GHULAM MOINUDDIN Versus RAAIA BEGUM

1. The Commissioner, Sargodha Division, Sargodha, issued, under section 4 of the Land Acquisition Act, 1894 (hereinafter called the Act), a Notification No. L‑351/7588/Rev, dated 7‑5‑1966, published in the Extraordinary Issue of the Gazette of West Pakistan, at page 1209, indicating that the land mentioned therein was likely to be taken by the Government for Messrs Hussain Ebrahim Agencies Limited, Karachi, at their expenses for construction of sugar Mills. The said notification reads as follows:‑

2. "Extraordinary Issue Registered No. L. 7532

3. The Gazette of West Pakistan

4. Published by Authority, Lahore Monday, May 9, 1966.

5. OFFICE OF THE COMMISSIONER, SARGODHA DIVISION, SARGODHA

6. Notification

7. The 7 th May 1966

8. No. L‑351/7588/Rev.‑Whereas, it appears to the Commissioner, Sargodha Division, Sargodha, that the land is likely to be taken by Government for Messrs Hussain Ebrahim Agencies Limited, Karachi, at their expenses for construction of sugar mill, it is hereby notified that land in the locality described below is likely to be acquired for the above purpose.

2. This notification is made under the provisions of section 4 of the Land Acquisition Act, 1894 (as adopted and modified for Pakistan) and Land Acquisition (Punjab Amend ment) Act, 1954, to all whom it may concern.

3. 1n exercise of the powers conferred by the aforesaid section, the Commissioner, Sargodha, Division, Sargodha, is pleased to authorise the officers of the Company for the time being engaged in the undertaking with servants and workmen to enter upon and survey any land in the locality, and do all other acts required or permitted by that section.

SPECIFICATION

9. District

10. Tehsil

11. Locality

12. Square No.

13. Killas No.

14. Area

15. Layallpur

16. Jaranwala

17. 128‑G.B.

18. 30

19. 24/2

20. A.K.M.

21. 0 5 4

22. 33

23. 1, 11/2, 12/2, 13/2,

24. 18 to 20

25. 5 4 10

26. 34

27. 3/2, 4, 5, 6/1, 6/2,

28. 7, 8/2, 13/2, 14/1,

29. 14/2, 15 to 17, 18/2/1,18/2/2, 23/2, 24‑min, 25‑min.

30. 13 6 6

31. 35

32. 6, 7/2, 14/1, 15/1

33. 2 6 9

34. 36

35. 5, 6/1, 6/2, 6, 8, 12/1,

36. 13/1, 14/1, 15/1,

37. Khasra Number 130

38. 5 5 1

39. 11‑0‑ 8

40. Grand Total:

41. 39 3 18

42. (Sd.) Rifat Pasha Sheikh,

43. Commissioner, Sargodha Division,

44. (1209) Sargodha."

2. Later on, in the Extraordinary Issue of the Gazette of West Pakistan, dated 24‑6‑1966, there was published under section 42 of the Act an agreement which had been entered Into on 13‑6‑1966, between the Government of West Pakistan and Messrs Hussain Ebrahim Sugar Mills Limited under section 40 of the Act. The agreement reads as follows:--

45. "An agreement made on the 13th day of June of the year one thousand nine hundred and sixty‑six between the Government of West Pakistan (hereinafter referred to as the Government) of the one part and Messrs Hussain Sugar Mills Ltd., having its chief place of business at 1st Floor Insurance House No. 2, Habib Square, Bunder Road, Karachi (hereinafter called the Company) which expression unless excluded by the context shall be deemed to include its successors and assignees of the other part.

46. Whereas the Company had made an application to the Government to acquire under the provisions of the Land Acquisition Act, 1894 (I of 1894) land situated at Mauas. Nangal Chak No. 128 G. B., Tehsil Jaranwala, District Lyallpur and more particularly described in the Schedule hereto and delineated in the plan hereinto annexed and which measures 39 Acres 3 kanals 18 marlas.

47. And whereas the Government on an enquiry held under section 40 of the Land Acquisition Act, 1894 are satisfied that the said land is needed for the construction of a Sugar Mills, Labour Colony, Godowns. Quarter, Roads and their ancillary Buildings, and that are likely to prove useful to the public.

48. Now the agreement witnesses that in consideration of the said premises the Company does hereby agree and covenant with the Government as follows:‑

(1) That Company shall pay to the Government all such sums of money as shall be awarded under the provisions of Land Acquisition Act, 1894, as compensation to any person or persons who may be found on enquiry held under the provisions of the said Act to be interested in the land herein., before mentioned and also shall defray and pay to the Government all charges of and incidental to and the cost of acquisition of the aforesaid land under the provisions of the said Act, including the cost of any litigation arising out of the proceeding‑, in original or appellate Courts.

(2) Upon such payment by the Company the Government shall execute and do all such acts, deeds, matters and things as may be necessary or proper for effectively vesting the said land in the Company and giving the Company an absolute title thereto subject to the following terms and conditions:‑

(a) That the land shall be used only for the construction of a Sugar Mill, their ancilliary buildings, Godowns, Quarters, and Roads etc., within one year from the date of possession of the aforesaid land being given to the Company by the Government or within such further time as may be agreed to in writing between the Company and the Director of Industries, West Pakistan.

(b) That the Company shall pay 0 the Government annually the appropriate assessment of land Revenue or ground rent, as the case may be, to which the land may from time to time be assessed.

(c) That the Company shall not let, hire, lease, sell exchange or otherwise dispose of the land mentioned above or any part thereof except with the previous permission of the Government.

(d) That the Company shall provide employment to the public and it shall also provide technical knowledge and training to the suitable members of the public by affording them, apprenticeship and training facilities.

(e) That the Company does hereby acknowledge and, recognise the right now and hereinafter of the Government to and in all, mines, minerals, coal, earth‑oil, and gold washings, and quarries of every description in or under the land aforesaid and also the right to do all such acts, deeds or things by the Government as may be necessary or requisite to be done for the purpose of enjoyment thereof.

(f) That the Company shall not do or suffer to be done any act inconsistent with or injurious to any of the rights excepted or reserved to the Government.

(g) That in the event of the Company being wound up or in the event of failure on the part of the Company to carry out any of the terms of agreement, the land shall be liable to be resumed and taken back by the Government on repayment to the Company of the amount of awards as finally settled less the fifteen percent awarded, for compulsory acquisition whichever shall be less and if there are any buildings on the land the Government may at its option either purchase the buildings on payment of their estimated value at the time or direct the Company to remove the buildings at its own cost within such time as may be allowed by the Government:

49. Provided if the breach is capable of rectification the Government shall not order the resumption unless a written notice requiring the Company to rectify the breach within reasonable time has been issued and the Company has failed to comply with such notice.

(h) That if at any stage the Government feels that the land acquired is in excess of the requirements of the Company such portion as may be held in excess of the requirements shall be resumed keeping in view the principal of consolidation subject to conditions laid down in paragraph (g) above.

(3) All the costs and expenses of and incidental to the preparation and execution of this agreement (including stamp duty and cost of registration if registration be required by the Government) shall be paid by the Company.

(4) If any question difference or objection whatever arises with regard to any matter connected with or liabilities of either Parties, then every such matter shall be referred for decision to the Commissioner of the Division and his decision shall be final.

50. In witness whereof the parties to this agreement have hereunto set and subscribed their respective hands the day and year first above written.

SCHEDULE

51. District

52. Tehsil

53. Locality

54. Square No.

55. Killas No.

56. Area

57. Layallpur

58. Jaranwala

59. 128‑G.B.

60. 30

61. 24/2

62. A.K.M.

63. 0 5 4

64. 33

65. 1, 11/2, 12/2, 13/2,

66. 18 to 20

67. 5 4 10

68. 34

69. 3/2, 4, 5, 6/1, 6/2,

70. 7, 8/2, 13/2, 14/1,

71. 14/2, 15 to 17, 18/2/1,18/2/2, 23/2, 24‑min, 25‑min.

72. 13 6 6

73. 35

74. 6, 7/2, 14/1, 15/1

75. 2 6 9

76. 36

77. 5, 6/1, 6/2, 6, 8, 12/1,

78. 13/1, 14/1, 15/1,

79. Khasra Number 130

80. 5 5 1

81. 11‑0‑ 8

82. Grand Total:

83. 39 3 18

84. For and on behalf of the Government

85. Rifat Pasha Sheikh

86. Commissioner, Sargodha Division

87. Witness:

88. Nisar Ahmad P. C. S.,

89. Assistant to Commissioner,

90. Sargodha

91. For and on behalf of

92. Company

93. Muhammad Attaullah

94. Director.

95. Witness

96. Muhammad Ishaque,

97. Superintendent, Commissioner's Office,

98. Sargodha.

3. This was followed by another Notification No. 14151‑66/' 84‑Re, dated 19‑1‑1967, which was published in the Extraordinary Issue of the Gazette of West Pakistan, dated 25‑1‑1967, issued under subsection (1) of section 17 of the Land Acquisition Act indicating that the provisions of sections 5 and 5‑A of the said Act, shall not be applicable 1n the case of the land hereinbefore mentioned and that the Land Acquisition Collector (Industries), West Pakistan, Lahore, should take action accordingly. The Notification reads as follows:‑

99. "No. 14151‑66/84‑Re.‑Whereas it appears to the Governor of West Pakistan that the land specified below and notified under section 4 of the Land Acquisition Act, vide Commissioner. Sargodha Division's Notification No. L. 351/7588/Rev., dated the 8th July 1966, is needed for a Company purposes, namely, Construction of Hussain Sugar Mills Limited. Ancilliary Buildings, Godowns, Quarters and Roads etc., at the expense of Messrs Hussain Ebrahim Agencies Limited, Karachi;

100. And whereas, the Governor is satisfied that the said land specified below is urgently required for the purpose Indicated in para. 1 above and the provisions of subsection (1) of section 17 of the Land Acquisition Act, 1894, are applicable to the aforesaid land;

101. Now, therefore, In exercise of the powers under subsec tion (4) of section 17 of the said Act, the Governor is further pleased to direct that the provisions of sections 5 and 5‑A of the said Act shall not be applicable in the case of said land and that the Land Acquisition Collector (Industries). West Pakistan, Lahore, should take action accordingly.

SPECIFICATION

102. District

103. Tehsil

104. Locality

105. Square No.

106. Killas No.

107. Layallpur

108. Jaranwala

109. 128‑G.B.

110. 30

111. 24/2

112. 33

113. 1

114. 34

115. 3/2, 4, 5, 6/1, 6/2, and 2

116. 35

117. 6, 7/2, 14/1, 15/1

118. 37

119. 5, 6/1, 6/2, 6, 8, 12/1,

120. 13/1, 14/1, 15/1, and

121. 130

4. The last Notification which is relevant for the purpose of the present case is No. L‑351/176/2444/Rev., dated 11‑2‑1967, which was published in the Extraordinary Issue of the Gazette of Pakistan, dated 13‑2‑1967, making a declaration under section 6 of the Act and directing the Land Acquisition Collector to take order for the acquisition of said land under section 7 of the Act. It reads as follows:-

122. "No. L‑351 / 176/2444/Rev. ‑Whereas it appears to the Commissioner, Sargodha Division, Sargodha, that the land notified under section 4, read with section 17 of the Land Acquisition Act, 1894, vide Government of West Pakistan, Revenue Department, Notification No. 14151‑66/84/Re, dated 25th January 1967 Is required to be taken by the Government for a public purpose, namely, for the construction of Hussain Sugar Mills, ancilliary Buildings, Godowns, Quarters and Roads etc., at Jaranwala, District Lyallpur, at the expense of Messrs Hussain Ibrahim Agencies Limited, Karachi.

123. The declaration Is made under the provisions of section 6 of the Land Acquisition Act, 1894 (as adapted and modified for Pakistan) to all whom it may concern and the provisions of section 7 of the said Act, the Land Acquisition Collector, Department of Industries and Commerce, West Pakistan, Poonch House, Multan Road, Lahore, is hereby directed to take order for the acquisition of the said land."

5. The petitioner who is owner of 128 kanals and 4 marlas of land, consisting of Killas Nos. 3/2, 4, 5, 6/l, 7, 8/2, of Square No. 34 and Khasra No. 130 (measuring 88 kanals and 8 marlas) has filed the present writ petition challenging the aforesaid acquisition. A number of contentions in this respect were raised before me which I will presently deal with.

124. The first point argued by the learned counsel for the petitioner was that in various notifications issued under various sections of the Act, one piece of land was described as Killa No. 130 of Square No. 37. His argument was that there was no Killa No. 130 in Square No. 37. He submitted that there was one Khasra No. 130 which was an independent khasra by itself and did not fall part of any square. Due to this wrong description of land, acquisition of this particular piece of land which measured 88 kanals and 8 marlas, it was contended, was illegal. The contention has no force. The purpose of various notifications under sections 4, 6 and 17(4) was to put on alert the persons whose land is being acquired. I have examined the case from this point of view and have come to the conclusion that there was no misunderstanding on the part of the petitioner in comprehending that it was his aforesaid tract of land which was being acquired. Reference can be made to his one application dated 28‑6‑1966, which he submitted to the Collector (Acquisition Industries, District Layallpur). This application reads as follows:-

125. Acquisition Industries

126. Urdu 624

127. In the face of this application, it is crystal clear that the petitioner did not suffer any prejudice due to the aforesaid small mistake in the description of the land and, therefore, the point raised by him is of no significance. Even otherwise the aforesaid mistake (though not wholly but vas to some extent rectified by a correction notification, dated 31‑5‑1967, which was published in the Extraordinary Gazette of the West Pakistan Province, dated 5‑6‑1967.

7. The next point argued was that in notification under Section 4, it was indicated that the land was likely to be taken by the Government for Messrs Hussain Ibrahim Agencies Limited, Karachi at their expense for construction of a Sugar Mills (hereinafter called the Agent) whereas in all subsequent notifica tions the acquisition was for Hussain Sugar Mills Limited hereinafter called tire Principals). Learned counsel submitted that in the eye of law each limited and incorporated company is a separate entity by itself and even though Messrs Hussain Ebrahim Agencies Limited, Karachi, were the agents of Messrs Hussain Sugar Mills Limited (that is the principals) nevertheless all the subsequent notifications were on the names of the Principals. Due to this difference in notification under section 4 on the one hand and all the subsequent notifications on the other hand, he argued the entire acquisition stands vitiated. The matter has been receiving my serious considerations but my humble view is that this variation, in view of the peculiar facts and circumstances of the present case, is not sufficient by itself to render the entire acquisition proceeding as illegal or unlawful. No doubt, to notification under section 4, it is shown that the land was to be acquired for the Agent Company but the intention was clear that there was to be set up a Sugar Mills on the spot and the acquisition was really meant for setting up that Mills. In all the subsequent notifi cations, the name of the sugar mills duly appears. An agreement is also executed by that sugar mills. The said sugar mills has made the payment and, in fact, construct ‑d a huge mills on the spot. No prejudice seems to have been caused to the petitioner due to the mistake under discussion and from that point of view the objection is of no material significance. I have to scrutinize an objection which prevailed in Haji Feroze lain and others v. Government of West Pakistan arid others (P L D 1961 Lah. 304) checked up from the dates given to me by the learned counsel for the petitioner that the principal company had already come into existence on 14‑2‑1966 much before the agent company applied for the acquisition of the land on 26‑3‑1966. An inference from over all facts and circumstances can safely be drawn that the Agents were acting for their Principals and a small inaccuracy in the recital of the factual position in this respect, in notification under section 4 of the Act, cannot vitiate the acquisition proceedings. Reference at this stage can be made to the recitals in the agreement which states that (a) the application for acquisition was made by the principal company (b) that the Government on enquiry under section 40 of the Act was satisfied that the land in question was needed for the construction of a Sugar Mills, labour colony, godowns, quarters, roods and ether ancilliary buildings; (c) that they were likely to prove useful to the public; (d) that the price was to be paid by the principal company; (e) that the company shall provide employment to the public and it shall also provide technical knowledge and training to the suitable members of the public by affording them apprenticeship and raining facilities. Reference can also be made to the letters which have been addressed by Government of Pakistan, Ministry of Finance, to the Agents which have been printed in the front pages of a booklet known as Memorandum and Articles of Association of Hussain Sugar Mills Limited (Annex B' filed by the con testing respondent) which go to show that the Agents were acting for their principals and if in the notification under sec tion 4 the name of the Agents (instead of the principals) figured, that is not such a material irregularity which, in view of the peculiar facts and circumstances of the case, will destroy the whole acquisition proceedings, especially, when it has caused no prejudice to the petitioner. After issuance of a notification under section 4, land‑owners are to be on alert that their lands are likely to be acquired. At that time they may raise objections under section 5‑A or under section 40 of the Ac but in the latter case that is when the matter is proceeding under section 40 (which is‑ the situation here), the Initiative is no longer in their hands and it is the Government and the Government alone which is to form its opinion as held by me in a connected case, namely, Faqir Muhammad and others v. Government of West Pakistan and others W. P. No. 588/196 (decided and reported today). The land‑owners have no locus stands to participate in the said enquiry, see Ezra v. The Secretary of State and others (I L R 30 Cal. 36) affirmed in appeal by Privy Council in Ezra v. Secretary of State fur India (I L R 32 Cal. 605). Also see Ch. Khushi Muhammad v. The Commissioner, Multan and others (P L D 1965 Lah. 250). From that point of view the petitioner‑land‑owner cannot question the consent given by the Government for acquisition of the land in dispute to the principal Company, especially, when on the point presently of debate, he took no exception before the authorities concerned.

8. The other points urged by the learned counsel for the petitioner were as follows:-‑

(a) that notice under section 4 of the Act was not given to his client;

(b) that there was no urgency to dispense with tire provisions of sections 5 and 5‑A of the Act;

(c) that no notice to the petitioner was given under section 9 of the Act;

(d) that provisions of Chapter VII were not complied with in that no enquiry under section 40 of the Act was held;

(e) that provisions of section 6 of the Act were not followed, Inasmuch as, in the relevant notification the purpose of acquisition was not given and not the details and the approximate area of the land was shown. Similarly, it was not indicated as to whether there existed any superstructure on the land in question or not, and

(f) that the petitioner was given no opportunity to show cause against the acquisition of his land.

9. As regards the point at (a) above, the application of the petitioner reproduced above amply shows that he had sufficient notice of notification' under section 4 of the Act. As regards the point at (b), the recital in the notification under section 17 of the Act is sufficient to show that justification for dispensing with the provisions of sections 5 and 5.A did exist. As regards the point at (c) again it has no merit. Notice under section 9 is given before taking possession. 'This point was not pressed in arguments before me. As regards the point at (d), the relevant notification and the agreement do recite that enquiry under section 40 was held and all formalities were complied with. The point raised, therefore, has no substance. As regards the point at (e), the relevant notification under section 6 does contain the details of the land, its area and location and, as pointed out earlier, the petitioner did not suffer any surprise due to any alleged infirmity in description of the land and as such the objection raised has no substance. As regards the point at (f), the enquiry contemplated in section 40 of the Act was not litigious. In any case the petitioner did raise objections to the acquisition of the land, as is evident from a copy of his own application reproduced earlier, but if the same did not bring any fruit, he can have no grievance on that account.

10. No other point was argued before me.

11. The result is that this writ petition has no merit and is dismissed leaving the parties to bear their own costs.

128. S. A. H. Petition dismissed.