Abdul Ghafoor Ahmad etc Vs GEPCO etc

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Case No. W.P. No.22714/2020

Abdul Ghafoor Ahmad, etc. Versus Gujranwala Electric Power Company, etc.

JUDGMENT

Date of Hearing: 14.04.2025

Petitioners No.1 and Barrister Saeed Hussain Nagra, 3 by: Advocate.

Petitioners No.2 by: Barrister Karreem Ullah Sraw, Advocate.

Respondents No.1 to M/s Aurangzeb Mirza, 3 by: Muhammad Irfan Hanjra and Muhammad Siddique Malik, Advocates.

Respondents No.4 to Ch. Muhammad Jawad Yaqub, 8 by: Additional Advocate General.

Hassan Nawaz Makhdoom, J. The instant petition is filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), assailing Notification dated 31.12.2008 (published on 19.01.2009) under Section 4 of the Land Acquisition Act, 1894 (the “Act”) as well as Notification dated 09.06.2009 (published on 11.07.2009) under Sections 17(4) & 6 of the Act, issued by the respondents/acquisition authorities. In addition, the petitioners have also assailed letters dated 12.02.2020 and 24.04.2020 issued by respondent No.2/General Manager Operations, Gujranwala Electric Power Company (GEPCO).

2.Briefly, the facts of the case are that a process for acquisition of land measuring 20 kanals (description whereof is given in the impugned notifications) was initiated for the purposes of construction of a new 132 KV Grid Station at Mouza Dhullay,

Tehsil City, District Gujranwala, to the benefit of respondent No.1 (GEPCO). The initial Notification dated 31.12.2008 under Section 4 of the Act was followed by another Notification dated 09.06.2009 under Sections 17(4) & 6 of the Act declaring exigency/urgency of acquisition of land. Hence, the requirement of issuance of Notifications under Sections 5 & 5-A of the Act was dispensed with. The above noted Notifications were followed by letters dated 12.02.2020 and 24.04.2020 issued by respondent No.2 and addressed to respondent No.4/Commissioner Gujranwala Division and respondent No.7/Assistant Commissioner City, Gujranwala, respectively, requesting therein to issue the award of land and coordinate with the respondent/GEPCO for possession of the land, enabling thereby construction of a new Grid Station.

3.Learned counsel for the petitioners submitted that according to proviso to Section 4 of the Act, entire process of land acquisition was to be completed within a year. However, it was not so completed and the respondents remained silent till issuance of impugned letters by respondent No.2 (supra). Added that as a consequence, Notification dated 31.12.2008 under Section 4 the Act stood revoked and as such the respondents are debarred from acquiring the subject land. Further submitted that since the acquisition process has not been completed, award has not been granted and possession of subject land has not been taken in fifteen days after issuance of the Notification under Sections 17(4) & 6 of the Act nor has the same been inscribed in the revenue record, therefore, the whole process of acquisition is a nullity. Learned counsel also stated that in April, 2020, an application before the local police was filed, upon which the factum of acquisition process came to the knowledge of the petitioners for the first time. It is also averred that the subject land of acquisition is partially owned and possessed by the petitioners, description whereof is given in

paragraph No.6 of the writ petition. Finally, it is argued that the price of the subject land has considerably been increased in the last decade. Hence, any assessment already made regarding price of the land/compensation will cause catastrophic financial loss to the petitioners.

4.Conversely, learned counsel for the respondents as well as learned Law Officer have vehemently opposed the averments made on behalf of the petitioners and relied on their report and parawise comments filed in this petition.

5.Arguments heard. Record perused.

6.The Constitution guarantees the fundamental rights of the citizens in Chapter 1 of Part II. Article 24 of the Constitution provides protection of property rights to every citizen, which reads as under:-

“24. (1) No person shall be deprived of his property save in accordance with law.

(2)No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the 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 providing for the acquisition of any class of property for the purpose of-

(i)providing 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, sewerage, 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.”

In this context guidance is taken from a judgment of the Hon’ble Supreme Court of Pakistan reported as Commissioner Rawalpindi/Province of the Punjab and others vs. Naseer Ahmad and others (2024 SCMR 1037), relevant portion of the same is reproduced as follows:-

“19. ... Landowners are entitled to the maximum possible benefit in the circumstances of each case as such acquisition is not by way of mutual negotiations but

under State power conferred on public functionaries. The interpretation and applicability of the provisions of the Act must, therefore, be in consonance with the spirit of Articles 23 and 24 of the Constitution and the object of the Act, which require properly and adequately compensating landowners whose lands are being acquired thereunder.”

The above clearly reflects that no one can ordinarily be deprived of his property except with due course of law, which, inter alia, includes acquisition of property of any person for a public purpose upon payment of due compensation as mandated under the relevant law. Article 173 of the Constitution empowers the Executive to acquire property on behalf of the Federal Government or the Provincial Government subject to any Act of the Legislature. The Act comes into play upon strength of the above referred constitutional provisions dealing with the acquisition of the land needed for public purpose and for determining the amount of compensation to be paid against such acquisition. It is evident that no plausible justification has been rendered as to why no further action was initiated by the respondents after issuance of Notification under Section 4 followed by another Notification under Sections 17(4) & 6 of the Act, despite lapse of more than a decade.

7.It is observed that there is a long period of 12-years starting from 2008 (when Notification under Section 4 of the Act was issued) till 2020 (when writ petition was filed), during which time, the process of acquisition of land could not be completed by the respondents. There is an unexplained silence and inaction on part of the respondents in terms of completion of process of acquisition of land. It is significant to note that in paragraph No.10 of the report/ parawise comments filed by respondents No.1, 2 and 3, the delay in

terms of acquisition of land has been admitted. For convenience, paragraph No.10 is reproduced hereunder:-

“10. The process of acquisition of land got delayed by the revenue authority on account of their procedural formalities including obtaining approval from Board of Revenue.

But nevertheless now the process is been at final stage and award is expected soon.”

Even the report/parawise comments submitted on behalf of respondents No.5, 6, 7 and 8 is also evasive, not properly explaining the delay so caused in terms of completion of the process of acquisition of land. It is evident that no plausible justification has been rendered as to why no further action was initiated by the respondents after issuance of Notification under Sections 17(4) & 6 of the Act despite lapse of more than a decade. It is surprising that even after issuance of Notification under Sections 17(4) & 6 of the Act, expressing urgency in acquisition of the subject land, there remained complete silence and inaction on part of the respondents till 2020. It is significant to note that the amount of misery and agony of a person, who is made to wait for the outcome of the proceedings resulting into deprivation of his property rights for an indefinite period by putting a fetter on enjoyment of such rights can be unimaginable . It is opined that the constitutional rights available to the petitioners and guaranteed under Articles 23 and 24 of the Constitution cannot conveniently be brushed aside to the detriment of the petitioners.

This Court is mindful of the fact that no definite timeline or stipulation is supplied in the statute. Notwithstanding the same, the petitioners cannot be made to hang in a lurch without 2023 MLD 1210 titled “Shahid Mehmood and others v District Collector/Land Acquisition Collector and others”

reasonableness of actions on part of the respondents . The acquiring agency cannot remain indolent and sleep over the rights of the citizens by not concluding the acquisition process within a reasonable time as the land owners, whose lands were proposed to be acquired, could not be put to agony of uncertainty for such a long period. The issuance of Notification under Section 4 in 2008 and Notification under Sections 17(4) and 6 of the Act, in 2009, clearly demonstrates the lethargic, indolent, inactive and indifferent manner of the respondents (Acquisition Authorities) throughout the acquisition proceedings. There is no cavil to the fact that the respondents (Acquisition Authorities) remained completely silent after 2009 till 2020, when this writ petition was instituted in this Court. It appears that the respondents (Acquisition Authorities) remained under a false pretence and impression that their discretion and actions were not subject to period constraints for time limitation. It also seems that this misinterpretation by the respondents (Acquisition Authorities) led them to cause this inordinate delay of more than a decade. Such cannot be the purpose and meaning of law of acquisition, which in no way can be taken to be an instrument of injustice, oppression, defeat and frustration for the citizens.

8.It is also observed that the subject land of acquisition must have attracted an exponential price raise in terms of its value since 2008/2009, causing financial loss to the petitioners as well as others having interest in the subject land of acquisition. In this regard reliance is placed on Government of Pakistan, Secretaries, Works, Communications and Physical Planning v Tauqir Ahmed PLD 2019 Supreme Court 189 titled “Sabir Iqbal v Cantonment Board, Peshawar through Executive Officer and others”.

PLD 2016 Supreme Court 692 titled “Pakistan Broadcasters Association and others v Pakistan Electronic Media Regulatory Authority and others”

Khan and others (1996 SCMR 968). The relevant excerpt of the judgment is as follows:-

“4. ... Even though the first notification of acquisition was issued in 1979 yet the proceedings for determination of the compensations payable to the contesting respondents had not been finalized till they filed writ petitions in the High Court in 1986. During this period the price of the land has escalated manifolds. If the acquisition proceedings are allowed to continue the compensation which the contesting respondents will receive can hardly bear any proportion to the market value of their land on the day they approached the High Court. We cannot be a party to this manifest injustice. ...”

The first notification of acquisition having been issued in 2008 yet the proceedings for determination of the compensation payable to the petitioners had not been finalized till they filed writ petition in this Court in 2020. During this period the price of the land has escalated manifolds.

9.As evident from the report/parawise comments, submitted on behalf of respondents No.5, 6, 7 and 8, the respondent No.4 did not apply his independent mind and had rather forwarded what was sent to him, which is against the mandate and spirit of law. In this view of the matter, it is observed that there is no cavil to the fact that before exercising of the power under subsection (4) of Section 17 of the Act, the Commissioner ought to have formed an opinion after duly considering the material placed before him. The grounds and circumstances forming basis of the opinion must have a direct nexus with the exercise of power conferred under subsection (4) of Section 17 of the Act and must not be based on irrelevant conditions .

PLD 2023 Lahore 1 titled “Kareem Nawaz and 4 others v District Collector/Deputy Commissioner and 14 others”

In the above referred report/parawise comments, at page-04 in paragraph No.4, the said respondents have also stated that all the proceedings of acquisition have been completed and award is to be announced by the Land Acquisition Collector City Gujranwala and handing over possession of land in question. This fact also shows that in absence of the award, the petitioners were not duly compensated as a result of non-completion of the process of acquisition of subject land.

10.In light of the above discussion, this writ petition is allowed and the impugned Notifications are struck down. However, the authority of the respondents shall not be fettered and they shall be at liberty to re-initiate the process of acquisition.

(Hassan Nawaz Makhdoom) Judge

Approved for Reporting

Judge

Tahir Noor