2014 Y L R 2266
2014 Y L R 2266
[Lahore]
Before Shezada Mazhar, J
AISH BAHADAR and others---Petitioners
Versus
DISTRICT COLLECTOR, SAHIWAL and others---Respondents
Writ Petitions Nos.3465-Q and 2234 of 2014, heard on 20th June, 2014.
Constitution of Pakistan---
----Arts. 199 & 24---Land Acquisition Act (I of 1894), Ss.18 & 23---Constitutional petition--- Scope--- Alternate remedy---Land acquisition---Enhancement in compensation---Scope---Government had power to acquire land of any person subject to compensation and law---High Court could not adjudicate upon disputed facts under constitutional jurisdiction---Petitioners could seek alternate remedy of enhancement in compensation by moving Collector and Reference Court under S.18 of Land Acquisition Act, 1894---Constitutional petition was dismissed in circumstances.
Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others 1990 SCMR 899; Ikramul Haq and 11 others v. Province of Sindh through Secretary, Revenue Department and 3 others 2012 CLC 655; Muhammad Saqib Abbasi v. Province of Punjab and others 2013 CLC 158; Amir Aftab Hussain v. Land Acquisition Collector, Punjab Provincial Highway Department, Rawalpindi and 4 others PLD 2012 Lah. 440; Allah Razi v. Islamic Republic of Pakistan and others 2011 CLC 532; Muhammad Afzal and 27 others v. Pakistan, through Secretary Defence, Islamabad and 4 others 2011 YLR 1710; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246; Messrs Muhammad Ali and brothers and another v. Director-General, L.D.A. and 3 others 2005 MLD 768 and Muhammad Rafiq and others v. Umar Din and others 2007 CLC 1729 rel.
Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others 1990 SCMR 899; Ikramul Haq and 11 others v. Province of Sindh through Secretary, Revenue Department and 3 others 2012 CLC 655; Muhammad Saqib Abbasi v. Province of Punjab and others 2013 CLC 158; Amir Aftab Hussain v. Land Acquisition Collector, Punjab Provincial Highway Department, Rawalpindi and 4 others PLD 2012 Lah. 440; Allah Razi v. Islamic Republic of Pakistan and others 2011 CLC 532 and Muhammad Afzal and 27 others v. Pakistan, through Secretary Defence, Islamabad and 4 others 2011 YLR 1710 distinguished.
Tariq Zulfiqar Ahmad and Muhammad Iqbal Khan for Petitioners.
Rana Muhammad Hussain A.A.-G., Faheem Baig, Additional Advocate General for Respondents.
Ch. Muhammad Rafique, for Respondent No.1.
Mushtaq Naich, C.A. Sahiwal.
Tahira Akram, A.C. Sahiwal.
Date of hearing: 20th June, 2014.
JUDGMENT
SHEZADA MAZHAR, J.---Through this single order, I intend to dispose of Writ Petitions Nos.3465 and 2234/2014 as in both the writ petitions, petitioners have challenged the acquisition of their land and sought direction of this Court for assessment of correct market price of the acquired land.
2. Facts relevant for disposal of the present writ petitions are that the petitioners are owners of the agricultural land in Chak No.76/5-R Tehsil and District, Sahiwal. Punjab Government acquired the agricultural land owned by the petitioners for setting up a Cool Fired Power Project and petitioners for setting up a Cool Fired Power Project and offered compensation for their land.
3. Through the present writ petitions, the petitioners have challenged the compensation offered by the Punjab Government on the ground that the same is very nominal. Further that the land acquired will be used for commercial purpose but the compensation given is very insignificant. The petitioners have also referred to the report allegedly filed/ prepared by the National Engineering Services Pakistan to allege that only land in Square Nos.59, 62 and 80 were to acquire whereas Punjab Government have acquired over 100-acres of land. It is also alleged by the learned counsel for the petitioners that acquisition proceedings are in violation of the Land Acquisition Act, 1984. Learned counsel also submit that for the purpose of compensation or direction writ can be filed in High Court. In order to support their contentions, learned counsel have relied upon Land Acquisition Collector and others v. Mst. Iqbal Begum and others (PLD 2010 SC 719), Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others (1990 SCMR 899), Ikramul Haq and 11 others v. Province of Sindh through Secretary, Revenue Department and 3 others 2012 CLC 655 (Sindh), Muhammad Saqib Abbasi v. Province of Punjab and others 2013 CLC 158, Amir Aftab Hussain v. Land Acquisition Collector, Punjab Provincial Highway Department, Rawalpindi and 4 others (PLD 2012 Lahore 440), Allah Razi v. Islamic Republic of Pakistan and others 2011 CLC 532 (Lahore) and Muhammad Afzal and 27 others v. Pakistan, through Secretary Defence, Islamabad and 4 others 2011 YLR 1710 (Lahore).
4. On the other hand, the learned A.A.G. submits that Punjab Government has fulfilled all the codal formalities before acquiring the land in question. Submits that majority of landowners have already received compensation in the wake of the award delivered by the Land Acquisition Collector. Learned Law Officer also referred to the letter dated 1-1-2014 wherein it was mentioned that more than 1000 acres of land is required for setting up Cool Fired Power Plant. Submits that petitioners have the alternate remedy for enhancement of compensation by filing reference against the award and therefore, present writ petitions are not maintainable. Submits that two writ petitions bearing Nos.2941 and 5648 of 2011 have already been dismissed by this Court vide order dated 10-5-2014 and 16-5-2014. In support of his contentions, learned Law Officer also relied upon Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others (PLD 1996 SC 246), Messrs Muhammad Ali and brothers and another v. Director-General, L.D.A. and 3 others 2005 MLD 768 (Lahore) and Muhammad Rafiq and others v. Umar Din and others 2007 CLC 1729 (Lahore).
5. I have heard the arguments and perused the record.
6. Under Article 24 of the Constitution of Islamic Republic of Pakistan, the Government has the power to acquire land of any person subject to compensation and law. In the case in hand, the Government claimed that it has fulfilled all the formalities for acquisition whereas, petitioners claimed that the relevant law has been violated. This Court cannot adjudicate upon the disputed facts under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
7. Even otherwise petitioners have sought proper assessment/enhancement of the compensation against which they have remedy under the law of acquisition to ask for enhancement in compensation by moving to the Collector and the referee Court.
8. The case-law relied upon by the leaned counsel for the petitioners i.e. Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others (1990 SCMR 899), Land Acquisition Collector and others v. Mst. Iqbal Begum and others (PLD 2010 SC 719) and Allah Razi v. Islamic Republic of Pakistan and others 2011 CLC 532 (Lahore), all arise out of proceedings initiated against the award before Collector, to referee Court to High Court in R.F.A. and then to Hon'ble Supreme Court, therefore, the same are not relevant to the case in hand.
9. In Amir Aftab Hussain v. Land Acquisition Collector, Punjab Provincial Highway Department, Rawlapindi and 4 others (PLD 2012 Lahore 440), notice under section 12(2) of the Land Acquisition Act, 1894 was not served upon the petitioner as he was out of country and therefore, award to his extent was set aside. The facts of the present case, are different and therefore, the same are not applicable to the case in hand.
10. In Muhammad Saqib Abbasi v. Province of Punjab and others (2013 CLC 158), no request of acquisition was made by the Federation and therefore, acquisition proceedings were set aside. In the case in hand, land is acquired by the Provincial Government's request, therefore, this precedent is not relevant to the case in hand.
11. In Ikramul Haq and 11 others v. Province of Sindh through Secretary, Revenue Department and 3 others 2012 CLC 655. (Sindh) petition was filed as the respondents of the said case had not implemented the award by making payment. In the case in hand, petitioners have challenged the award through writ petition for enhancement of compensation. Therefore, the said judgment is not relevant to the case in hand. It is however, clarified that observations made by the Court regarding determination of compensation can be referred by the petitioners in appropriate proceedings before referee Court.
12. In Muhammad Afzal and 27 others v. Pakistan, through Secretary Defece, Islamabad and 4 others 2011 YLR 1710 (Lahore) the Government acquired the adjacent land at Rs.4,00,000 per acre whereas, the petitioner's land of said case was acquired at Rs.1,75,000 per acre, therefore, it was allowed. The said case is also not relevant to the case in hand as no such objection has been raised by the petitioners in the case in hand that adjacent land have been acquired at some higher rates by the government.
13. Even otherwise the Hon'ble Supreme Court of Pakistan in Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others (PLD 1996 SC 246) held as under:--
"It is also noteworthy that the jurisdiction conferred on the High Court under Articles 199 and 203 of the Constitution is of extraordinary nature and is, therefore, to be exercised sparingly. The High Court has to be specially cautious in exercising its Constitutional jurisdiction when other adequate remedy is available to the party invoking that jurisdiction. Similar observations were made by the Peshawar Bench of the erstwhile High Court of West Pakistan in the case of Fazal Din alias Mina etc, cited by the learned counsel for the petitioner, while deciding a writ petition under Article 98 of the Constitution of 1962, the provisions whereof were somewhat similar to those of Article 199 of the present Constitution of 1973 The observation is point read as follows:--
The basic principle, however, to be kept in view by the Court should be that the power under Article 98, where the alternative remedy is not exhausted, is exercised sparingly with caution and circumspection; and ordinarily only in those cases where grave injustice may otherwise ensue.".
14. In the case in hand, petitioners have although made arguments that acquisition proceedings are against the law, however, the basic claim of the petitioners is enhancement of the compensation and in this regard prayer in Writ Petition No.2234 of 2014 is very relevant wherein petitioners have stated:--
"It is therefore very humbly prayed that instant writ petition may kindly be accepted and directions may be issued to respondents to act strictly in accordance with law. Suitable compensation keeping in view the above narrated facts and figures, may please be awarded in lieu of their valuable acquired land. Petitioners would be satisfied if their genuine grievances are settled before taking further proceedings. Any other relief which this Hon'ble Court deems appropriate may also be granted". (emphasis added)
15. The above reproduced prayer clearly shows that the claim of the petitioner is only of compensation for which the petitioners have alternate remedy in the form of reference under section 1 of the Land Acquisition Act, 1894. The present writ petitions are therefore, liable to be dismissed and ordered accordingly.
AG/A-123/L Petition dismissed.
[Lahore]
Before Shezada Mazhar, J
AISH BAHADAR and others---Petitioners
Versus
DISTRICT COLLECTOR, SAHIWAL and others---Respondents
Writ Petitions Nos.3465-Q and 2234 of 2014, heard on 20th June, 2014.
Constitution of Pakistan---
----Arts. 199 & 24---Land Acquisition Act (I of 1894), Ss.18 & 23---Constitutional petition--- Scope--- Alternate remedy---Land acquisition---Enhancement in compensation---Scope---Government had power to acquire land of any person subject to compensation and law---High Court could not adjudicate upon disputed facts under constitutional jurisdiction---Petitioners could seek alternate remedy of enhancement in compensation by moving Collector and Reference Court under S.18 of Land Acquisition Act, 1894---Constitutional petition was dismissed in circumstances.
Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others 1990 SCMR 899; Ikramul Haq and 11 others v. Province of Sindh through Secretary, Revenue Department and 3 others 2012 CLC 655; Muhammad Saqib Abbasi v. Province of Punjab and others 2013 CLC 158; Amir Aftab Hussain v. Land Acquisition Collector, Punjab Provincial Highway Department, Rawalpindi and 4 others PLD 2012 Lah. 440; Allah Razi v. Islamic Republic of Pakistan and others 2011 CLC 532; Muhammad Afzal and 27 others v. Pakistan, through Secretary Defence, Islamabad and 4 others 2011 YLR 1710; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246; Messrs Muhammad Ali and brothers and another v. Director-General, L.D.A. and 3 others 2005 MLD 768 and Muhammad Rafiq and others v. Umar Din and others 2007 CLC 1729 rel.
Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others 1990 SCMR 899; Ikramul Haq and 11 others v. Province of Sindh through Secretary, Revenue Department and 3 others 2012 CLC 655; Muhammad Saqib Abbasi v. Province of Punjab and others 2013 CLC 158; Amir Aftab Hussain v. Land Acquisition Collector, Punjab Provincial Highway Department, Rawalpindi and 4 others PLD 2012 Lah. 440; Allah Razi v. Islamic Republic of Pakistan and others 2011 CLC 532 and Muhammad Afzal and 27 others v. Pakistan, through Secretary Defence, Islamabad and 4 others 2011 YLR 1710 distinguished.
Tariq Zulfiqar Ahmad and Muhammad Iqbal Khan for Petitioners.
Rana Muhammad Hussain A.A.-G., Faheem Baig, Additional Advocate General for Respondents.
Ch. Muhammad Rafique, for Respondent No.1.
Mushtaq Naich, C.A. Sahiwal.
Tahira Akram, A.C. Sahiwal.
Date of hearing: 20th June, 2014.
JUDGMENT
SHEZADA MAZHAR, J.---Through this single order, I intend to dispose of Writ Petitions Nos.3465 and 2234/2014 as in both the writ petitions, petitioners have challenged the acquisition of their land and sought direction of this Court for assessment of correct market price of the acquired land.
2. Facts relevant for disposal of the present writ petitions are that the petitioners are owners of the agricultural land in Chak No.76/5-R Tehsil and District, Sahiwal. Punjab Government acquired the agricultural land owned by the petitioners for setting up a Cool Fired Power Project and petitioners for setting up a Cool Fired Power Project and offered compensation for their land.
3. Through the present writ petitions, the petitioners have challenged the compensation offered by the Punjab Government on the ground that the same is very nominal. Further that the land acquired will be used for commercial purpose but the compensation given is very insignificant. The petitioners have also referred to the report allegedly filed/ prepared by the National Engineering Services Pakistan to allege that only land in Square Nos.59, 62 and 80 were to acquire whereas Punjab Government have acquired over 100-acres of land. It is also alleged by the learned counsel for the petitioners that acquisition proceedings are in violation of the Land Acquisition Act, 1984. Learned counsel also submit that for the purpose of compensation or direction writ can be filed in High Court. In order to support their contentions, learned counsel have relied upon Land Acquisition Collector and others v. Mst. Iqbal Begum and others (PLD 2010 SC 719), Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others (1990 SCMR 899), Ikramul Haq and 11 others v. Province of Sindh through Secretary, Revenue Department and 3 others 2012 CLC 655 (Sindh), Muhammad Saqib Abbasi v. Province of Punjab and others 2013 CLC 158, Amir Aftab Hussain v. Land Acquisition Collector, Punjab Provincial Highway Department, Rawalpindi and 4 others (PLD 2012 Lahore 440), Allah Razi v. Islamic Republic of Pakistan and others 2011 CLC 532 (Lahore) and Muhammad Afzal and 27 others v. Pakistan, through Secretary Defence, Islamabad and 4 others 2011 YLR 1710 (Lahore).
4. On the other hand, the learned A.A.G. submits that Punjab Government has fulfilled all the codal formalities before acquiring the land in question. Submits that majority of landowners have already received compensation in the wake of the award delivered by the Land Acquisition Collector. Learned Law Officer also referred to the letter dated 1-1-2014 wherein it was mentioned that more than 1000 acres of land is required for setting up Cool Fired Power Plant. Submits that petitioners have the alternate remedy for enhancement of compensation by filing reference against the award and therefore, present writ petitions are not maintainable. Submits that two writ petitions bearing Nos.2941 and 5648 of 2011 have already been dismissed by this Court vide order dated 10-5-2014 and 16-5-2014. In support of his contentions, learned Law Officer also relied upon Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others (PLD 1996 SC 246), Messrs Muhammad Ali and brothers and another v. Director-General, L.D.A. and 3 others 2005 MLD 768 (Lahore) and Muhammad Rafiq and others v. Umar Din and others 2007 CLC 1729 (Lahore).
5. I have heard the arguments and perused the record.
6. Under Article 24 of the Constitution of Islamic Republic of Pakistan, the Government has the power to acquire land of any person subject to compensation and law. In the case in hand, the Government claimed that it has fulfilled all the formalities for acquisition whereas, petitioners claimed that the relevant law has been violated. This Court cannot adjudicate upon the disputed facts under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
7. Even otherwise petitioners have sought proper assessment/enhancement of the compensation against which they have remedy under the law of acquisition to ask for enhancement in compensation by moving to the Collector and the referee Court.
8. The case-law relied upon by the leaned counsel for the petitioners i.e. Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others (1990 SCMR 899), Land Acquisition Collector and others v. Mst. Iqbal Begum and others (PLD 2010 SC 719) and Allah Razi v. Islamic Republic of Pakistan and others 2011 CLC 532 (Lahore), all arise out of proceedings initiated against the award before Collector, to referee Court to High Court in R.F.A. and then to Hon'ble Supreme Court, therefore, the same are not relevant to the case in hand.
9. In Amir Aftab Hussain v. Land Acquisition Collector, Punjab Provincial Highway Department, Rawlapindi and 4 others (PLD 2012 Lahore 440), notice under section 12(2) of the Land Acquisition Act, 1894 was not served upon the petitioner as he was out of country and therefore, award to his extent was set aside. The facts of the present case, are different and therefore, the same are not applicable to the case in hand.
10. In Muhammad Saqib Abbasi v. Province of Punjab and others (2013 CLC 158), no request of acquisition was made by the Federation and therefore, acquisition proceedings were set aside. In the case in hand, land is acquired by the Provincial Government's request, therefore, this precedent is not relevant to the case in hand.
11. In Ikramul Haq and 11 others v. Province of Sindh through Secretary, Revenue Department and 3 others 2012 CLC 655. (Sindh) petition was filed as the respondents of the said case had not implemented the award by making payment. In the case in hand, petitioners have challenged the award through writ petition for enhancement of compensation. Therefore, the said judgment is not relevant to the case in hand. It is however, clarified that observations made by the Court regarding determination of compensation can be referred by the petitioners in appropriate proceedings before referee Court.
12. In Muhammad Afzal and 27 others v. Pakistan, through Secretary Defece, Islamabad and 4 others 2011 YLR 1710 (Lahore) the Government acquired the adjacent land at Rs.4,00,000 per acre whereas, the petitioner's land of said case was acquired at Rs.1,75,000 per acre, therefore, it was allowed. The said case is also not relevant to the case in hand as no such objection has been raised by the petitioners in the case in hand that adjacent land have been acquired at some higher rates by the government.
13. Even otherwise the Hon'ble Supreme Court of Pakistan in Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others (PLD 1996 SC 246) held as under:--
"It is also noteworthy that the jurisdiction conferred on the High Court under Articles 199 and 203 of the Constitution is of extraordinary nature and is, therefore, to be exercised sparingly. The High Court has to be specially cautious in exercising its Constitutional jurisdiction when other adequate remedy is available to the party invoking that jurisdiction. Similar observations were made by the Peshawar Bench of the erstwhile High Court of West Pakistan in the case of Fazal Din alias Mina etc, cited by the learned counsel for the petitioner, while deciding a writ petition under Article 98 of the Constitution of 1962, the provisions whereof were somewhat similar to those of Article 199 of the present Constitution of 1973 The observation is point read as follows:--
The basic principle, however, to be kept in view by the Court should be that the power under Article 98, where the alternative remedy is not exhausted, is exercised sparingly with caution and circumspection; and ordinarily only in those cases where grave injustice may otherwise ensue.".
14. In the case in hand, petitioners have although made arguments that acquisition proceedings are against the law, however, the basic claim of the petitioners is enhancement of the compensation and in this regard prayer in Writ Petition No.2234 of 2014 is very relevant wherein petitioners have stated:--
"It is therefore very humbly prayed that instant writ petition may kindly be accepted and directions may be issued to respondents to act strictly in accordance with law. Suitable compensation keeping in view the above narrated facts and figures, may please be awarded in lieu of their valuable acquired land. Petitioners would be satisfied if their genuine grievances are settled before taking further proceedings. Any other relief which this Hon'ble Court deems appropriate may also be granted". (emphasis added)
15. The above reproduced prayer clearly shows that the claim of the petitioner is only of compensation for which the petitioners have alternate remedy in the form of reference under section 1 of the Land Acquisition Act, 1894. The present writ petitions are therefore, liable to be dismissed and ordered accordingly.
AG/A-123/L Petition dismissed.
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