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Petitioner: Mst. ASMA BEGUM and 10 others VS Respondent: THE COMMISSIONER, KARACHI DIVISION, JUDGMENT
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed Title:Mst. ASMA BEGUM and 10 others vs THE COMMISSIONER, KARACHI DIVISION,
JUDGMENT
Reported As: PLD 1997 Karachi 13 Result: Order accordingly Judgment JUDGMENT ' WAJIHUDDIN AHMED, J.--These are two successive petitions brought under plea that, on 6-11-1994, the petitioners received a notice dated 23-10-1994, purporting to be under section 9 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act). Being put to inquiry, the petitioners discovered that on 20-2-1993, a notification, covering lands for which at the minimum, they qualified as "persons interested", was issued under section 4 of the Act. Such in turn had been followed by the requisite notification under section 6 of the Act only on 5-3-1994, i.e more than one year after the notification under section 4 above. Simultaneously, in the same notification under section 6, on ground of urgency, the powers covered by section 17(4) of the Act were also invoked and the procedure in contemplation of sections 5 and 5-A was dispensed with. Correspondingly the petitioners allege that illegal entry on the lands also stood made with resulting loss and detriment to them. This led to the petitioners filing Constitutional Petition No,D-782 of 1995 on 23-4- 1995, where apart from other objections, it was maintained that the notification under section 4(1) of the Act was not followed by due notice of the substance of such notification at convenient places of the locality in which the lands proposed to be acquired were situated. The acquisition being thus claimed to be aborted and a mandatory requirement of law regarding notice shown missing, the follow-up actions during the intervening period were also sought to be nullified. ' While the referred petition was pending, according to the petitioners' version fresh notices again purporting to be under section 9 of the Act, dated 2-11-1995 were served in such manner that two of the notices were served on 12-11-1995 whereas a third was received on 14-11-1995. Since such notices spoke of a fresh notification dated 22-10-1995, the petitioners were constrained to embark
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upon further enquiry and discovered that a fresh notification under section 4 of the Act, covering the same lands as above together with an added survey number was issued on 19-10-1995, being followed by a notification under section 6 of the same Act dated 22-10-1995. The notification under section 6, simultaneously also covered invocation of the special procedure of section 17(4) in the Act and consequent dispensation of resort to section 5 and 5-A much as was done in relation to the previous set of notifications. In so far as due information, regarding these developments in the above Constitutional petition itself to the petitioners is concerned, that was not communicated prior to an affidavit from the side of respondent-PSO submitted on 20-11-1995, which in itself was not supplied to the petitioners according to their learned counsel before 12-12-1995. With that affidavit were appended copies of a notification dated 8-10-1995, purporting to withdraw the earlier section 4 notification dated 20-2-1993 and of the said fresh notifications dated 19-10-1995 and 22-10-1995 under sections 4 and 6 of the Act, the last of which, as said also postulated invocation of the urgency clauses in section 17 in the process doing away with the applicability of sections 5 and 5-A in the same Act. This inter alia led the petitioners to file their second Constitutional petition namely, D-18 of 1996 on 4-1-1996 assailing the second set of notifications dated 19-10-1995 and 22-10-1995. Correspondingly the petitioners also filed a contempt application viz. Miscellaneous 5423 of 1995 (to be dealt with independently) in the earlier Constitutional petition questioning the second set of proceedings on the ground that such constituted disregard of the interim orders of stay operative in Constitutional Petition No, D-782 of 1995. ' When the said two petitions were placed before us, we in view of the urgency urged on the side of the respondents directed that both the petitions be heard together and in so far as the second petition was concerned, such would be heard if need be admitted and disposed of at the same time. We have accordingly heard these petitions. ' Recapitulated above is the case of the petitioners and we would now, shortly state the position adopted by the respondents. In the first place title of the petitioners is denied and it is claimed that they have no locus standi to file any of the petitions. Next, it is maintained that due requirements of law were satisfied and the acquisition proceedings did not suffer with any illegality. It may be mentioned here that the defence has two facets and while the respondents Nos.1 to 4, who are represented by the learned Additional Advocate-General, Sindh have put forth their point of view as the Acquisition Authorities Mr.Khalid M. Ishaque, for the respondent No,5 has canvassed the point of view of the company for which the acquisition has been taken in hand namely, the Pakistan State Oil Company Limited. It has been urged that due to the invocation of section 17 in the Act, the invocation occurring in the notification under section 6 itself the provisions of sections 5 and 5-A of the Act stand dispensed with and all that the petitioners can claim is compensation, in which behalf the company has not only deposited a sum of Rs,8,200,000 as relevant to the first set of acquisition proceedings but an additional amount following upon the second exercise and besides is further prepared to do whatever is requisite for the purpose. It is averred by the PSO that the acquisition is limited to a strip 40 feet in width and 80 kilometres in length the present dispute pertaining only to '1.3 kilometres where a pipeline from Pipri, at Zulfiquarabad, to the Hub River Power Complex (HUBCO) is to be laid to meet the fuel and oil requirements of the largest power complex in the private sector which is being funded by the World Bank and a consortium of international commercial banks. Such pipeline is claimed also to supply fuel/oil to the Fauji Power Plant proposed to be set up adjacent to HUBCO. PSO is stated to have entered into a fuel supply agreement with HUBCO, which is alleged to have been guaranteed by the Government of Pakistan and the pipeline project is to be commissioned by June, 1996, any delay in the cut-out date avowedly involving the Government of Pakistan in liquidated damages running into millions of dollars a day. It is further said that the pipeline route was duly surveyed and four feet markers were erected to indicate the surveyed route way-back in January, 1992 and, what is more the damaged
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markers were replaced somewhere in 1993-94, but let alone the petitioners none ever objected. Besides, it is the common case of the respondents that under section 41 of the Act the Government of Sindh has entered into the necessary agreement with the PSO which has been duly published in the Sindh Government Gazette dated 23-9-1993 and pursuant thereto the acquisition proceedings have been taken in hand. As to the earlier acquisition proceedings covered by Constitutional Petition No,D-782 of 1995 it is urged that such came to be withdrawn because of a technical error having been duly and lawfully followed by the current notification. These allegations have been rebutted from the side of the petitioners who have maintained that the agreement between the PSO and HUBCO has not been filed and the element as to urgency as well as prospect of huge damage occurring on account of delay have not been substantiated. It is also maintained that the purported agreement under section 41 of the Act does not qualify as one contemplated by law. ' On the question of maintainability the respondents have urged that the names of the petitioners do no appear in the relevant record and, therefore, not being aggrieved persons, they have no locus standi to question the acquisition proceedings. In response the petitioners point out that admittedly the firm of Zaheeruddin Pathan & Co. Is shown as the title-holder and some material has been placed on record to indicate that the firm stands dissolved. The petitioners here claim either as partners or as next of kins of the deceased partners in the firm. Under the Land Acquisition Act any "interested person" as that term is defined in section 3(b) can act in relation to acquisition proceedings and the definition includes a person claiming interest in compensation to be made on account of acquisition of land under such Act etc. For obvious reasons the petitioners qualify as interested persons within the meaning of the definition clause. Besides, the concept of an aggrieved party in Article 199 of the Constitution signifies a very broad category. Thus on either score the petitioners qualify and the petitions are maintainable. ' Coming to merits, the first contention of Mr. Shabbir Ahmed Sheikh, the learned counsel for the petitioners is that the provisions in the Land Acquisition Act are to be construed strictly and if there be any significant deviation from the procedure prescribed, the entire proceedings would stand vitiated becoming liable to be struck down. Several authorities are cited in support of the proposition and we may note Yusuf Ali v. The Province of East Pakistan PLD 1959 SC (Pak.) 467, Province of Punjab v. Muhammad Ishaq PLD 1984 Lahore 261 and Muhammad Anwar v. Pakistan PLD 1989 Karachi 45. It is correct as a principle of general application that a law creating a clog on Fundamental Rights and particularly one touching life, liberty or property as guaranteed in the Constitution is to be strictly construed and inroads into any such rights must conform to the Constitutional freedoms enjoyed by all and sundry. For applying this test on the present acquisition proceedings, we shall have to conveniently recapitulate here the applicable provisions in the Land Acquisition Act. Such are detailed below:-- "THE LAND ACQUISITION ACT, 1894 (ADAPTED SINDH) 4. Publication of preliminary notification and powers of officers thereupon.--(1) Whenever it appears to the Collector of the District that land in any locality is needed or is like to be needed for any public purpose or for a Company, notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. (2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workmen-- ' to enter upon and survey and take levels of any land in such locality; to dig or bore into the subsoil; ' to do all other acts necessary to ascertain whether the land is adapted for such purpose; ' to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;
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' to make such levels, boundaries and line by placing marks and cutting trenches; and ' where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, .To cut down and clear away any part of any standing crop, fence or jungle: ' Provided that no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so. (3) The officer so authorised shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and, in case of dispute to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other Chief Revenue Officer of the District, and such decision shall be final. 5. Notification that particular land is needed for a pubic purpose or for a Company.--(1) Where land is to be acquired for a public purpose, if the Commissioner, and where land is to be acquired for a company, the Provincial Government, is satisfied after considering the result of survey if any, made under subsection (2) of section 4 or if no survey is necessary, at any time, that any particular land included in a locality notified under subsection (1) of section 4 is needed for a public purpose or a Company, as the case may be, a notification to that effect shall be published in the official Gazette, stating the District or other territorial division in which the land is situated, the purpose for which it is needed, its approximate area and situation, and where a plan has been made of the land, the place where such plan may be inspected, and the Collector shall cause public notice to be given of the substance of the notification at convenient places on or near the land to be acquired. (Substituted for section 5 in Sindh). ' SINDH: (2) The notification under subsection (1) shall be issued not later than one year from the date of publication of the notification under section 4: ' Provided that the time, if any, spent in the prosecution of a judicial remedy during which acquisition proceedings are stayed by Government before the issue of the notification under this section shall be computed to the said period of one year. (3) If the notification under subsection (2) is not issued within the specified time, the acquisition proceedings shall be deemed to have come to an end. 5-A. Hearing of objections.--(1) Any person interested in any land which has been notified under section 5 as being needed for a public purpose or for a Company may within thirty days after the issue of the notification. Object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under subsection (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the Commissioner, together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the Commissioner on the objections shall be final. (3) When land is needed for a Company, the Collector shall, after making such enquiries as he deems necessary, also make his recommendations to the Commissioner with regard to the area that in his opinion is reasonable for the purpose. (3-A) The report under subsection (2) or recommendations under subsection (3), as the case may be shall be forwarded to the Commissioner within a period of 90 days from the date of publication under section 5 and the Commissioner shall within ninety days of the receipt of the report or the recommendations as the case may be, announce the decision and if the report of recommendations, as the case may be, is not forwarded or decision announced within the
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specified period, the objections shall be deemed to have been carried out and the acquisition proceedings shall come to an end. (4) For the purpose of this section a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act. 6. Declaration that land is required for a public purpose.--(1) Subject to the provisions of Part VII of this Act when the Commissioner is satisfied, after considering the report, if any, made under section 5-A, subsection (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Commissioner or some officer duly authorized to certify its order: ' Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. (1-A). The declaration shall be made within six months of the publication of the notification under section 5 and if the declaration is not issued within that period, the acquisition proceedings shall be deemed to have come to an end: ' Provided that the time, if any, spent in the prosecution of a judicial remedy during which acquisition proceedings are stayed after the issue of the notification under section 5 and before making the declaration under this section shall be computed to the said period of six months. (2) The declaration shall be published in the official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be, and, after making such declaration, the Commissioner may acquire the land in manner hereinafter appearing. (4) When the area in respect of which the said declaration is made is less than the area previously notified under subsection (1) of section 4, such previous notification, so far as it relates to the excess area, shall be deemed to have been superseded by the said declaration. 9. Notice to persons interested.--(1) The Collector shall then cause public notice to be given at convenient places in 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 interest in such land may be made to him. (2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claim to compensation for such interests, and their objections (if any) to the measurements made under section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent. (3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein or to be entitled to act for persons so interested, or reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate. (4) In case any person so interested resides elsewhere and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and registered under Part III of the Indian Post Office Act, 1865. (5) The Collector shall also serve notice of the enquiry to be held under section 11 (such notice not being less than fifteen days prior to the date fixed under subsection (2) for determination of claims
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and objections) on the Department of Government, local Authority or Company, as the case may be, for which land is being acquired and require it to depute a duly authorized representative to attend the enquiry on its behalf for the purpose of making objections (if any) to the measurement of the land, claims to any interest in the land or the amount of any compensation. Such authorized representative shall be a party to the proceedings. 17. Special power in cases of urgency.--(1) In cases of urgency, whenever the Commissioner so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from publication of the notice mentioned in subsection (1) of section 9, take possession of any land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government free from all encumbrances: ' Provided that the Commissioner shall not issue any direction to the Collector under this subsection unless the Department of Government,the local authority, or Company, as the case may be, for which the land is being acquired, has first deposited the estimated cost of acquisition of such land as determined by the Collector of the District, keeping in view the provisions of sections 23 and 24. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river side of that station, or of providing convenient connection with or access to any such station, or whenever owing to a similar emergency it becomes necessary for the Commissioner to acquire the immediate possession of any land for the purpose of maintaining traffic over a public road, the Collector may, immediately after the publication of the notice mentioned in subsection (1) and with the previous sanction of the Commissioner, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this subsection without giving to the occupier thereof at least forty-eight hours 'notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. (3) In every case under either of the preceding subsections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained. (4) In cases where in the opinion of the Commissioner, the provisions of subsection (1) or subsection (2) are applicable, the Commissioner may direct that the provisions of sections 5 and 5-A shall not apply, and, if he does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under subsection (1) of section 4. 23. Matters to be considered in determining compensation.---(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-- ' firstly, the market-value of the land at the date of publication of the notification under section 4, subsection (1). (1) Explanation.--For the purposes of determining the market-value, the Court shall take into account transfers of land similarly situated and in similar use. The potential value of the land acquired if put to a different use shall only be taken into consideration if it is proved that land similarly situated and previously in similar use has, before the date of the notification under
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subsection (1) of section 4, been transferred with a view to being put to the use relied upon as affecting the potential value of the land to be acquired: ' Provided that-- (i) if the market-value has been increased in consequence of the land being put to a use which is unlawful or contrary to public policy, that use shall be disregarded and the market-value shall be deemed to be the market value of the land if it were put to ordinary use; and (ii) if the market-value of any building has been increased in consequence of the building being so over-crowded as to be dangerous to the health of the inmates, such over-crowding shall be disregarded and the market-value shall be deemed to be the market-value of the building if occupied by such number of persons only as can be accommodated in it without risk of danger to health from over-crowding; ' Secondly, the damage sustained by the person interested; by reason of the taking of any standing crops of trees which may be on the land at the time of the Collector's taking possession thereof; ' thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; ' fourthly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earning; ' fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested…
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