Syed MUHAMMAD KHURSHID ABBAS GARDEZI AND OTHERS vs MULTAN

ORDER

' ASLAM RIAZ HUSSAIN, J.-This petition by Syed Muhammad Khurshid Abbas Gardezi and five others, is directed against the order of a Division Bench of the Lahore High Court, Multan Bench, Multan, dismissing their lntra-Court Appeal.

2. The facts giving rise to the petition are that by a Notification dated 30-9-1978, issued under section 3(1) of the Punjab Development of Cities Act, 1976, on 30-9-1978 (which was published in the Provincial Gazette on 8-5-1979), certain areas of Multan (except those falling within the jurisdiction of Multan Cantonment Board) were declared to be 'Multan City' under section 3(1) of the Punjab Development of Cities Act, 1976. By another notification of even date, issued in exercise of its power under section 4(1) of the same Act, which was also published in Gazette dated 8-5-1979, an Authority was established by the Governor for the City of Multan to be known as Multan Development Authority. By a notification dated 15-8-1978. Published in the official Gazette on 30-9- 197e, certain Khasra numbers in the Multan City measuring 248 acres, 4 kanals and 12 marlas were notified as "controlled area" within the definition of section 2(f) of the Punjab Development of Cities Act, 1976 (hereinafter referred to as 'the Act'). Later, a Housing Scheme was prepared by the Multan Development Authority under section 25 of the Act. It was named New Shah Shams Colony and was approved by the Planning and Development Board on 31-12-1979 and was notified, the official Gazette of 30-1-1980. A notification was then issued on 4-5-1980 (which was published on 20-5- 1980), under section 4 (1) of the Punjab Acquisition of Land (Housing) Act 1973, notifying that land measuring 196 acres 5 kanals and 6 marlas was to be acquired for the above-mentioned Housing Scheme. Out of this land an area of 18 acres of land belonged to the petitioners. Notices were suhsequently issued to the owners of the said land on 25-1-1981, under section 6 of the Punjab Acquisition of Land (Housing) Act, 1973.

' Feeling aggrieved by the acquisition proceedings the petitioners filed a Writ Petition (No, 6323/80) before the High Court which was dismissed by a learned Single Judge of the said High Court on 9- 3-1981. The petitioners then filed an. I. C. A. Which too was dismissed on 15-3-1981 by a Division Bench of the same Court.

' The petitioners have, therefore, filed the present petition for leave to appeal against the aforementioned judgment of the High Court,

3. We have heard the learned counsel for the petitioners at length. He has raised a hyper-technical contention relating to the validity of the various notifications mentioned therein. For proper understanding of this contention it would be useful to reproduce the relevant portions of the Punjab Development of Cities Act, 1976, which reads as follows :- "J.-(1) This Act may be called the Punjab Development of Cities Act, 1976.

(2) It shall extend to the whole of the Province of the Punjab.

(3) It shall apply to such city or cities as the Government may by notification, specify from time to time."

' Sections 3 and 4 of the Act, read as under :- "3.-(1) For the purpose of this Act, the Government may, by notification declare any area to be a city.

(2) The Government may, at any time, extend, curtail or otherwise alter the limits of a city.

4.-(1) The Government may, by notification, establish an Authority for the City to which this Act has been applied.

(2) The Authority shall be known by the name as may be specified by the Government.

(3) The Authority shall be a body corporate, having perpetual succession and common seal with powers, subject to the provision of this Act, to acquire, hold and transfer property both movable and immovable, and may, by its name sue or be sued.

(4) to (7) .....................

' It was contended that before any action could be taken under section 3(1) of the Act declaring any area to be a 'City', or under section 4(1) of the Act establishing a Development Authority for the said city, it was necessary to apply the Act to that City under section 1(3) of the Act which provides that the Act in question shall apply only to "such city or cities as the Government may, by notification, specify from time to time". The learned counsel contended that since no notification had been issued under section 1 (3) applying the Act to the City of Multan, therefore, no action could be taken under any of the subsequent sections of the Act in relation to the said City and, as such, all subsequent notifications including those relating to the declaration of certain areas "as controlled areas" and acquisition of the land for the purpose of New Shah Shams Colony, were also bad in law.

4. The contention seems logical at first, but does not bear close scrutiny,' for it runs in a circle and is contrary to the obvious intention of the Legislature. From a reading of the Act in its entirety it is obvious that notification under section 3(1) of the Act declaring certain areas to be city must also be taken to manifest Government's intention to extend or apply the Act to that area, because unless a city is constituted or brought into existence under section 3(1) of the Act, notification applying the Act to that 'city' cannot possibly be issued. The contention is, therefore, without any force and cannot be pressed into service for obtaining an order declaring the definition of City of Multan or the establishment of Multan Development Authority, to be illegal also because it is now well settled that before an order passed by any public authority is struck down it is the duty of the courts to explore every possible avenue for its validity. It is observed in Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector and later affirmed in Lahore Improvement Trust v. Custodian Evacuee, Property "Acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their functions examined and only then if it is found that the act done, order made by proc:eding undertaken is without lawful authority should the courts declare them to be of no legal effect."

' The learned counsel for the petitioners then stated that certain portions of the land acquired by the Multan Development Authority for the purpose of the aforementioned Housing Scheme had, in fact, been earmarked for establishing an Industrial Estate. The learned counsel for the respondent authority, however, assured us that any area to be used as industrial area would he excluded and exempted from acquisition from the Housing Scheme.

' The real grievance of the petitioners it appears is not the establishment, foundation of the Multan Development Authority ; the preparation of the New Shah Shams Housing Scheme or the acquisition of land for the said Scheme, but the application to his land of the provisions of the Punjab Acquisition of Land (Housing) Act (VIII), 1973, an Act the like of which, strangely enough, has not been promulgated in any province except Punjab. By section 3 of this Act "notwithstanding anything to the contrary con- tained in the Land Acquisition Act, 1894 all lands within the province shall be liable to acquisition, at any time, under this Act, for housing scheme approved and notified by the Government or Official Development Agency." Although section 8 of the said Act provides that when any land is acquired under this Act, compensation shall be paid to the owners of the land and clause (I) of section 9, provides that for determining the amount of compensation to be awarded for the land acquired under this Act, the market value of the land in question shall be taken into consideration on the basis of 2 years average sale price. But, ironically, a proviso has been added to this clause saying that in no case shall the compensation exceed Rs, 20,000 per acre.

The net result is that it is open to the relevant authority to acquire even the most valuable land anywhere in the Province of Punjab, notwithstanding its actual market value at a nominal sum of about Rs, 2,500 per kanal on the ground that it is required for a 'Housing Scheme'. The petitioners land is obviously very valuable, situated as it is, in the city of Multan, for which they could genuinely expect to get considerably higher price specially in view of the recent rise in prices of land in or near cities, but they are rendered helpless by the provisions of this exceptionally harsh Act, applicable only to the province of Punjab. When citizens do not regard a law to be just, they are naturally aggrieved and are driven to litigation. It is not surprising that a land owner would tend to considered this law as most unreasonable because, on the one hand he is told that he would be given the `market value' of the land under section 9 but, to his dismay he may find that he is required to surrender his land for a petty sum of Rs, 2,500 per kanal (Rs, 20,000 per acre) or even less.

' However, as observed earlier in paragraph No, 4 the hyper-technical contention raised by the petitioners' counsel has no force. As already' observed, the counsel for the respondent has been satisfied with the assurance that any land to be utilized for establishing an Industrial Estate would not bell acquired under the 1973 of Act.

' For the foregoing reasons the petition is dismissed. PLD 1966 SC 725 PLD 1971 SC 8111 2 1 2