Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: LIAQAT HAYAT and others VS Respondent: FEDERATION OF PAKISTAN. through Secretary, JUDGMENT
Court Name: Lahore High Court Judge(s): Mian Muhammad Jehangir Title:LIAQAT HAYAT and others vs FEDERATION OF PAKISTAN. through Secretary,
JUDGMENT
Reported As: 2003 MLD 853 Result: Appeal/petition dismissed Judgment JUDGMENT ' Through this appeal Notification of requisition/acquisition and the Award dated 26-9-1991 announced by the District Magistrate/District Collector, Rawalpindi is being challenged, whereby Tehsildar Texila was directed to effect mutation in Revenue Record in accordance with Notification published on 22-11-1976 and to make the payment of compensation in accordance with the share of landowners out of the amount of Rs,4,022,567.59 assessed as the compensation amount. 2. Some relevant facts for the disposal of the above mentioned appeal are that the land measuring 165-K, 13 Marlas situated in the Revenue Estate of Usman Khattar, Garhi Sikandar and Garhi Afghans was proposed for acquisition in the year 1974 for Heavy Mechanical Complex, Taxila under the provisions of Defence of Pakistan Rules, 1971. This land was acquired for construction of tubewells at the spot as a consequence of the requisition orders under rule 121, sub-rule (1) and sub-rule (2) of rule 121 of Defence of Pakistan Rules. (DPR), 1971 were issued by the District Magistrate which were published in the Punjab Gazette on 11-12-1974 and 22-11-1975 respectively. 3. The appellants/petitioners stated in their appeal/petition that they being owners of the disputed land came to know through the Land Acquisition Collector, Taxila in December, 1989 that this land has been acquisitioned and on query, it transpired to them that the District Magistrate, Rawalpindi vide letter *dated 22-11-1976 had acquired the land in question for Heavy Foundry and Forge at Taxila but thereafter no steps were taken for determination of compensation and the land remained in their constructive and physical possession i,e, in other words it means that the Notification was never implemented and when the objections were raised by them on acquisition before the District Magistrate, he vide his order dated 26-9-1991 directed that a sum of
---
## Page 2
Rs,4,02,257.59 be paid as compensation for the land acquired and that since this award has been given under section 18 of the Defence of Pakistan Ordinance No,XXX of 1971 read with rule 121 of the Defence Pakistan Rules, therefore, this first appeal has been filed to assail the legality, validity, correctness and equity of the Award and if it is observed that appeal does not lie against the order dated 26-9-1991, then this petition be treated as Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the Award dated 26-9-1991 is liable to be set aside on the grounds as under:-- (a) The Federal Government is empowered under Rule 121 of the Defence of Pakistan Rules, 1971 (hereinafter the Rules) to requisition property under section 19 of the Defence of Pakistan Ordinance, 1971 (hereinafter the Ordinance), the Federal Government has the power to acquire requisitioned property. Section 18 of the Ordinance lays down the principles and the mode for determining the compensation payable for property compulsorily acquired for public purpose. The Federal Government under rule 213, delegated its power to the Provincial Governments. The Government of the Punjab in exercise of powers under subsection (5) of section 3 of the Ordinance delegated its powers under rule 121 to the District Magistrates vide Notification No,9-25-H-Spl. 1/71, dated the 2nd December, 1971. However, powers under sub-rule (4) of rule 121 were not conferred on the District Magistrate. The Government of the Punjab, later vide Notification dated 24th October, 1973 authorised-the Commissioners to exercise powers under sub-rule (4) of rule 121. ' It is manifest that the District Magistrate under the German's law has no power to deal with the matter, determine compensation or pass any order in the matter. The award/order dated 26-9- 1991 has no legal.Sanctity, has been passed without any authority whatever and is a nullity in the eyes of law. (b) Section 18 of the Ordinance lays down the principles and the procedures for determining the compensation for land acquired. After initial determination of compensation, an agreement inter- parties qua the amount of compensation has to be arrived at first and in case' of disagreement, the matter under clause (b), subsection (i) of section 18 of the Ordinance has to be referred to the arbitrator having requisite qualifications. The arbitrator, then has to give the award. ' Though the Commissioner under rule 12(4) has been given the power to determine the compensation but this power would relate to initial determination only as provisions of rule 121 cannot abridge, bypass, curtail or short-cut the procedure laid in the main law namely the Ordinance. Also, there is no material on record to show that the Commissioner ever applied his conscience mind to determine the amount to be paid as compensation. None of the landowners was ever associated with the enquiry/proceedings leading to determination of compensation. Entire proceedings- culminating into the final award dated 26-9-1991 have been in violation and disregard of the law. (c) Without prejudice to other submissions, it is submitted that amount of compensation is extremely low. No proper enquiry in terms of section 23, Land Acquisition Act, and section 18 of the Ordinance was conducted. Delay in giving of award and delay in actual payment of compensation have not been accounted "for. The appellants are entitled to compensation payable from 1971 plus interest at 14% of the amount due. (d) The acquisition of land is against the spirit of law. ' The land is being acquired for installation of tubewells and a housing colony. This is hardly a purpose enumerated in sub-rule (1) of rule 121. There is no express determination of the defence purposes necessitating the acquisition. In the absence of defence purpose (like public purpose) the acquisition is not contemplated under the Rules. (e) Sub-rule (2) of rule 121 of the Rules provides that "where the Federal Government has requisitioned any property under sub-rule (1), it may acquire it by serving on the owner thereof, or
---
## Page 3
where the owner is not readily traceable, or the ownership is disputed, by publishing in the official Gazette, a notice stating that the Federal Government has decided to acquire it...." ' Thus a notification could issue only where the owners were not traceable or where the ownership would be disputed. These prerequisites were absent in the present case and as such the issuance of notification of acquisition was in contravention of law and the same, is liable to be struck down. It is also submitted that there was no urgency involved in the matter. The land was requisitioned in 1971 and a few tubewells were installed over a small area of land involved in the requisition. Best of the land remained under possession of the landowner's eversince the requisition. There was no legal or moral basis for issuance of notification dated 22-11-1976 for acquiring the land. (1) The land could not have been acquired under section 19 of the Ordinance either. Requisitioned property could have been acquired under section 19 only where the works of defence carried out over the same were sought to be preserved or secured for the purposes of Government or where cost of restoring the requisitioned property to its original condition would be excessive. These factors were non-existant in the present case. The acquisition of land does not have legal sanctions behind it. (g) The land was requisitioned in 1971. No attempt was ever made to determine, to offer, or to pay compensation for its use so far. Later, the land has been shown to have been acquired under the Defence of Pakistan Rules, in the year 1976. No attempt was made to determine or pay the compensation. During this period the land was not put to any Defence-related or Defence-oriented use. No purpose of Defence of the country was involved in the requisition or the acquisition. The requisition and the subsequent acquisition on this pretext is mala fide and has no legal or acquitable basis. 2400 Kanals of land acquired for Heavy Engineering Complex is lying vacant nearby. 165 Kanals of land under acquisition is far away from H.FF. Complex. It has been acquired on flimsy, palpably false pretexts. (h) The acquisition of land, and subsequent determination of compensation and award therefore, given by order dated 26-9-1991, are not warranted by the Constitution, the law, the rules, and equity. The power was exercised by the public functionaries in an arbitrary and capacious manner ignoring all the norms of justice. '4. Whereas the preliminary objections and parawise comments in verbatim submitted by respondent No,4 are as. Under:-- PRELIMINARY OBJECTIONS 1. M/s. Heavy Foundry and Forge Ltd. Has merged into M/s. Heavy Mechanical Complex (Pvt.) Ltd., therefore, any appeal or petition is not maintainable against respondent No,4. 2. That no appeal is available against thd impugned order and no appeal lies against the impugned direction. The orders passed under Defence of Pakistan Rules are not subject to appellate jurisdiction of this honourable Court. 3. That the appellants have challenged a notification of 22-11-1976 after about 16 years which is badly hit by the principle of laches, therefore, even a writ petition is not maintainable. ' That the facts concerning the acquisition of land in dispute are as follows:-- (a) That Central Government in the year 1971 legislated Defence of Pakistan Ordinance and also framed rules thereunder, in which special authorities and jurisdictions were created for many purposes including land acquisition. The relevant paras.1 to 4 are reproduced as under:-- "121. Requisitioning of property.--- (1) If in the opinion of the Central Government it is necessary or expedient so to do for ensuring the security, the public safety or interest, or the defence of Pakistan or for securing the maintenance of public order or the efficient conduct or military operations or prosecution of war, or for maintaining supplies and services essential to the life of the community. It may be order in writing requisition
---
## Page 4
any property, movable or immovable, and may make such further orders as appear to it to be necessary or expedient in connection with the requisitioning: ' Provided that no property used for the purpose of religious worship and no such property as is referred to in rule 111 or in rule 117 shall be requisitioned under this rule. (2) Where the Central Government has requisitioned any property under sub-rule (1). It may use or deal with the property in such manner as may appear to it to be expedient, and may acquire it by serving on the owner thereof, or where the owner is not readily traceable or the ownership is in dispute, by publishing in the official Gazette, a notice stating that the Central Government has decided to acquire it in pursuance of this rule. (3) Where a notice ,of acquisition is served on the owner of the property or published in the official Gazette under sub-rule (2), then at the beginning of the day on which the notice is so served or published, the property shall vest in the Central Government free from any mortgage, pledge, lien or other similar encumbrance, and the period of the requisition thereof shall end. (4) Whenever in pursuance of sub-rule (1) or sub-rule (2) the Central Government requisitions or acquires any movable property, the owner thereof shall be paid such compensation as the Central Government may determine: Provided that, where immediately before the requisition, the property was by virtue of a hire purchase agreement in the possession of a person other than the owner, the amount determined by the Central Government as the total compensation payable in respect of the requisition or acquisition shall be apportioned between that person and the owner in such manner as they may agree upon, and in default of agreement in such manner as an arbitrator appointed by the Central Government in this behalf may decide to be just. The authority for acquisition and determination of compensation is exclusively with the Central Government, but under para. (4) of section 3 of Defence of Pakistan Ordinance, 1971, the Central Government is competent to authorize the Provincial Government to exercise their power hence under sub-para. (5) of section 3 of the Ordinance these powers were delegated to the Provincial Government. (b) The Provincial Government vide their Notification, published in official Gazette dated 3-12-1971, delegated certain powers to subordinate officers relating to various rules of Defence of Pakistan Rules, 1971. The District Magistrate and not District Collectors were authorised to issue Notification of acquisition under the rule 121, but was expressly barred to exercise the powers of sub-para. (4) of the rule 121, which at that stage remained with the Provincial Government, sub-para. (4) of the rule 121 gives the powers to determine the amount of compensation. ' In these circumstances, the District Magistrate issued Notification dated 6-11-1974 as amended on 17-5-1975, and finally published in Punjab Gazette dated 22-11-1976. ' In view of sub-para. (3) of rule 121, the title of the land is transferred to Central Government with the publication of Official Gazette. The transfer is with the operation of law hence no other deed or conveyance is to be written, or required. ' Revenue staff was supposed to effect the Mutation in view of this Notification alone, as land vests in Central Government since the date of Notification, but they have not mutated the land in about 14 years, which is now again ordered by District Magistrate through impugned order. (c) The amount of compensation as submitted earlier was not within the jurisdiction of District Magistrate and Provincial Government was supposed to determine. ' The Provincial Government vide their Notification dated 24-1-1975, authorised Commissioners of the Division to exercise these powers of the Central Government. ' Therefore, worthy Commissioner, Rawalpindi Division, exercise these powers and determined the compensation at Rs,4,02,257.59, vide his order dated 15-10-1989. (d) That after 1976 since the time/land is possessed and vests in the answering respondent; various landowners tried to encroach upon the land but were being checked through police and
---
## Page 5
other administrative measures. In the year 1989 when the prices were increased few of appellants tried to give the acquisition proceedings a colour of acquisition under the Land Acquisition Act, on which through their manoeuvring a notice was issued by the District Collector considering the same proceedings as under the Land Acquisition Act Worthy District Collector, Rawalpindi was explained the position and he disposed of the application through impugned order. The appellants are trying to re-open the issue on the basis of this application before the District Collector and now before the honourable Court relating to a past and closed transaction. ' That appellants are not entitled to re-agitate the matter and as a matter of fact they have made legal and factually incorrect statement in their memo. Of appeal. In alternate Constitution petition parawise reply is submitted as follows:-- 1. That para. No,1 is denied, a proper notice as provided under Defence of Pakistan Rules was given and published and even possession of the land was taken over and tubewells etc., were constructed and land is in possession of answering respondent. Appellants have wrongly stated that they were informed about acquisition of year 1976, through an application, in year 1989, was moved by the owners and not respondents, the application itself negates their version. 2. That para. No,3 is incorrect. The land vests in the respondents through operation of law, the landowners through their mala fide manoeuvres with Halqa Patwari, etc., delayed the change in Revenue Record, therefore, now the District Magistrate had to make a specific order through impugned order. 3. That para. 3 as stated is not correct, the District Magistrate had not determined any compensation nor District Magistrate is Competent Authority for compensation. The compensation was determined by worthy Commissioner on behalf of Central Government and when District Magistrate was informed that Commissioner has not only determined the compensation under law, but the same stands deposited with the Government, he has only directed to disburse the amount to the landowners, and also directed to correct the Revenue Record, through mutation. GROUNDS (a) That para. No,(a) is correct, entire acquisition proceedings have taken place as mentioned in this para. And Commissioner has determined the compensation through his order dated 15-10- 1989, the District Magistrate/Collector has only asked to disburse the amount to landowners. There is no denial that District Magistrate is not Competent Authority to make an award of compensation under the rule 121(4). (b) That para. (b) is denied, based on misunderstanding of law and facts, the proceedings were in accordance with law and no illegality has been committed. (c) That para. No,(c) is denied, there were no proceedings under the Land Acquisition Act, therefore, same is not relevant in any case proceedings were conducted exactly in accordance with Defence of Pakistan Rules. (d) That para. No,(d) is denied, and based on misunderstanding of law and facts. (e) That para. No,(e) is legally and factually incorrect, the legal position is already submitted. (f) That para. (f) is denied. (g) That para. No,(g) is incorrect, the land was acquired for industry 100% owned by the Central Government for National Defence and Public Purposes. The pipeline is laid in the vacant area and remaining portion is for the installation of further tubewell, etc., unfortunately the local Revenue Staff and others are considering this public property a booty of their loot, which is apparent from the fact that worthy Collector has made the orders of mutation after about 16 years and still the Revenue staff has not implemented the same in last about one year, and mutation has not been carried out in revision records as yet. ' That para. No,(h) is denied.
---
## Page 6
4. The perusal of Award dated 26-9-1991 given by District Magistrate/District Collector would show that in para. No,1 the past history of the acquisition of the land in question was given in second para. The objections raised by the respondents (ex-owners) were mentioned, and the explanation given by Military Estate Officer was discussed, in para. No,3, the competency of Commissioner Rawalpindi to determine the compensation and details of compensation amounting to Rs,4,02,257.79 were discussed and in para. No,4 the objections raised and answers thereof were discussed, basically it was objected from the side of owners that their land is being acquired under the provisions of Defence of Pakistan Rules, 1971 which stood repealed since long and does not hold good the field and these rules were formulated during the emergency situation which no longer exits, therefore, the process of acquisition be set aside whereas from the opposite side it was replied that notice. Of acquisition was served on the owners and published in the official Gazette intimating that property in dispute shall vest in the Central Government free from any mortgage, pledge, lien or other similar encumbrance, and in view of para. No,3 under rule 121 the land stands transferred to the Central Government with the publication in Official Gazette and that the amount of compensation has already been deposited and the only nutter pending is to effect the mutation in Revenue Record in accordance with Notification published on 22-11-1976 and in the last para, the learned District Magistrate agreed with the view-point of the applicant and observed that the tubewell over some piece of land acquired already stands installed and are in operation, Notification has already published in 1976, therefore, the only is point left behind is incorporation of the entries in the Revenue Record, therefore, he directed to Tehsildar District to incorporate the necessary entries in the Revenue Record and to make payment of compensation in accordance with the shares of the landowners out of the amount as mentioned above. 5. I have heard the learned counsel for the appellants and the learned counsel for the respondents. I have also gone through the copies of the relevant record attached by the parties with their pleadings. 6. After hearing the learned counsel for the parties some important points for determination are as under:-- (a) Whether award dated 26-9-1991 announced by the D/Moriot/District Magistrate, Rawalpindi was actually an award under the provisions of Defence of Pakistan Rules, 1971 and Defence of Pakistan Ordinance? (b) Whether the notices were essential to be served on the parties to invite objections and hear arguments on the Award under section 9 of the Land Acquisition Act of 1894 regarding compensation and measurement of land when Commissioner, Rawalpindi Division vide his Memorandum No, KC/4C/RWP/No . 6373 , dated 15-10-1989 had already assessed the compensation? (c) Whether Memorandum No, KC/AC/RWP/No,6373, dated 15-10-1989 was essential to be challenged at any forum and particularly in this appeal/petition? (d) Whether this petition suffers from laches wherein Notification dated 23-4-1976 and 22-11-1976 have also been challenged, if it is treated as the writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973? And (f) Whether the Notifications, dated 23-4-1976, 22-11-1976 and Award dated 26-9-1991 if any are based on mala fide. 7. Learned counsel for the appellants/petitioners argued that after .The Commissioner had fixed the compensation vide his order dated 15-10-1989 the Deputy Commissioner, Rawalpindi issued 57 Notices dated 16-12-1989 and were sent to Taxila for effecting service on the Owners for filing the objections which are available on the record and those were served on the owners, the owners after their appearance filed objections and the Award was announced by the learned Commissioner vide his order dated 26-9-1991 by fixing the amount of compensation and this
---
## Page 7
Award is liable to be set aside because it was a matter relating to the acquisition of private property under the Defence of Pakistan Ordinance and Defence of Pakistan Rules, 1971 which provisions are extraordinary in nature which are applied in emergencies, therefore, it was mandatory that prior to any action under the provisions of the above mentioned law the opinion of the Central Government should have been obtained as it was essential to determine that the property was being acquired for ensuring security, public safety or interest, Defence of Pakistan, or for securing the maintenance of public order. Therefore, anything which was done must have nexus with the purpose and object of the above mentioned law and when any land was to be acquired to carry out the work of any Corporation, the provisions of general .Law of the Land Acquisition Act, 1894 with rules can be invoked that after requisitioning of the property the Federal Government may acquire the property by serving on the owner a notice for the object of acquisition and the service of notice was mandatory in nature and publication of Notification in the Official Gazette is not an alternative but it can only be applied where the owner is not readily traceable or the ownership is in dispute but none of the conditions mandatory in law have been taken into consideration in this case despite of the fact that the owners were available and their availability is proved from the fact that the notices later on issued by the learned District Magistrate were served on the appellants/petitioners at the very first instance; that it was not determined by the Central Government that the requisition/acquisition of the property in question was necessary for any purpose specified in the Defence of Pakistan Ordinance and Rules; that after requisitioning of the property no notice of acquiring the property under sub-rule (2) of rule 121 of the Defence of Pakistan Rules was served on the appellants/owners which was a condition precedent before publishing the notice in the Official Gazette; that in fact while requisitioning/acquiring the land in question, the authority violated the mode prescribed by law, thus the whole proceedings are nullity in the eyes of law; that section 18 of the Defence of Pakistan Rules, states that when a property is acquired by Federal Government under section 19 or under any Rules under this Ordinance, there shall be compensation and this compensation 'must be paid…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.