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Petitioner: ALLAH DITTA and others VS Respondent: PROVINCE OF PUNJAB
Court Name: Lahore High Court Judge(s): Muhammad Asif Jan, Khalid Paul Khawaja, Sh. Ijaz Nisar Title: ALLAH DITTA and others vs PROVINCE OF PUNJAB Case No.: Writ Petition No,2694 of 1990 Date of Judgment:1997-02-02 Reported As: PLD 1997 Lahore 499 Result: Order accordingly
JUDGMENT
JUDGMENT ' MUHAMMAD ASIF JAN, J.--Agricultural land measuring about 110 Kanals belonging to the petitioners in villages known as Mauza Charar, Amar Sadhu and Kumahan in Tehsil Cantonment of District Lahore was sought to be acquired under the Land Acquisition Act of 1894 for the benefit of the Lahore Cantonment Cooperative Housing Society Limited, Lahore (respondent No,3) which shall be referred to hereinafter for purposes of brevity as the "respondent-society", by virtue of including the said land in a Notification bearing No, LAC/21699 of the Office of the Collector, Lahore, issued on the 13th of December, 1988, but published some 9 days later in the Punjab Cazette of Thursday 22imi of December, 1988. 2. The initial notification which was issued on the 13th of December, 1988, and published in the Punjab Gazette on Thursday 22nd of December, 1988, reads as follows:- "Whereas it appears to the Collector, Lahore District that the land is likely to be required to be taken at the society expense for housing purpose, namely for the construction of residential colony (Township) by Lahore Cantt. Cooperative Housing Society Ltd., Lahore (Regd. No,906), it is hereby notified that land in the locality described below is likely to be required for the above purpose. 1. The Notification is made under the provision of section 4 of the Land Acquisition Act, 1894 to all whom it may concern. 2. In exercise of the powers conferred by the aforesaid section the Collector, Lahore District is pleased to authorise the officer for the time being engaged in the undertaking with their servants workmen to enter upon and survey any land in the locality and do all other acts required or permitted by that section." This is followed by a sub-title of "Specification" where under details the land in question are given which works out to a total area of 936 Kanals.
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3. Subsequently, Collector, Lahore District wrote to the Commissioner, Lahore Division, Lahore vide Memo. No, LAC/19560-B dated the 21st of December, 1989, on the subject of "Acquisition of land for Lahore Cantonment Cooperative Housing Society in Villages Charar, Amar Sadhu and Kumahan, Tehsil Cantonment, Lahore" which reads as follows:-- "Kindly find enclosed draft Notification under section 5 of the Act, 1894, along with connected documents, in triplicate, for onward transmission to the Government of the Punjab, Lahore, for approval and publication in the Punjab Gazette (Extraordinary) and to kindl supply the copy of endorsement regarding forwarding letter to be issued to the Press for publication of the same for further action. It is also submitted that the provisional estimated cost of Rs,9,90,85,938 ordered by the District Collector, Lahore has been deposited into the Government Treasury today, the copies of Challan forms will be submitted on receipt of the same from the State Bank of Pakistan, Lahore." ' The said memorandum forwards the proposed draft for the notification which reads as follows:-- "Whereas the Governor the Punjab is satisfied that the land notified tinder section 4 of the Land Acquisition Act, 1894 vide Collector, Lahore District's Notification No, LAC/21699, dated 13-12-1988 and published on 22-12-1988 (as described in the specification below) is needed for a public purpose, for housing purpose, namely for the construction of residential (Township) at the Society expense by Lahore Cantt. Cooperative Housing Society Ltd., Lahore (Regd. No,906). ' Now, therefore, in exercise of the powers under section 5 of the Land Acquisition Act, 1894, the Governor of the Punjab has been satisfied that the land specified below of which the plan can be inspected in the Office of the Land Acquisition Collector, Lahore and the Office of the said Society is needed for the said purpose. ' Any person who is interested and who has any objection to the acquisition of the said land may within 30 days of the issuance of this Notification, file an objection in writing before the Land Acquisition Collector, Lahore, District Courts, Lahore. ' Land upon which any religious place of worship, shrine, tomb, graveyard or any immovable property attached to any institution and the boundaries of which are contiguous with the site of the same shall be excluded from the said land, similarly Waqf and Evacuee Property, State land, land owned by Central Government/Provincial Government shall be excluded from the said land." ' The proposed draft is followed by a sub-heading Of "Specification" which gives the necessary details of the land in question. 4. The required notification was published in the Punjab Gazette of Wednesday, 7th of February, 1990 which reads as follows:-- "Whereas the Governor of the Punjab is satisfied that the land notified under section 4 of the Land Acquisition Act, 1894 vide Collector, Lahore District's Notification No, LAC/21699 dated 13th December, 1988 and published on 22nd December, 1988 (as described in the specification below) is needed for housing purpose, namely, for the construction of residential colony (Township) at the Society expense by Lahore Cantt. Cooperative Housing Society Ltd., Lahore (Regd. No,906). ' Now, therefore, in exercise of the powers under section 5 of the Land Acquisition Act, 1894, the Governor of the Punjab has been satisfied that the land specified below of which the Plan can be inspected in the Office of the Land Acquisition Collector, Lahore and the Office of the said Society is needed for the said purpose. ' Any person who is interested and who has any objection to the acquisition of the said land may within 30 days of the issuance of this Notification, file an objection in writing before the Land Acquisition Collector, Lahore District Courts, Lahore. ' Land upon which any religious place of worship, shrine, tomb, graveyard or any immovable property attached to any institution and the boundaries of which are contiguous with the site of the same shall be excluded from the said land. Similarly Waqf and Evacuee property, State land, land owned by Central Government/Provincial Government shall be excluded from the said land."
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' Thus, it is quite clear that this subsequent notification was ostensibly issued on the 21st of December, 1989 with reference to the date of the proposed draft sent by the Collector to the Commissioner and was actually published 47 days later on the 7th of February, 1990. 5. The notification under section 5 of the Land Acquisition Act of 1894, issued on the 21st of December, 1989, and published on the 7th of February, 1990, states that:-- "Any person who is interested and who has any objection to the acquisition of the said land may within 30 days of the issuance of this Notification, file an objection in writing before the Land Acquisition. Collector, Lahore, District Courts, Lahore." ' Evidently for purpose of filing objection time would begin to run from the date of publication i,e, the 7th of February, 1990 and would expire on the completion of 30 days because contrarily it would not be possible to file objections within 30 days of the issuance of the notification, dated the 21st of December, 1989. 6. Be that as it may, some land owners challenged the acquisition proceedings by way of civil suits and succeeded in obtaining status quo orders while the petitioners moved this Court invoking its extraordinary jurisdiction under Article 199 of the Constitution of the Islamic "Republic of Pakistan of 1973 by way of Writ Petition No,2694 of 1990 which first came up for hearing before the then Acting Chief Justice (Muhammad Afzal Lone) who was pleased to order that:-- "Let the writ petition be entertained as it is. The examination of question as to whether or not, 25 petitioners can be jumbled together in one petition, is, left to the Bench, before whom it is enlisted. May be placed before any Bench on 22-4-1990." ' Thereafter the matter was placed before one of us (Sh. Ijaz Nisar) on the 22nd of April, 1990, and following order was passed:-- "Learned counsel appearing on behalf of the petitioners contends that the acquisition of the land in dispute is not in accordance with law, in that, Rule 7, Punjab Land Acquisition Rules, 1983 requires extension of period by the Board of Revenue if a period of more than one year elapses between the issuance of a notification under sections 4 and 5 of the Land Acquisition Act, 1984, (actually 1894). According to him, the notification under section 4 lapses if no such extension is obtained. He has relied on Syed Mahbood Alam Shah and others v. Deputy Commissioner and others (1989 CLC 1801) in support of the above contention. 2. Report and comments be called from the respondents so as to reach this Court within a month. 3. Status quo, meanwhile." ' Thus, the acquisition proceedings came to an halt under the order of this Court. 7. However, subsequently on the motion of the respondent-society an order was passed in Civil Miscellaneous No,2466 of 1990 in Writ Petition No,2694 of 1990 on the 6th of May, 1990 by one of us (Sh. Ijaz Nisar) which reads as follows:-- "Learned counsel for the respondent states that acquisition proceedings are pending before the Land Acquisition Collector and the objections filed by the petitioners are being looked into and the last date of submission of his report is 8th May, 1990. According to him, by the order dated 22-4- 1990 passed by this Court directing the maintenance of status quo the Land Acquisition Collector may not be in a position to finalize the acquisition proceedings. He seeks the clarification of the aforementioned order to the extent that it would not prevent the Land Acquisition Collector from proceedings with the acquisition proceedings. The request is granted. However, the position prevailing at the spot with regard to the possession shall be maintained till further orders. 2. The main petition which is yet at motion stage may be fixed for hearing within three weeks." 8. Thereafter this petition was placed on the cause list of our learned brother Malik Muhammad Qayyum, J. And his Lordship was pleased to pass the following order:- "The latter has brought to the notice of this Court a judgment delivered by my learned brother Akhtar Hasan, J. (as his Lordship then was) in Writ Petition 70 of 1992, which pirma facie appears to
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take a view different from those expressed in Nazar ul Hassan v. The Collector, Lahore District, Lahore and 5 others (PLD 1990 Lahore 472) and Kh. Zubair Ahmad and others v. Collector and others (1990 MLD 1941). 2. As there appears to be divergence of opinion on the question in issue, it is appropriate that this and the connected petitions be heard by a Larger Bench. 3. The office shall place all these matters before the Honourable Chief Justice for such orders as he may deem fit." 9. The next order was passed on the 27th of April, 1994, by a Bench consisting of our learned brothers Khalil-ur-Rehman Khan, J. (as his Lordship then was) and Malik Muhammad Qayyum, J, and their Lordships were pleased to pass the following order:-- "The question of law being agitated in these petitions was examined by one of us (Malik Muhammad Qayyum, J.). The same very question also came up for consideration before Akhtar Hassan, J. In Writ Petition No,70 of 1992 and a view contrary to the view taken in the case of Nazarul Hussain v. The Collector, Lahore District, Lahore and 5 others (PLD 1990 Lahore 472) was expressed. The question involved in these petitions was also considered by Munir A. Sheikh, J. In the case of Kh. Zubair Ahmad and others v. Collector and others 1990 MLD 1941 and the view expressed in the same as was taken by one of us Malik Muhammad Qayyum, J.) in the case of Nazarul Hussain (supra). This very view was again examined by a Division Bench (comprising of Munir A. Sheikh, J. And Ausaf Ali Khan, J.) in the case of Cantonment Executive Officer v. Syed Iqbal Mustafa and 2 others 1993 CLC 1489 and the view expressed earlier in the case of Kh. Zubair (supra), was confirmed. There is, thus, a Division Bench judgment with respect to the controversy, subject- matter of these petitions. 2. We are told that the Supreme Court has in the case of Commissioner, Sargodha Division and 4 others v. Mukhtar Ahmed etc. Civil Petition No,556/L of 1991) refused to grant leave against the judgment rendered by one of us (Malik Muhammad Qayyum, J.). 3. In the above situation, it appears appropriate that the matter be referred to a larger Bench. Office is directed to place these files before Hon'ble the Chief Justice for constitution of a larger Bench." 10. Pursuant to the order, dated the 27th of April, 1994, passed by our learned brothers Khalil-ur- Rehman Khan, J. (as his Lordship then was) and Malik Muhammad Qayyum, J. a larger Bench consisting of three Judges was set up by Mr. Justice Irshad Hassan Khan, the then Acting Chief Justice of this Court and our learned brother Mian Nazir Akhtar, J. And one of us (Muhammad Asif Jan, J.) 11. However, before the Full Bench consisting of our learned brother Irshad Hassan Khan, J. The then Acting Chief Justice of this Court and Mian Nazir Akhtar, J. Along with one of us (Muhammad Asif Jan, J.) could finally decide this Constitutional petition along with the other connected petitions, our learned brother Irshad Hassan Khan, the then Acting Chief Justice was elevated to the Supreme Court of Pakistan. ' Resultantly, another Full Bench consisting of one of us (Sh. Ljaz Nisar, J., the then Acting Chief Justice and now Chief Justice of this Court) along with our learned brother Muhammad Arif, J. And another one of us (Muhammad Asif Jan, J.) was set up to decide this Constitutional petition along with all the other connected petitions. 12. Soon thereafter our learned brother Muhammad Arif, J. Left this Court temporarily for Islamabad to work there as Federal Law Secretary in the Ministry of Lan and Justice, Government of Pakistan, with the result that our learned brother Khalid Paul Khawaja, J. Was requested to sit on the Bench with us. 13. Although the reason for setting up a larger Bench for, deciding this petition along with other connected petitions mentioned in the relevant order is that "there appears to be divergence of
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opinion on the question in issue... ... ...". Unfortunately, the question in issue has not been tramed. It will, therefore, be for this Bench not only to answer the question but also to frame it before answering it. This exercise will, therefore, necessarily entail a reading of the different judgments delivered by different Benches of this Court; pin-pointing the question or questions arising therein and then proceeding to give a definite answer to the same. 14. Before this exercise is undertaken it will be necessary to first examine the Land Acquisition Act of 1894 (I of 1894) along with the Punjab Land Acquisition Rules of 1983 published in the Gazette of Punjab, Extraordinary, 22-2-1981 and made by the Governor of the Punjab in exercise of the powers conferred on him by subsection (1) of section 55 of the Land Acquisition Act of 1894. (For purpose of brevity the Act in question shall be referred to hereinafter as the Act and the Rules shall be referred to briefly as the Rules.) 15. The Land Acquisition Act (I of 1894) was promulgated on the 2nd of February, 1894, for the acquisition of land needed for public purposes and for Companies and for determining the amount of compensation to be made on account of such acquisition. ' The expression "public purposes" has not been defined by the Act. Clause (t) of section 3 of the Act merely lays down that:- "(f) The expression 'public purpose' includes the provision of village sites in district in which the Provincial Government shall have declared by notification in the official Gazette that it is customary for the Government to make such provision." ' However, the expression "Company" has been explained to mean as follows:-- "(c) The expression 'Company' means a Company registered under the Indian Companies Act, 1882 or under the (English) Companies Act, 1862 to 1890 or incorporated by an Act of Parliament of the United Kingdom or by a Pakistan Law, or by Royal Charter or Letters Patent and includes a society registered under the Societies Registration Act, 1860, and a registered society within the meaning of the Cooperative Societies Act, 1912." ' The Indian Companies Act of 1882 which was a verbatim repetition of the English Companies Act of 1862 was in fact repealed and replaced by the Indian Companies Act of 1913 which has now been repealed and replaced by the Companies Ordinance of 1984 (Ordinance No, XLVII of 1984). 16. The expression 'public purpose' has rightly not been defined in its generic sense by the Act because it is an expression which is a relative term and will depend and vary from one particular set of facts and circumstances to another set of facts and circumstances. However, the bottom line is that public purpose will have to be a purpose which is in furtherance of the general interest of the community at large as opposed to the particular interest of an individual as held by this Court in the case of Dr. M. Nasim Javed v. Lahore Cantt. Cooperative Housing Society Ltd. Reported in PLD 1983 Lahore page 552 at page 559. ' But at the same time public purpose does not cease to be so simply because incidental benefit will ensure to private individuals. See Nichol's on Eminent Domain, Vol. 2, section 7.222. This, however, is again subject to the old established English saying that you cannot rob Paul to pay Peter". ' Public purpose is an object in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned as laid down by this Court in the case of Muhammad Akbar v. Commissioner Rawalpindi reported in PLD 1976 Lahore page 747 at 754. 17. The Constitution of Islamic Republic of Pakistan of 1973 in Chapter I 4, which deals with fundamental rights guaranteed under the Constitution in Article 24 provides that:-- "(1) No person shall be compulsorily deprived of his property save iii accordance with law. (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and; save by the authority or law while provides for compensation therefor and either fixes the
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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 provided for the acquisition of any class of property for the purpose of-- (i) providing housing, 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, swerage, 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." ' Thus, no property can be acquired compulsorily or taken possession of save for a public purpose. ' This is the rider clause in exercise of the power of Eminent Domain. 18. Thus, the raison deter, i,e, the reason for the existence of the Land Acquisition Act of 1894 and as stated in its preamble is for the acquisition of land needed for public purposes and for Companies and for determining the amount of compensation to be made on account of such acquisition. In other words, whenever a deviation is to be made from the normal procedure for acquiring land through private negotiations and sale through the methodology of acquisition it must necessarily be for a public purpose. The question of determining the amount of compensation will only come later. 19. Part II of the Act deals with acquisition and section 4 of the Act empowers the Provincial Government on being satisfied that land in any locality is either needed or is likely to be needed for any public purpose, to publish a notification to that effect in the official Gazette. ' Thus, the initial notification under section 4 of the Act is only in the nature of a preliminary notification and the intent of the Provincial Government which it must publish in the official in order to put those who are affected or are likely to be affected on due notice. This is clearly reflected from the initial notification issued on the 13th of December, 1988 and published in the Punjab Gazette on the 22nd of December, 1988 wherein it is stated that "it appears to the Collector, Lahore District that the land is likely to be required to be taken at the Society expense for housing purpose........ '`. This declaration of intent is to be confirmed by way of a second notification under section 5 of the Act by stating in clear and unequivocal terms that a particular land is needed for a public purpose for a Company. This indefinite statement has to be made "at any time after the initial notification under section 4, by having this second notification also published in the official Gazette, stating therein all the necessary details of the land to be acquired and giving public notice. ' No time has been fixed between the preliminary notification under section 4 of the Act and the second notification under section 5 of the Act. The words used in section 5 of the Act are "at any
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time" ' The question arises as to whether the phrase "at any time" used in section 5 of the act will literally mean at ally time i,e, ad infinitum or will it mean a reasonable time? ' If the phrase "at any time" will not mean time ad infinitum but will mean within a reasonable time then yet another question will arise as to what is meant by reasonable time? ' We shall advert to these questions and give their answers in due course. 20. Where a sovereign has chosen to exercise the power of Eminent Domain for the acquisition of land, the sovereign also retains the power to withdraw from the acquisition of any land of which possession has not been taken by virtue of section 48 of the Act which provides as follows:-- "(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. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section." In other words one method for bringing acquisition proceedings to an end given by the Act is that the Government itself brings it to an end. Apart l from this method given in the Act there is none other. 21. The Act concludes by empowering the Provincial Government to make rules consistent with the Act for the guidance of those who have to work and operate under the Act by laying down that:-- "(1) The Provincial Government shall have power to make rules consistent with this Act for the guidance of officers in all matters connected with its enforcement and may from time to time alter and add to the rules so made. (2) The power to make, alter and add to rules under subsection (1) shall be subject to the condition of the rules being made, altered or added to after previous publication. (3)…
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