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Petitioner: Kareem Nawaz & 4 others VS Respondent: District Collector/ Deputy Commissioner JUDGMENT
Court Name: Lahore High Court Judge(s): Shahid Karim Title:Kareem Nawaz & 4 others vs District Collector/ Deputy Commissioner
JUDGMENT
Reported As: 2022 LHC 3711 Result: Petition Allowed Judgment JUDGMENT Shahid Karim, J. This constitutional petition challenges the order dated 10.02.2022 passed by the Deputy Commissioner/ District Collector , Multan pursuant to a direction issues by this Court on constitutional petitions W.P No.18609 of 2021, W.P No.18687 of 2021, W.P No.11376 of 2021 and W.P No.11242 of 2021 brought earlier by these petitioners seeking a direction to the District Collector to decide the issues of law raised by the petitioners in their applications filed on 7.12.2021. As a prefatory , it is stated that the petitioners seek the judicial review of the actions of respondents to acquire land of the petitioners under the Land Acquisition Act, 1894 ("the Act, 1894") and so these questions must be determined by this Court in its constitutional jurisdiction. It was otiose for a reference to be made to the District Collector to decide the legal issues raised by the petitioners seeking to challenge the acquisition proceedings. Suffice to say that the District Collector has not, in passing the impugned order , adverted his attention to the issues of law nor could he have set at naught the actions initiated by himself. 2. The facts are simple and in most part admitted between the parties. On 22.07.2 020 a gazette notification under Section 4 of the Act, 1894 (section 4 notification) was issued and a meeting of the District Price Assessment Committee was held on 22.09.2020 to assess the compensation to be awarded to the petitioners in lieu of the compulsory acquisition of their land. In the reply filed on behalf of the respondents, the purpose of acquisition has been delineated as follows: "1. That the brief facts of the case are that the Director Revenue AHQs, Islamabad, Base Commander , PAF Base, Multan requested for issuance of Notificat ion under Section 4 of Land Acquisition Act, 1894 which was forwarded to Deputy Commissioner , Multan for the acquisition of 911- Kanal, 2-Marlas land in Moluza' s Khor, Sajri Wahan, Tindni, Jameelabad, Langrial and Alumdi Sura Tehsil Multan City District Multan for extension of infrastructure at PAF Base, Multan."
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3. This petition is not concerned with the purpose of acquisition but is related to the procedure adopted by the respondents for acquisition of the land under the Act, 1894. It is also admitted on all hands that various petitions were filed to this Court challenging the acquisition proceedings which were referred to the District Collector to be decided as a representation. Only in one petition tilted M. Farooq Khan Babar etc. v. Government of the Punjab (W.P No.1 1242 of 2021) an interim order was passed on 19.07.2021 to the ef fect that: "In the meanwhile the respondents shall not take coercive measures against the petitioners". Clearly , this Court did not stay the acquis ition proceedings and so nothing turns on the contention of the learned D.A.G as well as the learned A.A.G that the acquisition proceedings were impeded by certain interim orders passed by this Court. This is far from the truth. 4. Two issues of law will engage this Court in this petition. According to the learned counsel for the petitioners, the notification under Section 4 of the Act, 1894 was issued on 22.7.2020 and the acquisition proceedings have not been completed till date. Pendente lite the Commissioner , Multan has issued a notification under Section 17(4) and 6 of the Act, 1894 ("the second Notification") on 28.02.2022. Interestingly , while passing the impugned order the District Collector had made the following observations: "5. Keeping in view the above, the instant application of the petitioners is hereby filed accordingly . However , the case regarding issuance of further notification u/s 17(4) ibid should be processed immediately . The file be consigned to the record room after its due completion." 5. Thereafter on 28.02.2022 the second notification was issued by the Commission er, Multan Division, Multan. The strange aspect is that the second notification under Section 17 (4) seems to have been issued on a direction issued by the District Collector , Multan in the impugned order . Prior to this, there seemed to be no urgency in issuing the said notification. Be that as it may, through C.M No.2608 of 2022 the petitioners have chosen to challenge the second notification issued by the Commissioner on separate grounds to which a reply has already been filed by the respondents No.1 and 2 justifying the issuance of the said notification. Learned counsel for the parties have been heard on the issues which arose during the pendency of this petition as also regarding the legality of the notification under Section 17(4) and 6 of the Act, 1894. 6. The learned counsel for the petitioners contends that section 4 notification must be deemed to have been revoked as acquisition proceedings have not been completed within the period of one year of the issuance of section 4 notification. This argument is premised on the second proviso which was inserted in sub-section (2) of section 4 through Act XXIII of 2017 dated 07.06.2017. It provides that: "Provided further that entire process of land acquisition shall be completed within period of a one year failing which the notification made under sub-section (1) shall stand revoked." 7. This ground should receive a short shrift. The amendment in section 4 was brought in by the Parliament and applies to such areas in the Federation as are not included in any Province. Simply put, the effect of the amendment shall have no application to acquisition by provincial authorities. 8. The next challenge is based on the requirements that must be met prior to issuance of section 4 notification. He relies upon a recent judgment of this Court to submit that section 4 notification is non est since the Collector failed to carry out his obligations cast upon him by the Act, 1894 and Rules, 1983 and thus breached the mandate of law. The following portions from W .P No.9429 of 2021 were relied upon: "180. We are concerned with sub section (1) more than the remainder of the provis ion. Sub-section (1) simply says that a notification shall be published in the official gazette by the Collector of the District whenever it appears to him that land in any locality is needed or is likely to be needed for any public purpose. This is indeed a vast and polycentric power vesting in the Collector . Section 4 does not spell out the periphery of the power nor does it specify the considerations which are required to be taken into account by the Collector to form such an opinion. Some insight in this regard can be had by reading the Punjab Land Acquisition Rules, 1983. In my opinion, rules 3, 4, 5 and 6 ought to be read in conjunction with section 4 in order to lend some actuality to the powers vesting in the Collector . Rules 3, 4, 5 and 6 are reproduced for facility:
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"3. The acquiring agency shall submit an application to the Collector of the District concerned in the prescribed form for the acquisition of land under the Act giving full justification of the public purpose involved and the minimum area required by it with full details of all other area owned by it in the same locality . 4. On receipt of the application under Rule (3) the Collector of the District shall examine its feasibility taking into consideration the genuineness of the public purpose involved, the minimum requirements of the acquiring agency and suitability of the area proposed for acquisition keeping in view its alternate uses, if any . 5. Where after the examination of feasibility under Rule 4, the Collector of the District is of the view that the land be acquired for the acquiring agency , he shall issue a notification, under Section 4 of the Act stating clearly the name of the revenue estate/village or locality Tehsil, broad details of the dimensions and boundaries of square or rectangles, field numbers and the approximate area to be acquired. 181. A holistic reading of the rules would show that the process is triggered by some 'acquiring agency' which shall submit an application to the Collector of the District concerned in the prescribed form for the acquisition of land under the Act giving full justification for the public purpose involved and the minimum area required by it with full details of all other area owned by it in the same locality . This is a sine qua non and sets into motion the process of acquisition and is the first step towards that process. On receipt of the application, under rule 3, the Collector of the District shall examine its feasibility taking into consideration the genuineness of the public purpose involved, the minimum requirements of the acquiring agency and the suitability of the area proposed for requisition keeping in view its alternate uses if any. The Collec tor shall examine the feasibility under rule 4 and if the Collector is of the view that the land be acquired for the acquiring agency he shall issue a notification under section 4 of the Act. The rules 3, 4 and 5 of the Rules, 1983 are an elaboration of the essential steps which must precede the issuance of the notification under section 4 of the Act. These rules have a purpose and that purpose must be kept in view by the Collector while making a notification under section 4 of the Act. It seems that the legislator felt a need for prescribing these essential steps in the rules as section4 does not lay down any criteria to be followed by the Collector in making the notification under section 4. These considerations which are spelt out in the rules give a humane touch to the process of acquisition so that the fundamental rights conferred by Article 24 of the Constitution may not be infringed without due process of law . 182. With reference to the Act, 1894, the Collector of the District, exercising powers under section 4 is a 'core public authority'."There are certain bodies that so obviously have the character of a public authority that it is not necessary to mention them." R. (on the application of Quark Fishing Ltd.) v. Secretary of State for foreign and Commonwealth affairs (No.2) [2005] UKHL 57 (Lord Hope of Craighead). Thus the powers of the Collector are circumscribed by the conditions laid down in the rules. In the first instance, the acquiring agency must give full justification of the public purpose involve d and the minimum area required by it with full details of all other area owned by it in same locality . In short, the application shall be in the form of a feasibility which shall be examined by the Collector . He shall, for the purpose, take into consideration the genuineness of the public purpose involved, the minimum requirements of the acquiring agency and suitability of the area proposed for requisition, keeping in view its alternate uses if any. Thus, the duty of the Collector is an onerous one entailing certain relevant considerations to be taken into account prior to the issuance of section 4 notification. An importa nt aspect of Administrative Law relating to decisions based on irrelevant considerations or failure to take account of relevant considerations, is thus engaged at this stage. This will, in turn, determine the justiceability of the action by the courts. 184. Thus it inevitably follows that discretion by the Collector must be used to promote the policy and the object of the Act. The policy of the Act, 1894 clearly has its provenance in the Constitution of Pakistan. Right to property is a undamental right. Compulsory acquisition is a serious invasion on that right and must be scrupulously and jealously guarded against. Any acquisition must be grounded in public purpose and just compensation. Section 4 and its preconditions are a bulwark against compulsory acquisition and the Collector must bring the full application of his mind to bear upon the feasibility submitted, its examination and formation of his view . It is a two-tier process. 185. As a first step, the acquiring agenc y shall put forth full justification for the public purpose involved. It must therefore conform to the concept of public purpose as understood as a term of art and as expounded by the courts. The public purpose must be such that it overrides and stumps the individual interest. It has to be based on
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objective criteria and must have the support and backing of an expert study and requisite facts. This is the essential first step to be complied scrupulously by the acquiring agency as the proposed taking affects a fundamental right. The words 'full justification for the public purpose' has to be given effect fully and purposefully . The justification must be such that it overrides the private interest and any competing public purpose, too. 186. Thereafter the Collector shall proceed to examine the feasibility . For the purpose he shall take into consideration the genuineness of the public purpose involved, the minimum requirement of the acquiring agency and 'suitability' of the area proposed for requisition keeping in view its alternate uses if any'. Thus the power to be exercised by the Collector is not a mere painting to be looked at. It is an objective and robust exercise of power keeping in view varying factors which inhere in the compendious term 'suitability of the area proposed for acquisition keeping in view its alternate uses if any'. The term used in rule 4 is pregnant with the diverse nature of the scope of Collector's powers. There is a subtle yet important aspect which needs to be flagged here. The entire process with regard to 'suitability' has to be conducted keeping in view the interes t and rights of the persons who own the property liable to be acquired. That is at the heart of the process and examination by the Collector . He must objectively assess whether the area is at all suitable for acquisition and it must qualify the test of 'alternate use' of that land. For example, if the land is agriculture, then the Collector must carry out the examination from the standpoint of food security which is a looming threat on the horizon. He must ask the question: Will the food security be under threat if a big chunk of land is rendered useless and the people of the area are deprived of essential commodities which sustain them. This will have a spiral effect on the overall food situation; the inflation will rise as would prices of food items which will, in turn, impact the economic and culinary aspects of the public. This is an illustration of competing public interest which the Collector is required to consider in the section 4 determination. The number of illustrations can be myriad depending on the circumstances of each case. There could be human dwellings or trade and businesses being run by people whose most prized possession likely to be affected is the goodwill attached to that vocation. Heritage and buildings of historical and cultural importance ought to occupy the Collector's consideration in the examination. The nature of the project sought to be carried out by the acquiring agency should also have an important bearing on the decision to be made. If the project entails the construction of a road or highway , it may have to be analysed differently from a mere campus block of a college. 189. Section 4 read with the Rules is an example of a provision in a statute which places on a public body a duty 'to have regard' to some desirable good. 209. Thus, the Collector of the District cannot act mechanically in issuing a notifica tion under rule 4 and is under a bounden duty to comply with the provisions of rules 3, 4 and 5 of the Rules, 1983. An application of mind has to be made by the Collector with regard to all these aspects while examining the feasibility of the application. The most crucial aspect in my opinion which the Collector is liable to undertake is the alterna te uses to which the land can be put and this should be an important plank of the feasibility undertaken by the Collector of the District. This will require the Collector of the District to hold meetings for the purpose and to sum up his findings in the form of a written statement which will lead to the issuance of the notification under Section 4 of the Act, 1894." 9. As concluded above, the Collector of the District will also be obliged to consider the approval given by Environmental Protection Agency to EIA submitted by the acquiring agency . A holistic view will be taken by the Collector of the District and thereafter an informed decision shall be made and the entire procedure shall precede the issuance of the section 4 notification. None of these procedural formalities were complied with by the Collector of the District of Multan and therefore the notification which has been issued under Section 4 is held to be without lawful authority and void ab initio. 10. The section 4 notification is illegal for another reason too. It has been signed and issued by two other public bodies, absolutely alien to the scheme of section 4. One is a Group Captain, Director Revenue Record, Air Headquarters Islamabad, and the other is the Land Acquisition Collector , Multan. At the bottom, it was then endorsed by the District Collector . Thus, for all intents the section 4 notification was not signed by the District Collector and he merely endorsed the draft notification sent to him to be signed. This is an egregious abdication of powers by the Collector who allowed his discretion to be captured by extraneous persons.
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11. The third ground of attack is made to the issuance of section 17(4) and 6 notification subsequently by the Commissioner Multan Division, Multan. That second notification is discrepant in may respects. Section 17 provides that: "17. Special power in cases of urgency .- (1) In cases of urgency , whenever the Commissioner so directs, the Collector , though no such award has been made, may, on the expiration of fifteen days from publication of the notice mentioned in sub-section (1) of section 9, take possession of any land needed for public purposes or for a Company . Such land shall thereupon vest absolutely in the Government, free from all encumbrances: Provided that the Commissioner shall not issue any direction to the Collector under this sub-section unless the Department of Government, the local authority , or Company , as the case may be, for which the land is being acquired, has first deposited the estimate d cost of acquisition of such land as determined by the Collector of the district, keeping in view the provisions of sections 23 and 24. (2) Whenever , owing to any sudden change in the channel of any navigable river or other unforeseen emergency , it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, or whenever owing to a similar emergency it becomes necessary for the Commissioner to acquire the immediate possession of any land for the purposes of maintaining traffic over a public road, the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the Commissioner , enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours' notice of his intentio n so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. (3) In every case under either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained. (4) In cases where in the opinion of the Commissioner , the provisions of sub-section (1) or sub-section (2) are applicable, the Commissioner may direct that the provisions of sections 5 and 5-A shall not apply , and, if he does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under sub-section (1) of section 4." 12. Firstly , the second notification has been issued under dictated exercise of powers. This is culled out from two aspects. It can be gleaned from a letter dated 28.06.2020 written to the Assistant Commissioner / Land Acquisition Collector Multan City by the Military Estate Of ficer, Multan Circle and the following statement made in the letter: "In this regard, 05 sets of Draft Notification under Section 17(4) & (6) of the Land Acquisition Act, 1894 (in original) alongwith relevant documents in respect of subject land are forwarded herewith signatures and further necessary action." 13. Thus, not only that information was laid with the Land Acquisition Collector regarding deposit of the cost of acquisition, it was accompanied by five sets of draft notification to be issued in respect of the land under acquisition. Clearly , the Commissioner Multan Division while acting on this letter proceeded to issue second notification under Section 17(4) and 6 of the Act, 1894. In this manner the Commis sioner abdicated his authority in this regard and shackled his statutory power thereby . It was not the business of any other authority to have prepared the draft notification for issuance by the Commissioner Multan Division. Another fact that arises out starkly is that the letter by the Military Estate Officer, Multan was issued even prior to section 4 notification which was published on 22.07.2020. It seems that the respondents did not care whether a section 4 notification had been published or not and the decision to proceed under section 17(4) was pre-meditated. Doubtless, the Commissioner did not apply his free mind and independent decision to the act of issuance of a notification under Section 17(4)
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and so his act falls afoul of the provisions of the Act, 1894 and in particular section 17. Secondly , a perusal of second notification shows that it is not only signed by the Commissioner Multan Division, Multan but also by four other officers including the Base Commander PAF Base and the Military Estate Officer, Multan Circle. Once again this could not have been done and on this basis second notification is ultra vires and without lawful authority . The only officer envisaged by section 17 for issuance of the declaration under section 6 is the Commissioner concerned and no other officer, how high so ever, is authorized by law to either form an opinion or to sign publication of the notification. This lends further credence to the arguments that the second notification was published under dictation and the Commissioner was swayed by extraneous circumstances. 14. Since second notification has been issued in the meantime while this petition was pending,, the arguments in this Court centered on the validity of second notification. Apart from other aspects which afflict second notification and brought forth in the preceding paragraphs, it does not fulfill the prior condition s mentioned in section 17 which entirely relates to cases of urgency . If section 4 notification had been issued on 22.7.2020, there seemed no urgency in the instant case for second notification under Section 17(4) and 6 to be issued more than one and half year after the section 4 notification. It is not in dispute that further steps such as the issuance of notification under Section 5 and 5A of the Act, 1894 have not been taken since by the respondents. The fact that second notification has been issued belatedly trumps the claim of the respondents regarding urgency in the matter . Apart from this aspect, a read of sub-section (1) and (4) of section 17 would clearly bring forth certain prior steps to be taken by the Commissioner in cases of urgency . Firstly , a direction has to be issued by the Commissioner that the provisions of section 5 and 5A shall not apply . Thereafter a declaration has to be made under Section 6 in respect of the land at any time after the publication of the notification under Section 4. Section 6 of the Act, 1894 relates to and declares that land is required for public purpose and has to be issued by the…
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