ABDUL HUSSAIN BALOCH vs PRINCIPAL, CHANDKA MEDICAL COLLEGE AND Othfrss
This matter arises from a petition seeking leave to appeal against the dismissal of a writ petition by the High Court, which had challenged the acquisition of land for the Chandka Medical College. The core legal question was whether an Additional Commissioner is competent to issue a notification under section 6 of the Land Acquisition Act 1894, and whether the invocation of urgency provisions under section 17 was valid. The Supreme Court held that under section 2(17) of the West Pakistan General Clauses Act 1956, the term 'Commissioner' includes an Additional Commissioner, thereby validating the notification. Furthermore, the Court declined to examine the question of urgency as no factual foundation had been laid in the writ petition. The key principle laid down is that an Additional Commissioner can validly perform the functions of a Commissioner under the Land Acquisition Act 1894 by virtue of the extended definition provided in the General Clauses Act, unless excluded by context.
- Does the term Commissioner under section 6 of the Land Acquisition Act 1894 include an Additional Commissioner?
- Can an Additional Commissioner issue a notification under section 6 of the Land Acquisition Act 1894?
- Is the invocation of urgency under section 17 of the Land Acquisition Act 1894 open to challenge without proper factual foundation in the pleadings?
- Section 4, Land Acquisition Act 1894
- Section 6, Land Acquisition Act 1894
- Section 17, Land Acquisition Act 1894
- Section 2(17), West Pakistan General Clauses Act 1956
ORDER
1. MUHAMMAD HALEEM, ACTG,. C. J. -The dispute in this petition relates to the acquisition of Survey No, 79, measuring 2-31 acres, situate in Deh Lahore, District Larkana, for a public purpose, namely, for being utilized by the Chandka Medical College. This Survey number is Sikni land and is owned by the petitioner. In this behalf a Notification under section 4 of the Land Acquisition Act. 1894, was issued on 6th of March, 1980, followed by another Notification dated 25th of September, 1980, issued under sections 6 and 17 of the said Act, which was challenged in the High Court on the ground that the Additional Commissioner was not competent to issue it as it was only the Commissioner who was designated under section 6 of the Act to do so. But the High Court rejected this submission on the short ground that under section 2 (17) of the West Pakistan General Clauses Act, 1956, a Commissioner includes an Additional Commissioner and, therefore, while construing section 6 as applicable to the Province of Sind, it held that an Additional Commissioner would be included within the definition of the word "Commissioner". As such he could also issue the impugned Notification. The further submission urged before the High Court was that as there was no urgency as contemplated by section 17 of the Act, the Additional Commissioner wrongly invoked section 17 of the Act. The High Court did not allow the contention to be raised as it was not pleaded in the Writ Petition and for that reason, in the comments forwarded in reply to the petition, nothing was said in regard to it by the first respondent.
2. The learned counsel seeks leave on the same grounds as were urged before the High Court. His submission is that the word "Commissioner" was substituted for "a Secretary to such government" in section 6 (i) of the Land Acquisition Act in the Third Schedule to the West Pakistan (Adaptation and Repeal of Laws) Act, 1957, and therefore, it was the Commissioner who was the designated authority and he could alone issue theNotification under that section. He also placed reliance on section 5 (i) and (it) of thesaid Act in support of his submission. However, in order to overcome the applicability of section 2 (17) of the West Pakistan General Clauses Act, 1956, it was incumbent on the counsel to show that either in the context of this section or that of section 6 of the Land Acquisition Act, the extended definition of the word "Commissioner", to include an Additional Commissioner, could not be pressed into service either by the definition of the word "Commissioner" or for that matter that the Additional Commissioner could riot perform the function of a Commissioner under section 6 of the which he failed to do. Therefore, the High Court was correct in holding, as it did, that the word "Commissioner" included an Additional Commis--sioner and as for the second submission, since no factual, foundation was laid, it is difficult for us to judge the ground of urgency in the absence of the comments and the opinion of the High Court which refused to examine this plea. It is also not free from doubt as to whether the ground is at all justiciable.
3. Accordingly, we see no merit in this petition and dismiss it.