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Petitioner: Muhammad Anis VS Respondent: Province of Sindh through Secretary, Land Utilization Department and 6 others
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman, Syed Hassan Azhar Rizvi Title:Muhammad Anis vs Province of Sindh through Secretary, Land Utilization
Department and 6 others Case No.: Constitution Petition No. 4084 of 2015 Date of Judgment:2019-09-06 Reported As: 2020 YLR 2146 Result: Order accordingly Judgment ORDER SYED HASSAN AZHAR RIZVI, J.---This Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has been preferred by the petitioner for implementation of the Award dated 09.07.2012 (Annexure 'A' with the MoP) as the respondents have failed to make award payment with the following prayers:- "a) Declare that the petition is entitled to the implementation of the Award No.AC/LANDHI-KORANGI/LAO/405/ of 2012 dated 09.07.2012 (Annexure 'A') and to receive the entire compensation amount as calculated and due under the aforementioned Award dated 09.07.2012; b) Direct the Respondents Nos.1 to 5 to implement the Award No.AC/ LANDHI-KORANGI/ LAO/405/ of 2012 dated 09.07.2012 (Annexure 'A') by calculating and disbursing the entire compensation amount due under the aforementioned Award dated 09.07.2012, to the petitioner, without any delay but within a period of 30 days; c) Grant such further, additional or alternative relief, as this Honourable Court may deem fit and proper." 2. Succinctly, the facts unfolded in the memo of petition are that the respondent No. 1/Government of Sindh leased out 1-18 acres of land in Nai Malir, Deh Dih, Survey No.84 for a period of 99 years to one Shamsul Huda, proprietor of Messrs Bhurram Bari Enterprises vide lease agreement dated 25.11.1991, who through registered conveyance deed dated 16.12.1991 conveyed 1-0 acre of the above mentioned land to the petitioner. The petitioner was informed through letter dated 28.4.2004 that the allotment of land made in favour of the petitioner's predecessor was below the market price and unless the petitioner paid a differential amount, the allotment in favour of Shamsul Huda would stand cancelled. The petitioner paid the differential malkano as is evident from letter dated 01.9.2005 and the challan dated 05.8.2005 and as such the petitioner's land was regularized under the Sindh Government Land (Cancellation of Allotments, Conversions and Exchanges)
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Ordinance, 2000 and thereafter petitioner's title of the land was never questioned. The petitioner out of above one acre land (40 ghuntas) sold 25 ghuntas and thereafter the petitioner was left with 15, ghuntas out of the 40 ghuntas purchased from Shamsul Huda, proprietor of Messrs Bhurram Bari Enterprises. 3. It is further averred in the memo of petition that the respondent No.1 issued a Notification dated 20.10.2004 for acquiring 0-32 acres out of Survey No.84 in Nai Malir under the Land Acquisition Act for construction of a flyover at the Hino Chowrangi under the Tameer-e-Karachi Programme. Petitioner's property measuring 0-15 ghuntas bearing No.04, Survey No.84, situated at Nai Malir, Deh Dih, Taluka and District Karachi East was acquired and respondent had taken possession of the same for construction of Hino Pak flyover through Award No.AC/LANDHI-KORANGI/LAO/405 of 2012 dated 09.7.2012, the respondents have determined the quantum of compensation which is due to the petitioner for the acquisition of the 0-15 ghuntas i.e. 1815 square yards of the petitioner's land, hence this petition for enforcement of the award. 4. We have heard the arguments of the learned counsel for the parties at length and perused the material available on record. Learned counsel were also kind enough to provide us with written synopsis in support of their respective contentions. 5. Mr. Faisal Siddiqui, learned counsel for the petitioner has argued that the sole purpose of filing of this petition by the petitioner is for implementation of the award dated 09.07.2012, which was passed by the Land Acquisition Officer/Assistant Commissioner under the Land Acquisition Act in relation to the acquisition of the petitioner's property measuring 0-15 ghuntas i.e. 1815 sq. yds. bearing No.04, Survey No.84, situated at Nai- Malir, Taluka and District Karachi (East) for construction of the Hino Pak Flyover under the Tameer-e-Karachi Programme. He has contended that the award has not been denied by any of the respondents and it is also the fact that no Reference has been filed, under Section 18 of the Land Acquisition Act, 1894, to challenge the Award within the specified period of limitation and as a result, the Award has attained finality. He has further contended that the Land Acquisition Officer prior to passing of the subject award had confirmed the title, physical description and possession of the petitioner's land through an independent inquiry and investigation conducted by the concerned officer. He vehemently argued that the acquisition proceedings for acquiring the petitioner's land were in the knowledge of the CDGK, predecessor-in-interest of the respondents No.5/KMC and respondent No.7/KDA, as notices were issued to them. Learned counsel for the petitioner has drawn our attention to the letter dated 08.12.2004 and has submitted that it clearly shows that CDGK, predecessor-in- interest of the respondents No.5/KMC and respondent No.7/KDA, took possession from the petitioner of the petitioner's land and this fact has not been denied by the respondent. No.7. 6. Learned counsel for the petitioner next contended that except respondent No.7/KDA none of the respondents have opposed the enforcement of the award in favour of the petitioner. He has urged that the primary objection raised by the provincial government is that the award may be enforceable in favour of the petitioner but it is the responsibility of the acquiring agency to pay the compensation to the petitioner. He has further urged that the respondent No.7 opposed the enforcement of award on the ground that they have filed an application before the Land Acquisition Officer/Assistant Commissioner, Shah Faisal for cancellation and setting aside the award as the predecessor-in-interest of the petitioner was wrongly allotted this land in the year 1991 and further the land acquisition proceedings are allegedly a result of collusion of the official respondents. He has vehemently urged that the respondent No.7 filed this application on 19.4.2016 against the award dated 09.7.2012 but the respondent No.7/KDA has never claimed that any Reference under Section 18 of the Land Acquisition Act has been filed by anyone against the award. He has categorically made reference to C.P. No.D-1467/2010 involving similar facts and circumstances and submitted that compensation has already been paid for another piece of land in Survey No.91, Deh Dih, acquired in the same vicinity and for the same purpose for the construction of the Hino Pak Flyover under the Tameer-e-Karachi Programme. 7. Learned counsel for the petitioner has next argued that as there is no alternative remedy available under the Land Acquisition Act, 1894, or any other law, for the enforcement of the award, the instant petition is very much maintainable for the enforcement of the award as well as for the payment of compensation. He has added that if the compensation amount has not been paid no question of laches or limitation would bar the petitioner's claim
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for such compensation in the enforcement of the award. He also vehemently argued that under Section 18, Land Acquisition Act, 1894, only the Provincial Government can challenge the award within six months from the date of the announcement of the award, however, the authorities like the respondent No.7 have no right or locus standi to challenge the award under Land Acquisition Act or any other law. He also argued that the application dated 19.4.2016 filed under Sections 4, 6, 9, 11, 12, 17-A and 26, Land Acquisition Act by the respondent No.7 cannot be entertained by the Land Acquisition Officer because once the award has been made and is not challenged under Section 18, Land Acquisition Act it attains finality and the Land Acquisition Officer becomes functus officio. He further argued that the obligation to pay the compensation is on the acquiring authority which is both the provincial government and the respondents Nos.5 and 7. He urged that the KPT is not the acquiring authority as it has no powers under the Land Acquisition Act or under any other law to acquire any land but rather the petitioner's land was acquired for the purpose of the flyover 'being built by KPT. He has emphatically argued that compensation for another piece of land for the same purpose for the construction of Hino Pak Flyover was paid by the CDGK, predecessor-in-interest of the respondent No.7 and by the provincial government. He has further vehemently argued that the respondent No.7 has even challenged in their application even the payment of this compensation regarding this other piece of land for the same purpose, so also has taken no action for the recovery of the compensation paid for this other piece of land. Learned counsel further argued that once the title, ownership and possession is verified and accepted by the Land Acquisition Officer, the land owner cannot be denied their compensation by raising questions regarding their title, Land Acquisition Officer is the authority under the Land Acquisition Act to decide all questions regarding the ownership and possession of the land in question. He argued that in the case in hand the Land Acquisition Officer through an independent inquiry and investigation conducted by the concerned officer has confirmed the title, physical description and possession of the land of the petitioner, as such there is no lawful excuse for not paying the due compensation to the petitioner under the award. He has, therefore, prayed for grant or this petition. 8. In support of his above submission, learned counsel has placed reliance on the cases of Ikramul Haq and 11 others v. Province of Sindh and 3 others (2012 CLC 655), Soda and 4 others v. Province of Sindh and 2 others (PLD 2005 Karachi 37), Mst. Mukhtiar Fatima v. Deputy Commissioner, Multan and 2 others (1997 MLD 1792), Pir Khan through his legal heirs v. Military Estate Officer, Abbottabad and others (PLD 1987 SC 485), Multan Improvement Trust and others v. Sultan Mahmood and others (1989 MLD 441), Sh. Muhammad Saeed and others v. Deputy Commissioner Karachi (PLD 1969 Karachi 314), Assistant Commissioner, Mianwali and another v. Muhammad Amir and 4 others (1987 CLC 2095), Nasreen Zahra v. Government of Punjab and others (2000 YLR 419), Rana Abdul Rasheed and another v. Ch. Nusrat Ali (2009 CLC 948), Syed Zianuddin and 9 others v. Assistant Commissioner-Cum-Collector, Quetta and 2 others (1996 MLD 731), Land Acquisition Collector and another v. Mian Khan and another (PLD 2007 SC 620), Government of Sindh v. Sohail Akhtar and others (2002 SCMR 120), Mian Abdul Ghafoor v. Land Acquisition Collector Collector/Assistant Commissioner and 3 others (1993 MLD 2318), Ghulam Muhammad v. Government of West Pakistan (PLD 1967 SC 191) and Imamuddin Shah v. Deputy District Officer (Rev) and Land Acquisition Collector Sanghar and another (2005 MLD 69). 9. In reply to the above submissions, Messrs Usman Tufail Shaikh and Khurram Ghayasuddin, learned counsel for respondent No.7/ KDA has argued that the land claimed by the petitioner at the KPT interchange has never acquired by KMC for construction of the KPT Flyover, which has been constructed upon already planned developed and existing 300 wide road, the same has been planned in the year 1967. He has argued that the land claimed by the petitioner was allotted to his predecessor in the year 1991, the claim of the petitioner upon the 300 wide road is unjustified and illegal and against the law which cannot consider for compensation as per law. He has vehemently argued that Hino Pak Flyover fails in the notified boundary of the Korangi Township and without approval of Governing Body of the KDA how the Revenue Department allotted the plot in the jurisdiction of KDA's land as the same place is under notified boundary of KDA. He also argued that the award was not in the knowledge of the KMC being the custodian of road whereas the KMC authority never applied for acquisition
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of the land for construction of the bridge. He has added that the land in question created by the Survey Superintendent of Karachi without adopting the survey rules and regulation and also without requisite notice to the defunct KDA. He has also added that the Board of Revenue itself allotted the land over the road reservation and itself decided for compensation of the portion of the land as such the allotment as well as suggestion of the compensation upon road portion is against the law and compensation cannot be granted to the petitioner. 10. Besides, learned counsel for the respondent No.7 has drawn our attention to the possession letter and argued that the possession letter does not bear any date nor there is anywhere mention that who has handed over the said land to the petitioner and within a month of the execution of the lease and how the subject land has been sold to the petitioner through sale deed, which as urged is/ was in violation of the lease. He has further argued that the sale deed through which the petitioner has purchased the subject land shows that . the sale agreement between the petitioner and his predecessor was executed much prior to the payment of challan, which was also in violation of the lease, as there is a specific bar that till such time the full malkano is not paid the lessee cannot sell the land. He has drawn our attention to the schedule of the property mentioned in the sale deed through which the petitioner has claimed to purchase the subject land, revised site plan of Deh Dih dated 04.11.1992 so also the sale deed through which the petitioner sold part of the purchased land and has argued that it can physically be seen that the petitioner is claiming that on East his land has been acquired by the Land Acquisition Officer, whereas by comparing the three documents, as mentioned above, it is abundantly clear that no Land of the petitioner has been acquired and if the land of the petitioner was acquired in the year 2004 then the property sold in 2006 should show that on the East there should be at least a service road which existed in the year 1992 as per the revised plan dated 14.11.1992 but as per the sale deed dated 24.2.2006 and its schedule shows that on the East there is 'Korangi Road + Expressway. He has, therefore, prayed for setting aside the award and dismissal of the instant petition. In support of his contention, he placed reliance upon the cases of Muhammad Shafi v. Province of Punjab and 4 others (2000 MLD 631), Muhammad Hussain and 2 others v. Board of Revenue, Punjab and 4 others (2003 MLD 801) and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. (2010 SCMR 1097). 11. Mr. Shaheryar Mehar, learned AAG Sindh has opposed the instant petition. He has argued that the respondent No.7/ KDA being an acquiring agency file the objection that neither any land of the petitioner utilized in the construction or widening of the KPT flyover at the junction of Qayyumabad further the KDA raised the objection on the award as well as survey conducted by the Survey Superintendent Karachi on 25.1.2005. He has further argued that the acquisition proceeding adopted without the consultation of the acquiring agency i.e. KDA, whose objection may be redressed after joint survey as well as rectification in the award which was also passed without the consultant of the KDA. He has submitted that Director Survey Settlement and Land Records may be appointed to conduct the joint survey whether the land falls in Deh Drigh Road or Deh Dih Nai Malir including the other adjoining survey Nos. plots numbers not overlap each and others, the land of the petitioner was affected in the construction of the KPT flyover in the best interest of the justice. Learned AAG Sindh has argued that the Land Acquisition Officer mistakenly insert the said omitted Section 28-A of the Land Acquisition Act, 1894, which was omitted vide Notification dated 10.11.2009 and without hearing the acquiring department. He has prayed that the instant petition may be dismissed. In support of his contention he has placed reliance upon the cases of Mir Murad Ali and 10 others v. Sindh Seed Corporation and 2 others (1996 CLC 1244) and Younus Habib and others v. Imranur Rashid and others (2018 SCMR 705). 12. In rebuttal, Mr. Faisal Siddiqui, learned counsel for the petitioner has argued that the objection taken by the respondent No.7 that the land has already been sold in the year 2006 is a frivolous objection as the petitioner has sold out only 25 ghuntas of the petitioner's land in the years 2004 and 2006 and the remaining 15 ghuntas of the petitioner which was acquired by the Government for the construction of the Hino Pak Flyover for the Tameer-e-Karachi programme. In response to the argument of the learned counsel for the respondent No.7 that the description of the land in the title documents of the petitioner is different from the description of the land which was acquired, it has been submitted that the description of the land as given in the regularization letters is the same as the land which was acquired. Further, as evident from letter dated 08.12.2004, it is the CDGK
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predecessor-in-interest, of the respondents Nos.5 and 7, itself which took possession from the petitioner of the petitioner's land. With regard to the submission of learned AAG Sindh that the Land Acquisition Officer mistakenly insert the said omitted Section 28-A of the Land Acquisition Act, 1894, which was omitted vide Notification dated 10.11.2009 and without hearing the acquiring department, it has been submitted that the Land Acquisition Officer has rightly passed the award and granted 15% additional compensation under Section 28-A of the Act, because the acquisition of the, petitioner's land started in December, 2004, when the possession of the petitioner's land was taken by the acquiring authority which is much prior to the omission of the aforementioned Section 28-A, as the Court has already been held that the omission of Section 28-A of the Act, will not have retrospective affect. 13. We have given due consideration to the arguments advanced by the learned counsel for the parties, perused the material available on record and the case law cited at the bar. 14. The myth of the arguments of learned counsel appearing for the respondent No.7/KDA is that no land of the petitioner has been utilized in the construction of KPT Flyover. The land upon which the construction of widening of the KPT inter change belongs to respondent No.7 and being owner of the subject land was neither made part of the acquiring proceedings nor made any reference for acquiring the land. He made reference to Section 4 of the Land Acquisition and argued that none of the said conditions have been met in this case as no notice has been received by KDA/CDGK, as such the award is of no legal effect. It has been further contended that the Land Acquisition Officer has failed to fulfill the mandatory requirement of Section 16 of the Land Acquisition Act as the possession of the land has been taken prior to the passing of the award. 15. In order to appreciate the rival contentions of the parties particularly the objection raised by the learned counsel for the respondent No.7/KDA that the award was passed without hearing and issuance of any notice to the acquiring agency, it will be appropriate to reproduce the relevant paragraphs of the award passed by the Land Acquisition Officer, which are as follows:- "I. II. III. Notices Notice under Sections 9 and 10 of the Land Acquisition Act, 1894 issued and displayed at convenient places of the locality and also the same were served upon the persons interested requiring them to appear before me to file their objections, if any, about the correction in the measurement of the land under the acquisition and also to file the nature of their interests in the land and further state the particulars of claim to compensation for such interest in the land. A notice under Section 9(5) of the said Act for enquiring into the objections, value of the land and announcement of the award was also issued to the Acquiring Agency referring him to appear in this office in person deputing any representatives duly authorized in this behalf and the same has served upon. The Mukhtiarkar (Revenue) was also requested to report the names of the owners in respect of the land under acquisition Viz: Survey No.84 of Deh Drigh Road, Karachi. He was also directed to report whether any religious place of worship or any moveable property attached to any institutions? And that it is free from all encumbrances and litigation of whatsoever nature etc. he was also requested to report the name of occupants over the piece of the land under acquisition, if there is other that the title holder/owner. In response to the notice issued under Section 9, not a single objection as to measurement of the land under acquisition was received by actual affected owner or any other party thereof. However exclusive owner of the land i.e. Mr. Muhammad Anis has demanded Rs.125,000/- to Rs.150,000/- per square yards along with damages as of boundary wall constructed around the land, well as 15% statutory allowance and 15% additional allowance and 6% interest from the date of possession i.e. 08.12.2004 as' compensation amount of the land. Acquiring agency was also required for filing their objections, over the claim tendered by the claimant. However no objection as to the measurement of the land has been raised. NAME OF PERSONS
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The Mukhtiarkar (Revenue) Shah Faisal, vide his letter No.Mukh/ Rev/SFT/ 282/ 2011 dated 24.09.2011 reported that an area of land measuring 00-15 Ghuntas out of 0-32 Ghuntas of Survey No.84 Deh Drigh Road stands entered in Revenue Record in the name of Mr. Muhammad Anis son of Muhammad Idrees (the claimant), as per entry No.68 dated 02,10.1993 of Form-II Deh Drigh Road, certifying therein that there is no other title holder/ owner of the land and no any litigation pending in respect of the land as per his office record. He has also certified that no religious place of worship viz. Shrine, Tomb, Graveyard or an immovable property attached to any institution exists over this land. I have also verified the revenue record personally. The perusal of Entry No.68 dated 02.10.1993 of Village Form-II of Deh Drigh Road, reveals that an area of 2 Ghuntas out of Survey No.84 of Deh Drigh Road stands entered in the name of claimant Muhammad Anis son of Muhammad Idrees, as per mode of Government of Sindh, Land Utilization Department vide No.01-20- 02/DS-I/ 1324 dated 01.09.2005. As per report of Mukhtiarkar (Revenue) Shah Faisal and perusal of record, it reveals that the title of land in question is intact the name of the claimant viz. Muhammad Anis son of Muhammad Idrees. Under the circumstances, claimant Muhammad Anis son of Muhammad Idrees is full and exclusive owner of the land under acquisition, under the meaning of provisions of the Land Acquisition Act and is entitled to receive the compensation of the same. IV. ESTIMATED COST OF THE LAND The Mukhtiarkar Shah Faisal was directed to submit the prevailing market value of the land for the year 2002, 2003, 2004 adjacent to the land acquired from the estate agent etc. he has reported that the prevailing market value of the land as reported by the tapedar of the beat and different estate agents was as under:- Rs.80,000/- per square yards in the year 2002 Rs.90,000/- per square yards in the year 2003 Rs.100,000/- per square yards in the year 2004 The Sub-Registrar, Shah Faisal was also directed to submit the prevailing market value of Deh Drigh Road and transactions of the registered sale deeds made by him during the above mentioned period. The Sub-Registrar Shah Faisal reported value of Deh Drigh Road is in between Rs.80,000/- to Rs.100,000/- per square yard. The Land Utilization Department also notified the rate of Deh Dih at Rs.45,000/- per Sq. Yards. V. POSSESSION Physical possession of the land under acquisition has since been taken over on 08.12.2004 and delivered to the representative of Mr. H. A. Bilgrami, Executive Engineer, Karachi Port Trust by the City District Government Karachi representative, Mukhtiarkar (Revenue) Korangi also in presence of representative of NES-PAK and Deputy District Officer (Revenue) Korangi Town, for starting their project of K.P.T. Flyover at Hino Chowk, Karachi. VI. ENQUIRY UNDER SECTION 11 OF THE LAND ACQUISITION ACT. 1894 Notices of enquiry were issued to the persons interested in the land under acquisition and also acquiring agency to participate into the enquiry of…
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