MAHBOOB SABIR Versus MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE
By this judgment, I propose to decide Writ Petition No.2549 of 1988 and. Writ Petition No. 14182 of 1994 in which common questions of law and fact are involved.
2. Briefly stated the facts giving rise to this petition are that Nisar Ahmad Sabri deceased, petitioner (now represented by his legal heirs) owned urban agricultural land measuring 58 Kanals, 17 Marlas situated in Mauza Kasur Androon (inside) Tehsil and District Kasur. In the connected petition (Writ Petition No.14182 of 1994) Muhammad Ilyas and others (21 persons) owned different pieces of land inside Mauza Kasur. The Labour Department, Government of the Punjab, decided to have a Technical Training Center set up at Kasur. For this purpose the Department decided to acquire land measuring 187 Kanals, 8 Marlas inside Mauza Kasur and issued Notification No.DRA/LAC/15795, dated 13-12-1980 for acquisition of the above-mentioned area of land. It included the land belonging to the petitioners in the two writ petitions mentioned above. The land was sought to be urgently required for construction of a Technical Training Centre and provisions of sections 5 and 5A of the Land Acquisition Act, 1894 were dispensed with by invoking the provisions of subsection (4) of section 17 of the Act. It was also mentioned in the notification:-----
"In exercise of the powers conferred by the aforesaid section, the Collector, Kasur District, Kasur is pleased to authorize the office for the time being engage in the undertaking with their servants and workmen to enter upon and survey the land in the locality and do all other acts required or permitted by that section".
Accordingly, possession of the land was taken over by the acquiring department on 16-5-1981, Copies of the Notifications are annexed to the petition as Annexes 'A and B'.
3. The estimated cost of the land was proposed at the rate of Rs.102/93 per Maria by treating it as agricultural land although it was situated inside Kasur City. The cost of trees/orchard was not included in the estimate and was included in a separate estimate. The total estimated cost of Rs.4,43,648/88 was got approved from the Commissioner vide his Letter No.LA/988/2938, dated 4-5-1981. A copy of the same was forwarded to the Board of Revenue for information. The estimated cost of trees/orchard was proposed at the rate of Rs.8,11,413 and was got approved from the Government of the Punjab Revenue Department vide Letter No.655-82/594-S.-I., dated 25-3-1982.
4. Nisar Ahmad Sabri-deceased petitioner made a representation before the Member Board of Revenue stating therein that the land in question being situated inside Kasur City was urban in nature and its proposed price at the rate of Rs.102/93 per Marla was a sheer mockery and denial of compensation and that the land was worth Rs.10,000 to 15,000 per Maria. The representation was taken up for consideration and was forwarded to the D.C./Collector, Kasur for report on 5-5-1985. The D.C./Collector, Kasur after inquiry and obtaining necessary reports from the Tehsildar and the A.C. submitted a detailed report on 10-11-1985 highlighting the following facts: --
(i) It is true that the price of the land has been recommended/proposed treating it as agricultural land although it is situated within the municipal limits of Kasur municipality and is located inside Village Kasur.
(ii) It is true that the some other land was acquired inside Kasur for construction of District Headquarter Hospital at the rate of Rs.1016 per Marla.
(iii) That the land acquired for District Headquarter Hospital though situated at present within the limits of Municipal Committee, Kasur, was located in a part of Patwar Circle Bairoon Kasur.
On receipt of the report dated 10-11-1985, the Board of Revenue directed the D.C./Collector Kasur vide letter dated 12-12-1985 as under:--
"You are requested to kindly furnish necessary details/sketch map as required by Board of Revenue vide Circular Memorandum No.2184-85/1922-S.S., dated 17-9-1985 alongwith list of sale transactions of radius of one mile which took place during crucial period. The sketch map should indicate the land under acquisition and land acquired for Hospital Kasur as well".
The requisite detailed information was furnished by the D.C./Collector Kasur to the Board alongwith necessary material. After going through the same, the Board vide its letter dated 5-10-1986 deputed some officials of the Board to inspect the spot on 15-10-1986 and 16-10-1986 and then submit a report. A detailed inquiry was conducted at the spot be the Board officials and after going through .the same and the other relevant material it was recommended that the estimated cost he approved at the rate of Rs.1016 per Marla. The Government of the Punjab/Member, Board of Revenue after due consideration of the report approved its recommendation and proposed the estimated cost at the rate of Rs.1016 per Marla which was conveyed to the D.C./Collector, Kasur vide Letter No.2714-86/2674-S.IV, dated 3-12-1986. The D.C./Collector, Kasur received the said letter and forwarded the same to the, A.C./Land Acquisition Collector, Kasur for intimation to the Acquiring Department vide letter dated 13-12-1986. On his part the A.C./Land Acquisition Collector, Kasur intimated the Director Manpower and Training Punjab vide his letter dated 21-12-1986 to deposit the estimated cost (at the rate of Rs.1016 per Marla) into the Government Treasury under the head "Revenue Deposit" at an early date so that the award may be announced. Thereafter, reminders were also sent to the Acquiring Department on 2-2-1987 and 14-5-1987. It appears that a representation was made by the Acquiring Department to the Board for recalling letter dated 3-12-1986. On this representation, the D.C./Collector, Kasur was directed to personally visit the post and after taking into consideration the situation of land, the provision of Land Acquisition Act and Rules framed thereunder to report to the Board of Revenue the correct and most appropriate price per Marla of the land in question to enable it to decide the pending representation of the Labour Department. In compliance with the direction of the Board, the D.C /Collector submitted a report on 29-10-1987 recommending estimated c6st at the rate of Rs.1016 per Marla. However, the Member, Board of Revenue without issuing any notice to the petitioners, recalled his earlier order dated 3-12-1986 in ex parte proceedings and issued a fresh letter dated- 30-12-1987 reducing the estimated cost of the land to Rs.102/93.
5. The legality of this letter has been challenged in the present petition in which report/parawise comments were called from the D.C /Collector, Kasur respondent No.3. In the report/parawise comments it was submitted as under:--
"That while conducting the survey of the land in question the representatives of the Acquiring Department did not point out to this office that fruit tress/other trees were standing on the land. On taking over the possession of the land, it came to light that there were trees on the land, therefore, the Extra Assistant Director of Agriculture Kasur was deputed to calculate the value of the said trees. On 2-6-1981, he alongwith representative of the Acquiring Department and land owners surveyed and counted the said trees and according to his assessment report and estimated cost of fruit and other trees amounting to Rs.8,11,403 was prepared which was approved by the Board of Revenue vide Memo. No.2650-82/1473-S.-I., dated 19-9-1982".
On the representation made by the Acquiring Department, this approval of the Board of Revenue was recalled without any notice to the aggrieved persons vide order dated 8-2-1984. The said order was assailed in the Court through Writ Petition No.2693 of 1984 titled "Muhammad Hussain and others v. Member (Revenue) Board of Revenue, Punjab and others" which was ultimately allowed and order dated 8-2-1984 was declared to be without any lawful authority and of no legal effect vide judgment dated 18-11-1987 reported as "Muhammad Hussain and others v. Member (Revenue) Board of Revenue Punjab and others" (1988 CLC 1745).
6. The petitioners' learned counsel contends that although the whole exercise relating to acquisition is illegal. mala fide and can be declared to be without lawful authority and of no legal effect but at this stage such an order would adversely affect the petitioners' interests, who are locked in litigation since the year 1985; that the possession of the petitioners' land had already been taken and the Technical Training Centre built thereon; that the petitioners are entitled to get reasonable compensation for their lands. He points out that there was no legal justification to split up cost for land and trees/orchard; that it was done because the Commissioner was competent to approve the estimated cost to the extent of Rs.5,00,000 and cost of trees/orchard was excluded in order to bring the case within the jurisdiction of the Commissioner Lahore Division; that the Board of Revenue had held a detailed inquiry, got the spot inspected and then fixed the cost at the rate of Rs.1016 per Maria; that there was absolutely no legal justification to recall its earlier order moreso at the behest of the Acquiring Department which had no right to file an appeal as held in the following cases:--
(i) Pir Khan through his legal heirs v. Military Estate Office, Abbottabad and others (PLD 1987 SC 485);
(ii) Behram Khan and 54 others v. Military Estate Officer and 2 others (1988 SCMR 1160):
(iii) Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East), Karachi and others (1989 SCMR 812);
(iv) I.C.I. Pakistan Limited v. Salahuddin and others (1991 SCMR 15).
(v) Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 SCMR 2193);
(vi) Mian Atta Ullah v. Lahore Development Authority Tribunal and 5 others (1996 CLC 1943):
(vii) Government of N.-W.F.P. and others v. Mst. Jamshed Bibi and another (PLD 1997 Peshawar 19);
(viii) Nazir Ahmad v. The State (1997 MLD 2641).
He explains that at the time of assessment of the price the Acquiring Department does not have any right of hearing and for that reason has not been given any right to file an appeal when the award is announced: that whatever the price determined by the Land Acquisition Collector, the Acquiring Department is bound to pay the same; that after lawfully fixing the cost at Rs.1016 per Maria the Board illegally accepted the representation made by the Acquiring Department and recalled its earlier order ex parte; that although the cost at the rate of Rs.1016, is extremely low but to avoid further litigation the petitioners are prepared to accept this price. '
7. Mr. Qadeer Ahmed Siddiqui, learned counsel for the petitioners in Writ Petition No. 14182 of 1994 urged that although he had challenged the legality of the acquisition but the petitioners are ready to accept cost at the rate of Rs.1016 per Marla to avoid further litigation. In this connection, he adopts the arguments raised by Mr. A.R. Shaukat, Advocate.
8. The learned Additional Advocate-General and the learned counsel for respondents Nos.4 and 5 urged that the notification under section 17(4) of the Land Acquisition Act was issued on 12-5-1981 and the writ petition was filed on 8-2-1994 which suffered from laches and was liable to be dismissed on this ground alone; that after having received the cost for trees the petitioners are estopped from challenging the notification under section 17 of the Act; that the question whether the matter involves urgency for the purposes of acquisition is the sole discretion of the Government and the petitioner cannot challenge it as held in the cases of:--
(i) The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279):
(ii) Makhdoom Ahmad Ghauns v. Chairman, Town/Municipal Committee, Qadirpur Rawn, Multan and 3 others (1993 MLD 1987).
Explaining the emergency involved in the matter they submitted that there was a sanction of Rs.10,00,000 from the annual. Development Programme of the Punjab Government for establishment of a Technical Training Centre and had the urgent action not been taken, the grant would have lapsed.
9. Ch. Khurshid Ahmed, learned counsel for respondent No.5 has submitted that some relevant facts were not brought to the notice of this Court; that initially a notification under section 4(1) of the Act was published on 14-12-1980 and Notification under section 17(4) of the Act was published on 12-5-1981: that thereafter a Notification under section 6 of the Act was issued on 20-6-1982 and published on 2-11-1983; that during the pendency of acquisition proceedings, the predecessor-in-interest of the petitioners had himself made a reference to Board of Revenue and the Board originally determined the price at the rate of Rs.102/93 per Marla and thereafter, enhanced it vide order dated 3-12-1986; that possession of the disputed land was taken over in the year 1981 and the Technical Training Centre was constructed in the year 1985, which is functioning since then; that the award was ultimately announced on 24-3-1998; that on a reference under section 18 of Act, the matter has been forwarded to the Civil Court; that the Government of the Punjab had also filed a Reference and both the References are pending before the learned Senior Civil Judge. Kasur; that the writ petitioners had already received cost for trees/orchard and thus by their own conduct accepted the acquisition and cannot challenge it at this stage; that they attempted to get cost enhanced throng n a reference, which was allowed by the Court and the Regular First Appeals Nos.49 and 59 of 1996 filed by the Government, were dismissed; that the enhancement of the price by the Board was illegal and void and was rightly withdrawn as the matter had to be determined by the Land Acquisition Collector and the Court in which the reference was filed; that in this respect the doctrine of locus poenitentiae is not attracted as held in the case of Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCMR 907); that after announcement of the award, the Reference were made before the Civil Court and all matters have to be decided by the Civil Court and not in the present proceedings.
10. Taking up the question of laches in filing the petition, it is correct that Notification under section 4(1) of the Land Acquisition Act was issued on 14-12-1980 and the one under section 17 of the Act on 12-5-1981 and possession of the land was taken by the Department immediately thereafter, on 16-5-1981 The construction of the Technical Training Centre was made in the year 1985_ The petitioners had acquiesced in the acquisition of the land and were merely interested in receiving proper compensation of their property. For this purpose, they agitated the matter before the Board of Revenue, which at one stage fixed the, cost of the land at the rate of Rs.102/93 per Marla and then enhanced it to Rs.1016 per Marla vide letter dated 3-12-1986. Thereafter, this letter was withdrawn by the Board in ex parte proceedings through letter dated 30-12-1987 reducing the estimated case of land to Rs.102/93 per Marla Writ Petition (No.2549/88) was filed to this Court on 14-5-1988 challenging the last mentioned letter dated 30-12-1987 just after a few months. Obviously, it does not suffer from laches, therefore, the objection that the petition merits dismissal on the ground of laches, is repelled. The connected petition (Writ Petition No. 14182 of 1994) was filed on 14-11-1994 with a delay of more than six years. The petitioners had acquiesced in acquisition of their lands and could not be allowed to question it at this stage. As regards the cost, the petitioners felt satisfied when the Board of Revenue/Revenue Department, Government of Punjab raised the price of land to Rs.1016 per Marla. The subsequent reduction of the price and issuance of afresh letter by the Board on 30-12-1987 was done ex parte without any notice to the petitioners. There is nothing on the record that they had ever learnt about the impugned letter for reduction of the price issued by the Board. It is, also significant that no award was announced till the institution of Writ Petition No. 14182 of 1994: The entire issue regarding determination of the price was alive and had to be decided in accordance with the law. Therefore, the petition does not suffer from laches to the extent of determination of price of the land by the Board of Revenue.
11. Coming to the merits of the case, it may be mentioned at the very outset that no written statement was filed on behalf of the respondents, particularly the Board of Revenue to controvert the facts stated in the petition At the pre-admission stage, the D.C./Collector Kasur/respondent No.3 submitted report/parawise comments but after admission, no written statement was filed on behalf of respondent No.3 either. Therefore, the facts stated in the writ petition are deemed to have been admitted. Respondent No.3 stated in his report/parawise comments that at the time of acquisition, the disputed land was not situated in the urban area within the limits of the Municipal Committee, Kasur, that the land was urgently required to the public interest, that the price of the land was rightly calculated in accordance with the provisions of sections 23 and 24 of Land Acquisition Act at the rate of Rs.102/93 per Marla for the crucial period, i.e. 14-12-1979 to 13-12-1980; that the estimated cost of Rs.4,43, 648.88 was approved by the Commissioner, Lahore Division and also by the Board of Revenue. However paras. 5 to 12 of the writ petition were either admitted or not denied on the ground that the same related to the Board of Revenue, Punjab. The Board, as mentioned above, did not file any written statement to controvert the facts stated in the writ petition, which would be deemed to have been admitted.
12. The Land Acquisition Rules, 1983, contain rule 12 regarding approval of the estimated cost of the land by the Board of Revenue. Since acquisition in this case was completed in the year 1981-82, these rules, which are prospective in nature have no application to the same. In' cases regarding acquisition and determination of cost, the Government had issued guidelines in the year 1970 in which it was provided that in cases involving cost exceeding Rs.5,00,000 a reference to the Government was necessary. It appears that in view or the said guidelines, the matter was referred to the Government as the case involved cost exceeding Rs.5,00,000 and the Member, Board of Revenue granted approval to the assessment of the cost after thorough inquiry in his capacity as Secretary to Government of the Punjab; Revenue Department. Thereafter, it was not open to the Board of Revenue to recall order passed by the Government of Punjab and reduce the estimated cost of the land from Rs.1016 to Rs. 102.93 per Maria. The subsequent-reduction of the estimated cost was done without any notice to the interested landowners, who were condemned unheard. It may be' mentioned that an identical question regarding reduction of the estimated cost of the trees/orchard existing on a part of the disputed land came up for consideration before a learned Single Judge of this Court (Mr. Justice Lehrasip Khan, as he then was), who declared the subsequent review by the Board of Revenue and reduction of the price as being without lawful authority and of no legal effect. The said judgment was not further challenged by the Board of Revenue and the Land Acquisition Collector or before any higher legal forum. Hence, it attained finality. In this judgment, it was also held that once approval was granted by the Revenue Department of the Provincial Government, and it was communicated to the Labour Department as also to the Collector with a direction to arrange the immediate deposit of the approved amount of cost, thereafter, the Government was not competent to review or recall the order by resorting to the provisions of section 22 of the General Clauses Act, because a decisive step had been taken after passing the first order and power of receding could not be exercised by means of the impugned order. Same is the position in the present case.
13. I respectfully follow the view expressed in the above-referred judgment. Further it is noteworthy that the petitioners' interest was definitely involved in the matter regarding adequate payment of compensation to them. The estimated cost approved by the Government can be accepted by the interested land owners at any stage of the acquisition proceedings making it convenient to the Collector to announce his award with the consent of the parties. In the present case the petitioners felt satisfied with the rate of Rs.1,016 per Marla and the I award could have been passed on the basis of the same. The subsequent review of the earlier order and reduction of price was ordered in violation of the principle of audi alteram partem (no one should be condemned unheard) and was obviously a nullity in the eye of law. It definitely prejudiced the mind of the Collector who ultimately awarded cost of the land at the rate of Rs.102.93 per marla. It is indeed unfortunate that the petitioners were deprived of their valuable lands in the year 1981 in hot haste although there was no real urgency involved for acqt4sition of their lands. Had they questioned the legality of the acquisition proceedings promptly they would have been successful but it appears that they surrendered to the will of the authorities and merely wanted to get adequate compensation in accordance with the law. The acquisition proceedings remained pending and ultimately the award was announced on 24--3-1998. The legality and validity of the said award has been challenged in Writ Petition No.19007 of 1998. As regards the argument raised by Ch. Khurshid Ahmed, Advocate, learned counsel for respondent No.5 that references have already been made to the Civil Court under section 18 of the Land Acquisition Act and the petitioner can agitate the matter before the Court concerned for grant of higher amount of compensation, suffice it to observe that no material has been placed on the record to show that references under section 18 of the Act were made by the interested parties. Even if it is so, the present petitions were filed long before the announcement of the award and have to be decided on merits in accordance with the law. Section 18 comes into play after the announcement of the award and reference can be filed by the F interested parties on the basis of their objections to the measurement of the land, the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested. Section 18 is not applicable to the question of determination of the cost of land by the competent authority before the announcement of the award. Therefore, this Court can competently decide the question regarding determination of the cost of land made by the Board of Revenue.
14. For the foregoing discussion the petition is accepted and the impugned order dated 30-12-1987 passed by the Board of Revenue is declared to be without lawful authority and of no legal effect. Resultantly, the earlier determination of the cost of the disputed land by the Revenue Department, Government of the Punjab fixing the cost at the rate of Rs.1016 per marla is restored.
S.A.K./M-1847/L Petition accepted.