UMAR FAROOQ Versus

1. GHULAM SAMAR SHAH, C. J.--- This petition under Article 201 of Interim Constitution of Islamic Republic of Pakistan calls in question the land acquisition proceedings conducted by respondent No. 1, namely, Acquisition Collector, Tehsil and District Bannu, in regard to acquisition of 141 kanals and 13 marlas of land, situated in villages Jabbor and Hinjal Noorbaz for the purpose of constructing on it buildings for Government College.

2. The award of Collector would show that out of the total area of 141 kanals 13 marlas, petitioner is the owner of only a few kanals (the details of which are, however, not necessary for the decision of this case).

3. The grounds upon which petitioner has challenged the award of the Collector dated 1-3-1973 have been enumerated by him in paras. 1-6 of his petition. But in nutshel, his grievance is as under:

2. That long before notification under section 4 of the Land Acquisition Act, 1894 (hereinafter called the Act) was published in official Gazette, the Land Acquisition Collector had taken the proceedings in hand and this, according to him, would render the entire proceed ings, including the consequent award delivered by him as without jurisdiction.

3. The learned Collector has, in his parawise comments, not disputed this position. But what he has alleged is that prior to the publication of notification in official Gazette under...on 26-2-1973, all land owners were informed through Tehsil agency that their land was intended to be acquired for a public purpose, that in consequence of information the land-owners appeared before him and 610 their objections respecting which they were later heard. But these were rejected.

4. As to the background in which he was required to acquire land in this case, he has asserted that the case was one of urgency in that students of Government Degree College, Bannu had been staging demonstra tions with a view to urging upon Government to acquire some land for the purpose of constructing their college. And the learned Advocate General has not disputed this position. He, however, contended that petitioner having participated in proceedings before Collector, without any objection, must be deemed to have accepted his award and this, according to him, would disentitle him to the discretionary jurisdiction of this Court. For this submission, he relied on three judgments, two front defunct West Pakistan High Court in the cases of Hafeezud Din v. Mian Khadim Hussain, Additional Deputy Commissioner, Lahore and others (P L D 1965 Lah. 439) and Yasin Khan v. Settlement and Rehabilitation Commissioner Karachi (P L D 1967 Kar. 295) and the third from Sind & Baluchistan High Court in the case of Idris Ahmad Khan v. Syed Ali Zahid Raza (P L D 1972 Kar. 493). But before we proceed to examine these cases, it would be proper to take note of subsections (1) and (2) of section 4 of the Act which read as under :--

5. "4. Publication of preliminary notification and power of officers there upon.-(1) Whenever it appears to the Collector of the District that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.

(2) Thereupon it shall be lawful for any officer, either generally or specially authorised by the Collector of the District in this behalf, and for his servants and workmen--- to enter upon and survey and take levels of any land in such locality ; to dig or bore into the subsoil : to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work, if any, proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked; to cut down and clear away any part of any standing crop, fence or jungle:

6. Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so.

(3) . .. ."

7. By reading these two subsections together, it would be evident that the publication of notification under section 4 of the Act would appear to bet a condition precedent to the exercise of jurisdiction by Collector in all cases in which it appears to him that any land in the district is needed or is likely to be needed for a public purpose or for a company. The word "shall" appearing in between the words "a notification to that effect" and "be published in the official Gazette" would appear to convey the unmistakable intention of Legislature that the publication of said notification was not a mere formality. In point of fact, the word "there upon" appearing in the beginning of subsection (2) of section 4 ibid., is a further pointer in that direction which, when read in the context of subsection (1) of that section, would leave no doubt in one's mind that in all acquisition cases under the Act the very jurisdiction of Collector would depend upon the prior publication of the required notification and only thereafter it shall be lawful for any officer authorised by him to enter upon and survey and take level of the land intended to be acquired by him. Expressum facit cessare taciturn-that if doing of a particular thing is made lawful, doing something in conflict of that will be unlawful-is the well known doctrine to which we could refer in support of this conclusion just as it would be profitable to keep in mind the well settled principle of interpretation of Statutes that save in exceptional cases, with which we are not concerned, every word of a statute has to be given a meaning and the only meaning that the words of subsections (1) and (2) of section 4 of the Act are capable of bearing is that without the publication of notification under that section. Collector would have no jurisdiction to embark upon land acquisition proceedings. A close scrutiny of section 4 ibid would show that it contains public policy of far-reaching consequences inasmuch as it not only enables Government to acquire, without the consent of land-owner, his land for a public purpose, but the date on which notification mentioned in it is required to be published would provide the terminus a quo from which, in view of section 23 of the Act, Collector is required to determine the market value of the land in order to award compensation to land-owner. We are, therefore, inclined to take the view that any infraction by Collector of the provisions of this section would give to a land-owner a valid cause for grievance to say that the entire proceedings conducted by him were without jurisdiction.

8. In the well known case of E. A. Evans v. Muhammad Ashraf (PLD 1964 SC 536) their Lordships of the Supreme Court were called upon to consider the effect of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called Compensation Act) in view of the admitted position in that case that Muhammad Ashraf (the transferee of property) had omitted to serve upon Evans (his statutory tenant) the required registered notice. A perusal of the judgment would show that after the property was transferred to Muhammad Ashraf, Evans approached him and offered to pay him rent. On the insistence of Muhammad Ashraf, however, Evans agreed and started paying him enhanced rent. But after a few months he received a notice from Muhammad Ashraf asking him to vacate and hand over the possession of premises to him on grounds, amongst others, that he bad damaged the tenement as also that he needed the same for his own occupation. It seems that when Evans did not oblige him, Muhammad Ashraf instituted proceedings against him for his eviction and succeeded up to High Court. But in appeal filed by Evans in Supreme Court of Pakistan, the judgment of High Court was, except that Kaikaus, J. delivered a dissenting judgment, set aside by majority of their Lordships, holding that section 30 of the Compensation Act being in the nature of public-policy-legislation, would nullify any agreement reached between a landlord and tenant whereby the latter agreed to opt out of the protection given to him under the section. Their Lordships, therefore, reached the conclusion that since Muhammad Ashraf had failed to serve upon Evans the required registered notice acknowledgment due, the eviction proceedings filed by him were incompetent, notwithstanding the agreement of Evans by which he had given up his right to the said notice and had also agreed to pay enhanced rent.

9. Now by comparing section 4 of the Act with section 30 of the Compensation Act, it appears to us that both contain legislation in the nature of public policy. The ratio of Evan's case would, therefore, apply to the facts of this case and as such it would be difficult for the learned Advocate-General to sustain his argument that just because the petitioner in this case had participated in the proceedings before Collector, he would be deemed to have disentitled himself to any relief in this writ petition.

10. As regards the three judgments, relied upon by learned Advocate General, they seem to be distinguishable. A perusal of the first two judgments would show that in-there decision was reached on the basis of a well-known judgment of Supreme Court of Pakistan in the case of Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore (PLD1964 SC 829) whereas in the third judgment the same principle was followed although the judgment of Supreme Court finds no mention in it. The position in Ghulam Mohi-ud-Din's case was, however, different in that the appellant before Supreme Court had invoked the jurisdiction of Settlement Commissioner in a case in which he was found to have no jurisdiction and when he started making grievance of this fact, their Lordships of the Supreme Court held against him laying down that :-

11. "One of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to the extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal whose illegal order he seeks to have quashed. by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise .......

12. In the present case, there can be no doubt that the appellant knew that he had filed a second revision-petition before the Chief Settlement Commissioner and that this was a circumstance, which prevented the Settlement Commissioner in law from exercising his power of review. Notwithstanding this, he not only did not raise any objection to the hearing of the review but actually participated in its hearing on merits."

13. A perusal of the three judgments cited by learned Advocate-General would show that in-there too it were the writ-petitioners who had invoked, with open eyes, the jurisdiction of Tribunal and when the orders went against them, they came to High Court in its writ jurisdiction. Obviously, there fore, they did not succeed in that behalf in view of what had already been laid down by the Supreme Court in the case of Ghulam Mohi-ud-Din. But we do not see as to how would these judgments help they petitioner. It is conceded before us that petitioner in this case had not approached the Collector of Bannu District with a view to urging upon him to acquire his land. In point of fact, the action in that regard had been initiated by Collector himself who, however, without ensuring that notification under section 4 of the Act was published, took in hand the land acquisition proceedings and consequently delivered the impugned award.

14. The learned Advocate-General, however, expressed his anxiety that if the impugned award of Collector is held to be without jurisdiction, it is bound to create complications. He contended that the land acquired in this case belongs to many owners and in the event of any such eventuality a flood-gate of mischief would be opened in that all land-owners would start disclaiming the award of Collector to the great embarrassment of Government. It seems to us that his anxiety on this score is misplaced. It is well-settled that if a land-owner has accepted the amount of coma pensation without protest (and it is conceded at the bar that other land owners in this case have done so), he would be unable to seek even a reference to the Court of Reference Judge under section 18 of the Act, much-less to be able to come in appeal against the award of Collector or to lay a challenge to it in the constitutional jurisdiction of this Court.

15. Mr. Jalaluddin Akbarji, learned counsel for petitioner, however, tried to get rid of even section 4 notification published in the official Gazette on 26-2-1973. But we have not been able to agree with him. The reason for which we have held the award of Collector in this case to be without jurisdiction is due to the lack of prior publication of section 4 notification. But this would not mean that when the said notification was published by him on 26-2-1973 that too could be ignored. A perusal of section 4 of the Act would show that it is the Collector who has been invested with powers to acquire land for a public purpose and to that end publish, as a condition precedent to his jurisdiction, the required notification. It is, therefore, obvious that the notification published by him on 26-2-1973 is entirely unexceptional and this Court cannot o sit in appeal over his judgment whether the land is or is not required for a public purpose.

16. The learned counsel next attempted to show as if notification under section 4 of the Act was not published on 26-2-1973. And in that respect, he relied on a letter of Manager, Government Printing and Stationary Department, N.-W.F.P. dated 10-4-1973 which is on record. They difficulty in his way, however, is that in the first place the notification in question bears the date 26-2-1973 and in the second place, the contents of the letter in question have not been proved. Had the learned counsel been really serious about this letter, surely he would have summoned its author to appear in Court and to subject himself to cross-examination by learned Advocate-General.

17. The result of this discussion is that we have no option but to hold that the impugned award, in so far as petitioner is concerned, is without jurisdiction and of no legal effect. However, it would be open to Collector to initiate fresh proceedings with a view to acquire land of petitioner. And in that regard, the commencing date would be 26-2-1973 when notification under section 4 of the Act was published by him.

18. This petition is, accordingly, allowed. But in fairness to petitioner, he would be awarded the costs thereof by respondents.

19. S. A. H. Petition allowed.