Nasim Hakim vs Pop etc.

Stereo. HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

(JUDICIAL DEPARTMENT)

W.P. No. 1987/2022 Nasim Hakim, etc.

Versus Province of Punjab, etc.

JUDGMENT

Date of hearing: 27.11.2024.

Petitioners by: M/s Muhammad Shehzad Shaukat and Mahar Ahmad Nawaz Sial Advocates in W.P. No. 1987/2022.

Ch. Muhammad Asif Rashid, Advocate in W.P. No.6059/2022.

Respondents by: Malik Masroor Haider Usman, Assistant Advocate General along with Syed Kashif Junaid, SDO Highway, Multan.

ASIM HAFEEZ, J. Instant and connected constitutional petition bearing W.P. No.6059/2022 mutually claimed to inflict and cause gross prejudice to the petitioners arrayed therein, who are claiming denial of provision of opportunity to protect and assert proprietary rights against the declaration and process of compulsory acquisition. It is alleged that petitioners were being stripped of their constitutionally protected rights, that is the right to own, enjoy and utilize the property, in arbitrary manner and without adhering to the statutory safeguards provided under the Constitution of Islamic Republic of Pakistan 1973 (The “Constitution”) and the relevant law, that encapsulates the doctrine of eminent domain, which is Land Acquisition Act, 1894 (“the Act”).

W.P. No.6059/2022.

2.Essential factual details are the respondent No.4 Land Acquisition Collector (the Collector”), in manifestation of the intent of the Government, issued Notification numbered 185/DC/LAC, under section 4 of the Act, 1894 on 04.12.2020, which was gazetted on 07.12.2020. Notification manifests that land measuring 47-Kanal 1-Marla, falling in Mauza Alamgir, Tehsil & District Multan was required for the construction of Superintending Engineering Complex, Multan (“the Project”). Record depicts that subsequently another Notification numbered RB-3-224/2020, under section 17(4), having deeming effect of declaration under section 6 of the Act, was issued on 16.07.2021 and same was gazetted on 26.07.2021. Price of land, for the purposes of compensation, was determined in the meeting dated 11.10.2021 and was accordingly approved and intimated. It appears from the record that notices under sections 9 and 10 of the Act were issued on 13.10.2021 and allegedly distributed for public information in general and landowners, that is interested persons, in particular. Hearing, in terms of section 11 of the Act was conducted on 28.10.2021, which pre-award proceedings were allegedly attended by the interested persons or their representatives, and some of the participants had objected to the declared price / compensation and pleaded increase thereof. Finally, the Award, in terms of section 11 of the Act, was announced on 28.10.2021.

Specific details of parcels of land claimed by the petitioners are not necessary, since the scope of determination is limited to examine the scope and significance of requierement of issuance of notices under section 9 of the Act; to consider and adjudge the plea of non-

W.P. No.6059/2022.

compliance of the requirements of sub-section (1) of section 17 of the Act and the effect and consequences, qua the legitimacy of the acquisition proceedings, if adherence to the requirements prescribed in aforesaid provisions was lacking. Petitioners pleaded that no notices were issued to them respectively, let alone served.

Submissions on behalf of the petitioners:

3.Learned counsel for the petitioners vehemently pleaded that the Collector had acted under the influence of Commissioner Multan, and one of such instance was alleged haste shown in determining the price / acquisition costs. Add that though the notification was issued under section 17 of the Act but without following declared statutory requirements, especially the timelines prescribed for taking possession upon expiration of fifteen days from publication of the notice under section 9 of the Act. Submit that the Collector was obligated to ensure that notices under section 9 of the Act were duly issued and served, which duty was not performed. Hence, inaction or rather negligence of the Collector costs loss of opportunity to file objections to the purported exercise of acquisition of land. Submit that rights of the petitioners to object to otherwise defective and deficient acquisition process and to dispute Collector’s claim of suitability of land for the project were denied because no occasion for raising objections under section 5A of the Act arose in wake of resort to mechanism prescribed under section 17 of the Act – based on alleged urgency pleaded.

Lastly, submits that land identified for constructing the Project is located in densely populated area, with high concentration of

W.P. No.1987/2022 4 W.P. No.6059/2022.

construction; and prospective acquisition would result in massive relocation and displacement of people and disruption of commercial activities. And in contrast to causing prospective disruption on massive scale the complex would be constructed at some other place / site. Learned counsel emphasized on following decisions to beef-up the reasoning of the submissions made, “Multan Development Authority, Multan through its Director General Vs. Ashiq Muhammad Khan and another” (Civil Appeal No.

820 of 2003), “Multan Development Authority Vs. Ashiq Muhammad Khan and another” (Civil Review Petition No. 72/2007), “Col Bashir Hussain and 10 others Vs. Land Acquisition Collector, Lahore, Improvement Trust, Lahore and two others” (PLD 1970 Lahore 321), “Mst. Sardar Begum Vs. Lahore Improvement Trust, Lahore and 3 others” (PLD 1972 Lahore 458), “Muhammad Hussain and 2 others Vs. Board of Revenue, Punjab, Lahore through Member (Revenue) and 4 others” (2003 MLD 801), “Messrs Eden Developers (Pvt) Limited Vs. Government of the Punjab and others” (PLD 2017 Lahore 442), “Malik Bashir Ahmad and 4 others Vs. Federal Government of Pakistan through Secretary Cabinet Division and 6 others” (PLD 2018 Islamabad 68), “Darshan Lal Nagpal (dead) by L.Rs. V. Government of NCT of Delhi & Ors. (AIR 2012 Supreme Court 412), Federal Government Employees’ Housing Foundation and others V. Malik Ghulam Mustafa and others (PLD 2019 Islamabad 1), “Muhammad Ahmad Siddiqui and 11 others Vs.

Collector, Lahore District, Lahore and 4 others” (2000 MLD 820), Nazir Ahmad and 8 others V. Commissioner, Lahore Division, Lahore and 3 others (2000 MLD 322), Chiniot Co-Operative Housing Society Ltd. through President V. Government of Punjab through Secretary Cooperative Department and 2 others (PLD 2016 Lahore 293), W.Z. Studios Ltd.

Lahore through Managing Director V. The Deputy Commissioner, Lahore District Courts, Lahore and 4 others (PLD 1996 Lahore 349) and Lt. Col. Iqbal Janjua V. Military Estate Officer, Lahore and 3 others (PLD 2013 Lahore 273).

4.Learned Law Officer, while making submissions, objected to the maintainability of these petition(s) on the ground that petitioners had no right to object to the choice / selection of site; since actions undertaken by the Collector are covered within the scope of functions assigned under the Act and even otherwise discretion exercised is not

W.P. No.6059/2022.

amenable to judicial review under judicial review jurisdiction. Adds that petitioners had no subsisting interest in the land, which had been sold through execution of sale deed(s) in favour of Khawaja Azhar Ahmad and Sheikh Faisal Saeed, etc., whose representatives had attended pre-award proceedings by the Collector, upon having notice of the proceedings. Reference is made to the contents of the attendance sheet, available on record. Submits that notices were issued and accordingly the factum of acquisition was brought to the knowledge of the persons interested, who had not raised any substantial objection, including objection to the declared purchase / acquisition price. Adds that upon off-loading of their proprietary interest(s) the petitioners had lost entitlement to object to the acquisition process or part of proceedings thereof. Learned law officer iterates that previous as well as subsequent purchasers had knowledge of the acquisition process, since Fard-Bai procured for the purposes of executing sale transaction contained reference to the notification under section 4 of the Act and details of the land subject matter.

Further submits that if petitioners of instant petition had any subsisting interest in the property, they would have questioned the determination of monetary compensation settled in the Award, but no such claim was agitated.

5.While exercising right of rebuttal, learned counsel for petitioners produced copy of sale deed to plead distinction between the properties subject of acquisition under reference and those which were sold by the petitioners. It is iterated that land, subject matter of sale deed, was not covered under the Notification for acquisition but

W.P. No.1987/2022 6 W.P. No.6059/2022.

same was part of acquisition process initiated for securing land for the Company, which proceedings were lately withdrawn – reference is made to the order of withdrawal of constitutional petition bearing W.P No.1496/2022, dated 15.11.2023, regarding Notification No.238/DC/LAC dated 26.10.2021.

Analysis, determination-cum-conclusion:

6.Heard. Record perused.

7.Briefly, the objections raised touched allegation of influence purportedly exerted upon the Collector – allegedly being manipulated by the Commissioner; emphasized on the series of alleged acts and omissions committed in the course of acquisition; underlined allegation of patent breach of constitutionally guaranteed protection qua proprietary rights and further pressed allegations of non- compliance of statutory safeguards provided under the Act. Scope of the objections and sustainability thereof largely rests on the interpretation of some relevant sections of the Act, read and re-read during hearing of the matter, which provisions of law are reproduced hereunder for ease of understanding and reference.

Section 4 of the Act.

“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 likely to be needed for any public purpose or for a company, a 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 authorised by the Collector of the District 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;

W.P. No.1987/2022 7 W.P. No.6059/2022.

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;

to mark such levels, boundaries and lines 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 as 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-Office of the District, and such decision shall be final”.

Section 9 of the Act.

9.Notice to persons interested.– (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.

(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 time 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 claims 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, as reside or have agents authorised 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, 1866.

(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 sub-section (2) for determination of claims 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 authorised 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 authorised representative shall be a party to the proceedings.

Section 11 of the Act

11.Enquiry and award by Collector.— On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested [and a Department of Government, a local authority, or a Company, as the case

W.P. No.1987/2022 8 W.P. No.6059/2022.

may be], has stated pursuant to a notice given under section 9 to the measurements made under section 8, and into the value of the land [at the date of the publication of the notification under section 4, sub-section (1)], and into the respective interests of the persons claiming the compensation and shall make an award under his hand of—

(i)the true area of the land;

(ii)the compensation which in his opinion should be allowed for the land; and

(iii)the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him.

Section 17 of the Act.

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 sub-section (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 sub-section 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 or ghat 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 purposes of maintaining traffic over a public road, the Collector may, immediately after the publication of the notice mentioned in sub- section (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 sub-section 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 sub-sections 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 sub-section (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 sub-section (1) of section 4.

[Emphasis supplied]

W.P. No.6059/2022.

8.For sake of clarity and precedential value of the judgment, it is expedient to reiterate that scope of adjudication, in the context of facts involved. Scope of adjudication is confined to the determination of the question that whether procedural requirements under the Act remained absolutely unperformed, underperformed or substantially performed, since degree of performance would likely to assist in assessing claim of substantial injury caused and detrimental nature of acquisition. In view of the facts involved, this Court is not venturing to re-determine the purpose of the Project, for which land is acquired. At the outset it is evident that phrase Rob peter to pay Paul has no application to this case, since the land is being acquired for purpose of establishing the Project, conceived by the government and reserved for establishing office of government’s department. There is not an iota of doubt that purpose of acquisition does not qualify as a public purpose – suitability or non-suitability of the site is neither amenable to judicial review jurisdiction nor subject of adjudication. No inquiry could be held to review or re-assess the selection of site, its suitability and issue of availability of alternate land for the Project, which interference otherwise tantamount to revisiting plausibility and rationality of policy matters, for which this Court has no expertise. Scope of “public purpose” was defined in the case of Fauji Foundation and another V.

Shamimur Rehman (PLD 1983 Supreme Court 457). Furthermore, question of adequacy of compensation was neither raised and nor such determination would likely be carried out under constitutional jurisdiction. Even otherwise, objections regarding inadequacy of quantum of compensation and nature / extent of the interest of the

W.P. No.6059/2022.

petitioners – context being the ownership claims – could be raised upon invoking the remedies provided under the Act, subject to the conditionalities prescribed. Now I touch the merits of the objections complaining non-adherence of statutory requirement of notices under section 9 of the Act.

9.Undisputed facts are that Notification under section 4 of the Act was issued and accordingly gazetted. Likewise, urgency qua possession was pleaded and proceedings under section 17 of the Act commenced, effect whereof was provided in the enactment. Evidently, main objection was against the process of acquisition, hence, it is not for this Court to inquire into the factum of deposits made for acquisition purpose and tweak with the declared market price of the subject land. In essence the objection was that since notice under section 9 of the Act was not directed / communicated to the petitioner, therefore, acquisition proceedings, issuance and enforcement of the Award are without lawful effect and consequences.

Significance of the notice under section 9 of the Act and effect of non-compliance, if any actually occasioned and as alleged by the petitioners, qua the acquisition proceedings is discussed after highlighting some critical facts, mirrored from available record. It is apparent that notice(s) under section 9 of the Act, 1894 were issued and pre-award proceedings duly conducted. Copy(ies) of the Notices under sections 9 and 10 of the Act are available on the record. For having clarity and to demonstrate presence of persons during pre-

W.P. No.6059/2022.

award proceedings, mirror image of pre-award proceedings conducted is reproduced herein below:-

10.Persons present had identified themselves as representatives of subsequent vendee(s), namely Khawaja Azhar Ahmad and Sheikh Faisal Saeed. Copy of the Sale Deed dated 24.10.2021, and bearing document number 29575 is available on record, which contained image of the Fard – printed on the backside of the sale deed, which prima facie indicates factum of sale transaction qua part of land, subject to acquisition. Contents of Fard contained reference to Notification under section 4 of the Act and in particular the identity of the project, which manifest clear knowledge of acquisition proceedings. In these circumstances, reference to the proceedings in W.P. No.1496/2022 is misconceived, wherein land subject of acquisition was different, which acquisition proceedings were otherwise dropped upon withdrawal of Notification under section 4 of the Act – and said acquisition was for the Company. Aforesaid facts

W.P. No.6059/2022.

substantiate that notices were issued, and pre-award proceedings were attended by persons interested or their representative(s). Evidently, substantial compliance regarding notices and pre-award proceedings stood adequately established for the sake of adjudication of alleged objections. Another distinguishing feature of the acquisition is claim of urgency pleaded and adoption of requisite steps in this behalf.

Section 17 of the Act provisioned for the option of taking possession of land under acquisition, and issuance of notice under said section curtail the privilege of raising objections under section 5-A of the Act.

Notification issued under section 17(4) of the Act is construed as deemed declaration under section 6 of the Act. It is not for this court to ascertain the plausibility of urgency pleaded. Now I turn to discuss the nature and extent of the objections that could be raised pursuant to notice under section 9 of the Act. For illustration purposes, it is appropriate to prospectively discuss the scenarios where notice under section 9 was either not issued or if issued but not served on the interested persons. And whether any prejudice could be presumed in aforesaid eventualities. Purpose of section 9 notice, appearing from textual reading of said provision, is to categorically convey the intent of taking possession and to invite claims to compensation against acquisition – section 9(1) provides the extent of the objections / matters to be raised pursuant to the notice. Section 9 of the Act is not an all-encompassing provision, and certainly not extending the option of filing objections to challenge the constitutionality of the acquisition or legality of notifications under section 4 and section 17 of the Act.

In terms of the scope of sub-section (2) of section 9 of the Act, the

W.P. No.6059/2022.

interested persons are required to state the nature of their respective interest(s) in the land; amount and particulars of their claims to compensation and objections to the measurements made under section 8 of the Act. At the expense of repetition, it is stated that objection(s) against the decision to acquire the land; objection(s) against validity of notification under section 4 of the Act; disputes qua the suitability of the site / location and objection(s) against continuity of proceedings of acquisition are not the type / specie of objections that could permissibly be raised under section 9 of the Act. It is evident that some of the persons present at pre-award hearing raised objections to the quantum of compensation – outcome of the determination could be brought for review under the mechanism provided under section 18 of the Act. I refrain from commenting on the fact that whether compensation determined in the Award was accepted or objected by the petitioners – since remedy to object to the quantum of compensation is provided under section 18 of the Act or dispute touching claim of apportionment of compensation declared in the Award.

Learned counsel vehemently pressed that timelines provided under sub-section (1) of section 17 of the Act were breached and time provided for taking possession after notice under section 9 of the Act had not lapsed. Argument manifests erroneous reading and effect of section 17 of the Act, which provides that possession could be acquired upon lapse of fifteen days of the notice under section 9 thereof, and this time-constrained condition stood complied in wake of gap between the date of the notices issued and conduct of pre-

W.P. No.6059/2022.

award proceedings – even otherwise possession is still not delivered to the Collector due to pendency of instant litigation.

11.There is another aspect of the matter. Scope and extent of the objections to be raised post-notice under section 9 of the Act was discussed in preceding paragraph. Simplicitor non-appearance of the interested persons, pursuant to notice under section 9 of the Act would not render the Award ineffective or void. If the argument of the petitioner’s counsel is accepted, such interpretation would render section 12 of the Act redundant. It is expedient to reproduce section 12 of the Act, which reads as,

“Award of the Collector when to be final.—(1) Such award shall be filed in the Collector’s office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.

2.The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.

[Emphasis supplied]

It is evident that objections if not otherwise raised, in terms of section 9 of the Act, would not affect the validity and enforceability of the Award, since statutory protection and finality had been extended to the extent of the specie of objections to be raised under section 9 of the Act. Hence, the matters presumptively protected and conclusive in terms of section 12 of the Act cannot be revisited in garb of alleged lack of intimation / communication of the notice to the petitioners, who had otherwise sold their rights in the land.

W.P. No.6059/2022.

12.Judgments referred may constitute authorities in the context of the facts involved therein, which have had no relevance in the context of facts of the case at hand, wherein issuance of notice under section 9 of the Act, 1894 was established. Decision in the case of “Multan Development Authority, Multan through its Director General Vs. Ashiq Muhammad Khan and another” (Supra) had different context, which proceeding arose out of civil litigation and declaratory claims raised – section 9(1) of the Punjab Acquisition of Land (Housing) Act of 1973 was subject of discussion. In said case the question of acquisition of land by MDA was disputed / denied, in which context the provisions of Act of 1973 were interpreted. No discussion was found in refereed case with respect to the finality extended in terms of section 12 of the Act. Other precedents quoted have had to be read and appreciated in the context of facts of said cases, and factum of notices issued under section 9 of the Act and conduct of pre-award hearing by the Collector, in instant case cannot be overlooked. I am afraid that Award issued cannot be declared void, ineffective on flimsy grounds and superficial objections, purpose whereof was to defeat the acquisition proceedings.

Plea of arbitrariness and allegation of expropriation are unsubstantiated, and petitioners fail to highlight any tangible breach of the requirements, required to be performed under sections 4 and 17 of the Act. Primarily, instant and connected petition claim declaration against the Award, which relief cannot be granted in wake of the analysis and determinations. Handful individuals cannot be allowed to jettison the acquisition proceedings, which acquisition proceedings meet the test and standards defined under the statutory framework and

W.P. No.6059/2022.

is covered under the doctrine of eminent domain, constitutionality whereof had been long established, which was reaffirmed in the case of Fauji Foundation and another supra.

13.In view of the facts and circumstances of the case, I find no reason to entertain the challenge(s) against the Award. This and connected petitions are, hereby, dismissed. No order as to the costs.

(ASIM HAFEEZ)

JUDGE.

Announced in open court on this____ day of January 2025.

JUDGE

Approved for reporting

JUDGE

Imran/*