Full Judgment Text & Judicial Ruling

P L D 2025 Lahore 735 Before Raheel Kamran, J Messrs OLYMPIA CHEMICAL LTD through Azhar Hussain Shamim General Manager Services---Petitioner Versus GOVERNMENT OF THE PUNJAB through Secretary (Board of Revenue) and others---Respondents Writ Petition No. 49822 of 2022, decided on 19th March, 2025. (a) Constitution of Pakistan--- ----Arts. 8(1), 23, 24(1), 24(2) & 24(3)---Land Acquisition Act (I of 1894), S. 4---Acquisition of land sought by a company for a factory---Public purpose---Scope---Compulsory acquisition, non-permitting of---Scope---Protection of property---Scope---Company, having already established factory by acquiring land, sought additional land from private land owners in order to enhance its production capacity by extending its area---Company invoked constitutional jurisdiction of High Court being aggrieved of rejection of acquisition by Respondents (Board of Revenue Settlement and all relevant departments)---Contention of the petitioner/company was that acquisition of land for a company was not necessarily required to be for the public purpose as the same might be for construction of a work that was likely to prove useful to the public---Objection of respondents was that even for industrial purpose acquisition of land could be allowed only when it served public purpose while the request of the petitioner/company for acquisition of land was merely for commercial purpose as was manifest from their application---Validity---Article 8(1) of the Constitution postulates that any law or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by Chapter 1 of Part II, shall, to the extent of such inconsistency, be void---Article 23 of the Constitution grants every citizen the right to acquire, hold and dispose of property within Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest---Article 24 of the Constitution guarantees/embodies protection of property rights, which inter alia postulates that no person shall be deprived of his property save in accordance with law---Sub-Article (2) of Art. 24 of the Constitution further restricts acquisition or taking possession of any property except for public purpose only and that too by the authority of law which provides for compensation therefor---Sub-Article (3) of Art. 24 of the Constitution contains specified exceptions to the general rules articulated in the first two provisions of Art. 24 of the Constitution, whereby validity of any law permitting compulsory acquisition or taking possession of any property has been made immune from challenge for certain purposes specified therein---Inasmuch as the exceptions specified in sub-Article (3) of Art. 24 of the Constitution limit the protection of fundamental right to property guaranteed under sub-Article (1), therefore, the same are to be construed narrowly and there is no room for reading into the said Article anything that abridges or undermines the protection of property rights---Thus, the principle of harmonious construction of the provisions of Art. 24 of the Constitution makes it abundantly clear that protection of property rights guaranteed under Art. 24 of the Constitution is only abridged or taken away for compulsory acquisition or taking possession of it under any law for any public purpose or such other purpose as have been clearly specified in Art. 24(3) of the Constitution---No provision of Art. 24 of the Constitution permits compulsory acquisition or taking possession of any property by or under any law merely because the same is required for a company for its commercial purposes---Petitioner/Company failed to point out any illegality, material irregularity, any violation of acquisition laws or jurisdictional defect in the impugned orders passed by the respondents regretting petitioner s request for acquisition of land owned by private owners---Constitutional petition, filed by company/factory, being merit-less, was dismissed, in circumstances. Hamza Rasheed Khan and another v. Election Appellate Tribunal, Lahore High Court, Lahore PLD 2024 SC 256 ref. (b) Land Acquisition Act (I of 1894)--- ----Ss. 3(e) & 4---Constitution of Pakistan, Arts. 23 & 24(2)---Acquisition of land by a company fora factory---Public purpose---Scope---Compulsory acquisition, non-permitting of---Scope---Protection of property---Scope---Company, having already established factory by acquiring land, sought additional land from private land owners in order to enhance its production capacity by extending its area---Company invoked constitutional jurisdiction of High Court being aggrieved of rejection of acquisition by respondents (Board of Revenue Settlement and all relevant departments)---Contention of the petitioner/company was that acquisition of land for a company was not necessarily required to be for the public purpose as the same might be for construction of a work that was likely to prove useful to the public---Objection of respondents was that even for industrial purpose acquisition of land could be allowed only when it served public purpose while the request of the petitioner/company for acquisition of land was merely for commercial purpose as was manifest from their application---Validity--- Company has been defined in S. 3(e) of the Land Acquisition Act, 1894, which means a Company having been registered/ incorporated under prevalent law and includes a society registered under the prevalent law (i.e. Societies Registration Act, 1860 or Cooperative Societies Act, 1912)---In the present case, the request of the petitioner/Company for acquisition of land was merely for commercial purpose as was manifest from their own relevant application---The proposed expansion of the Company s factory aims to increase production of Soda Ash and Sodium Bicarbonate, which is essentially a commercial purpose---Article 24(2) of the Constitution erects a formidable barrier against the Government s use of authority for advancing private commercial interests---Article 23 of the Constitution, which guarantees the right to property, emphasizes that any restriction on this right must be reasonable and in the public interest---Compelling landowners to relinquish their property for a private company s commercial gain, without a direct public utility, failed this test---Acquisition of private land for a purpose other than public purpose is not legal---Requisition and acquisition for purpose of private business concern and not for public purpose or in public interest is illegal---Petitioner/Company failed to point out any illegality, material irregularity, any violation of acquisition laws or jurisdictional defect in the impugned orders passed by the respondents regretting petitioner s request for acquisition of land owned by private owners---Constitutional petition, filed by company/factory, being merit-less, was dismissed, in circumstances. Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad 2002 PLC (C.S.) 1655 and Radba Kanta Banik v. The Province of East Pakistan and 2 others PLD 1969 SC 545 ref. Muhammad Ishaq and others v. Government of Punjab and others 2002 SCMR 1652 and Suo Motu Case No.13 of 2007 PLD 2009 SC 217 distinguished. (c) Constitution of Pakistan--- ----Arts. 24 & 268---Land Acquisition Act (I of 1894), Preamble---Land Acquisition Act, 1894, being a colonial law, continuity of---Scope---In terms of Art. 268 of Constitution, continuance in force of the Land Acquisition Act, 1894, ( the Act 1894 ) is subject to the Constitution and with necessary adaptations until altered, amended or repealed by the appropriate legislature---The phrase subject to the Constitution indicates that the continuance in force of laws was made subordinate to the constitutional scheme---Thus, continuance in force of the Act 1894, by virtue of Art. 268 of the Constitution, does not render any of the provisions of the Act, 1894,immune from challenge for being ultra vires the Constitution including on the ground of repugnancy to the fundamental right guaranteed under Art.24 of Constitution---Petitioner/ Company failed to point out any illegality, material irregularity, any violation of acquisition laws or jurisdictional defect in the impugned orders passed by the Respondents regretting petitioner s request for acquisition of land owned by private owners---Constitutional petition, filed by company/factory, being merit-less, was dismissed, in circumstances. (d) Land Acquisition Act (I of 1894)--- ----S. 4---Acquisition of land sought by a company for a factory---Public purpose---Scope---Compulsory acquisition, non-permitting of---Protection of property---Scope---Interpretation of statutes--- Reading down of a provision--- Company, having already established factory by acquiring land, sought additional land from private land owners in order to enhance its production capacity by extending of its area---Company invoked constitutional jurisdiction of High Court being aggrieved of rejection of acquisition by Respondents (Board of Revenue Settlement and all relevant departments)---Contention of the petitioner/company was that acquisition of land for the company was not necessarily required to be for the public purpose as the same might be for construction of a work that is likely to prove useful to the public---Objection of Respondents is that even for industrial purpose acquisition of land could be allowed only when it served public purpose while the request of the petitioner/company for acquisition of land was merely for commercial purpose as was manifest from their application---Validity---In the scheme of the Land Acquisition Act, 1894 ( the Act 1894 ), land can be acquired either for public purpose or for a Company---A literal construction of the provisions of the Act 1894 appears to be in conflict with Art. 24 of the Constitution insofar as those apparently permit acquisition of property by a Company even in the absence of any public purpose or such other purposes as have been specified in the exceptions stipulated in Art. 24(3) of the Constitution---A statutory provision, when read literally, leads to any violation of a fundamental right, or renders it without legislative competence---Court read such a provision narrowly to save it from invalidity---This is a rule of interpretation of statutes termed as reading down ---The rule of reading down , when applied to the Land Acquisition Act, 1894, would permit acquisition of property only for public purpose or any other purpose specified in sub-Article (3) of Art. 24 of the Constitution---Petitioner/Company failed to point out any illegality, material irregularity, any violation of acquisition laws or jurisdictional defect in the impugned orders passed by the Respondents regretting petitioner s request for acquisition of land owned by private owners---Constitutional petition, filed by company/factory, being merit-less, was dismissed. Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582; Haroon-ur-Rasheed v. Lahore Development Authority and others 2016 SCMR 931; Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531 and Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218 ref. Shamim ur Rehman Malik for Petitioner. Muhammad Osman Khan, Assistant Advocate General, Punjab for Respondents. Date of hearing: 19th March, 2025. JUDGMENT RAHEEL KAMRAN, J.---In this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ( the Constitution ) petitioner has prayed for the grant of following relief:- In view of the submissions made above, it is therefore, most respectfully prayed that the impugned order dated 15-08-2022 passed by Board of Revenue, issued by Assistant Secretary (Settlement) Board of Revenue Punjab, and impugned report dated 13-06-2022 issued by Respondent Nos.7 and 8 may kindly be declared illegal, unlawful, unwarranted by law and passed without jurisdiction having no legal effect and may be set aside in the interest of justice. It is also prayed that the operation of the impugned order dated 15-08-2022 and inspection report dated 13-06-2022 may kindly be suspended till final decision of this case. ANY OTHER RELIEF which this Hon ble Court may deems fit, and appropriate in the facts and circumstances of the case may also be awarded to the petition. 2. It is averred in the petition that the petitioner Company owns a factory certified by the International Organization for Standardization (ISO), which deals in the production of Soda Ash and Sodium Bicarbonate and its facility is spread over 272 Acres of Land which was acquired through the Government of the Punjab by way of Gazette notifications dated 17.09.1999, 14.09.2004 and 10.02.2007 under the provisions of Land Acquisition Act, 1894 ( The Act ). In furtherance of its plan to enhance its production capacity of Soda Ash and Sodium Bicarbonate from 450 to 750 metric tons per day, the Company required additional land measuring 495 kanal and 15 marla for extension of its area and for that purpose private land owners were approached but negotiations failed, thereupon the Company moved an application before the Land Acquisition Collector, Directorate General of Industries, Punjab Lahore seeking acquisition of land. The Collector Khushab District, Khushab issued notification dated 08.05.2017 under section 4(1) of the Act of 1894. Thereafter, in view of the assessment made by the District Price Assessment Committee, Khushab, the petitioner company deposited an amount of Rs.2,44,57,031/- in the Government treasury on 27.04.2018. The Commissioner, Sargodha Division, Sargodha then forwarded the draft under section 5 of the Act of 1894 to the Secretary (Revenue), Board of Revenue, Punjab, Lahore on 09.11.2018. In response, the Assistant Secretary (Settlement) Board of Revenue, Punjab vide letter dated 04.03.2019 informed the Commissioner Sargodha Division that agreement by the Government of the Punjab with Messrs Olympia Chemical Limited for acquisition was not endorsed. The Commissioner Sargodha Division again forwarded the request of the petitioner Company for reconsideration of the issue to the Assistant Secretary (Settlement) Board of Revenue vide letter dated 26.03.2019. In the meanwhile, the petitioner Company lodged a complaint before the Ombudsman Punjab. The aforementioned complaint was disposed of by the Ombudsman Punjab on 15.10.2020 with direction to the Commissioner Sargodha Division and Secretary Industries Punjab to approach the concerned forum for determination of public purpose and after such determination proceed for agreement between Government and the Company. The Commissioner Sargodha Division then forwarded report to the Board of Revenue, Punjab and after examining the same the competent authority in the Board of Revenue, Punjab agreed with the report and regretted the request of the petitioner Company, vide order dated 15.08.2022 impugned herein, hence this petition. 3. Learned counsel for the petitioner Company contends that acquisition of land for a company is not necessarily required to be for the public purpose as the same may be for construction of a work that is likely to prove useful to the public. He maintains that the company has already been established and is serving for decades and the land for setting up the factory was previously acquired through the Government of the Punjab under the provisions of the Act and now additional land is required only for the expansion of the existing facility, therefore, as such, public purpose cannot become an obstacle or hindrance in the way of process of acquisition. In support of his contentions, learned counsel has placed reliance on the cases of Muhammad Ishaq and others v. Government of Punjab and others (2002 SCMR 1652) and Suo Motu Case No.13 of 2007 reported as (PLD 2009 SC 217). 4. Conversely, learned Assistant Advocate General, Punjab contends that the requirement of public purpose is absolutely essential for compulsory acquisition of any land under the Act, which is to be construed harmoniously with the provisions of Article 24 of the Constitution. He maintains that even for industrial purpose acquisition of land could be allowed only when it served public purpose. The Law Officer adds that request of the petitioner Company for acquisition of land is merely for commercial purpose as is manifest from the application of the Company dated 07.01.2017 and as such the same has rightly been regretted after obtaining inspection report from the committee comprising of the officers of all the relevant departments in compliance of the direction issued by the Ombudsman Punjab. In support of above contentions, reliance has been placed on judgments of the Supreme Court in the cases of Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad (2002 PLC (C.S.) 1655) and Radba Kanta Banik v. The Province of East Pakistan and 2 others (PLD 1969 SC 545). He finally contends that identical writ petition in the case of Messrs Eden Developers (Pvt.) Limited v. Government of the Punjab and others (PLD 2017 Lahore 442) was dismissed by this Court. 5. Heard. Available record perused. 6. Article 8(1) of the Constitution postulates that any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by Chapter 1 of Part II shall, to the extent of such inconsistency, be void. Article 23 of the Constitution grants every citizen the right to acquire, hold and dispose of property within Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest. Article 24 of the Constitution guarantees protection of property rights in the following terms:-- Protection of property rights 24. (1) No person shall be deprived of his property save in accordance with law. (2) 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. (3) Nothing in this Article shall affect the validity of--- (a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or (b) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or (c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law); or (d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property, or for the benefit of its owner; or (e) any law providing for the acquisition of any class of property for the purpose of (i) providing education and medical aid to all or any specified class of citizens; or (ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens; or (iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or (f) any existing law or any law made in pursuance of Article 253. (4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any court. Article 24 embodies protection of property rights, which inter alia postulates that no person shall be deprived of his property save in accordance with law. Sub-Article (2) of Article 24 ibid further restricts acquisition or taking possession of any property except for public purpose only and that too by the authority of law which provides for compensation therefor. Sub-Article (3) of Article 24 of the Constitution contains specified exceptions to the general rules articulated in the first two provisions of Article 24 ibid, whereby validity of any law permitting compulsory acquisition or taking possession of any property has been made immune from challenge for certain purposes specified therein. Inasmuch as the exceptions specified in sub-Article (3) of Article 24 of the Constitution limit the protection of fundamental right to property guaranteed under sub-Article (1), therefore, the same are to be construed narrowly and there is no room for reading into the said Article anything that abridges or undermines the protection of property rights. Reliance in this regard is placed on the case of Hamza Rasheed Khan and another v. Election Appellate Tribunal, Lahore High Court, Lahore (PLD 2024 SC 256). Thus, the principle of harmonious construction of the provisions of Article 24 of the Constitution makes it abundantly clear that protection of property rights guaranteed under Article 24 of the Constitution is only abridged or taken away for compulsory acquisition or taking possession of it under any law for any public purpose or such other purpose as have been clearly specified in Article 24 (3) ibid. No provision of Article 24 permits compulsory acquisition or taking possession of any property by or under any law merely because the same is required for a Company for its commercial purposes. Conversely, if a property is acquired by law for any public purpose or any of the other purposes specified in Article 24(3) of the Constitution, the same is permissible subject to compensation therefor, regardless whether the request for acquisition is made on behalf of a Company or otherwise. 7. The law dealing with compulsory acquisition of land in Pakistan is the Land Acquisition Act, 1894. Purpose of the Act, according to preamble thereof, is to amend the law for the acquisition of land needed for public purposes and for companies as well as for determining the amount of compensation to be made on account of such acquisition. Company has been defined in section 3(e) of the Act to mean a Company registered under the Companies Ordinance, 1984 or under the English Companies Acts, 1862 to 1890 or incorporated by an Act of Parliament of the United Kingdom or by Pakistan Law, or by a Royal Charter or letters patent and includes a society registered under the Societies Registration Act, 1860 and Cooperative Societies Act, 1912. 8. The Land Acquisition Act, 1894 is a colonial statute. Continuance in force and adaptation of such statutes is governed by Article 268 of the Constitution, which states as follows:-- Continuance in force, and adaptation of certain laws 268. (1) Except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature. * * * * * * * * *1 (3) For the purpose of bringing the provisions of any existing law into accord with the provisions of the Constitution (other than Part II of the Constitution), the President may by Order, within a period of two years from the commencing day, make such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, and any such Order may be made so as to have effect from such day, not being a day earlier than the commencing day, as may be specified in the Order. (4) The President may authorise the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by clause (3) in respect of laws relating to matters with respect to which the Provincial Assembly has power to make laws. (5) The powers exercisable under clauses (3) and (4) shall be subject to the provisions of an Act of the appropriate Legislature. (6) Any court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no adaptations have been made in such law by an Order made under clause (3) or clause (4), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution. (7) In this Article, "existing laws" means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part…

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