Mst. SUGHRABHAI Versus PROVINCE OF SINDH through Chief Secretary
IRFAN SAADAT KHAN, J.--- The instant petition has been filed with the following prayer:-
"(a) direct Respondents Nos.2, 3 and 4 forthwith to renew lease of the Petitioners of their property and land bearing Sheet No.Ly-70, Survey No.11/1, Old survey No. K-19/26-1, measuring 6768 square yards in Lyari Quarters, Karachi;
(b) declare acts and proceedings done and taken by the Respondents for acquisition of the land of the Petitioners and declaring the requirement as urgent are without lawful authority, mala fide, collusive, null and void and of no legal effect;
(c) direct the Respondents to refrain from taking any action or doing any thing for acquisition of the land of the Petitioners;
(d) give and grant such further and other relief as the nature and/or circumstances of the case may require."
2. Briefly stated, the facts of the case are that the petitioners claim themselves to be the owner of land bearing Sheet No.LY-70, Survey No.11/1, Old Survey No.K-19/26-1, measuring 6768 square yards, situated in Lyari Quarters, Karachi. The Petitioners Nos.1 to 3 claim that they own half of the share whereas Petitioner No.4 claims that she owns the other half share in the land. The said land is stated to have previously belonged to two real brothers, namely, Abdul Hussain Imdadali and Hamza Imdadali. After the death of Abdul Hussain Inidadali his share is alleged to have devolved upon his widow and his sons i.e. Petitioners Nos.1 to 3 whereas the share of Hamza Imdadali is alleged to have been received by the Petitioner No.4 by way of Declaration of Gift registered on 29.5.1986 with District Registrar, Karachi. It is averred that the subject land is a 'Baghicha' (garden) land and was let to one Ebrahim son of Musafir for cultivation purposes, who was also given by the adjoining owners the land bearing No.LY-70/7, admeasuring 1015 square yards, and both lands were under his cultivation. It is also averred that in 1982 the Petitioners Nos.1 to 3 and Hamza Imdadali, father of Petitioner No.4, constructed a boundary wall around their land but on 30.1.1983 the owners of the adjoining land, in order to execute a decree of eviction against Ebrahim, demolished part of their said boundary wall. Thereafter, the Petitioners Nos.1 to 3 and Hamza Imdadali on 1.2.1983 filed a Suit bearing No. 44 of 1983 before this Court on its Original Civil Jurisdiction against the owners of the adjoining plot, said Ebrahim Musafir and the Deputy Commissioner, Karachi. The matter was heard and the learned Single Judge, vide order dated 30.10.1985, directed the parties to maintain the status-quo. Thereafter, the matter was settled between the parties. However, it is alleged that during pendency of the suit some unscrupuious persons by taking advantage of the broken boundary wall and with the help of employees of KMC (Respondents Nos.2 and 3) erected metal poles on the said land and started playing football there and they also cut down the trees and hampered the cultivation which was stated to be carried on the said land. The petitioners then lodged complaint with the concerned SHO. In the meantime, one Muhammad Fazal along with some other persons filed Suit No.1192 of 1985 against WMC, Province of Sindh, Haji Ghulamali and Hamza Ali before the Ist Senior Civil Judge, Karachi-South, claiming to be the owners of the said land. The suit proceeded before the learned Judge, who vide judgment dated 22.9.1985 dismissed the same. In the meantime, the Petitioners No.1 submitted an application dated 21.10.1986 to the Mayor of Karachi for removal of the encroachments from the said land, who passed an order for the removal of the goal posts from the said land. Thereafter, the Director, Recreation of Sports wrote a letter dated 25.10.1986 to the Sub-Divisional Magistrate, for providing police so that goal posts on the land could be removed. Thereafter, the Respondent No.2 wrote letters dated 10.4.1989 and 22.4.1989 to the Additional Chief Secretary, Housing and Town Planning, Local Government and Rural Development Department, Government of Sindh, Karachi, mentioning therein that since a playground was lying open since pre-partition days hence by considering the demand of area people this plot of land may be allowed to remain a playground. The petitioners also, vide letter dated 15.5.1989, approached the Municipal Commissioner, with copies to the Commissioner and other officials, requesting that the goal posts dated on the said land may be removed, which according to them, have illegally been erected once again after its previous removal by the officials of respondent No.2. The concerned Ministry of Housing and Town Planning then categorically directed the Municipal Commissioner, vide letter dated 20.7.1989, to take all possible steps for removal of the goal posts from the said land. The Director Land of KMC vide letter dated 27.12.1989 also directed for removal of goal posts immediately. The petitioners also approached the Chief Minister for removal of those goal posts and the Chief Minister also issued directions for the immediate action. However, when the matter was being agitated by the petitioners before the different authorities the lease of the land expired on or about 1.8.1995. The petitioners then applied to the City Deputy Collector for renewal of the lease by categorically mentioning that they were willing to pay the dues and charges of the renewal. However, the lease was not renewed by the Respondent No.1 due to the intervention of Respondent No.4 who not only directed the respondents not to lease out the property for further period in favour of the petitioners but also suggested the Respondent No.1 for acquisition of the land of the petitioners for construction of a "sports complex" for public purposes. The Collector/Deputy Commissioner then to please the respondent No.4, who at that time was speaker of Provincial Assembly, by exercising his powers issued a Notification dated 2.4.1995 under Section 4 of the Land Acquisition Act 1894 ("Act of 1894") by mentioning that the land is needed for public purposes for construction of a sports complex. Thereafter, the Commissioner issued Notification dated 17.6/7.1995 to the effect that the said land is needed for public purposes by the Education Department, Government of Sindh, Karachi and the Assistant Commissioner was appointed to perform the function of Collector and to take steps for the acquisition of land in question. It is against these acquisition proceedings that the instant petition has been filed by the petitioners seeking further the directions for the renewal of lease of the petitioners.
3. Mr. Faisal Siddiqui Advocate has appeared on behalf of the petitioners and stated that the title of the petitioners on the subject land has been accepted by the Respondent No. 1 which according to him is evident from the counter-affidavit filed by the said respondent. He submitted that in the Notification dated 2.4.1995 it has been mentioned that the land of the petitioners has been acquired for public purposes for construction of sports complex whereas in the Notification dated 17.6(7).1995 it has been stated that the same has been acquired for public purposes for the educational purposes. He has submitted that since the provisions of Act of 1894 deprives a person from his land hence the same are to be construed strictly. In support thereof has placed his reliance on the judgment reported as Divisional Engineer (Dev.) N-II T&T, Gujranwala and 3 others v. Rana Muhammad Sharif (2002 CLC 985). He has further submitted that when the title of the petitioners admittedly has been accepted by the respondents, no justification was available with the respondents not to renew the lease of the land in question. He has relied in this regard on the case of Messrs Shahnawaz Enterprises v. Collector of Customs and others (2005 PTD 1172). He has also submitted that mala fide on the part of respondents is evident from the various replies given by them in response to the letters written to them by the petitioners and in support thereof has placed reliance on the following judgments:-
1. Province of Punjab and 2 others v. Ch. Zahoor Elahi and others (1982 SCMR 173)
2. Hafiz Muhammad Ismail and others v. Province of Sindh and others (2001 CLC 1280)
4. Mr. Siddiqui has maintained that whenever something is done in violation of the law the same cannot be treated to have been done in good faith and stated that malice on the part of respondents is evident from their own correspondence, which now forms part of the record, and in support thereof has placed reliance on the following judgments:-
1. Muhammad Ahmad Siddiqui and 11 others v. Collector, Lahore District, Lahore and 4 others (2000 MLD 820)
2. Muhammad Ishaq and another v. Collector, Lahore District, Lahore and others (2000 YLR 1074)
5. He has maintained that the Notifications issued under Act of 1894 are always to be gazetted, which is a mandatory requirement of law, under sections 4, 5 and 6 of the said Act. He then read out these provisions of law and submitted that since no gazette has been issued in the instant case, the Notifications issued are illegal and in support thereof has placed reliance on the following decisions:-
1. Muhammad Hanif Khan v. Province of Sindh through Secretary, Land Utilization Department, Karachi (PLD 2006 Karachi 531)
2. Dilshad and 2 others v. Senior Superintendent of Police and 2 others (PLD 2007 Karachi 330)
3. Muhammad Ali and 4 others v. Lahore Development Authority through Director-General and 4 others (2002 MLD 607)
4. Allah Ditta and others v. Province of Punjab (PLD 1997 Lahore 499)
5. Muhammad Suleman and others v. Abdul Ghani (PLD 1978 SC 190)
6. Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housinq and Town Planning, Karachi and 6 others (PLD 2010 Karachi 236)
7. Mst. Surayya Aziz v. Collector, Lahore District, Lahore and 2 others (2003 CLC 1510)
6. He added that it is a settled proposition of law that if the purpose of the Notification requiring the acquisition of land is changed then as per the requirement of sections 4, 5 and 6 of the Act of 1894 a new Notification has to be issued which in the present case has not been done as, firstly, Notification dated April 2, 1995 was issued for acquisition of land for public purposes for construction of a "sports complex" and thereafter in continuation of the said Notification another Notification dted 17.6(7).1995 was issued mentioning therein that the land in question is urgently needed for public purposes for the "educational purposes and in support thereof has placed reliance on the following decisions:-
1. Nazir Ahmad and 6 others v. Commissioner, Lahore Division, Lahore and 3 others (2000 MLD 322)
2. Haji Feroze Din and others v. Government of West Pakistan and others (PLD 1961 (WP) Lahore 304)
7. Mr. Siddiqui has also submitted that wherever the Land Acquisition Authorities exceed to their powers or exercise power arbitrarily, this Court has the authority to interfere/intervene in the matter and in this regard has placed reliance on the following judgments:--
1. Ramniklal N. Bhutta and another v. State of Maharashtra and others ((1997) 1 SCC 134)
2. Muhammad Ahmad Siddiqui and 11 others v. Collector, Lahore District, Lahore and 4 others (2000 MLD 820)
3. Hafiz Muhammad Ismail and others v. Province of Sindh and others (2001 CLC 1280)
4. Haider Ali and 9 others v. Deputy Commissioner, Karachi and 3 others (1986 MLD 2650)
5. Babu Singh and others v. Union of India and others ((1981) 3 SCC 628)
6. Malik Salah-ud-Din and 6 others v. Collector, Land Acquisition, Peshawar and 3 others (1999 CLC 776)
8. The learned counsel further submitted that issuance of general and special notices under section 9 of the Act of 1894 is a mandatory requirement and since no such notice was issued the entire proceedings initiated by the official respongents have become null and void and in support thereof he has placed reliance on the following decisions:-
1. Muhammad Hussain and 2 others v. Board of Revenue Punjab, Lahore through its Member (Revenue) and 4 others (PLJ 2002 Lahore 1885)
2. Deputy Commissioner v. Abdul Karim Moosa and others (1982 CLC 1542).
9. Mr. Siddiqui has also submitted that possession of a land under the Act of 1894 could only be taken by a Collector and not by any other authority and since in the instant case possession was not taken over by the Collector rather the land is still illegally being used as a football ground, the respondents may be restrained from acquiring the land. In support of his above contention the learned counsel has placed reliance on the judgment repoqed as Haq Nawaz Khan and others v. Rab Nawaz and others (1992 SCMR 993). He added that since the Notifications were issued prior to the expiry of lease hence the petitioners have a locus standi to file the instant petition and, even otherwise, in view of section 116 of Transfer of Property Act, 1882, the lease of the petitioners stands automatically renewed since the petitioners were in possession of the land even after the expiry of the said lease. The learned counsel then read out the provisions of section 116 (ibid) and some clauses of the lease deed. To support his point the learned counsel has placed reliance on the following judgments:-
1. (Haji) Abdul Ghaffar Khan v. Gullah Jan (PLD 1952 Peshawar 50)
2. Nawab Haji Muhammad Dawood Khan and others v. Muhammad Usman Ghani and others (1985 CLC 2309)
3. Zahir Ahmed v. Seth Sugnichand and another (PLD 1965 (W.P.) Karachi 195)
4. Messrs Hyesons Commercial and Industrial Corporation Ltd. v. The Trustees of the Karachi Port Trust (1986 CLC 2229)
10. Mr. Siddiqui has further submitted that from the documents relied upon by the respondents, it is evident that the petitioners still enjoy ownership on the subject land, therefore, the impugned Notifications may be declared to be null, void and of no legal effect and in support thereof has placed reliance on the following judgments:--
1. Gauhar Rehman v. Jan Ashbi and another (1990 SCMR 1586)
2. Nooruddin and others v. Pakistan and others (1997 CLC 1971)
3. Muhammad Hanif and others v. Mst. Sardaran (1989 MLD 401)
4. Nawab Ali and others v. Bajwant Singh and others (1995 CLC 1823)
5. Muhammad Nazeef and others v. Mst Mumtaz Begum (2002 CLC 1517)
6. Muhammad Hussain and others v. Khuda Bakhsh (1989 SCMR 1563)
11. Syed Sultan Ahmed Advocate has appeared on behalf of Respondents Nos.2 and 3 and at the very outset submitted that this petition is not maintainable since if the petitioners are aggrieved against the acquisition of land by the respondents they have the remedy under the law to file their objections under section 5-A of the Act of 1894 which admittedly has not been done hence according to him this petition is not maintainable. In support thereof he placed reliance on the following decisions:-
1. Adamjee Insurance Company Ltd. v. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others (1993 SCMR 1798)
2. Ch. Nazir Ahmad v. Moulvi Masood ur Rehman Khan and 6 others (PLD 2008 Lahore 405)
3. Muhammad Younus Khan and 12 others v. Govemment of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618)
12. He has submitted that the petitioners have no locus standi to file the instant petition since the lease has expired in 1995 and hence after its expiry the petitioners have no authority to claim the ownership of the said plot/land therefore the instant petition is liable to be dismissed with cost. The learned counsel has further submitted that though it is claimed that Hamza Imdadali gifted the property to his daughter Petitioner No.4 but no such gift deed has been annexed alongwith the instant petition to prove that Petitioner No.4 can agitate the matter by filing the instant petition. The learned counsel further submitted that the subject plot even in pre-partition days had always been used as a playground, which was wrongly given to the petitioners on lease and when the said land was acquired by the respondents, the petitioners with mala fide intention have filed the instant petition. According to him the land in question is an amenity plot, which was meant for playground only, hence even if the same was leased out to the petitioners, which has expired, the respondents were justified in acquiring the same under the Land Acquisition Laws. He, therefore, submitted that neither any vested right nor any claim of ownership could now be made by the petitioners after the expiry of the lease. The learned counsel added that the petitioners themselves have mentioned in the petition that the said plot was a "Baghicha" (garden) which amply proves that it was an amenity plot and hence no ownership rights in respect of a "Baghicha" (garden) could be claimed by the petitioners. He further stated that an amenity plot is not transferable and in this regard has placed reliance on the following judgments:-
1. Solho Mal and another v. Karachi Development Authority (K.D.A) and others (2005 YLR 2412)
2. Shafiqur Rehman and others v. Government of Sindh through Chief Secretary and others (PLD 2006 Karachi 10)
3. Suo Motu Case No.3 of 2006 - Cutting down of Trees in Jahangir Park, Saddar, Karachi (PLD 2006 SC 514)
4. Moulvi Iqbal Haider v. Capital Development Authority and others (PLD 2006 SC 394)
13. Mr. Sultan Ahmed has further submitted that non-issuance of a gazette notification would not render the proceedings void, rather the same is a rectifiable technical lapse and no adverse inference in this regard could be drawn. In support thereof he has placed reliance on the following judgments:-
1. Saghir Ahmed through legal heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 SC 261)
2. Wajahat Iqbal v. Lahore Development Authority through Director-General and 3 others (2004 YLR 544)
3. Administrator, Municipal Committee Kotli and another v. Muhammad Abdullah and 3 others (2001 YLR 3367)
4. Muhammad Ashraf Khan v. Revenue E.A.C. and 7 others (1980 CLC 1504)
14. Mr. Sultan Ahmed has also maintained that no claim could be made by a person after the expiry of the lease and hence the present claim of the petitioners with regard to the renewal of the lease and the claim of possesion of the land are misconceived. In support of his above contention the learned counsel has placed reliance on the following judgments:-
1. Islam-ud-Din and 3 others v. Additional Commissioner-II, Malakand Saidu Sharif, Swat and 3 others (1994 SCMR 1779)
2. Yousuf Shah v. Mst. Niamat Bibi and another (1994 CLC 622)
15. He has further maintained that since in the instant case Land Department has not been made a party, who are necessary party in the case, hence the instant petition is not maintainable and is liable to be dismissed and in support thereof has placed reliance on the following decisions:-
1. Muhammad Anayat Khan v. Sardar Muhammad Iltaf Khan and another (2015 MLD 330)
2. Pakistan Railways through G.M. and another v. Abdul Fateh and another (2012 SCMR 181)
16. Mr. Asadullah Lashari Advocate has appeared on behalf of Respondent No.1 and has adopted the arguments of Syed Sultan Ahmed and stated that the petitioners have approached this Court with unclean hands and since the terms of the lease had expired the petitioners have no locus standi to file the instant petition, which may be dismissed, accordingly.
17. Nobody has appeared on behalf of Respondent No.4 despite service.
18. Mr. Faisal Siddiqui Advocate in his rebuttal has stated that it was not the Land Department who had acquired the land in question rather it was the Government of Sindh, which has acquired it, who has rightly been made a party in this petition. He, therefore, stated that this petition may be allowed and the lease may be renewed and possession of the land may be handed over to the petitioners.
19. We have heard all the learned counsel for the parties at considerable length and have perused the record and the decisions cited before us.
20. Perusal of record reveals that on 01.08.1915 the said land was leased out for a period of 80 years in favour of grandfather of the petitioners Nos.2 and 3 which thereafter devolved upon Abdul Hussain Imdad Ali and Hamza Imdad Ali and after the death of Abdul Hussain Imdad Ali it devolved upon the present petitioners, whereas the petitioner No. 4 claimed ownership of the land by way of gift from her fathr Hamza Imdad Ali. In the survey map of 1986 the said land has been shown as "disputed property" which clearly proves that there was a dispute going on between the parties with regard to the ownership of the land. It is also a matter of record that several letters were issued to the SHO Kalakot and other authorities by the petitioners for removal of the encroachers and trespassers from the land. It is also seen that in Suit No.1192 of 1985 filed by one Muhammad Fazal and others it was mentioned in the plaint that the plot of land was lying vacant and was used for community functions and football game purposes. It was then requested in the suit that since nobody was the owner of that plot the persons filing the suit may be given the rights of that plot of land. In the said suit the father of the petitioner No.4 was also a party. Since in the said suit the persons filing the suit have no title in their favour the same was dismissed by the 1st Senior Civil Judge, Karachi South. It is also a matter of record that several representations were made by the petitioners and even the Mayor of Karachi in 1986 directed his subordinates that goal posts be removed from the said plot. Even the Director, Recreation and Sports KMC, has admitted that the goal posts were erroneously installed by his department on the said plot of land. He has further issued instructions to DLE, KMC for arranging adequate police force to avoid a possible resistance from some miscreants, if any. It is also an admitted fact that in the Suit filed by Muhammad Fazal bearing No. 1192 of 1985 the KMC has vehemently denied the claim made by Muhammad Fazal and had admitted that at that point of the plot under question was leased out to the petitioners and that Muhammad Fazal and others had no right over the said land, therefore, the present stand taken by the learned counsel for the respondents Nos.2 and 3/KMC that the plot in question was an amenity plot is contrary to their own submissions made earlier. Can simply erecting goal posts in a land would convert the same into a playground? We are sanguine that answer to this question would be in negative. How can a person erect goal posts into a land and thereafter claim that the same is a playground or an amenity land? It is further seen from the record that a number of times the goal posts were removed either with the help of police or by the respondent/KMC itself but at each time, these were erected either by some miscreants of the area or by the employees of KMC itself. It is also an undeniable position that whenever the high officials like Mayor Karachi, Commissioner Karachi, Municipal Commissioner Karachi, etc. had enquired the matter from their subordinate authorities, these authorities have either admitted that the plot of land is in dispute or that the plot of land has been leased out to the petitioners and the goal posts have erroneously been installed on the said plot of land. From the letter dated 20.07.1989 addressed by the Ministry of Housing, Town Planning Local Government and Rural Development to the Municipal Commissioner, Karachi Metropolitan Corporation, Karachi, which is available as annexure P/14 at page 129 of the file, it is evident that the said Ministry had categorically directed the Municipal Commissioner to take all possible steps to remove goal posts from the plot. Though it is claimed that the plot of land has been used as playground since pre-partition days but no document has been produced to show that the said plot was a playground only a map was produced before us by the respondents to show that the said plot has been marked as a "disputed land" which also proves that the respondents have failed to justify their assertion that the said plot of land was in fact a playground.
21. It is also noted that the Director Land KMC vide letter dated 27.12.1989 addressed to the Deputy Commissioner, District South, Karachi has categorically admitted that from the documents produced by the applicant (petitioner No.1) the said plot of land was leased out to her for 80 years and it was also suggested that the goal posts may be removed since KMC legally cannot take the removal action. In the notification dated 02.04.1995 it has categorically been mentioned that the land was acquired under Section 4 of the Act of 1894 by the Collector/Deputy Commissioner (South) Karachi on the ground that the land is needed for public purposes for construction of "sports complex" and just after passage of 2(3) months another notification was issued by the Commissioner that the land is needed for public purposes for "educational purposes" by the Education Department Sindh, which clearly shows a contradiction in respect of the basis of the acquisition of the land by the respondents. It is strange to note that in the letter dated 04.06.1996 addressed by Deputy Director Land Leases Lyari it has been mentioned that the plot in question is an amenity plot and had always been used as a football ground by the residents of the area and hence on their persistent demand the said plot of land was acquired for constructing a sports complex, which statement is contrary to the notification issued by the Commissioner as in the notification dated 17.6/7.1995 it has been stated that the plot was needed for educational purposes. It is evident from the record that the respondents themselves were not sure as to for what purpose the said land has been acquired as in some statements they have stated that the land was acquired to develop sports activities in the area by constructing a sports complex, whereas according to other notification the plot of land was acquired for public purposes for educational purposes. Even from the counter-affidavit filed by the respondent it is evident that the land in question has been acquired by the KMC for sports activities, which belies the second notification wherein it has categorically been mentioned that the plot of land is being acquired for public purposes for educational purposes. The petitioner No.1 along with her affidavit-in-rejoinder has placed before us some documents pertaining to Suit No.316 of 1932 to prove that the property under question was never an amenity plot rather the same was a plot under cultivation.
22. There is no denial to the fact that the government has the authority under the law to acquire any land under the Act of 1894, but that should be subject to fulfillment of certain legal and codal formalities. The said law clearly provides that if any land is needed for any public purpose, a notification to that effect shall be published in the official Gazette, as provided under section 4 of the said Act, which is a mandatory requirement. As per section 5 where the land is required for a public purpose a notification to that effect shall be published in the official Gazette, stating the district or other territorial division in which the land is situate. It has also been provided in subsection (2) of section 5 that notification under subsection (1) shall be issued not later than one year from the date of publication of the notification. However, time spent in the prosecution of a judicial remedy would be excluded, if the same are stayed by the government. It has further been provided under subsection (3) of section 5 that if a notification is not issued within the specified time, the acquisition proceedings shall be deemed to have come to an end. Section 6 of the said Act provides that if any particular land is needed for public purposes, a declaration shall be made to that effect under the signature of the Commissioner. Subsection (1-A) of section 6 provides that the said declaration shall be made within six months of the publication of the notification under section 5 and if the declaration is not issued within that period, the acquisition proceedings shall be deemed to have come to an end. Subsection (2) of Section 6 provides that the declaration shall be published in the official Gazette and shall state the district or other territorial division in which the land is situate.
23. Perusal of the record further reveals that the declaration for acquisition of land was issued by the Commissioner however it is an admitted position that the same was never published in any official Gazette. Even the learned counsel appearing before us on behalf of the respondent/KMC has conceded that no official Gazette has been issued in this behalf but has termed the same to be a technical lapse which would not vitiate the acquisition proceedings.
24. In the decision given in the case of Muhammad Hanif Khan (supra) a Division Bench of this Court observed as under:
7. . . . . Purpose of publication of gazette Notification is to inform person affected and the public at large for the proposed acquisition of land for public purpose. It is now a settled principle of law that no person could be condemned unheard, and no person could be divested of property without due course of law, principles of natural justice is deemed to be imbedded and enshrined in every statute, unless expressly excluded. Where the recorded owner of the land, proposed to be acquired, is ascertained and is known, then notice to such person is necessary, publication of Notification in official Gazette meets only the extrinsic and not the intrinsic requirement of law. It is common knowledge that publication and circulation of official Gazette is but limited and usually confined to meet the statutory requirement of law. It has come to notice that, at times not many persons are aware of the important and valuable information that a Gazette Notification tends to communicate and dispense. Limited access and circulation of official Gazette notification at times defeat the principle of natural justice and frustrate the very object of law. In order to comply with the requirement of principle of natural justice, at the time of publication and issuance of Notification under section 4 and or 6 ibid notice under section 45 of the Land Acquisition Act may also be served on the recorded owners or on the affected person.
8. Object of Land Acquisition Act, is not to deprive a person from his property-right without due process of law. One of the essential intrinsic requirements of principle of natural justice is to give proper and meaningful opportunity to the affected person to challenge and object to the proposed or likely acquisition of land under the Act of 1894.
25. In the decision given in the case of Dilshad and 2 others (supra) a Division Bench of this Court observed as under:
Since we have held that the proceedings cannot be taken without publication of notice under section 4 of the Act. Therefore, in the absence of such notification under section 4 Award is without lawful authority further discussion on other points raised by the, learned counsel is not necessary.
26. We do not agree with the contentions raised by the learned counsel for the respondents that non-issuance of official Gazette was only a technical lapse and the same would not vitiate the acquisition proceedings. Suffice to say that in the Act of 1894 the legislature has purposely used the words "shall be published in the official Gazette" and has further stipulated that in case of non-compliance of this mandatory provision the acquisition proceedings shall be deemed to have come to an end, meaning thereby that the law framers have made it a mandatory requirement that in acquiring the land of any person the same has to be gazetted so as to inform the public at large of the proposed acquisition for public purposes. The decisions relied upon by the learned counsel for the respondents thus are found to be distinguishable on the facts as firstly they are not that concerning the Act of 1894 and moreover issuance of a Gazette notification so far as the said Act is concerned, in our view, is a mandatory requirement and non-fulfillment of the same would render the process of acquisition to be not in accordance with law and of no legal effect.
27. We have noted that this Court has the jurisdiction under the law to interfere in the matter when it has come to the conclusion that an action taken by the respondents are not in accordance with law or tainted with malice. From the facts obtaining in the instant petition, it is evident that a number of contradictions appear in the averments made by the respondents; firstly with regard to the title of the plot, secondly with regard to the purpose of the acquisition and thirdly with regard to the locus standi of the petitioners. We have further noted that the reason for not renewing the lease primarily based on the fact that since the land was acquired by the respondents hence the petitioners may agitate the matter before the Collector. Suffice to say that in view of the facts noted above the act of the respondents in acquiring the land is found to be illegal, hence we are of the view that the petitioners have a locus standi to file the instant petition and the same is maintainable.
28. In view of what has been discussed above, this petition is allowed by holding that the proceedings for acquisition of the subject land and, in consequence thereof, issuance of Notification dated 2.4.1995 and 17.6/7.1995 without observing legal and codal formalities are without lawful authority and of no legal effect, and by directing the respondents that if they intend to acquire the subject land, for public purposes the same should be done in accordance with law by strictly following the relevant provisions of the Land Acquisition Act, 1894, and the petitioners will be entitled to challenge the said notification award or raise other objections as available to them under the law. Since we have decided the instant petition by observing that the acquisition of the plot made by the respondents was not as per provisions of the Act of 1894, we do not consider it necessary to dilate upon the other issues raised by the petitioners. The petitioners are however left at liberty to approach proper forum for the renewal of lease, if so advised, and the forum so approached by the petitioners shall decide the applications of the petitioners for renewal of lease in accordance with law.
Petition stands allowed in the above terms.
ZC/S-87/Sindh Petition disposed of.