MUHAMMAD HUSSAIN Versus MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE

Land measuring 187 kanals and 8 marlas situate at Mauza Kasur Androon was sought to be acquired for construction of Technical Training Centre by the Labour Department of the Government of Punjab. Since the Department intended to take up the construction work immediately and to take possession of the land, it moved the Commissioner Lahore Division, Lahore, that in relaxation of sections 5 and 5‑A of the Land Acquisition Act, 1894, possession of the selected land be delivered to the Department. Consequently, the Commissioner, Lahore Division, Lahore, vide notification dated 11th May, 1981 (Annexure 'A') directed that in relaxation of the provisions of sections 5 and 5‑A of the Land Acquisition Act, possession of the land be taken by the Labour Department. Needless to add that this notification purported to have been made by the Commissioner, Lahore Division, Lahore, in exercise of his powers under section 17 (1) ibid. Thus, the petitioners, the land owners, were dispossessed‑ It is noteworthy that the land included an orchard comprising of fruit bearing trees such a Falsa etc. The Extra‑Assistant Director of Agriculture, Kasur, was deputed to assess the price of the trees standing in the land at the time of its acquisition by the Labour Department. The said Extra‑Assistant Director of Agriculture inspected the land in question in the presence of a representative of the acquiring Department i.e. the Labour Department, Government of the Punjab and the owners of the land. The Extra‑Assistant Director of Agriculture Kasur vide his letter dated 23‑9‑1981 (Annexure 'B') addressed to the Deputy Commissioner, Kasur, reported that in the land in question there were 6069 trees of Falsa and 737 other plants. He further reported that out of these trees 5917 were 16 years old while 152 were two years old. He worked out the income per plant as Rs.30 per year. His report has also been attested by the Regional Manager, Employment Exchange, Kasur, as representative of the acquiring Department, The compensation in regard to fruit trees and other trees assessed by the E.A.D.A. Kasur, worked out to be Rs.8,11,403. The Deputy Commissioner, Kasur, sought the approval of the Revenue Department, Government of the Punjab as the amount of compensation exceeded Rs.5,00,000. The Secretary, Government of the Punjab, Revenue Department, communicated the approval vide letter dated 25th March, 1982 (Annexure 'C'). Through letter dated 4‑5‑1982 (Annexure 'D') the Deputy Commissioner/ Collector, Kasur was required to get the amount payable as compensation deposited by the Acquiring Department immediately to avoid increase in the interest. The Acquiring Department was also asked by the Board of Revenue to deposit the amount of compensation through letter dated 19‑9‑1982 (Annexure 'E'). The Labour Department, however, moved the Board of Revenue for constitution of a Special Committee to work out the compensation on account of trees. The Board of Revenue declined to do so and advised the Secretary, Labour Department, Government of the Punjab, through D.O. letter dated 2‑3‑1983 (Annexure 'F') that the Labour Department could still challenge the award before the Court under section 18 of the Land Acquisition Act, but it should not delay the deposit of the amount of compensation as the Acquiring Department would continue to be burdened with the imposition of 8% compound interest since the date of acquisition viz. 16‑5‑1981. The Labour Department in the meantime through its letter dated 12‑12‑1982 (Annexure 'G'), requested the Secretary Agricultural Department, Government of the Punjab, to depute the Director Agriculture and the Horticulturist of Ayub Agricultural Research Institute to re‑assess the cost of trees as the assessment already made by the E. A . D. A . , Kasur, was unusually on the high side. Consequently the price of the trees was re‑assessed by the re‑constituted 'Committee. Be‑assessed compensation was worked out to be Rs. 2,53,397. On the basis of re‑assessed compensation the Secretary, Government of the Punjab, Labour Department again addressed a D.O. letter to Sh. Maqbool Ahmad, the then Member Board of Revenue on 1‑6‑1983 (Annexure 'I') requesting him to revise the approval already accorded. Mr. Maqbool Ahmad Sheikh, vide his D.O. dated June 28, 1983 (Annexure 'J') intimated the Secretary that revision of the estimate was not considered necessary, although the compensation approved by the Board of Revenue could still be contested on the basis of assessment subsequently made by the experts before the Land Acquisition Collector by the Acquiring Department. The Labour Department still not being satisfied moved a regular application seeking a review of the order whereby approval was accorded to the assessment of compensation made by the E.A.D.A. Kasur. This review application (Annexure 'L') was, of course, made through a learned counsel, namely, Ch. Muhammad Nazeer Ahmad. Pursuant to this review application the Board of Revenue issued a letter to the Deputy Commissioner, Kasur (Annexure 'K') on 8‑2‑1984 intimating him that the Land Acquisition Collector was not in any way bound by the estimate approved by the Board of Revenue and that he would give award strictly in accordance with the provisions of sections 23 and 24 of the Land Acquisition Act read with para. 54 of the Standing Order No.26.. It was further observed that the Land Acquisition Collector would seek technical assistance of experts/ technical personnel for determining the price of the fruit trees. Thus, the Board of Revenue practically reviewed its earlier order whereby approval was accorded to the cost of compensation on account of trees worked out by the E.A.D.A. The letter (Annexure 'K') was issued without hearing the petitioners, the owners of the land.

2. The petitioners feeling aggrieved have assailed the validity of the letter dated 8‑2‑1984 (Annexure 'K') through the present constitutional petition.

3. It has been contended on behalf of the petitioners that the impugned letter conveying the observations and directions of the Member, Board of Revenue is not only violative of the principle of res judicata but also offends against the provisions of section 8 of the West Pakistan Board of Revenue Act, 1957, inasmuch as the approval already accorded has been reviewed without affording opportunity of show‑cause to the petitioners. It has also been averred that principle of audi alteram partem has also been disregarded while issuing the impugned letter.

4. With reference to the provisions of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it was held in Atta Muhammad Qureshi vs. The 'Settlement Commissioner, Lahore Division, Lahore and 2 others (P L D 1971 SC 61) by the Supreme Court of Pakistan that section 20 of the Act was mandatory in character and placed limitation on the jurisdiction of the revising authority not to make any adverse order against a person without giving opportunity of show cause against it. If such an order was made without fulfillment of this pre‑requisite, it would certainly lack jurisdiction. In Saiyyid Abul Aala Maudoodi and 2 others v. The Government of West Pakistan and another (P L D 1964 SC 673), it was ruled by the Supreme Court of Pakistan that principle of natural justice that no one should be condemned unheard applies to all judicial, quasi‑judicial and even in administrative proceedings provided the statute governing such proceedings does not exclude the application of this principle expressly. Obviously, in the present case, the application of this principle has not been excluded.

5. The contentions raised on behalf of the petitioners have been vehemently opposed by the learned counsel representing the Government of the Punjab, Labour Department. It has been argued on behalf of the respondent that section 8 of the Board of Revenue Act has no application in the circumstances of the present case, because the provisions of section 8 apply to an order or decree made or passed by the Board in exercise of its jurisdiction, but the approval which was accorded by the Board of Revenue to the assessed cost of trees worked out in the circumstances of this case by the E.A.D.A. Kasur did not strictly fall within the jurisdiction of the Board. It has been averred that, as a matter of fact, Board does not figure anywhere in the Land Acquisition Act or the Rules made thereunder and that the Rules of 1983 which necessitate the approval by the Board were made after the acquisition in this case. The said Rules have no retrospective effect and, therefore, are not applicable to this case. '

Certainly Rules of 1983, have no retrospective effect and the provisions of these Rules cannot apply to acquisition made in 1981 but the Government; viz. the Provincial Government does figure in the Land Acquisition Act and as per provisions of guide‑lines of 1970 in cases of compensation exceeding five lacs reference to the Government was necessary. In the present case, the concerned Member Board of Revenue accorded approval in his capacity as Secretary to Government of the Punjab, Revenue Department.

6. As already observed earlier on two occasions request made by the Acquiring Department for being permitted to reconstitute the Experts Committee to re‑assess the value of the trees was declined. The Board of Revenue could not subsequently review its earlier orders even if the same were of administrative character. The impugned order certainly works to the detriment of the petitioners and, therefore, such an order could only be passed after affording opportunity of hearing/show cause to the petitioner.

7. It has also been urged on behalf of the respondent that an' order passed by the Secretary, Government of the Punjab, Revenue Department, whereby approval was accorded to the assessment regarding price of the trees as worked out by the E.A.D.A. Kasur could be recalled by the Secretary, as the authority competent to make an order has power to recall or undo it under section 21 of the General Clauses Act.

There can be no dispute with regard to such a power as provided in section 21 ibid. It is generally known as principle of locus poenitentiae, but it is a cardinal rule in regard to this power of receding that it can be exercised till a decisive step is taken. In the present case after the approval was accorded by the Revenue Department of the Provincial Government, it was communicated to the Labour Department as also to the Collector. The Labour Department as well as the Collector were required to arrange the immediate deposit of the approved amount of compensation. Thus, a decisive step had already been taken and thus the power of receding could not be exercised by means of impugned order. In Raja Muhammad Nawaz vs. Government of the Punjab (1981 S C M R 523) it was ruled that the impugned order even if it was a recall order could not be held to be lawful after fulfilment of relevant conditions and undertaking by the petitioner. Reference in this behalf can also be made to Shahbaz v. The Crown (P L D 1955 FC 46), Lt. Col G.L. Battacharya v. The State (P L D 1964 SC 503) and Pakistan v. Muhammad Himayatullah Farukhi (P L D 1969 SC 407).

In regard to the principle of audi alteram partem, Khan Ashfaque‑ur‑Rahman Khan v. Member, Board of Revenue and another (1986 S C M R 129) and Haji Noor Muhammad v. Muhammad Ishaque and another (P L D 1978 Kar. 686) have been relied upon on behalf of the respondent. These authorities are distinguishable on merits, inasmuch as in these cases it was found that no legal right of the petitioners was prejudiced by the impugned order in regard to which they were not afforded an opportunity of hearing.

It is, however, observed that the Land Acquisition Collector has still to make his award regarding compensation to be paid to the land‑owners and while doing so he has to base the award on his own enquiry. The Labour Department, if aggrieved can also challenge the award before the Court under section 18 of the Land Acquisition Act. In Ramnarain Damodrilal v. State of Madhya Pradesh, Bhopal (AIR 1963 Madhya Pradesh 35), the Land Acquisition Officer made the award not on the basis of his own judgment but on the valuation made by the Chief Engineer P.W.D. as desired by the Chief Secretary to the Government it was held that the award was invalid. In Collector of Karachi v. Haji Gola and others (P L D 1965 (W.P.) Kar. 413), it was held that the Collector was under statutory duty to make inquiry regarding the assessment of compensation and the persons to be affected by the award were entitled to be heard and given an opportunity to adduce evidence.

8. In the light of the above discussion it is concluded that the impugned order is not legally valid and the same is, therefore, held to be without lawful authority and of no legal effect. It is also observed that the Acquiring Department if feels aggrieved by the compensation assessed in respect of the trees standing on the acquired land at the time of its acquisition, can still agitate in this behalf before the Collector at the time of inquiry to be conducted by him before giving the award.

In case the Collector bases his award on the assessment made by the E.A.D.A. Kasur as approved by the Revenue Department of the Government of Punjab, the acquiring Department can challenge such assessment and award before the Court under section 18 of the Land Acquisition Act. In the circumstances, there shall be no order as to costs.

S.Q./M‑492/L Petition accepted