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Petitioner: BAWANY SUGAR MILLS LTD., KARACHI VS Respondent: PROVINCE OF WEST PAKISTAN AND 11 JUDGMENT
Court Name: Sindh High Court Judge(s): Mushtaq Ali Kazi, Z. A. Channa Title:BAWANY SUGAR MILLS LTD., KARACHI vs PROVINCE OF WEST PAKISTAN AND 11
JUDGMENT
Reported As: PLD 1979 Karachi 750 Result: Petition dismissed Judgment JUDGMENT Z. A. CHANNA , J.-This Constitutional petition seeks to assail the award given by the Land Acquisition Collector, Hyderabad, under section 11 of the Land Acquisition Act, 1894, hereinafter referred to as the said Act, requiring the petitioners to pay a sum of Rs. 8,81,654.40, with interest thereon at the rate of 6 % per annum, as compensation in respect of land measuring 17.24 acres acquired for them in Deb Talhar, Taluka Badin. 2. The petitioners are a public limited company and have a sugar mill at Ahmed Nagar, Talhar. On 23-1-1964, the West Pakistan Industrial Development Corporation, who were promoters of the petitioner's mill and the petitioners associates, applied to the Secretary, West Pakistan Land Utilisation Committee, for acquisition of an area of about 20 acres, near the Talhar Railway Station for the purposes of the petitioner's sugar mill. The petitioners thereafter wrote several letters to the Deputy Commissioner, Hyderabad and the Commissioner, Hyderabad, specifically requesting for compulsory acquisition of Survey Nos. 13, 14, 17, 18 and 317, Deb Talhar, having an area of 27 acres and 40 ghuntas, and pointing out that these lands were urgently and essentially required by them as they were about to go into production. In the meanwhile, between 2-3-1964 and 27-3-1964, on the application of the owners of the said survey Nos , they- were converted into sikni land in accordance with the rules. Thereafter notification under section 4 of the said Act in respect of the land in question was issued on 18-3-1966, by the Commissioner, Hyderabad. However a corrigendum to this notification was issued on 14-7-1966 to the fact that in the said notification, read "Provincial Government" for "Commissioner, Hyderabad" and that the last para. Of the notification should be deleted. This para. Provided that as acquisition of the land was urgently
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necessary, the provisions of section 5-A of the Land Acquisition Act were not to apply to the said land. Prior to the issuance on this corrigendum, on the 27th May 1966, the petitioners had executed an agreement in respect of the land in question as required by section 39 of the said Act. Shortly after the execution of the said agreement, which expressly provided that the petitioners shall pay to the Government such sums of money as shall be awarded under the provisions of the Land Acquisition Act, 1894, to the "persons interested", the Tapedar Talhar, on 5-7-1966, under the orders of the Assistant Commissioner, Tando Division, delivered, possession of the land in question to the petitioners. It appears that compensation in respect of the land in question was estimated at 11,07,88,790 and accordingly the Land Acquisition Collector (Industries), by his letter, dated 15-1- 1968, required the petitioners to deposit the said amount of compensation. In reply, the petitioners protested that the cost of the land as estimated by the Land Acquisition Collector was very high and suggested that the reasonable compensation would be about Rs. 350 per acre. In this letter, however, neither any request for de-notification of the land was made nor any objection was taken to the conversion of the land into sikni. As the petitioners, in spite of another letter from the Land Acquisition Collector, dated 3-2-1968, insisting that the petitioners should deposit the estimated costs of laud to be acquired, failed to deposit the said amount, the Land Acquisition Collector (Industries), by his letter dated 18.3-1968, wrote to the Commissioner, Hyderabad, suggesting that since the petitioners were reluctant to pay the cost of the land, it would be in the fitness of things to denotify the area and assess the damages sustained by the land owners from the date they were itself ordered. It was specifically stated in the letter that the possession of the land was with the petitioners and they were deriving benefits from the land. Despite waking this recommendation, the Land Acquisition Collector, by his letter, dated 25.5-1968, wrote to the petitioners informing them that as the measurement of the land under acquisition was to be undertaken, they should bear the survey expenses amounting to Rs. 28.66. The petitioners, by their letter dated 6-6-1968, sent a challan for the required amount and also enclosed with the letter a rough sketch of the area to be acquired. On 17-7-1968, the Land Acquisition Collector issued notices under section 9 of the said Act. It was for the first time, on receipt of this notice, that the petitioners, by their letter, dated 5-8-1968, took the stand that they were withdrawing from the acquisition proceedings on the ground that "it had been now decided by their Board of Directors that the proposal of expansion of the mills, for which the land in question was required, be dropped. The petitioners further, on 6-8- 1968, filed their objections to the notice under section 9. It was in this letter that they specifically objected to the conversion of the land in question into sikni which bad taken place as early as in March 1964. The petitioners also wrote to the Commissioner, Hyderabad on 18th Sept ember 1968, protesting about the conversion of the land in question into sikni. The Commissioner, however, did not accede to the request of the petitioners to cancel the orders of conversion of the land into sikni or to denotify the land and allow the petitioners to withdraw from the acquisition proceedings. 3. It appears that somewhere in December 1968, the land acquisition proceedings were transferred from the Land Acquisition Collector (Industries) to the Additional Deputy Commissioner, Hyderabad, who was notified as Collector in Government Gazette, dated 30-12-1969. He proceeded with the land acquisition proceedings and after_ inspection of the site and hearing the persons interested announced his award on 15-3-1969. Intimation of the award was given by him to the petitioners, vide his letter dated 4-8-1969, and they were asked to deposit the amount awarded as compensation to the owners of the land. The petitioners, in their reply dated the 16th August 1969, raised a number of objections to the land acquisition proceedings and contended that they were awaiting the decision of the Board of Revenue against the decision of the Commissioner. The petitioners thereafter filed the present petition on 16-9-1969, as apparently they obtained no relief from the Board of Revenue.
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4. Mr. A. A. Fazeel, the learned counsel for the petitioners, raised the following contentions in support of the petition :- (i) The possession of the land not having been taken as required by law, there was no bar to denotification of the land and the orders of the Commissioner refusing to denotify the land were misconceived. (ii) Jurisdiction under-section 48 of the Land Acquisition Act is to be exercised by Government and not by the Commissioner and hence the orders of the Commissioner refusing to denotify the land are invalid and without jurisdiction. (iii) The finding of the Land Acquisition Collector (Industries) regarding denotification of the land were set aside by the Commissioner without hearing the petitioner. (iv) The award of the Land Acquisition Collector is invalid for want of compliance with the provisions of sections 4, 6 and 17 of the said Act, and (v) The conduct of the Revenue Officers, specifically of the second Land Acquisition Collector and the Commissioner, was mala fide. 4. We will proceed to examine each of these submissions seriatim. 5. Point No. 1.-It was contended by Mr. K. A. Fazeel that sub--section (1) of section 48 of the said Act not only empowers but in fact requires the Government to withdraw from the acquisition of any land, except in cases where possession has been taken. He further contended that possession contemplated by section 48, which acts as a bar to withdrawal from acquisition proceedings, must be possession as required under the Act. According to the learned counsel such possession can only be taken by the Collector and after necessary notice under section 9(1) of the said Act has been given. He further submitted that even in case of urgency under section 17 of the said Act, possession can only be taken by the Collector after expiration of 15 days from the publication of notice under section 9(1) of the Act. The learned counsel argued that in the instant case possession is said to have been given to the petitioners much before even the appointment of the Land Acquisition Collector and the taking of the other necessary steps leading to the issuance of the notice under section 9(t) of the Act. He further assailed that so-called possession given to the petitioners on the grounds that possession to them was not physical but notional, as is clear from the acknowledgement, dated 7-7-1966, given by the Administrative Manager of the petitioners, and moreover, the possession contemplated by section 43 of the said Act has to be possession by the Collector and not of the company or its agents. In order to appreciate these contentions of the learned counsel, it is necessary to examine the relevant provisions of the said Act upon which he has relied. Section 48(1) reads as follows :- "48.-(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken." 6. The scheme of the said Act is that a preliminary notification under section 4(1) of the said Act must first of all be published in the official Gazette and also locally, signifying that land in any locality is needed or is likely to be needed, before any officer can be authorised to take action. The issuance of such notification is to be followed by 5 steps before possession of the land can be taken. The first step is the preliminary survey of the land and its inspection to ascertain whether the land is suitable for the purpose for which it is being acquired. The second step is the hearing of objections under section 5-A of the "persons interested" to the acquisition of the land. This step, however, can be eliminated where the land is urgently required and a notification under section 17, subsection (1) or subsection (2), is issued. The third step is the issuance of a declaration of intended acquisition under section 6 of the Act. The next step is the giving of direction to the Collector under section 7 to take order for the acquisition of the land. The Collector finally, after the land is marked out and measured and the plan of the same is made, will take possession of the land after giving notice under section 9(1). The last named section reads as follows :-
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"9.-(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him." 7. Reference may also be made to section 17 which confers special powers in cases of urgency. Subsection (1) of that section, as amended by the West Pakistan (Adaptation and Repeal of Laws) Act, 1967, reads as follows : - "17.-(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 the publication of the notice mentioned in section 9, subsection (1), take possession of any waste or arable land needed for public purposes or for a company. Such land shall thereupon vest absolutely in the Government free from all encumbrances." 8. A bare perusal of section 48(1) makes it plain that whereas Government has been permitted to withdraw from the acquisition of land of which possession has not been taken, there is no compulsion on the Government to withdraw from the acquisition proceeding even where possession has not been taken. The expression" at liberty to withdraw" occurring in the said section signifies that it would be permissible for Government, if it so chooses, or that it would be free to withdraw from the acquisition proceedings but cannot be construed to mean that Government must in all cases, where possession of land has not been taken, exercise that power. We are unable to agree with the contention of the learned counsel for the petitioners that the expression "at liberty to withdraw" has to be construed as "must withdraw", for if it could be so construed, the moment a notification under section 4 is issued or any other step is taken for the acquisition of land for a company, the Government must withdraw from the acquisition proceedings, unless of course possession has in the meantime been taken. Any such construction will render the provisions of the aforesaid subsection and the whole exercise of acquiring land for a company ineffective. It will be noticed that withdrawal from the acquisition proceedings is not contingent upon any such request being made by the company for whom the land is being acquired and consequently if the expression "at liberty to withdraw" is to be construed "as must withdraw", as contended by the learned counsel for the petitioners, after the very first step is taken by the Government for acquisition of land for a company, it must withdraw from such proceedings, irrespective of the fact whether the company has or has not made a request for withdrawal from acquisition proceedings and even in cases where the company may be urgently needing the land to be acquired. The learned counsel was unable to cite any authority in support of his contention that the expression "at liberty to withdraw has -to be construed as "must withdraw". The learned counsel, in support of his contention, however, relied upon the following passage from Maxwell on 'the Interpretation of Statutes, Twelfth Edition, pages 234, 235 :- "Section 13 of the weights and Measures Act, 1889, which provided that an inspector may take in respect of the verification and stamping of weights, measures, and weighing instruments the fees specified, was held to be obligatory and to impose on the inspector a duty to take the fees in all cases. An act which made it 'lawful' for a Court to stay proceedings in actions against companies under liquidation until proof of the plaintiff's debt, and a rule of Court which provided that where the Court has given no directions as to the disallowance of the costs of improper or unnecessary proceedings, 'the taxing master may look into the same for the purpose aforesaid,' were held equally imperative." 9. Apart from the fact that in the passage, immediately preceding the above two passages, it has been stated by Maxwell that "in ordinary usage, 'say' is permissible and 'must' is imperative, and, in accordance with such usage, the word 'may' in a statute will not generally be held to be mandatory", what we are called upon to construe in the instant case is not the construction to be
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given to the word "may" or lawful", but a wholly different expression, which expression, as already pointed but, cannot be construed as imperative or requiring the Government in all, cases to withdraw from the acquisition". 10. Coming to the second limb of argument of the learned counsel on this point, although the said Act contemplates taking of possession after the required notice under section 9(l) has been given, and furthermore provides for possession by the Collector, this does not mean that where possession has actually been given by the Government officers to the company, after the issuance of a notification under section 4(1) and the execution of an agreement by the company under section 41, the Government would still be at liberty to withdraw from the acquisition proceedings. In the instant case, as already indicated, the preliminary notification under section 4(1) was issued by the Commissioner on the 19th of February 1966, and further the agreement by the company was executed on the 20th May 1966, while posses--sion of the land was taken by the company much later on 7-7-1966. Possession of the land having been taken and enjoyed by the petitioners, they now cannot object to the possession on the ground that it was not taken in the manner contemplated by the said Act, The petitioners cannot be allowed 'to have enjoyed the benefits of the possession and at the same time repudiate the possession for the purposes of section 48 of the said Act. The mere fact that demarcation and measurement of the land was to be made later made no difference to the factum of possession, for all that section 48(1) requires is possession, without requiring that it should be physical and not mere notional, or that possession must also include demarcation and measurement of the land. It may also be noted that it is only in the hand--written acknowledgment, which is Annexure 4 to the petition that it stated that physical possession of the land would be given after demarcation and measurement. This acknowledgment does not bear the signature of the Tapedar of Talhar or any other Revenue Officer. The authenticity of this acknowledgment is, therefore, rather doubtful. On the other hand, the official respondents have produced photo copies of a type written receipt, dated 7th July 1966, wherein the Administrative Manager of the petitioners has in unequivocal language stated that in terms of the agreement dated 27-5-1966, executed by the petitioners, the petitioners have taken possession of the specified survey numbers from the Tapedar, Talhar. Next there is a letter from the Mukhtiarkar, Hadin, dated 9-9-1966, to the 6th respondent informing him that possession of the land in question was delivered to the petitioners on 7-7-1966. Finally, there is a letter, dated 30-11- 1967, from the petitioners to the Assistant Commissioner, Tando Muhammad Khan, acknowledging that possession of the land was delivered to them by the Tapldar on 7-7-1956 and explaining that the compensation for the land had not been deposited by them so far as they had received no award about the amount of compensation. The act of possession on the part of the petitioner is further established by the fact that they had even paid the altered assesssment for the land in question and the survey expenses were deposited by them on 6-6-1963. We are accordingly of the view that apart from the question that under section 48(1) of the said Act, the Government was not bound to withdraw from the acquisition proceedings merely because such request was made to it by the petitioners, but further, the Government was not even competent, at the stage when the request for withdrawal from the acquisition proceedings was made to it, to accede to the request, as possession of the land had been given by the Revenue Authorities to the petitioners. 11. Point No. 2.-It was next contended by Mr. A. A. Fazeel that under section 48(1) of the said Act the power to withdraw from the acquisition proceedings vests in the Government, and the Commissioner, Hyderabad, was not competent to reject the request of petitioners for withdrawal from the acquisition proceedings. This is undoubtedly a correct assessment of the law. However, we find that the petitioners had made no request to the Government for withdrawal from the acquisition proceedings but bad made the request to the Land Acquisition Collector, who bad referred the matter to the Commissioner and the latter had rejected the petitioner's prayer. The
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request of the petitioners was rejected on the ground that possession of the land had already been taken by the petitioners. The ground for the rejection of the request, in our opinion, was sound and since the Government was no longer competent to withdraw from the acquisition proceedings, it would have been useless for the Commissioner to refer the matter to the Government. However, assuming that the petitioners wanted the orders of the Government, which was the competent authority A under section 48(1), they should have made an application to the Government and not to the Land Acquisition Collector. Since they have failed to apply to the Government in this behalf, they cannot now complain that their request for withdrawal from the acquisition proceedings was not considered by the Government. Mr. A. A. Fazeel tried to get over this objection by submitting that in accordance with the normal practice all correspondence by the company in regard to acquisition matters is made to or through the r Land Acquisition Collector. However, since the power under section 48(1) of the said Act can only be exercised by the Government, it is the Government which should have been approached by the petitioners in this behalf. Moreover, in their letter to the Land Acquisition Collector, the petitioners namely stated that they had decided to withdraw from the acquisition proceedings and made no request that the orders of the Government be obtained in this behalf. Perhaps the petitioners were under the dilusion that it was entirely upto them to withdraw from the acquisition proceedings and on their giving such notice to the Land Acquisition Collector, the acquisition proceedings would terminate and be withdrawn. In any case, since the petitioners failed to apply to the Government under section 48(t). They cannot complain that the Government did not consider their request for withdrawal from the acquisition proceedings. 12. Point No. 3.-In regard to the next point raised by Mr. A. A. Fazeel, his submissions were that the letter of the Land Acquisition Collector (Industries), dated 26th September 1968, relating to the plea of the petitioners to withdraw from the acquisition proceedings, should be considered as a finding by him, and that further such finding should not have been disturbed by the Commissioner without bearing the petitioners. The Land Acquisition Collector, however, exercises no powers under section 48 of the said Act, but as he is responsible for the acquisition of land he could make his recommendations or suggestions to the competent authority on a request made by the company or the Department for whom the land is being acquired. This is precisely what he has done and submitted to the Commissioner that the acquiring concern may be allowed to withdraw from acquisition as prayed by them and the lands in question be ordered to be denotified. Three grounds weighed with him in making this submission and recommendation. The first was that only notional possession and not actual or physical possession of the land had been taken and moreover possession was taken neither in accordance with the provisions of the said Act nor by the Collector but by the acquiring concern direct. We have already dealt with this aspect of the matter. The second ground that weighed with him was that denotification will prove beneficial to the owners and they will be free to sell their lands at more profit than what they envisaged. This ground was clearly without substance as according to Mr. A. A. Fazeel, even now, after several years, the value of the land is less than the amount awarded by the Land Acquisition Collector. The last ground on which the Land Acquisition Collector based his recommendation was that the land had been lying barren and uncultivated since even prior to the acquisition proceedings. This ground appears to us to be irrelevant and not material for the purposes of determining whether any land which was being acquired should be denotified. Moreover, since the land owners had as far back as in March 1964, got the land in question converted into sikni, the object of the land owners was clearly not to cultivate the land but use the same for the purposes of construction thereon. The Commissioner or the Government thus were not only not bound by the recommendation of the Land Acquisition Collector (Industries), but could freely ignore the same. All that they were required to consider was whether possession of the land had been taken, and even
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if it had not been taken, whether it was desirable or expedient to withdraw from the acquisition proceedings. The recommendation or submissions of the Land Acquisition Collector in this regard could have no binding effect on the competent authority and such recommendation cannot be considered as "findings". 13. As regards the second limb of the argument of the learned counsel for the petitioners that the Commissioner before rejecting the recommendation of the Land Acquisition Collector was required to give hearing to the petitioners, it may be pointed out that such hearing would have been necessary only if either the said Act so expressly provided or on the basis of the principle of natural justice. Admittedly there is nothing in the said Act requiring the…
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