2020 PLP 2094 (CLC)

AHMAD ALI, J.

Petitioners through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, are seeking the following relief: It is therefore, humbly prayed that the impugned notification under section 4 of Land Acquisition Act, 1894 bearing No.415-18 dated 27.07.2017 may graciously be cleared illegal, based on mala fide, by no means of public purpose, ultra vires, against the object of the acquisition law, Constitution of Pakistan, coram-non-judice, ab-initio null and void, having been issued without lawful authority of political victimization, this liable to be reversed. Therefore, ineffective upon the ownership right of the petitioners.

2. Brief and essential facts for the decision of this constitutional petition are that the petitioners are owners in possession of land bearing Khasra No.1226 measuring 147 Kanals 13 Marlas, situated within the revenue estate of village Pandak Teshil and District Haripur. Respondents intended to acquire the said land for the construction of bus-stand Haripur and in this regard they issued a Notification under section 4 of the Land Acquisition Act, 1894. The same being not acceptable to petitioners, they filed an objection petition under Section 5-A of the ibid Act of 1894 and then preferred Writ Petition No.858- A / 2017 before this Court; however, the said writ petition was disposed off vide order dated 06.11.2018 with the direction to Collector Land Acquisition to decide the pending objection petition under section 5-A of the Act ibid. That the presently the bus-stand has been constructed on the leased property, owned by a sitting minister of the government. The said area was obtained on 99 years lease vide deed No.1035 dated 28.09.1983, and thereafter, huge amount was invested over the construction of bus stand. Now 66 years still remaining and in order to benefit the private respondents Nos.7 and 8, being political figures. That the land of petitioners was acquired to commercialize the barren (banjar qadeem) land of respondents Nos. 7 and 8 which is situated opposite side of the land of petitioners which is proposed for acquisition. Hence, aggrieved of the Notification under section 4 of the Land Acquisition Act, 1894, petitioners filed this petition with the above quoted relief.

3. This Court directed respondents to file para-wise comments to the writ petition which have been so furnished by the respondent No.6, wherein, issuance of the desired writ is opposed.

4. We have heard arguments of the learned counsel for the parties and have gone through the record.

5. A threadbare perusal of the record reveals that the land in question is being acquired for the construction of General Bus Stand Haripur at the request of Tehsil Municipal Officer, T.M.A. Haripur. The reason advanced for vacating the present place of existing bus stand, as is evident from letter No.2107- 09/MC(H) dated 04.12.2014 of the Chief Municipal Officer/respondent No.6, was the expiry of lease period and that the Regional Transport Authority raised objection on the poor condition of the General Bus Stand. Record further unfolds that the respondent No.6 annexed minutes of the Meeting of Tehsil Council Haripur, dated 23.06.2017, whereby a Resolution No.150 for the acquisition of land bearing Khasra No.1226 for construction of bus stand etc was passed. The said resolution was proposed by Irshad Khan and seconded by Malik Zahid Afzal, both members of Tehsil Council Haripur.

6. There is no cavil with the proposition that the land bearing Khasra No.1226 was acquired at the behest of Members of Tehsil Council Haripur; and no prior survey was conducted by any technical/experts, no feasibility report was sought, no proper process for site selection was carried out. Political victimization is apparent through the fact that in a direct and shortcut manner the property bearing Khasra No.1226 was proposed in the Tehsil Council and resolution was passed in a stereotype manner. It is still shrouded in the mystery that why the other property was not proposed to be acquired and what was the reason to propose Khasra No.1226 for the construction of bus stand.

7. The letter No.RTA/5611 dated 29.09.2014 of the Secretary, Regional Transport Authority, reveal that the authority expressed his displeasure over the poor condition of the General Bus Stand Haripur and directed the respondent No.6 to make immediate necessary arrangements for the improvement of the condition of the stand in accordance with rules within a week time. The said letter was not for the shifting of bus stand. Besides, letter dated 14 Jan 1987, of the Secretary to Government of NWFP Local Government, Election and Rural Development Department, (Annexure-G) is evident that sanction for the construction of Bus Stand was accorded and this letter reveal the lease for a period of 99 years. Thus, we are firm in our view that the lease was for a period of 99 years, as reflected from the letter dated 14th January, 1987.

8. The argument of leaned counsel for petitioners that the proposed Khasra No.1226 is having agricultural characteristics whereas, opposite to that Khasra, property of respondents Nos.7 and 8 is situated which is banjar qadeem and can be used as bus stand. It is worthy to mention here that earlier, this Court vide order dated 10.10.2019 had directed the Tehsildar Haripur to submit report whether in the nearby location any Banjar land exists or otherwise. The Tehsildar Haripur submitted his report along with aks/map of the site. The report of Tehsildar coupled with Aks/map and Register Haqadaran-e-Zameen of Mauza Pandak clarified that the proposed site is mostly an agricultural land with some residential area and other Ghair Mumkin chunk; whereas, on the opposite side across the road there is a Banjar land owned by the respondents Nos. 7 and

8. The following comparison of both the lands to check the suitability for use as bus terminal is as under: S.No. Factor Proposed Khasra No.1226 Land of respondents Nos.7 and 8

1. Location Situated at Khan Pur Road Situated at Khan Pur Road

2. Area to be affected Agricultural and residential land Banjar Land

3. Economic factor High price/ compensation amount will be extra burden over government exchequer Rate of compensation will be comparatively less

4. Environmental impact Preserving the agricultural land is the demand of time. Eliminating the agricultural land for construction of Bus Terminal is not a wise decision and will not beneficial to the general public. Being banjar/ barren land there is no forest/ agriculture.

5. Production Agriculture Produce Nil

6. Affected persons A number of families would be affected and lost their source of income and abode Respondents Nos.7 and 8 will be affected in terms of land only

7. Political influence Chosen by the members of Tehsil Counsel at their own accord without any technical reason. n/a

9. Over and above the supra factors, involvement of political victimization cannot be taken out of the consideration. As stated above, the land in question i.e. Khasra No.1226 was taken into focus on the basis of Resolution of Tehsil Council Haripur, proposed and seconded by two members of the said council, without any independent survey in this regard. Therefore, the Notification under section 4 of the Land Acquisition Act, 1894 cannot be held to be in the interest of general public; and there is no public purpose rather the same is advantageous to respondents Nos.7 and 8 only, in order to commercialize their barren lands, situated opposite to the Khasra No.1226. The political background of the respondents Nos. 7 and 8, being the family of ex-President of Pakistan General Muhammad Ayub Khan, does not need any introduction. The Notification under Section 4 of the Land Acquisition Act, 1894, is an initial step toward the acquisition of land and the same is not an ultimate and final decision.

10. Besides, as per letter dated 14th January, 1987, of the Secretary to Government of NWFP Local Government, Election and Rural Development Department, the lease was for 99 years and government already incurred sufficient amount over construction of Bus Stand at its present place. There is no plausible and reasonable justification to relinquish the present place of bus stand. Also, there is no answer to the question as to why official respondents have not acquired the existing place for general bus stand.

11. In the premises aforesaid, we allow this writ petition as prayed for. Respondents Nos. 1 to 6 are directed to exclude the property of petitioners from the process of acquisition for Bus Stand and to select a barren/banjar land for the purpose. Needless to mention that the government has already incurred a huge amount over the existing place of bus stand which was obtained on lease for a period of 99 years; therefore, in case of pre-mature redemption of land, the lessors shall be bound to pay the cost of improvements otherwise, respondents Nos. 1 to 6 shall fulfil the loss so suffered to government exchequer from their own resources. All the pending CMs disposed-off accordingly. No order as to cost. SA/260/P Petition allowed.