FAQIR MUHAMMAD Versus GOVERNMENT OF WEST PAKISTAN

Messrs United Vegetable Ghee Mills Limited, Layallpur (hereinafter called the Company), applied to the authorities concerned for acquisition of certain land for the storage of oil seeds, cakes etc. A notification, dated 8‑7‑66, under section 4 of the Land Acquisition Act (hereinafter called the Act), was published in the official Gazette of West Pakistan, dated 15‑7‑1967. It appears that prior thereto on 7‑2‑1966, an agreement under section 41 of the Act had been entered into between the Govern ment and the Company, but it was published under section 42 of the Act in the Gazette, dated 14‑2‑1967. This was followed by a notification under section 17 (4) of the Act, dated and pub lished in the Gazette, dated 28‑7‑1967 which dispensed with the provisions of sections 5 and 5‑A of the Act. Notification under section 6 of the Act was then published in the Gazette dated 20‑12‑1967. The petitioner, whose land was involved in the aforesaid acquisition, have filed the present writ petition.

2. The only point which was argued by the learned counsel for the petitioners that while acquiring land for a Company, it is laid down to section 39 of the Act that, "the provisions of sections 6 to 37 (both inclusive) shall not to put in force in order to acquire land for Company unless with the previous consent of the Provincial Government nor unless the Company shall have executed the agreement hereinafter mentioned". In section 40, it is laid down:

"40. (1) Such consent shall not be given unless the Provincial Government be satisfied, either on the report of the Collector under section 5‑A, subsection (2), or by an enquiry held as hereinafter provided.‑

(a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or

(aa) that such acquisition is needed for the construction of some building or work for a company which is engaged or, is taking steps for engaging Itself in any industry or work which is for a public purpose, or

(b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public, or

(c) that the area proposed to be acquired is reasonable for the purpose."

3. Learned counsel then referred to section 41 of the Act, which reads as follows:‑

"41. If the Provincial Government is satisfied after consider ing the report, if any, of the Collector under section 5‑A, subsection (2), or on the report of the officer making an inquiry under section 40 that the object of the proposed acquisi tion is to obtain land for one of the purposes mentioned in clauses (a) or clause (aa) or clause (b) or subsection (1) shall require the Company to enter into an agreement with the Provincal Government providing to the satisfaction of the 'Provincial Government for the following matters, namely :‑

(1) the payment to the Provincial Government of the cost of the acquisition;

(2) the transfer, on such payment, of the land to the Company;

(3) the terms on which the land shall be held by the Company;

(4) where the acquisition is for the purpose of erecting dwelling houses or the provision of amenities connected there with, the time within which the conditions on which and the manner in which the dwelling houses or amentities shall be erected or provided; and

(5) where the acquisition is for a purpose falling under clause (b) of subsection (1) of section 40 the time within which and the conditions on which the work shall be constructed and maintained, and the acquisition shall be deemed to have been made subject to the terms of such agreement."

Reference was also made to section 42 of the Act which read as follows:‑

"42. Every such agreement, shall, as soon as may be after Its execution, be published in the official Gazette and the acquisition shall be deemed to have been made subject to the terms of such agreement."

4. After referring to the above provisions of law, learned counsel for the petitioners submitted that the consent given by the Government under section 40 of the Act was dependent upon (a report of the Collector under subsection (2) of section 5‑A of the Act which was not applicable here or) an enquiry contemplated therein. It was argued that no enquiry in the instant case was at all held and, therefore, the consent given for acquisition of land for the Company or execution of agreement with the same or issuance of a Notification under section 6 of the Act, without the aforesaid enquiry having been held, was all unlawful. It is significant to mention that even though, agreement, dated 7‑2‑1966 gazetted on 14‑2‑1967, re‑4 produced above, did contain a recital that an enquiry had been held but strangely enough in the written‑statement filed in this Court on behalf of the Provincial Government, it was conceded in para 5 that, "no enquiry was conducted under section 40 of the Act". However the written‑statement made mention of certain other correspondence which had passed between the various department of the Government. Be that as it may, the question to be considered by me is as to whether at the instance of the present petitioners I should hold that the acquisition stands, vitiated due to the absence of an enquiry under section 40 of the Act. The nature and scope of such an enquiry came up for examination in a case reported in Ezra v. The Secretary of State and others (I L R 30 Cal. 36) (Ameer Ali and Stophen, JJ.), where the learned Judge, after a very exhaustive discussion at pages 74 to 80, of the relevant provisions of the statute, held that in cases, where land is acquired for a Company, it is that Company which has to satisfy the Local Government that the acquisition s needed for the construction of some work. In other words, it has to satisfy the Government and the Government is to satisfy itself that the work which is proposed to be constructed, is likely to prove useful to the public. The only parties concerned, is this case are the Government on one side and the Company on the other side. The wishes of the owners of the land in this respect are wholly irrelevant. There is no warrant to associate them in this enquiry either on the wording of the Statute or on the principles of natural justice. This judgment was maintained by the Privy Council in Ezra v. Secretary of State for India (I L R 32 Cal. 605) Lord Robertson dealt with the matter in the following, manner:‑

"The first of the two questions in controversy is whether; before this Declaration was issued, an enquiry had been duly held in accordance with the 40 th section of the Act. The general scheme of the Act is this; There is first, to be an enquiry, by a Government officer into the questions (1) whether the proposed acquisition is needed for the construction of some work, and (2) whether such work is likely to prove useful to the public. If the Government officer reports affirmatively on both points, then (in this case) the Lieutenant‑Governor may issue a declaration that the land is required for the purpose stated; and, this being done, the sequal is the ascertainment of value in a second enquiry by the Collector. The decision, or the latter official is conclusive of value as against the Government (and, 9n this case, the bank); but the owner of the land may, if dissatisfied, appeal to tae High Court for its determina tion of the value.

The first of the appellant's objections is to the procedure under the first enquiry, and his contention is that he ought to have received, and did not receive, notice of that enquiry and that it was conducted behind his back. (At this place their Lordships reproduced the section and then held:

"Now, upon the face of this enactment, there is no pro vision requiring or implying the presence or the knowledge of the owner of the land. The theory of the section would seem to be that the Government, through its officers, is to direct its attention to public Interests, and it is significant that neither promoter, on the one hand, nor possible objector, on the other, is mentioned in the section. This does not imply that the officer is to disregard the existence of adverse rights, and the word 'needed' implies this. But the stand point is that of public interest, and the Government is given control of the enquiry, for this is all that is meant by its being empowered to appoint time and place; and all this derives the more significance from the fact that the Act, both in this stage and in the subsequent enquiry into value, takes the initiative out of the hands of the Company and puts it in the hands of the Government.

That the nature of the first enquiry i: in no sense litigious, and that the owners of the land are purposely ignored, as parties, is strongly shown by the anxious provisions made as regards the second enquiry for which (section 9), "public notice" is to be given calling for claims for compensation and requiring all persons interested fn the land to appear at a time and place specified (At this place their Lordships reproduced the section and then held):

The conclusion to which their Lordships came is that the appellant's objection to the first enquiry are ill‑founded."

5. Same view was taken was by Muhammad Yaqub Ali and A. R. Sheikh, JJ., in Ch. Khushi Muhammad v. The Commissioner, Multan Division, Multan and others (P L D 1965 Lah. 250), where their Lordships held that, "the omission in section 40 of a provision as regards notice to 'persons Interested' In the land to be acquired for the benefit of a Company is, thus, deliberate; the underlying consideration being that the satisfaction of the Commissioner is not In the nature of an adjudication whether land belonging to a person shall be acquired for the benefit of a Company or not but is intended to provide material for determining whether the Government shall take action on behalf of a Company in that behalf or not. The non‑issuance of the notice to the petitioner in the Inquiry under section 40 has, thus, no effect on the validity of the consent given by the Commissioner to the acquisition in question". On page 257 of the Report they held, "the primary object of requiring a Company to execute an agreement before the provisions of sections 6 to 37 are put into operation is to determine that the acquisition is for purposes enumerated in section 41 of the Act and to safeguard against the Company resiling from the acquisition proceedings after some decisive steps have been taken in the case. In the present case, the promoters agreement, itself, contained the necessary conditions of acquisition and the estimated amount of compensation deposited by the respondent No. 2 before the Notification under section 6 was issued. The considerations underlying the provisions for execution of an agreement were thus satisfied in the case and the petitioner had no just grievance to make. In any use he had no locus stands to object to acquisition proceedings on the basis of an infraction of section 39 of the Act or he was not a person interested in the execution of the agreement''.

6. In the face of the aforesaid authoritative pronounce ments on the subject in hand, the objections of the learned counsel for the petitioners pertaining to the enquiry under section 40 of the Act are of no significance. It bas not been disputed before me that the land was not being acquired for the Company and that it was being acquired for some other entity or purpose. Similarly, there is no objection that no Company by the name of United Vegetable Ghee Mils Limited, Lyallpur existed. It is further to point out that the production of the relevant stuff from the said Company is not in controversy and nor an exception has been taken to the various relevant recitals in the agreement that the land was needed for the construction of a labour colony with amenities, railway sidings, godowns, seed houses factory buildings, and that they were likely to prove useful to the public. Neither the need of the aforesaid construc tions for the Company nor their utility to public have been questioned before me nor an exception was taken to the various conditions agreed to by the Company In its agreement, herein before mentioned. In these peculiar circumstances, the objection raised is merely of a highly technical nature which even otherwise as held in the cases quoted above, the petitioner have no locus standi to raise.

7. No other point was argued before me.

8. The upshot of the above discussion is that the present writ petition has no merit and is dismissed leaving the parties to bear their own costs.

S. A. H. Petition dismissed.