before Amir Alam Khan and Muhammad Sair Ali, JJ

Mst. IQBAL BEGUM---Appellant

Versus

LAHORE DEVELOPMENT AUTHORITY and 15 others---Respondents

Intra-Court Appeals Nos.559 to 565 of 1991, decided on 20th December, 2001.

(a) Lahore Development Authority Act (XXX of 1975)---

----S.25----Acquisition of land---Nonpayment of compensation---Validity--Lahore

Development Authority being a development authority if acquired land had to
pay compensation for the same.

(b) Lahore Development Authority Act (XXX of 1975)---

----S.25---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---

Acquisition of land---Failure to pay compensation to landowner ---Non
compliance of decree passed by Civil Court---Jurisdiction of Lahore
Development Authority Tribunal---Dispute with regard to the legal shares of
legal heirs of the deceased owner were settled by Civil Court as the same had
determined the entitlement of the parties---Authorities declined to comply with
the decree passed by the Court just for the reason that Lahore Development
Authority was not party to the proceedings before the Civil Court and the
decree was not binding on the Authorities---Validity-- Decree passed by the Civil
Court and that too between the parties entitled to inherit the estate left by the
deceased owner was binding for the same had determined the entitlement of
the parties and the Lahore Development Authority was to act in consequence
thereof and the Tribunal constituted under the Lahore Development Authority
Act, 1975, had no jurisdiction to either cancel the decree or to hold that the
same was not binding on the Tribunal, by simply observing that the Lahore
Development Authority was not a party to the suit---Court fell in error in
observing that the widow of the deceased owner had already sold more than
her Shari share, therefore, she was not entitled to sell the land any further
without considering as to whose lot the remaining lands was to fall as also
without taking note of the fact that the total remaining land had been acquired
by the Lahore Development Authority without allowing compensation or
exemption in favour of either the reversionaries or the widow---Sale concluded
by the widow in favour of various vendees was lawful and valid, therefore, the
vendees were entitled to compensation and exemption of the plots as per
policy of the Lahore Development Authority---Order passed in exercise of
Constitutional jurisdiction was set aside, resultantly, the order of the Chairman
of the Tribunal constituted under the Lahore Development Authority Act, 1975,
was declared to be without lawful authority and of no legal effect.

Mian Nisar Ahmad for Appellant.

Muhammad Rashid Ahmad for Respondents Nos. 1 to 3.

Nemo for Respondents Nos. 4 to 16.

Dated of hearing: 5th November, 2001.

JUDGMENT

AMIR ALAM KHAN, J.---This judgment shall dispose of Intra Court Appeals Nos.
559,, 560, 561, 562, 563, 564 and 565 of 1991 for they arise out of a
consolidated order passed by a learned Single Judge of this Court and involve
common controversy.

2. The Intra-Court Appeals aforenoted are directed against the order dated
2-7-1991 rendered by a learned Single Judge of this Court in Writ petitions Nos.
.778, 1170, 1171, 1172, 1173, 1174 and 1175 of 1990 whereby the said writ
petitions were dismissed in limine.

3. The facts leading to these appeals are that the land measuring 69 Kanals, 18
Marlas comprised of Khata No.80 of village Bhikewal, Tehsil and District Lahore,
was originally jointly owned by Malik Arshad Khan and Malik Kalu Khan. Malik
Arshad Khan died issueless, resultantly, 1/2 share of the land aforenoted i.e. 34
Kanals, 18 Marlas was mutated in the name of his widow Mst. Inayat Begum as
limited owner who in turn alienated 23 Kanals, 8 Marlas from the estate of
Malik Arshad Khan in favour of some vendees. This sale was pre-empted by
Malik Kalu Khan, predecessor-in-interest of respondents Nos.8 and 10 to 16
who was real brother of Malik Arshad Khan, deceased i.e. late husband of Mst.
Inayat Begum. The limited estate of Mst. Inayat Begum was terminated on the
promulgation of West Pakistan Muslim Personal Law (Shariat Application Act),
1962, and according to the provisions thereof Mst. Inayat Begum being a
childless widow became the owner of 1/4 share of the total estate of Iate Malik
Arshad Khan while the rest was to be reverted to Malik Kalu Khan or his heirs as
the case may be. However, Mst. Inayat Begum filed a suit against Malik Kalu
Khan on 3-10-1972 seeking declaration that she was co-owner in equal share
with said Malik Kalu Khan in the land measuring 69 Kanals, 18 Marlas. This suit
was partially decreed by Mr. Farman Ali Khan, Civil Judge, Lahore, on 28-2-1974
thereby holding that Mst. Inayat Begum was entitled to 8 Kanals, 15 Marlas
from the inheritance of her husband.

4. Mst. Inayat Begum again sold land measuring about 6 Kanals to the various
vendees/appellants herein by way of registered sale-deeds executed and
concluded between 13th March to 30th August, 1974. Since the land
aforenoted formed part of a development scheme of Lahore Development
Authority known as 1600 Acres Scheme, Phase-II, Lahore, therefore, the
purchasers/appellants approached the Lahore Development Authority for
payment of compensation and exemption of plots. The Land Acquisition
Collector in turn referred the question of entitlement of the said appellants for
adjudication to the Tribunal constituted under the Lahore Development
Authority Act. The reference was initially dismissed by the Chairman of the
L.D.A. Tribunal vide his order dated 5-8-1982 and aggrieved therefrom the
appellants filed writ petitions in this Court which were accepted and the matter
was remanded to the Tribunal to decide the same afresh after hearing the
parties and attending to the various questions involved therein. The Tribunal
again rejected the said reference vide its order dated 16-9-1989 thereby holding
that the appellants were not entitled to 'either the compensation or the
exemption of plots.

5. The above said order had been assailed in the Constitutional petitions
aforenoted, which were dismissed in limine by the learned Single Judge of this
Court, hence, these appeals.
6. Admittedly the estate left by Malik Arshad Khan comprised of 34 Kanals, 18
Marlas which was mutated in the name of his widow, namely, Mst. Inayat
Begum as limited owner under the Customary Law and she could only sell the
above said land for legal necessity or the estate inherited by .her as limited
owner could be terminated either on her death or on her remarriage. In the
instant case, the widow proceeded to sell the land measuring 23 Kanals, 8
Marlas from the said estate and the sale was preempted by no other person
than the reversioner who was entitled to the estate of late Malik Arshad Khan
on the termination of the limited estate. Obviously, the sale was accepted to be
for the legal necessity by the said reversioner, therefore, the suit for
pre-emption was decreed. Consequently he was denuded of his right of
inheritance of the land forming subject-matter of the sale. This decretal of the
suit was in the nature of adjustment of the limited estate in favour of the
reversioner. The position as such continued till such time that Act V of 1962 was
promulgated and the limited estate existing in favour of Mst. Inayat Begum was
terminated by operation of law. Section 5 of the said Act provided that on the
termination of the limited estate, the widow would be entitled to her Shari
share from the said estate. Since she was childless widow, therefore, according
to the Sharia. She was entitled to 1/4th of the land. The question which falls for
determination is to the effect whether the sale of 23 Kanals, 8 Marlas of land is
taken to be ordinary sale under the general law and is attributable to Mst.
Inayat Begum in the manner that she had sold more than her Shari share. The
answer is in the negative. The alienation made by Mst. Inayat Begum has been
judicially determined to be the adjustment of the limited estate of Mst. Inayat
Begum in favour of the reversioner who was left with no inherit the
subject-matter of the sale that being so, the learned Single Judge had fallen in
error in treating the same as ordinary sale under the general law. There were
only two parties to inherit the limited estate i.e. the widow and the reversioner
The reversioner having taken his lot by filing a suit for pre-emption of the sale
made by her, the widow continued to enjoy the limited estate till such time that
it was terminated by promulgation of Act V of 1962. The discussion aforenoted
would show that the land measuring 23 Kanals, 8 Marlas was adjusted in favour
of the reversioner or the collateral of the last male holder with the result that
Mst. Inayat Begum would be entitled to her Shari share from -the total areas
which formed her limited estate which comes to 8 Kanals, 10 Marlas. Again the
question can be approached from a different angle inasmuch as assuming for
the sake of argument, though it is held otherwise, that Mst. Inayat Begum
having alienated 23 Kanals, 8 Marlas, there remains about 11 Kanals of land to
be distributed among the Shari heirs of the last male holder and calculated in
this regard about three Kanals of land remains unaccounted for which appears
to have been acquired by the L.D.A. without paying any compensation to
anybody for the collaterals had not opted to contest the entitlement of Mst.
Inayat Begum nor the L.D.A. appear to have given any compensation to anybody
else. Again the L.D.A. cannot be allowed to acquire the land just for a song.
After all, it is a development authority which has toy acquire land and pay
compensation for the same. The right of reversioner having been judicially
determined to be adjustment of the limited estate. Mst. Inayat Begum would be
entitled to 1/4th share from the estate left by Malik Arshad Khan and has been
so held by the decree of the Civil Court dated 28-2-1974. The decree passed by
the learned civil Court and that too between the parties entitled to inherit the
estate left by Malik Arshad Khan was definitely binding for it had determined
the entitlement of the parties and the L.D.A. was to act in consequence thereof
and the Tribunal constituted under the L.D.A. Act had no jurisdiction to either
cancel the decree or to hold that the same was not binding on the Tribunal by
simply observing that the L.D.A. was not a party to the suit. The learned Single
Judge of this Court also fell in error in observing that Mst. Inayat Begum had
already sold more than her Shari share, therefore, she was not entitled to sell
the land any further without considering as to whose lot the remaining land was
to fall as also without taking note of the fact that the total remaining land had
been acquired by the L.D.A. without allowing compensation or exemption in
favour of either the reversionary or the widow. The sale concluded by Mst.
Inayat, Begum in favour of various vendees are lawful and valid, therefore, the
appellants are entitled to compensation and exemption of the plots as per
policy of the L.D.A.

7. In the circumstances, these appeals are accepted and the order dated
2-7-1991 passed by the learned Single Judge of this Court is hereby set aside,
resultantly, the order dated 16-9-1989 passed by the Chairman of the Tribunal
constituted under the L.D.A. Act is declared to be without lawful authority and
of no legal effect. Consequently, the writs as prayed for are issued.

Q.M.H/I-96/L Appeal allowed.