ABDUL WSHID Versus COLLECTOR

1. The subject‑matter of dispute in this case is a land measuring 22 kanals and 2 marlas situated in the revenue estate of Ferozewala District Sheikhupura. A Notification bearing No. 494‑70/188 HC(S) dated the 3rd of February 1970, was issued by the Collector under section 4 of the Land Acquisition Act 1894 (hereinafter called the Act). It was published in the Gazette dated 4‑3‑1970. It reads as follows t‑

2. "Extraordinary Issue. Registered No. L‑7532. The Gazette of West Pakistan Published by Authority. Lahore, Wednesday March 4, 1970.

3. OFFICE OF THE COLLECTOR, SHEIKHUPURA DISTRICT, SHEIKHUPURA

4. Notification

5. The 3rd of February 1970.

6. No. 494‑70/188‑HC(S).‑Whereas, it appears to the Collector. Sheikhupura District, Sheikhupura that land is likely to be acquired and taken by Government for Messrs Waqar Ceramics Limited for the establishment of Ceramics and Brick Making Plants in Village Ferozewala, Tehsil Ferozewala, District Sheikhupura at their expenses. It is hereby notified that land in the locality, described below is likely to be acquired for the above purposes.

(2) This notification is made under the provision of section 4 of the Land Acquisition Act, 1894 to all whom it may concern.

(3) In exercise of the powers conferred by the aforesaid section, the Collector Sheikhupura. District Sheikhupura is pleased to authorise the officer 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."

(4) Any person interested who has any objection to the acquisition of any land in the locality may within 30 days of this notification file an objection in writing before the land. Acquisition Collector (Industries), West Pakistan, 40‑Empress Road, Lahore.

(5) A plan of the land may be inspected in the office of the

(1) Collector, Sheikhupura District, Sheikhupura.

(2) Land Acquisition Collector (Industries), 40‑Empress Road, Lahore.

7. Specification

8. (Sd.) Collector, Sheikhupura,

9. District Sheikhupura.

2. It was followed by a Notification under section 17(4) of the Act. It is dated 26‑12‑1970 and was published in the Gazette on 1‑1‑1971. It reads as follows:‑

10. No. LA 610/171.‑Whereas it appears to the Commissioner, Lahore Division, Lahore that the land (hereinafter referred to as the said land) and specified in the notification under section 4 of the Land Acquisition Act, 1894, issued by Collector. Sheikhupura District, Sheikhupura. vide notification No. 494‑70/188‑HC(S), dated 3rd February 1970 and as detailed in the Schedule below is required to be taken by Government at Company's expense for Company's purpose, namely building an approach road to their factory in village and Tehsil Ferozewala, District Sheikhupura.

(2) And, whereas, the Commissioner is satisfied that the said land is urgently required and the provisions of sub section (1) of section 17 of the Land Acquisition Act, 1894, are applicable to the aforesaid land.

(3) Now, therefore, in exercise of the powers under sub section (4) of section 17 of the said Act, the Commissioner, 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 the said land and that the Land Acquisition Collector (Industries), Punjab, Poonch House, Multan Road. Lahore, should take action accordingly.

11. Note.‑--Land upon which any religious place of worship, shrine, tomb, graveyard or any immovable property attached to any institution and the boundaries of which are continuous with the site of the same shall be excluded from the said land. Similarly waqf and evacuee properties and waqf land shall be excluded ‑

12. Specification

13. F. ICS. Bandial.

14. Commissioner, Lahore Division, Lahore.

3. Thereafter there was executed an agreement between the Government and the Company on 15-4‑1971, It was published in the Gazette, dated 23‑4‑1971. This agreement reads as follows:‑

15. Agreement

16. "An agreement made this Fifteenth day of April In the year one thousand nine hundred and seventy‑one between the Governor of the Punjab (which expression shall be deemed to Include his Successors‑in‑Office and assigns) hereinafter referred to as "the Government of the one part and Waqar Ceramics a limited company registered under the Companies Act, 1913, duly incorporated in West Pakistan and having its registered office at 65 Shahra‑i‑Quaid Azam, Lahore, hereinafter called the "Company" (which expression shall be deemed to include Its successors and assignees) of the other part.

17. Whereas the company has made application to the Government for acquisition of land measuring 2 Acres, 6 Kanals, and 2 Marlas, situated in Village Ferozewala, Tehsil Ferozewala District Sheikhupura, hereinafter referred to as the land, the provisions of the Land Acquisition Act, 1894 and more particularly described in the Schedule and delineated in the plan hereunto annexed, which have been signed by the Commissioner, Lahore Division and the duly authorised representatives of the Company for the purpose of Identification.

18. And, whereas, on an enquiry held under section 40 of the Act, the Commissioner is satisfied that the land is needed for the purpose of approach road and that the said work is likely to prove useful to the public, has consented to acquire the land on behalf of the Company

19. And, whereas, the Commissioner has required the Company, under the provisions of section 41 of the Act, to enter into agreement with the Government hereinafter contained,

20. Now, therefore, this agreement witnesseth as follows:‑

(1) On demand, the company shall pay to the Government all and every compensation in respect of the land tendered, paid or awarded by the Collector under the Land Acquisition Act, or by the Court to which a reference under Part III of the Act, may be made or by the Appellate Court or Courts and all costs, charges and expenses of the proceedings in the said Courts, or otherwise incidental to the proposed acquisition or payable in respect thereof under the provisions of the Act.

(2) On payment by the company of all demands, under the foregoing clause the Government shall make, execute and do all such acts, deeds as may be necessary and proper for effectually vesting the land in the company and giving the company an absolute title thereto subject to the following terms and conditions-

(a) The land shall be used only for the purpose of approach road are in accordance with the rules prescribed for the sanction of plans by the Municipal Committee, Improvement

21. Trust or Town Committee concerned, within two years from the date of the possession of the land being given to the Company by the Government or within such further period as may be agreed to in writing between the Company and the Government.

(b) The Company shall annually pay to the Government the land revenue and other ceases to which the land is or under the law for the time being in force may be assessed.

(c) That the Company shall not transfer the land or any part thereof by sale, mortgage, gift, lease or otherwise, except with the previous permission of the Government.

(d) The Company shall provide employment to the public and it shall also provide technical knowledge and training to suitable members of the public.

(e) The Company does hereby acknowledge and recognize the right now and hereafter of the Government to and in all mines, minerals, coal, earth, oil and gold washing and quarries of every description in or under the land and also the right of the control of Provincial; Governments to do all such acts, deeds or things as may be necessary or required to be done for the engagement thereof.

22. (f ) 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) The company shall abide by the rules and regulations framed by the Government or any other Authority as may be legally applicable.

(h) 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 this Agreement, the land shall be liable to be resumed and taken back by the Government on repayment to the Company of the amount of award as finality settled, less the compulsory acquisition charges or the estimated market value of the land at the time of resumption whichever shall be less and if there are any buildings on the land, the Government may at its option either purchase the buildings on the payment or 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, provided that if the breach is capable of rectification, the Government shall not order 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.

(i) If at any time the Government feels that the land acquired is in excess of the requirements of the company, such portion as may be found in excess of the requirements shall be resumed keeping in view the principles of consolidation subject to the conditions laid down in para. (h) 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 dispute arises between the Government and the Company in respect of the subject‑matter of this agreement or any covenant clause or thing herein contained, the same shall be referred to the Commissioner, Lahore Division and the decision of the said Commissioner upon such dispute shall be final and conclusive and binding on the parties hereto.

23. In witness whereof the parties to this Agreement have hereunto set and subscribed with their respective hands on the date first above written:

SCHEDULE

4. The last step which was taken in this respect was the publication of a Notification under section 6 of the Act. This Notification is dated 1‑6‑1971 and was published in the Gazette dated 4‑6‑1971. It reads as follows:--

24. "No. LA/610/50.‑Whereas the Commissioner, Lahore Division is satisfied that the land notified under section 4 of the Land Acquisition Act, 1894, under the Collector, Sheikhupura District, Sheikhupura, No. 494‑70/188‑HC(S), dated the 3rd February 1970, read with Commissioner, Lahore Division Notification No. LA/610/171, dated the 26th December 1970 issued under section 17 of the said Act, is needed for public purpose by Messrs Waqar Ceramics Limited for building an approach road to their Factory in Village and Tehsil Ferozewala, District Sheikhupura at their expense. It is hereby declared that the land described in the specification below is required for the above purpose.

25. This declaration is made under the provisions of section 6 of the Land Acquisition Act, 1894, to all whom It may concern and under the provisions of section 7 of the said Act, the Land Acquisition Collector (Industries), Punjab, Poonch House, Multan Road. Lahore is hereby directed to take order for the acquisition of the said land.

26. The plan of land may be inspected in the office of the Land Acquisition Collector (Industries), Poonch House, Lahore.

27. Specification

28. District

29. Tehsil

30. Village

31. Square No.

32. Khasra No.

33. Area

34. K. M.

35. Sheikhu‑ pura

36. Feroze‑ wala

37. Feroze‑ wale

38. 45/1/1

39. 2/1

40. 3/1

41. 4/1

42. 5/1

43. 46/2/1

44. 1481/1

45. 5/1

46. 47/4/1

47. 5/1

48. 145

49. 145

50. 245

51. 144

52. 144

53. 150

54. 150

55. 1480/1

56. 949/1

57. 1012/

58. 4/1

59. 3/1

60. 2/1

61. 8/1

62. 7/1

63. 4/1

64. 4/1

65. 2 0

66. 2 0

67. 2 0

68. 2

69. 0 16

70. 2 0

71. 2 0

72. 2 0

73. 1 0

74. 1 2

75. Grand Total

76. 22 2

77. Muhammad Siddique Chaudhry, Commissioner, Lahore Division.

5. The petitioners who are owners of the land in question have come up in writ petition against the aforesaid proceedings and Notifications etc., with the following prayer: which is contained in their amended writ petition:‑

78. "It is, therefore, most respectfully prayed that the acquisition of the land of the petitioners measuring 22 kanals 2 marlas bearing Khasra Nos. 1454/1, 1453/1, 1452/1, 1448/1, 1447/1, 1503/1, 1504/1, 1505/1, 1481/1, 1480/1, 949/1 and 1012/1, in square No. 451/1/1, 2/1, 3/1, 4/1, 5/1, 46/1/1. 2/1, 3/1, 4/1, 5/1, 47/4/1 and 5/1 situated in Ferozewala, Tehsil Ferozewala District Sheikhupura, the notification dated 3‑2‑1970, Annexure `A', by the Collector, Sheikhupura District Sheikhupura, the Notification dated 26‑12‑1970, (Annexure D), issued by the Commissioner Lahore Division, Lahore and the actions taken under and in pursuance of the said notifications by the Collector, the Commissioner and the Officers/ Workers/ Labourers of Messrs Waqar Ceramics, Ltd., may very kindly be declared to be illegal, without jurisdiction, without lawful authority and to be of no legal effect and, it is further prayed that appropriate directions may he issued to the respondents to give up the acquisition of the land of the petitioners."

6. The first point argued by the learned counsel for the petitioners was that the agreement contemplated in section 39 of the Act (which has been reproduced above), should have preceded the notification under section 17(4) of the Act. For this proposition, reliance was placed on Ch. Khushi Muhammad v. The Commissioner, Multan Division. Multan and 3 others (P L D 1965 Lah. 250) where at page 256 Muhammad Yaqub Ali, J., (as then his Lordship way) wrote that, "if .the acquisition in the present case was for the benefit of a Company simpliciter, the respondent No. 1 would, undoubtedly, have been incompetent to dispense with the provisions of the agreement under section 39 of the Act". To the same strain is Rajan Singh and others v. State and another (A I R 1959 All. 635). The proposition of law, as being propounded by the learned counsel for the petitioners seems quite in order, but in my view, it has no application to the facts and circumstances of the present case. In the agreement executed between the Company and the Government, it is clearly recited that, "the land is needed for the purposes of approach road and the said work is likely to prove useful to the public. At another place, in the agreement it is written, "that the land shall be used only for the purpose of approaching road etc., in accordance with` rules prescribed for the sanction of the plans of the Municipal Committee, Improvement Trust . . . . "Still another recital in the agreement is that, "the Company shall provide employment to the public and it shall also provide technical knowledge and training to suitable members of the public." This recital clearly shows that the land was not being acquired for the Company simpliciter but was also being acquired for a public purpose. In this view of the matter the case does not fall within the objection raised by the learned counsel and in view of the peculiar facts and circumstances hereinbefore mentioned, the execution of the agreement need not have preceded the issuance of a notification under section 17(4) of the Act. That the land was needed for public purpose is also evident from the recitals in the notifications under section 6 of the Act reproduced above, wherein it was indicated that the land was needed for public purpose by Messrs Waqar Ceramics Limited for building an approach road to their factory. In subsection (3) of section 6 of the Act, it is laid down that, "the said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company as the case may." Apart from the statutory presumption attached to the declaration hereinbefore mentioned, there has been brought no material on the record to show anything to the contrary or in rebuttal. It Is to be pointed out that as laid down in Lahore Improvement Trust v. Custodian Evacuee Property West Pakistan Lahore and 4 others (P L D 1971 S C 811) fn cases of acquisition of land another principle which Is attracted Is that before an order passed by a public authority is struck down, it is the duty of the Court to explore every possible explanation for Its validity and examine the entire field of powers conferred on the authority in pursuance of which the impugned order has been passed. I have proceeded in accordance with the law declared by the Supreme Court and asked the parties to place all the relevant notifications on the record which have been reproduced in the earlier part of this judgment. A perusal of the relevant material thus discloses that there was nothing infirm in the action of the acquiring authorities.

7. The next point argued was that in section 39 of the Act It was laid down that, "the provisions of sections 6 to 37 (both Inclusive) shall not be put up in force In order to acquire land for any Company unless with the previous consent of the Provincial Government nor unless the Company shall have executed the agreement hereinafter mentioned". Learned counsel submitted that in the instant case there was no consent of the y Provincial Government previous to the notifications under section 6 of the Act. I have already held that the acquisition in band was not for the Company simpliciter but was also for a public purpose. The contention raised, therefore, has no substance and even otherwise it is just a repetition of the same point in another form which has already been disposed of by me earlier.

8. No other point was argued before me.

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

79. Petition dismissed.