Ejaz Ahmad V. Govt. of Khyber Pakhtunkhwa

Judgment Sheet

IN THE PESHAWARHIGH COURT,

ABBOTTABAD BENCH

(Judicial Department)

Writ Petition No.475-A of 2019 with CMs No. 807,809-4/2019

Ejaz Ahmad & others Vs.

Govt. of Khyber Pakhtunkhwa & others

JUDGMENT

Date of hearing: 04.03.2020

Qazi Muhamm ad Azhar, Advocate, for petitioners S. M. Asil AAG for official respondents.

Mr. Sajid ur Rehman Advocate for respondents No.7 & 8.

Ahmad Ali J.- Petitioners thro ugh this petition flled under Article 199 of the Constitution of Islamic Republic of Pakistan,, 1973, are seeking the following reliel It is therefore, humbly prayed that the impugned notification under section 4 of land acquisition act 1894 bearing No.415-18 dated 273.01.2017 may graciously be cleared illegal, based on malafide, by no means of public purpose, ultra vires, against the object

of the acquisition law, constitution of Pakistan, coram-non-judice, ab-inotio null

and void, having been issued without lawful

authorify of political victimization, this liable to be reversed. Therefore, ineffective upon the ownership right of the petitioners.

2.Brief and essential facts for the decision of this constitutional petition are that the petitioners are owners in possession of land bearing Khasra No. 1226 measuring 147 Kanals 13 Marlas, situated within the revenue estate of village Pandak I'eshil & District Haripur. Respondents intended to acquire the said land for the construction of bus-stand Haripur and in this regard they issued a Notification u/s 4 ofthe Land Acquisition Act, 1894. The same being not acceptable to petitioners, they filed an objection petition under Section 5-A of the ibid Act of 1894 and then preferred writ petition No.858- Al20l7 before this Court; however,, the said writ petition was disposed off vide order dated 06.11.2018 with the direction to Collector Land Acquisition to decide the pending objection V petition u/s 5-A of the Act ibid. That the presently the bus-stand has been constmcted on the leased property, owned by a sitting minister of the govemment. The said area was obtained on 99 years lease vide deed No.1035 dated 28.09'1983, and thereafter, huge amount was invested over the construction of bus stand.

Now 66 years still remaining and in order to benefit the private respondents No.7 & 8, being political figures. That the land of petitioners was acquired to commercialize the barren (banjar qadeem) land of respondents No. 7 & 8 which is situated opposite side of the land of petitioners which is proposed for acquisition. Hence, aggrieved of the Notification u/s 4 of the Land Acquisition Act, 1894, petitioners filed this petition with the above quoted relief.

3.This Court directed respondents to file para-wise comments to the writ petition which have been so furnished by the respondent No.6, wherein, issuance of the desired writ is opposed.

4.We have heard arguments of the leamed counsel for the parties and have gone through the record.

5.A threadbare perusal of the record reveals that the land in question is being acquired for the construction of General Bus Stand Haripur at the request of Tehsil Municipal Officer, T.M.A. Haripur. The reason advanced for vacating the present place of existing bus stand, as is evident from letter No.2107- # 09/MC(H) dated 04.12.2014 of the Chief Municipal Officer/respondent No.6, was the expiry of lease period and that the Regional Transport Authority raised objection on the poor condition of the General Bus Stand. Record further unfolds that the respondent No.6 annexed minutes of the Meeting of Tehsil

Council Haripur, dated, 23.06.2017, whereby a Resolurion No.150 for the acquisition of land bearing Khasra No.1226 for constmction of bus stand etc was passed. The said resolution was proposed by Irshad Khan and seconded by Malik Zahid Afzal, both members of Tehsil Council Haripur.

6 There is no cavil with the proposition that the land bearing Khasra No.1226 was acquired at the behest of Members of Tehsil Council Haripur; and no prior survey was conducted by any technical/experts, no feasibility reporl was sought, no proper process for site selection was camied out. Political victimization is apparent through the fact that in a direct and shortcut manner the property bearing Khasra No. 1226 was proposed in the Tehsil Council and resolution was passed in a stereotype manner. It is still shrouded in the mystery that why the other propefty was not proposed to acquired and what was the reason to propose Khasra No.1226 for the construction of bus stand.

7.The letter No.RTA/5611 dated 29.09.2014 of the Secretary, Regional Transporl Authority, reveal that the s/ authority expressed his displeasure over the poor condition of the General Bus Stand Haripur and directed the respondent No.6 to make immediate necessary arrangements for the improvement of the condition of the stand in accordance with rules within a week time. The said letter was not for the shifting

ofbus stand. Besides, letter dated 14 Jan 19g7, ofthe Secretarv to Go!,t of NWFP Local Government, Election and Rural Development Department, (Annexure -G) is evident that sanction for the construction of Bus Stand was accorded and this letter reveal the lease for a period of99 years. 'fhus, we are firm in our view that the lease was for a period of 99 years, as reflected from the letter dated 14 Jan 1987.

8 The argument of leaned counsel for petitioners that the proposed Khasra No.1226 is having agricultural characteristics whereas, opposite to that Khasra, property of respondents No.7 & 8 is situated which is banjar qadeem and can be used as bus stand. It is worthy to mention here that earlier, this Court vide order dated 10.10.2019 had directed the Tehsildar Haripur to submit reporl whether in the nearby location any Banjar land exists or otherwise. The Tehsildar Haripur submitted his reporl along with aks/map of the site. The repofi of Tehsildar coupled with Aks/map and Register Haqadaran -e-Zameen of Mauza Pandak clarified that the proposed site is mostly an agricultural land with some residential area and other Ghair Mumkin chunk;

whereas, on the opposite side across the road there is a Banj ar land owned by the respondents No. 7 & 8. The following comparison of both the lands to check the suitability for use as bus terminal is as under:

Proposed Khsara Land of S# Factors respondents No. 7 No.1226

Situated at Khan Pur Situated at Khan Pur I Location Road Road Area to be Agricultural and 2 Baniar Land affected residential land High price/ compensation Rate ol Economic amount will be extra compensation will factor burden over govemment be comparatively exchequer less Preserving the agricultural land is the demand of time.

Eliminating the agricultural land for Being banjar/ barren Environmcntal 4 construction of Bus land there is no impact Terminal is not a wise forest/ agriculture. decision and will not beneficial to the general public.

5 Production Agriculture Produce Nil A number of families Respondents No.7 & Aff'ected would be affected and 6 8 will be affected in persons lost their source of terms of land onlv income and abode Chosen by the members Political of Tehsil Counsel at their 7 nla inlluence own accord without any technical reason.

9.Over and above the supra factors, involvement of political victimization cannot be taken out of the consideration.

As stated above, the land in question i.e. Khasra No. 1226 was taken into focus on the basis of Resolution of Tehsil Council V Haripur, proposed and seconded by two members of the said council, without any independent survey in this regard.

Therefore, the Notification u/s 4 of the Land Acquisition Act, 1894 cannot be held to be in the interest of general public; and there is no public purpose rather the same is advantageous to

respondents No.7 & 8 only, in order to commercialize their barren lands, situated opposite to the Khasra No.1226. The political background of the respondents No. 7 &. B, being the family of ex-President of Pakistan General Muhammad Ayub Khan, does not need any introduction. The Notification under Section 4 of the Land Acquisition Act, 1894, is an initial step toward the acquisition of land and the same is not an ultimate and final decision.

10.Besides, as per letter dated 14 Jan 1987, ofthe Secretary to Go\t of NWFP Local Govemment, Election and Rural Development Department, the lease was for 99 years and govemment already incurred sulficient amount over construction of Bus Stand at its present place. T'here is no plausible and reasonable justification to relinquish the present place of bus stand. Also, there is no answer to the question as to why official respondents have not acquired the existing place for general bus stand.

11.In the premises aforesaid, we allow this writ petition as prayed for. Respondents No. 1 to 6 are directed to exclude the V propefty of petitioners from the process of acquisition for Bus Stand and to select a barren/banjar land for the purpose.

Needless to mention that the govemment has already incurred a huge amount over the existing place of bus stand which was obtained on lease for a period of 99 years; therefore, in case of

pre-mature redemption of land, the lessors shall be bound to pay the cost of improvements otherwise, respondents No. 1 to 6 shall fulfil the loss so suffered to government exchequer from their own resources. All the pending CMs disposed-off accordingly. No order as to cost.

Announced.

Dt.04.03.2020. JUDGE

JUDGE

DB: Hon'ble [Ir. Justice Shrkeel-{hmad and Hon'ble f,lr.,lustice,\hmad ,\li