2014 C L C 230
2014 C L C 230
[Lahore]
Before Ayesha A. Malik, J
MUJADDAD ASHRAF and 5 others----Petitioners
Versus
COMMISSIONER LAHORE DIVISION, LAHORE and 3 others----Respondents
Writ Petition No.22606 of 2012, heard on 7th November, 2012.
Land Acquisition Act (I of 1894)---
----Ss. 17(4), 5, & 5-A---Constitution of Pakistan, Art. 199---Constitutional petition---Acquisition of land in cases of urgency---Acquisition of land for the purpose of development of a mass transit metro-bus project---"Public purpose"---Scope---Petitioners impugned proceedings initiated for acquisition of the petitioner's land for a mass transit metro bus project, inter alia on the ground that proper procedure had not been followed and no notice under Ss.5 & 5-A of the Land Acquisition Act, 1894 was served on the petitioners and no opportunity was provided to them for filing objections---Validity---Provincial Government had issued notifications declaring urgency, under Ss.4 & 17(4) of the Act, and the same were affixed at conspicuous places of the locality---Project was for "pubic purpose" and under the Land Acquisition Act, 1894 the Provincial Government had power to acquire land for "public purpose"---Upon issuance of notice under S.17(4) of the Land Acquisition Act, 1894 provisions of Ss.5 & 5-A of the Act were done away with upon a direction of the Commissioner---Metro Bus project was aimed at the planned development of the city and therefore land was required urgently hence provisions of said S.17(4) were invoked---Section 17(4) of the Land Acquisition Act, 1894 was based on subjective satisfaction of the competent authority to determine whether to apply the provisions or not according to prevailing circumstances, and the same was not available for scrutiny by the court---When provisions of S.17(4) were invoked and urgency was declared, no prior notice or intimation to owners of land was required---Petitioners were, therefore, bound by law to surrender their land for public purpose and a remedy was available to them to raise objections on the compensation or enhancement thereof under S.18 of the Land Acquisition Act, 1894---Constitutional petition was dismissed, in circumstances.
Muhammad Ashiq and another v. Water and Manpower Development Authority, Lahore through Chairman, WAPDA House and another PLD 2008 SC 335 and PLD 2009 SC 217 rel.
Petitioner No.1 in person.
Syed Nayyar Abbas Rizvi, Addl. A.-G.
Waqar A. Sheikh, Legal Adviser, L.D.A.
Ashfaq Ahmad Rana, Litigation Officer, TEPA, L.D.A.
Rab Nawaz Kathia, Assistant Director, TEPA, L.D.A.
Waseem Alam, LAC, L.D.A.
Date of hearing: 7th November, 2012.
JUDGMENT
AYESHA A. MALIK, J.--- Through this Writ Petition, the petitioners have impugned the acquisition proceedings initiated for acquisition of petitioners' land measuring 3 kanals, 16 marlas under the Land Acquisition Act, 1894 (the Act) for the project of Metro Bus Rapid Transit System (MBRTS).
2. The case of the petitioners is that their land measuring 3 kanals 16 marlas bearing Khasra No.3723/3 should not be made part of the acquisition proceedings as it is not mentioned in the Notification under section 17(4) of the Act or the proclamation of newspapers dated 9-9-2012. It is contended in the Writ Petition that process of law as required under sections 4, 6 and 17 of the Act has not been followed. As such, the acquisition under challenge is violative of Article 24 of the Constitution of the Islamic Republic of Pakistan, 1973. It has further been agitated that no notice under sections 5 and 5-A of the Act have been issued to the petitioners while initiating proceedings under section 17(4) of the Act. No opportunity was provided to the landowners to file objections upon the acquisition. The petitioners have also agitated that their land is not required for primary or the secondary purposes as the same is located at about 300/400 meters away from the route of the Project and 5 Kms away from the terminal. The petitioners next argued that they are being treated discriminately as other land is available for the said purpose. He lastly argued that the consent of the petitioner was not sought, no price for the land has been determined nor any compensation for the land paid to the petitioners so far.
3. Conversely, learned Additional Advocate-General assisted by learned Legal Adviser for LDA vehemently opposed this writ petition mainly on the grounds that the land of the petitioners and others has been acquired for public purpose after invoking provision of section 17(4) of the Act. Therefore, no notice was required to be issued to the petitioners before taking possession of the land in question. They aver that no illegality has been committed by the respondents. So far as the compensation for the land acquired is concerned, the petitioners have a remedy available to them that is to object to the amount of compensation offered and further they may file application/reference for enhancement of the price of the land, if the given price not acceptable to them. They aver that the petitioners have challenged the whole acquisition proceedings even though they have remedies available upon pronouncement of award under section 11 of the Act for raising objections with regard to the price of the land. It was also argued that the petitioners are not entitled to their prayer nor can the acquisition process be stopped. Hence the instant petition is not maintainable and merits dismissal.
4. I have heard the petitioner No.1 in person, learned Law Officer and learned counsel for LDA and also perused the record made available before me.
5. The Government of the Punjab has acquired the land in question for MBRTS. Notification under section 4 of the Act for acquiring the land was issued on 17-7-2012 which was duly published in the official Gazette on 20-7-2012. A notification dated 8-8-2012 under section 17(4) of the Act while declaring urgency was published in the official Gazette on 9-8-2012 and, as per parawise comments of the respondents, also affixed at conspicuous places of the locality for intimation of the interested persons about the acquisition proceedings. A notice under section 9 of the Act was also served upon the interested persons on 10-8-2012 and was published in the print media on 18-8-2012 whereas notice under section 10 of the Act was also served for determination of the interested persons. Furthermore, under sections 23 and 24 of the Act, the prices of the land acquired for the Project in question have already been determined by the District Price Assessment Committee, Lahore in its meeting held on 27-7-2012 which were duly approved by the competent authority and two cheques amounting to Rs.41,00,00,000/- and Rs.4,55,22,524/- stand deposited in the government treasury for payment to the effectees of the MBRTS Project.
6. Undisputedly, the above said notifications have been issued by the Government of the Punjab aimed to acquire the land of the petitioners and others for the MBRTS Project. There is no denial that the said Project is for public purpose. Under the Act, the Government has the power to acquire the land for public purpose. Upon issuance of notice under section 17(4) of the Act, the provisions of sections 5 and 5-A of the Act are done away with, upon a direction of the Commissioner. The MBRTS is a project aimed at planned development of the city. The land was required urgently, hence, provisions of section 17(4) were involved, meaning that the requirements of sections 5 and 5-A were dispensed with. In this regard it has been held in case of Muhammad Ashiq and another v. Water and Manpower Development Authority, Lahore through Chairman, WAPDA House and another (PLD 2008 SC 335) that section 17(4) of the Act was based on the subjective satisfaction of the Competent Authority to apply the provisions or not according to the given circumstances which was not available for scrutiny by the Court. Therefore, the petitioners' grievance that notices should have been served after the notification under section 17(4) is without basis. As to the procedure followed by the respondent for acquisition it is in accordance with the Act. In this regard it has been held in Suo Motu case No.13 of 2007 reported as PLD 2009 SC 217 as under:---
"The Act provides a systematic scheme for taking measurements of the property, assessment of its value and payment of compensation to the person interested, besides remedy for adjudication of rights of aggrieved persons in accordance with well-known norms of administration of justice. In the case involving any dispute of measurement of property or determination of its market value, the Act provides a remedy through a reference by the Collector to the Civil Court for settlement of these disputes where parties have the opportunity to adduce evidence in support of their stance."
7. So far as the contention of the petitioners that the consent of the petitioners should have been sought before acquiring the land, suffice it to say that when the provisions of section 17(4) of the Act are invoked and the urgency is declared, no prior notice or intimation to the owners of the land is required.
8 The petitioners have prayed in the writ petition that the entire acquisition proceedings being illegal be set aside, this prayer be granted because the land has been acquired, admittedly, for public purpose while declaring urgency under section 17(4) of the Act and the petitioners have no right to ask for setting aside of the entire acquisition proceedings initiated in public interest. As such, this prayer cannot be allowed. Instead they are bound by law to surrender their lands for a purpose declared as a public requirement. The only remedy available to them is to raise objections on the compensation being awarded with them. They can also move an application/reference for enhancement of the compensation if they are not satisfied with the same as provided under section 18 of the Act.
9. The contention of the petitioners that they are being treated discriminately does not hold water as nothing has been brought on record to show discrimination. Mere allegation of discrimination without any solid proof in support thereof is nothing and does not merit any consideration.
10. The other contention of the petitioners is that their land bearing Khasra No.3723/3 should not be mentioned in any of the notifications issued for acquisition of land. This contention has been addressed by the petitioner No.1 himself saying that Khasra Numbers of the land, as per revenue authorities, have been changed whereby khasra number of his land 3723/3 stands changed as 3733/3 which is duly mentioned in the notifications.
11. The summary of the whole discussion is that the land of the petitioners has been acquired by the Government admittedly for public purpose following due procedure prescribed by law. No illegality whatsoever has been committed by the respondents. Furthermore, when the land is acquired for public purpose, the owner is expected to surrender his land in public interest though he may object to the amount of compensation being awarded to him under the award and may also file reference for enhancement of the compensation. Resultantly, this writ petition is devoid of any force, hence dismissed.
KMZ/M-170/L Petition dismissed.
[Lahore]
Before Ayesha A. Malik, J
MUJADDAD ASHRAF and 5 others----Petitioners
Versus
COMMISSIONER LAHORE DIVISION, LAHORE and 3 others----Respondents
Writ Petition No.22606 of 2012, heard on 7th November, 2012.
Land Acquisition Act (I of 1894)---
----Ss. 17(4), 5, & 5-A---Constitution of Pakistan, Art. 199---Constitutional petition---Acquisition of land in cases of urgency---Acquisition of land for the purpose of development of a mass transit metro-bus project---"Public purpose"---Scope---Petitioners impugned proceedings initiated for acquisition of the petitioner's land for a mass transit metro bus project, inter alia on the ground that proper procedure had not been followed and no notice under Ss.5 & 5-A of the Land Acquisition Act, 1894 was served on the petitioners and no opportunity was provided to them for filing objections---Validity---Provincial Government had issued notifications declaring urgency, under Ss.4 & 17(4) of the Act, and the same were affixed at conspicuous places of the locality---Project was for "pubic purpose" and under the Land Acquisition Act, 1894 the Provincial Government had power to acquire land for "public purpose"---Upon issuance of notice under S.17(4) of the Land Acquisition Act, 1894 provisions of Ss.5 & 5-A of the Act were done away with upon a direction of the Commissioner---Metro Bus project was aimed at the planned development of the city and therefore land was required urgently hence provisions of said S.17(4) were invoked---Section 17(4) of the Land Acquisition Act, 1894 was based on subjective satisfaction of the competent authority to determine whether to apply the provisions or not according to prevailing circumstances, and the same was not available for scrutiny by the court---When provisions of S.17(4) were invoked and urgency was declared, no prior notice or intimation to owners of land was required---Petitioners were, therefore, bound by law to surrender their land for public purpose and a remedy was available to them to raise objections on the compensation or enhancement thereof under S.18 of the Land Acquisition Act, 1894---Constitutional petition was dismissed, in circumstances.
Muhammad Ashiq and another v. Water and Manpower Development Authority, Lahore through Chairman, WAPDA House and another PLD 2008 SC 335 and PLD 2009 SC 217 rel.
Petitioner No.1 in person.
Syed Nayyar Abbas Rizvi, Addl. A.-G.
Waqar A. Sheikh, Legal Adviser, L.D.A.
Ashfaq Ahmad Rana, Litigation Officer, TEPA, L.D.A.
Rab Nawaz Kathia, Assistant Director, TEPA, L.D.A.
Waseem Alam, LAC, L.D.A.
Date of hearing: 7th November, 2012.
JUDGMENT
AYESHA A. MALIK, J.--- Through this Writ Petition, the petitioners have impugned the acquisition proceedings initiated for acquisition of petitioners' land measuring 3 kanals, 16 marlas under the Land Acquisition Act, 1894 (the Act) for the project of Metro Bus Rapid Transit System (MBRTS).
2. The case of the petitioners is that their land measuring 3 kanals 16 marlas bearing Khasra No.3723/3 should not be made part of the acquisition proceedings as it is not mentioned in the Notification under section 17(4) of the Act or the proclamation of newspapers dated 9-9-2012. It is contended in the Writ Petition that process of law as required under sections 4, 6 and 17 of the Act has not been followed. As such, the acquisition under challenge is violative of Article 24 of the Constitution of the Islamic Republic of Pakistan, 1973. It has further been agitated that no notice under sections 5 and 5-A of the Act have been issued to the petitioners while initiating proceedings under section 17(4) of the Act. No opportunity was provided to the landowners to file objections upon the acquisition. The petitioners have also agitated that their land is not required for primary or the secondary purposes as the same is located at about 300/400 meters away from the route of the Project and 5 Kms away from the terminal. The petitioners next argued that they are being treated discriminately as other land is available for the said purpose. He lastly argued that the consent of the petitioner was not sought, no price for the land has been determined nor any compensation for the land paid to the petitioners so far.
3. Conversely, learned Additional Advocate-General assisted by learned Legal Adviser for LDA vehemently opposed this writ petition mainly on the grounds that the land of the petitioners and others has been acquired for public purpose after invoking provision of section 17(4) of the Act. Therefore, no notice was required to be issued to the petitioners before taking possession of the land in question. They aver that no illegality has been committed by the respondents. So far as the compensation for the land acquired is concerned, the petitioners have a remedy available to them that is to object to the amount of compensation offered and further they may file application/reference for enhancement of the price of the land, if the given price not acceptable to them. They aver that the petitioners have challenged the whole acquisition proceedings even though they have remedies available upon pronouncement of award under section 11 of the Act for raising objections with regard to the price of the land. It was also argued that the petitioners are not entitled to their prayer nor can the acquisition process be stopped. Hence the instant petition is not maintainable and merits dismissal.
4. I have heard the petitioner No.1 in person, learned Law Officer and learned counsel for LDA and also perused the record made available before me.
5. The Government of the Punjab has acquired the land in question for MBRTS. Notification under section 4 of the Act for acquiring the land was issued on 17-7-2012 which was duly published in the official Gazette on 20-7-2012. A notification dated 8-8-2012 under section 17(4) of the Act while declaring urgency was published in the official Gazette on 9-8-2012 and, as per parawise comments of the respondents, also affixed at conspicuous places of the locality for intimation of the interested persons about the acquisition proceedings. A notice under section 9 of the Act was also served upon the interested persons on 10-8-2012 and was published in the print media on 18-8-2012 whereas notice under section 10 of the Act was also served for determination of the interested persons. Furthermore, under sections 23 and 24 of the Act, the prices of the land acquired for the Project in question have already been determined by the District Price Assessment Committee, Lahore in its meeting held on 27-7-2012 which were duly approved by the competent authority and two cheques amounting to Rs.41,00,00,000/- and Rs.4,55,22,524/- stand deposited in the government treasury for payment to the effectees of the MBRTS Project.
6. Undisputedly, the above said notifications have been issued by the Government of the Punjab aimed to acquire the land of the petitioners and others for the MBRTS Project. There is no denial that the said Project is for public purpose. Under the Act, the Government has the power to acquire the land for public purpose. Upon issuance of notice under section 17(4) of the Act, the provisions of sections 5 and 5-A of the Act are done away with, upon a direction of the Commissioner. The MBRTS is a project aimed at planned development of the city. The land was required urgently, hence, provisions of section 17(4) were involved, meaning that the requirements of sections 5 and 5-A were dispensed with. In this regard it has been held in case of Muhammad Ashiq and another v. Water and Manpower Development Authority, Lahore through Chairman, WAPDA House and another (PLD 2008 SC 335) that section 17(4) of the Act was based on the subjective satisfaction of the Competent Authority to apply the provisions or not according to the given circumstances which was not available for scrutiny by the Court. Therefore, the petitioners' grievance that notices should have been served after the notification under section 17(4) is without basis. As to the procedure followed by the respondent for acquisition it is in accordance with the Act. In this regard it has been held in Suo Motu case No.13 of 2007 reported as PLD 2009 SC 217 as under:---
"The Act provides a systematic scheme for taking measurements of the property, assessment of its value and payment of compensation to the person interested, besides remedy for adjudication of rights of aggrieved persons in accordance with well-known norms of administration of justice. In the case involving any dispute of measurement of property or determination of its market value, the Act provides a remedy through a reference by the Collector to the Civil Court for settlement of these disputes where parties have the opportunity to adduce evidence in support of their stance."
7. So far as the contention of the petitioners that the consent of the petitioners should have been sought before acquiring the land, suffice it to say that when the provisions of section 17(4) of the Act are invoked and the urgency is declared, no prior notice or intimation to the owners of the land is required.
8 The petitioners have prayed in the writ petition that the entire acquisition proceedings being illegal be set aside, this prayer be granted because the land has been acquired, admittedly, for public purpose while declaring urgency under section 17(4) of the Act and the petitioners have no right to ask for setting aside of the entire acquisition proceedings initiated in public interest. As such, this prayer cannot be allowed. Instead they are bound by law to surrender their lands for a purpose declared as a public requirement. The only remedy available to them is to raise objections on the compensation being awarded with them. They can also move an application/reference for enhancement of the compensation if they are not satisfied with the same as provided under section 18 of the Act.
9. The contention of the petitioners that they are being treated discriminately does not hold water as nothing has been brought on record to show discrimination. Mere allegation of discrimination without any solid proof in support thereof is nothing and does not merit any consideration.
10. The other contention of the petitioners is that their land bearing Khasra No.3723/3 should not be mentioned in any of the notifications issued for acquisition of land. This contention has been addressed by the petitioner No.1 himself saying that Khasra Numbers of the land, as per revenue authorities, have been changed whereby khasra number of his land 3723/3 stands changed as 3733/3 which is duly mentioned in the notifications.
11. The summary of the whole discussion is that the land of the petitioners has been acquired by the Government admittedly for public purpose following due procedure prescribed by law. No illegality whatsoever has been committed by the respondents. Furthermore, when the land is acquired for public purpose, the owner is expected to surrender his land in public interest though he may object to the amount of compensation being awarded to him under the award and may also file reference for enhancement of the compensation. Resultantly, this writ petition is devoid of any force, hence dismissed.
KMZ/M-170/L Petition dismissed.
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