MUHAMMAD ISMAIL Versus PROVINCE OF SINDH
1. MUHAMMAD ASHRAF LEGHARI, J.‑ ‑‑The petitioners through this petition have sought the following reliefs:
(a) declare that the issuance of letter, dated 6‑7‑1998. Annexure "A: is without any lawful authority and is of no legal effect:
(b) directing the respondent No.2 to withdraw letter, dated 6‑7‑1998, Annexure "A".
(c) directing the respondents to desist from, initiating any action whereby the petitioners are deprived of their right of enjoyment of property as enjoined by the Constitution; or from interfering with their possession over the suit‑property.
(d) to make such other declaration and issue such other direction as this honourable Court deems fit and proper in the facts and circumstances of this case.
(e) To grant costs of these proceedings.
2. The facts briefly stated in the petition are that petitioners jointly own Plot No.1109/1 and 2 admeasurning 21579 Sq.fts. in the Town Committee Daharki, District Ghotki, Town Committee Daharki passed a resolution on 7th December, 1983, wherein the request was made to Commissioner Sukkur Division and Deputy Commissioner Ghotki at Mirpur Mathelo to initiate proceedings under the Land Acquisition Act, 1894 for acquiring the abovementioned plot for establishing Tonga‑cum‑donkey cart stand and fruit‑vegetable market. Consequently Deputy Commissioner Ghotki under section 4 of Land Acquisition Act issued notification on 18‑4‑1994. whereas Commissioner Sukkur Division Sukkur subsequently issued notification under section 6 on 26‑4‑1994. The provisions of section 17(1) regarding the urgency of the matter were invoked and the applicability of sections 5 and 5‑A of the Land Acquisition Act was relaxed as treating it as a matter of urgency.
3. The petitioners filed a F.C. Suit No.255 of 1995 against respondents Nos. l, 4 and 5 and some private defendants. No stay was, however, granted to the plaintiffs against the land acquiring authorities. But no further proceedings were initiated till 27‑3‑1998. ',"he respondent No.3 then called feasibility report from Assistant Commissioner and the Land Acquisition Officer, Mirpur Mathelo in respect of the required land for establishing the fruit, vegetable market and the Donkey cart/Tonga stand.
4. The report of respondent No.4 revealed that the required plot was not suitable for the several reasons including its narrowness. It was observed in the report that no award under section 11 of the Land Acquisition Act was passed. The said report given by respondent No.4 was entrusted by respondent No.3 (Deputy Commissioner Ghotki) who requested respondent No.2 (Commissioner Sukkur Division, Sukkur) for withdrawal of a notification under sections 4 and 6 of the Land Acquisition Act by a letter, dated 15‑4‑1998. Further, respondent No.3 called for the opinion of respondent No.5,, who also' was of the view that the land sought to be acquired was not suitable for the said purpose.
5. The respondent No.2 (Commissioner Sukkur Division, Sukkur) approved the suggestion of the respondents for withdrawal of notification under sections 4 and 6 subject to the condition that the plaintiffs shall withdraw their suit. The petitioners, therefore, withdrew Suit No. 255 of 1995 vide statement, dated 25‑6‑1987, as such, Deputy Commissioner Ghotki at Mirpur Mathelo by his notification, dated 27‑6‑1998 under section 48(I) of the Land Acquisition Act withdrawn the notification under section 4 of the Act, dated 18‑4‑1994 and ordered M.D. Government Printing Press Karachi to publish the same Government Gazette. The said Notification under section 48(1) of the Act was published in Sindh Government Gazett on 15th July, 1998. Subsequently the Notification under section 6 of the Act was withdrawn by Commissioner Sukkur Division Sukkur on 30‑6‑1998.
6. During all this period the petitioners remained in possession of the suit‑land. All of sudden the Commissioner Sukkur Division, Sukkur respondent No.2 issued letter, dated 6‑7‑1998, whereby he directed Manager Government Printing Press Karachi not to publish the notification under section 48 (1) of the Act, dated 30‑6‑1998 and further held that notification dated 26‑4‑1994 shall stand intact.
7. The petitioner approached respondent No.2 for withdrawal of subsequent letter, dated 6‑7‑1998 but to no avail and he ultimately expressed that the earlier proceedings stood reviewed by the said letter. The said letter obviously reveals malice on the part of respondent No.2 and is mala fide, void, corum non judice. The respondent No.2 had no locus standi to review the land acquisition proceedings after the withdrawal of notification finder section 4 of the Act. Pursuant to the notices issued to respondents; the respondents Nos. 1, 2 and 3 have not submitted their comments, however, respondents Nos.4 and 5 have filed‑ their counter‑affidavits.
8. The respondent No.4 Assistant Commissioner and Land Acquisition Officer Mirpur Mathelo has denied some of the pleas raised in the petition but stated that the same are denied for want of knowledge or having no concern with them by putting evasive denial.
9. The respondent No.5, Administrator Town Committee Daharki has also admitted most of the assertions made in the petition. He has further stated in the counter‑affidavit that Assistant Commissioner and Land Acquisition Officer Mirpur Mathelo has given false report in collusion with the petitioners. It is admitted that the respondent No.2, Commissioner Sukkur Division, Sukkur had agreed to the withdrawal of notification subject to withdrawal of suit but according to respondent No.5, it was all because of the false reports submitted by the respondents Nos.3 and 4. It is stated in the counter‑affidavit that respondent No.2 may not have been in the knowledge of withdrawal of notice under section 48(1), under section 6 of Land Acquisition Act issued on 26‑4‑1994 as it was issued by Additional Commissioner Sukkur Division. The possession of plot has already been handed over by Mukhtiarkar Daharki to answering defendant No.5 and the Government Printing Press, Karachi was directed to publish the order, dated 6‑7‑1998 directing him not to publish the notification under section 48(1) of the Act issued on 30‑6‑1998 with a clarification that the notice, dated 26‑4‑1994 will remain in tact. It is further stated in the counter‑affidavit that the respondent No.3 was not competent to withdraw the Notification under section 4 of the Land Acquisition Act which was earlier issued by him.
10. It is contended by Mr. M.A. Rasheed learned counsel appearing for the petitioners that the whole proceedings carried under Land Acquisition Act are corum non judice and without lawful authority. The notification tinder section 4 was issued on 18‑4‑1994 and the requirements of section 4 were not fulfilled by the authorities concerned. Later on after eight days, respondent No.2 issued another notice order, dated 26‑4‑1994 wherein all the formalities were relaxed and the procedure contained under sections 5 and 5‑A of Act were by passed. It is submitted that the feasibility report was called from Land Acquisition Officer, the respondent No.4 to submit his report, who by his report, dated 6‑4‑1998 opined that the plot in question was not suitable.
11. The said report was approved by respondent No.4 as well as respondent No.2. The notification under . section 48(1) of the Land Acquisition Act was issued and subsequently the respondent No.2 malafidely issued letter on 6‑7‑1998, whereby he restrained the Manager Government Printing Press, Karachi not to publish the notification under section 48(1) of the Act, dated 30‑6‑1998, holding therein that the notification, dated 26‑4‑1994 shall remain intact. It is argued that the said actions were mala tide, void, ab initio and corum non judice. It is stated that the proper procedure has not been adopted by the respondents. The feasibility report submitted by the Land Acquisition Officer and Deputy Commissioner Ghotki have been ignored malafidely, The land acquisition proceedings have been delayed. The possession has not yet been taken over nor the land has been surveyed. The compensation has not been made to the owners and it is contrary to the Injunction of Islam. The notification once withdrawn cannot be reviewed by the same authority. Reliance is placed upon the cases the Land Acquisition Act (I of 1894) PLD 1992 FSC 398, Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others 1991 SCMR 2180, Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193, Abdul Rouf and others v. Abdul Hamid Khan and others PLD 1965 SC 671, Malik Salahuddin and others v. Collector, Land Acquisition Peshawar and 3 others 1999 CLC 776 and The State v. Ziaur Rehman and others PLD 1973 SC 49.
12. Mr. Parya Ram, learned counsel appearing for respondent No.5 has reiterated his arguments on the assertions made in the counter‑affidavit. It is argued that the reports of respondents Nos.3 and 4 were false which were prepared in connivance with the petitioners. The possession has been taken over by respondent No.5 and the Deputy Commissioner has no power to withdraw previous notification issued under sections 4 and 6 of the Land Acquisition Act.
13. Mr. Abdul Sattar Soomro, learned counsel appearing for the Government has expressed similar views and has adopted the arguments of Mr. Parya Ram.
14. The report of respondent No.4 is reproduced hereinbelow in extenso:‑‑
15. "To, No. A CLA)‑751
16. M. Mathelo, dated 6‑4‑1998
17. The Deputy Commissioner,
18. Ghotki at Mirpur Mathelo.
19. Subject: Acquisition of Plot Bearing G.No.TC.1109/1 and 2(D No 0016G) situated opposite Hafeez Building Town Daharki for construction of Fruit/Vegetable Market, Donkey carts/and Tonga stand.
20. Reference: Your Letter No. RB/1104, dated 27‑3‑1998.
21. Respectfully the report on the points mentioned in the above letter is submitted as under;
22. Point No. 1.
23. Firstly about the measurement of the plot in question, I will submit that there are contradicting reports on record. One report shows its measurement 38115 Sq. feet, whereas the other reports showing measurement to be 21579 Sq. feet which is the latest report by Mukhtiarkar Daharki, which in my opinion appears to be correct and the measurement is to be taken into consideration.
24. The size of plot is quite in sufficient to meet the requirements. So as to accommodate Fruit and Vegetable Market on one hand and Stand for Donkey Carts/Tongas Carts of the Town and its vicinity on the other hand.
25. Secondly, this fact cannot be denied that a heavy rush of traffic is already experienced on the road leading to the Shahi Bazar and turning to the proposed site which requires widening to meet the rush of traffic but it is not possible in the present circumstances.
26. If the site in question is selected for the purpose required, admittedly the traffic will multiply altogether and will create a great inconvenience for the public‑at‑large. ,
27. Thirdly, the roads, I should say streets, leading from all sides to the proposed site are so narrow that then crossing of vehicle, Tongas and Donkey Carts is not possible at all.
28. Fourthly, the turn from the Shahi Bazar roads towards the proposed site is so narrow that it is not possible for the traffic to turn towards the proposed site especially it will not be possible for heavy traffic cuch as Trucks, Trailers and Mazdas.
29. In the present circumstances it is not possible to widen the said turn as the buildings on both sides are already in existence. Perhaps this appears to be an old scheme when the things were otherwise, but now with the process or passage of time the situation has totally changed due to increase in shopping and spree because of the biggest in industrial projects near this town.
30. Lastly, admittedly the plot in question is situated in the heart of town surrounded by thickly‑populated area and school and from the health and hygienic point of view it will not be wise to suggest to establish Fruit/Vegetable Market and Donkey Carts/Tonga Stands at the proposed site, whereas in these scientific days such man dies are either shifted or being shifted to the outskirts of the cities and town of the Pakistan.
31. Point No.2
32. It is submitted that Award under section 11 of Land Acquisition Act has not yet been passed as such the payment of compensation is out of question.
33. Point No.3.
34. The Civil Suit No.4 of 1985 tiled by private parties Ahmed Din v. Muhammad Ismail and others pending in the Court of Senior Civil Judge Ubauro, where its No. is 38/96. It is fixed on 11‑4‑1998 for the purpose of evidence of defendant side. In the said civil suit the Government is not party. Furthermore, it is submitted there is another F.C..Suit No.255 of 1995 Re: Muhammad Ismail and others v. Town Committee Daharki and others against the acquisition proceedings in which the heirs of deceased Ahmed Din namely Muhammad Hussain, Muhammad Rafique, Abdul Latif and Talib Hussain are defendants. Then matter is fixed on 16‑4‑1998 for the purpose of argument on injunction application., framing of issues and evidence on plaintiff aside.
35. (Sd.) 4‑4‑1998.
36. Assistant Commissioner,
37. L.A.C., Mirpur Mathelo."
38. The said report was recommended by Deputy Commissioner Ghotki vide his letter, dated 15‑4‑1998. On receipt of such report from Deputy Commissioner, the office of Commissioner Sukkur Division dispatched a letter to Deputy Commissioner Ghotki at Mirpur Mathelo directing him to propose another piece of land for the required purpose in consultation with Administrator Town Committee Daharki as previously proposed; plot was situated in the heart of Daharki Town and was not suitable for the purposes. The withdrawn notification under section 48(1) of the Land Acquisition Act issued by the Deputy Commissioner Ghotki is reproduced hereinbelow in extenso:‑‑
39. Withdrawal Notification under section 48(1) of Land Acquisition Act, 1894. ,
40. No. RB/‑‑‑of 1998, Ghotki at Mirpur Mathelo
41. Dated:
42. Whereas it appears to the Deputy Commissioner/Collector Ghotki at Mirpur Mathelo that the plot mentioned in the schedule here annexed, which was acquired for the Public Purpose viz construction of Tonga/Donkey Cart Stands/Fruit and Vegetable Market Daharki. Taluka Daharki District Ghotki at Mirpur Mathelo vide Notification under section 4 of Land Acquisition Act, 1894 and issued vide Notification No RIV‑1213, dated 18‑4‑1994.
43. The said plot which was acquired for purpose mentioned above is situated in the center of Town Daharki, which is said to be a congested place and is quite insufficient for the heavy traffic and also public rush experienced towards road leading to Shahi Bazar of Town Daharki. The subject‑matter was too old of 1983 and there was also litigation over the plot in the Court of Senior Civil Judge Ubauro is withdrawn.
SCHEDULE
44. District Taluka Deh/Town Plot No. Area
45. Ghotki at Daharki Daharki TC/N0:1109/1 and 2 21579
46. Mirpur (D. No. 16.C) situation
47. Mathelo opposite Hafeez
48. Building Daharki.
49. With the approval of the Competent Authority, the proceedings already launched under section 4 of the Land Acquisition Act, 1894. The acquiring agency as well as the Assistant Commissioner and LAO Mirpur Mathelo is requested to propose/suggest an other piece of land for the purpose for ,the fresh proceedings under Land Acquisition Act.
50. (Sd.) 27/6
51. (Nazar Ahmed Abbassi)
52. Deputy Commissioner Ghotki at
53. Mirpur Mathelo.
54. The withdrawal of notification under sections 4 and 6 was approved by Additional Commissioner, Sukkur Division vide his order, dated 30‑6‑1998 which is reproduced hereinbelow:‑‑
55. Withdrawal Notification under section 48(1) Land Acquisition Act, 1894.
56. No. 0‑3‑103‑LA/94 Sukkur Dated 30‑6‑1998.
57. Whereas it appears that the plot mentioned in the schedule given below, was acquired for the public purpose viz construction of Tonga/Donkey Cart Stand/Fruit and Vegetable Market, Daharki, 'Taluka Daharki, District Ghotki vide Notification under section 6 of Land Acquisition Act, 1894 issued vide No.0‑3‑103‑LA/94, dated 26‑4-1994.
58. The said plot which was acquired for the purpose mentioned above is situated in the center of Town, Daharki which is reported to be a congested place and is quite unsuitable for the heavy traffic and also public rush is experienced towards road leading to Shahi Bazar of Town Daharki and the situation has also changed now being 15 years old.
SCHEDULE
59. District Taluka Deh/Town Plot No .
60. Ghotki,at Daharki Daharki TC/No.1109/1&2 2157 Sq.ft.
61. M. Mathelo (D. No. 16.G) situated opposite
62. Hafeez Building
63. Daharki.
64. Whereas in view of the above position, the proceedings already launched under section 6 of the Land Acquisition Act are hereby withdrawn under section 48(I) of the Land Acquisition Act, 1894. The Acquiring Agency as well as the Assistant Commissioner and Land Acquisition Officer, Mirpur Mathelo is requested to propose/suggest another piece of land for the purpose for fresh proceedings under Land Acquisition Act.
65. (Sd.) Additional Commissioner‑II,
66. Sukkur Division.
67. It appears that the Land Acquisition proceedings were initiated in the year 1994 but proper procedure as enunciated by sections 4, 6‑A, 6 and 17 of the Act has not been adopted by the concerned authorities. Section 4 of the Land Acquisition Act provides, if the notification is published, the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. Then their workmen and servants can enter upon the survey numbers and prepare boundaries of the plot by placing marks and cutting trenches.
68. Section 17 of the Act comes into play in case of urgency. There seems to be no urgency in the case and after applying section 17 no urgency work has been done on the plot even the possession is not taken over. Neither boundaries have been prepared nor the land is surveyed and so also no measurement is taken. No such plea has been raised in the counter -affidavit tiled by the respondents. The reports were called for from Land Acquisition Officer who has given his detailed report which is reproduced above.
69. The action under section 48(l) of the Land Acquisition Act for withdrawal of the earlier notification was approved by the Commissioner Sukkur Division and then subsequently he changed his mind and reviewed his previous orders. After withdrawal of notification, the proper course for him was to initiate fresh proceedings under Land Acquisition Act. That has not been done in the instant case. The Commissioner, Sukkur Division has without issuing notice and without hearing the parties withdrawn his previous orders and varied all the subsequent orders and reports submitted by Assistant Commissioner and so also his own orders. The order passed by respondent No.2 is obviously fanciful and mala fide and the actions are not taken under the statutes. The required, land is acquired in the year 1994 anti the possession on papers only is said to have been taken over by the respondents. The compensation has not yet been paid to the owners. No progress has been made at the site and no action has been taken towards the preparation of alleged Tonga‑Donkey Cart Stand and Fruit and Vegetable Market. The Government officers of the department cannot be allowed to exercise colourful and unfettered powers to proceed with the matter as they desire outside the four corners of statute. The Administrative Officers have to exercise discretion honestly, reasonably and not arbitrarily. It is manifest that in the instant case, the statute has not been followed in its true and right perspectives but the. powers vested in them are exercised for collateral purposes. The actions of respondents mentioned above are extraneous and unreasonable. The judicial process cannot be allowed to be abused in this fashion.
70. The Government has failed to pay any compensation to the petitioners. Sections 16 and 23 were to be amended suitably within six months from the date of pronouncement in the case of land acquisition in Shariat Suo Motu No. 14/P of .1983, decided on 30th April, 1992 reported in PLD 1992 FSC 398 wherein their Lordships have held as under:‑‑
71. "35. We, therefore, direct the Provincial Government of the four Provinces, as the law ` is included in the Provincial list of the Constitution that the amount of compensation is to be paid to the owner of the land or deposited in Civil Court in his name by the acquisitioning Authority before taking over possession of land and a provision may be added to this effect after the existing section 16 of the Act which relates to taking of possession by the Government. This will protect the rights of both the parties under the principle of the Sheriah:
36. To sum up, section 16 and section 23(1) of the Land Acquisition Act, 1894 will be amended suitably within a period of six months from the date of this judgment, as discussed above. In case the Government fails to do so, the above provisions will be deemed to have been amended on the expiry of six months period from the date whereof and the existing provisions shall cease to be operative on and from 1st November, 1992. "
72. Consequently the petition is allowed as prayed with no order as to costs. However, the Government is, not debarred from initiating the proceedings afresh in accordance with the provision of newly amended law, if the plot in question is required to them in the larger interest of public.
73. Q.M.H./M.A.K./M‑149/K Petition allowed.