P L D 1957 (W (PLP)

MUHAMMAD SHAFI, J.‑--The Colony Sarhad Textile Mills Limited, Nowshera, through Mian Aziz Ahmad Sheikh, its Managing Director, wishes this Court to issue a high preroga tive writ of certiorari in the exercise of its extraordinary jurisdiction under Article 170, of the Constitution of Islamic Republic of Pakistan, by quashing the following orders:‑ (1) order, dated the 21st of December 1956, passed by the Commissioner, Peshawar Division. (2) order of the Deputy Commissioner, Peshawar, dated the 14th of December 1956, contained in letter No. 3492, addressed to the Assistant Commissioner. (3) order of the Deputy Commissioner, Peshawar, dated the 5th of February 1957, contained in letter. No. 1 645/D.K., addressed to the Assistant Commissioner. (4) order dated the 7th of February 1957 of Assistant Commissioner. (5) order contained in Letter No. 8379/90/N, dated 12th December 1956 of the Assistant Commissioner, Nowshera, and (6) the Collector's order, dated the 14th of June 1956. The Company in addition demands a writ of mandamus prohibiting the respondents which consist of the Commis sioner, Peshawar Division, the Deputy Commissioner. Peshawar, the Assistant Commissioner, Nowshera, and twenty nine landholders (respondents Nos. 4‑331; from realizing the compensation money through coercive measures, or by any other method not provided for by the Land Acquisition Act, or from taking possession of the acquired land by any method not warranted by law. There is then the usual prayer that any other writ, direction or order appropriate under the circumstances of this case, be also issued. The facts which are not denied by the parties‑are that the petitioner‑company prevailed upon the defunct Govern ment of North‑West Frontier Province to acquire land measuring 741 Kanals 18 Marlas situated in village Amangarh and Nowshera Khurd, owned by respondents Nos. 4 to 33 for the construction of a textile mill. Straightway, on the 12th of August 1953, Notification No. 231‑31‑Rev. purporting to be under section 4 of the Land Acquisition Act, 1894, though the words used in the Notification were different from the words used in the section itself, was published in the Official Gazette. Its words were "that the land the description of which was given in the Notification, was likely to be required to be taken by the Government at the public expense for a public purpose, namely, for Establishment of a Cotton Textile Mill at Nowshera". The persons interested were invited to put in any objection to the acquisition of the land within thirty days of the publication of that notice and file an objection in writing before the Collector of Peshawar. The same day, another Notification purporting to be made under section 6 of the Land Acquisition Act, No. 23137‑Rev./XIII‑B‑II, was published in the Official Gazette. Under section 7 of the said Act, the Collector of Peshawar was directed to take order for the Acquisition of the said land. The petitioner‑company was given the possession of this land on the 16th of October 1953, whereafter it claims to have built a Textile Mill and Officers' and labourers' quarters at a very heavy cost. Mr. Abdul Rehman, Revenue E. A. C. Peshawar, and a Collector under the Land Acquisition Act, held an elaborate and detailed enquiry, and submitted his award, which is not dated, that the petitioner‑company should pay Rs. 7,66,896 to the owners as compensation. This amount was considered excessive by the Company, and so, on the 10th of December 1955, its Managing Director submitted an application to the Collector, that the award under section 18 of the Land Acquisition Act, be referred to the determination of the Court with respect to the assessment of a true and correct amount of compensation regarding the land in question, This application was rejected on the 4th June 1956, on the ground that the petitioner- company had no right under section 50, subsection (2) of the Land Acquisition Act, to ask for the reference to the Civil Court. It was observed in the order that on the 25th of May 1956, the Deputy Commissioner, Peshawar, had ordered that the petitioner‑mill should deposit the amount mentioned in the award immediately, failing which a warrant for attachment would be issued. The Collector opined that as the amount have not been deposited, therefore, it was an additional reason for refusing to refer the case to Civil Court. Mr. Faridullah Shah, Deputy Commissioner, Peshawar, on the 14th of December 1956, ordered that the possession of the land could not be retained by the Company, and, therefore, the owners should be told to take possession of their respective lands immediately. The buildings and the machinery which belonged to the Factory‑owners could be removed by the Factory people at their own cost. The petitioner in the meantime went up on appeal to the Commissioner, Peshawar Division, against the order of the Collector, dated the 4th of June 1956. The Commissioner, by his order, dated the 21st of December 1956, (which I must say is not very intelligible) remanded the case to the Collector to hear it after the 26th of January 1957, according to the procedure laid down under section 18‑A of the Acquisition Amendment Act of 1947". In the body of the order, the Commissioner observed that the Company had agreed on the 7th of April 1956, to make the deposit by the 20th of April 1956, but by that date, it only deposited one lac of rupees. The remaining sum, the Com missioner went on to say should be deposited before the amount of compensation is eventually decided by a Civil Court. It was observed that the appellant, meaning the company, had a long notice, but in view of the fact that it had to find a sum of Rs. 6,66,896‑8‑0, it should be given an other month to make this deposit. The balance, it is admitted was never paid by the Company. On the 5th of February 1957, the Deputy Com missioner Peshawar, therefore, addressed another letter to the Assistant Commissioner, Nowshera, saying that the Company was allowed to deposit the remaining sum of compensation within one month's time, but as it failed to do so, it should be called upon to deposit it immediately, filing which the owners should be told to take possession of their respective lands. On the 7th of February 1957, the Assistant Commis sioner, Nowshera, addressed a letter to the Manager of the petitioner‑company, calling upon him to comply with the orders of the Deputy Commissioner contained in the above letter. These are the letters and the orders which the petitioner‑company wishes this Court to quash in these proceedings. It may be mentioned at the outset that no one in his country can be deprived of his property save in accordance with law. This was the law prior to the framing of the Constitution of Islamic Republic of Pakistan in the shape of section 299 of the Government of India Act, 1935, and this is the law now contained in Article 15 of the Constitution. The law so enacted can authorise the State to compulsorily acquire the property of a citizen for public purpose or for companies. It must assure that such a citizen is' paid adequate compensa tion and, actually either fix the amount of compensation or specify the principles on which and in the manner in which such compensation is to be determined and given The existing law which allows the Government to forcibly take the property of its subject is contained in several enactments, but here in this case, we are only concerned with one of them namely the Land Acquisition Act of 1894. This law creates a statutory right of an exceptional character and necessarily implies forcible expropriation of private rights and has, there fore, to be construed very strictly. If we examine the language of the enactment and take it in its natural meaning, we find that no sooner the Provincial Government arrives at the conclusion that a certain property is needed for a Company or for a public purpose, than it must cause a notification to that effect to be published in the official Gazette under its section

4. The Collector has then to cause a public notice of the substance of such notification to be given at convenient places in the locality in which the land contemplated to be acquired is situate. Such a notification only makes it lawful for an officer, either' generally or specially authorised by such Government in this behalf, and for its servants and workmen, to do certain acts with regard to the property to be acquired. It neither creates any right in, nor does it divest anybody of his existing right with respect to the property mentioned in the notification. If the land, is, intended to be acquired for a Company, then the compensation leas got to be paid wholly by that Company. There is some authority for the view that no property can, be acquired for a Company unless some portion of the compensation is ‑charged against the public revenue, but we need not fall into this controversy here. The fact remains that it is the duty of the State to see that the interests of the owners of the property are sufficiency safeguarded and that they are not driven, in case the land is taken away from them, for the realisation of the compensation to the time consuming; vastly, expensive, arid complicated machinery of ordinary Courts. The Land Acquisition Act itself has, therefore created a special jurisdiction and provide a special and quite adequate remedy, namely, after a notification under section 4 of the Land Acquisition Act is published in the Official Gazette and before the provisions of sections to 37, both inclusive, are not put into force. (1) the previous consent of the Provincial Government has to be obtained, and (2) the Company has to be asked to execute an agreement with the Provincial Government, providing to the satisfaction of the Provincial Government for the foil own matters, namely: (a) the payment to the Provincial Government of cost of the acquisition; (b) the transfer, on such payment, of the land to the Company; (c) the terms on which the land shall be held by the Company; (d) where the .acquisition is for the purpose of creating dwelling houses, or the provision of amenities connected therewith, the time within which, the condition on which, and the manner in which the dwelling houses or amenities shall be erected or provided; and (e) where the acquisition is‑ for the construction of any other work, the time within which and the conditions on which the work shall be executed and maintained, and the terms on which the public shall be entitled to use the work, (vide sections 39 to 41). This agreement then has got to be published in the official Gazette under section 42 of the Act, presumably to give an opportunity to the persons who are affected by the acquisition to satisfy themselves that the agreement executed is a sufficient guarantee of the payment of the amount to them. Now, the provisions of the law that the agreement must precede and not follow the action taken under section 6 to section 37, which includes section 17 of delivery of the possession of the property to a Company, in cases of urgency is imperative and mandatory, and there is no scope for the Government, the Company, or anybody else to contravene or by‑pass it or change its order so as to give to the agreement a secondary position. The words used in section 39 "that the provisions of sections 6 to 37 shall not be put into force" are forceful precise and in the nature of the command. Let me repeat' to I emphasise the point that these sections mean that until and unless an agreement is executed the statutory rights created by section 6 to section 37 do not come into play at all. In the case before us, it is admitted by the learned counsel appearing for the Company that no such agreement was executed; much less published in the Official Gazette. It, therefore; unmistakably follows that the publication of the notice under section 6, the delivery of possession of the land to the Company under section 17, and the inquiry and the B award of the Collector under section 11, are all completely devoid of jurisdiction. No right thus in the property in suit vested or ever existed in the Company, which may legitimately be upheld by this Court by issuing the appro priate writ. The Company is obviously a wrong‑doer and a trespasser. Now all that the Deputy Commissioner has done in this case by passing the impugned orders is to restore the land to the rightful owners. It is argued that these orders of the Deputy Commissioner are without jurisdiction. Supposing they are so, still in order to justify the issue of a writ, it must also be established that the orders have resulted in manifest injustice. In this case, the injustice is no doubt done, but not to the Company, which has enjoyed the property for several years without paying one single farthing to its real owners. The people aggrieved who have suffered colossal loss are the unfortunate owners of the land. The High Courts in the exercise of their power under Article 170 of the Constitution are not expected to perpetuate the wrong done to a certain person or persons and help a wrong‑doer. The main object of this highly beneficial Article is to uphold the law and justice, but not the negation of them. It is argued that the petitioner did execute an agreement as contemplated by law on the 4th of November 1955, and under the circumstances, it should be taken that the conditions laid down in section 39 have been substantially complied with. Since the agreement was executed long after the action was taken under sections 6 to 11 of the Land Acquisition Act, it has no legal value whatsoever. It is also of no use to the landowners which is proved from the fact that they are deprived of the land but have no guarantee that the compensation would be paid to them without having a recourse to the ordinary Courts of Law. In any case, this agreement cannot render, the action already taken under sections 6 to 37 of the Land Acquisition Act as legal. Even if this document is accepted ac a legal document, still the Company in condition No: 2 ‑agreed to pay the compensation for the land as assessed by the Collector of the District, subject to the right of reference and appeal against the award, as provided in the Land Acquisition Act, of 1894. Reference by the Company to the Court is specifically barred by the provisions of subsection (2) of section 50 of the Land Acquisition Act, and so the order of the Collector to that effect is unassailable. So far as the appeal is concerned. It was filed and disposed of by the Commissioner. The Company therefore, according to its own undertaking, was bound to pay the amount fixed by the award, and unless it paid it, the assistance of the Court could ‑not be' sought at all. This will be more so when we find that the Company actually accepted the award, because it made an application in the Court of Sub‑Judge First Class, Nowshera, for the filing thereof. The dismissal of this application on the ground that the award contemplated by the Arbitration Act was not the award made under the Land Acquisition Act will really not make any difference so far as its binding nature, qua the petitioner -company, is concerned. Needless to say that the exercise of the writ jurisdiction is discretionary with the Court and it will not be exercised in favour of a wrong‑doer, or a person who does not come to the Court with clean hands. Originally, several points were raised in the petition, yet when the learned counsel for the petitioner himself read sub sections 39 to 41 of the Land Acquisition Act in Court, he found himself completely helpless in the matter, and so declined to argue those points, thinking perhaps that it was absolutely futile to do so. The result of the above discussion is that this writ petition must fail and it is hereby dismissed with costs. Pleader's fee Rs.

300. ABDUL HAMID, J.--‑I agree with my learned brother that this petition should be rejected but as my angle of approach to the questions which fall to us for decision is somewhat different it would be proper if I should state in my own language my reasons for the decision. The Colony Sarhand Textile Mills Limited Nowshera (to which I shall in this note refer as "the Company") applied to the Provincial Government for the acquisition of land for the Company's use. The Provincial Government took a decision in favour of the Company and on 12th August 1953 issued a Notification (No. 23131‑Rev.) under section 4 of the Land Acquisition Act 1894 (to which I shall in this note refer as "the Act"). The Act required that after the publication of a Notification under section 4 a declaration under section 6 of the Act should also be published in the Official Gazette. But before issuing a declaration under section 6 a report from the Collector under section 5‑A of the Act is to be awaited. That report cannot be submitted before the expiry of 30 days from the date of the Notification under section 4 of the Act. An interval of thirty days has been imposed because section 5‑A of the Act provides for inviting within 30 days objections to Notification under section 4 of the Act. Reading section 5‑A of the Act with section 4 it becomes amply clear that a declaration under section 6 cannot be made before the expiry of 30 days from the date of the publication of the Notification under section 4 of the Act. In this case I find that declaration under section 6 of the Act (No. 23137‑Rev.) I was also made on the same date on which Notification under section 4 was published. The declaration is obviously defec tive in that it has been published before the expiry of the period of thirty days from the publication of Notification under section

4. But this is not the only defect from which this declaration under section 6 of the Act suffers. Section 39 of the Act says that where land is acquired for any company, as is the case here, the provisions of section 6 to 37 "shall not be put in force" unless the previous consent of the Provincial Govern ment is obtained and unless the Company shall have executed an agreement in accordance with the provisions of section 41 of the Act and unless that agreement has been published in the official Gazette (section 42). I find that the agreement under section 41 was executed on 4th November 1955 about two years and three months after the publication of declaration. The record further shows, that the agreement has not been published in the Gazette and the condition imposed by section 42 has not been satisfied. In these omissions there has been clear violation of the provisions of section 5‑A., section . 39 and section 42 of the Act. The three provisions of the Act which have been con travened have been inserted in. the Act for very cogent reasons. These provisions apply only in those cases where land is acquired by a company and imposed limitations which do not exist when land is required by the Government or a local authority. The reasons for this difference are obvious. Where land is required by a Company it is necessary that agreement should be obtained from the Company before issuing a declaration under section 6 in order to make the Company liable for payment of compensation money to the owners of the land. It is also necessary that agreement should be published so that persons interested in the land namely the owners should have an assurance that money will be forthcoming. It is also essential that they should have knowledge of the terms on which land is to be acquired. All these are matters of great interest to the people because the land is to be acquired for a Company and not for the Govern ment or a local authority. As the legal requirements to which reference has been made and with which compliance was necessary before the publication of declaration under section 6 were not complied with, declaration under section 6 is, in my opinion illegal. It that is so every step taken by the Provincial Government or any authority under that Government in pursuance of any of the provisions of sections 6 to 37 of the Act is illegal. In this case certain steps have been taken by the authorities in pursuance of some of the provisions lying between sections 7 to 37 of the Act. The Collector for example has made an inquiry under section 11 of the Act. He has also given an award under section

12. Possession of the land has been taken under section 16 or under section 17 of the Act. All these steps are illegal for the simple reason that they are prohibited from being taken under section 39 unless the agreement required by section 41 is executed and published first. If possession of the land has been taken under section 16 or 17 of the Act that possession is illegal and the land does not vest in Provincial Government at all, and if it has not vested in that Government that Government cannot in law transfer that land to the Company. In short any dealings with this land by the Provincial Government or by any of its authorities like the Commissioner or the Collector are illegal in the eye of law. Those dealings are in pursuance of the provisions lying within the region of sections 6 to 37 of the Act and these provisions could not be put into force without first obtaining agreement under section 41 and publishing it under section 42 of the Act. I am of opinion that in respect of this land both the Provincial Government and the Company, are in the position of an utter stranger. They have in respect of it only those rights which the publication of Notification under section 4 of the Act concedes to them. That Notification confers on them the rights to enter upon the property and to do various other acts specified in subsection (2) of section 4 of the Act. The Company applied under Article 170 of the Constitution for the issue of the writs of certiorari and mandamus. I am afraid the Company in law is not entitled to either of these writs. The Company has not acquired any right in the land in dispute. Before obtaining a writ of the nature prayed for the Company has to establish that there resides in it in relation to this land a legal right to the performance of which there is a corresponding legal duty upon the respondents if the Company is an utter stranger in relation to the land in; dispute and has acquired no right in the land it is obvious that it cannot claim the enforcement of any right through any of these writs. For the same reason the respondent is under no legal obligation to perform any duty to the Petitioner it; relation to this land. The petitioner has first to establish that it has acquired under the provisions of the Act right to the land in dispute. His right to it would have arisen only to the Notification under section 6 had been a valid document and if the provisions of sections 6 to 37 of the Act had been in effect. As the Notification under section 6 of the Act is, legal for want of execution and publication of agreement prior to its publication sections 6 to 37 of the Act are not in roe and none of those sections can be invoked for the benefit the Company. The Company is as has been stated above in the position of an utter stranger in relation to this land. The orders of the various authorities enumerated in paras. 10 to 14 of the petition against which the Company hats complained are no doubt illegal and not enforceable. But they are illegal not because they are in violation of any of the company's right under the Act but because they flow from or purport to flow from such of the provisions of the Act as are not in force at all. They purport to derive their force from some provisions lying between sections 6 to 37 of the Act but in fact none of these provisions were ever in force in respect of this land. Both the Provincial Government and the Company have not acquired any right in relation to this land beyond the rights mentioned in subsection (2) of section of the Act. For the enforcement of any of those rights a writ would have been available to the Company if there had been a violation of any of those rights on the part of the res pondent if other conditions for the issue of writs had been satisfied. But as the Company claims the enforcement of the rights which have not yet accrued to it its request cannot be entertained. The petition for these reasons is liable to be rejected and should be dismissed I agree with my learned brother that the petitioners should bear the costs of the respondents. A. H. Petition dismissed.