1991 PLP 1001 (CLC)

Section 18 (]).‑‑Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be 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 21‑‑in determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration‑‑ First, the market‑value of the land at the date of the publication of the notification under section 4, subsection (1): Secondly; the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; Thirdly, the damage (if any) sustained by the. person interested, at the time of the Collector's taking possession of the land, by reason ‑of severing such land from his other land;. Fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings: Fifthly, if, on consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change and Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. (2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition." Section 25 (1).‑‑‑When the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 11. (2) When the applicant has refused to make such claim or has committed without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector. (3) When the applicant ' has omitted for a sufficient reason (to be allowed by the Judge) to make . such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector. Section 31 (1)'‑‑On making an award under section 11, the Collector, shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next subsection. (2) ................................. (3) Notwithstanding anything in this section the Collector may, with the sanction of the Provincial Government, instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land‑revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned. 2. PUNJAB ACQUISITION OF LAND (HOUSING) ACT, 1973. Section 2 (1) In this Act unless there is something repugnant in the subject or context, (e) 'Housing Scheme' means; (1) a scheme which provides for residential sites, houses or apartments including ancillary land used such as: (i) building and other facilities for health, education, recreation, culture, transportation, communication and shipping; (ii) environmental improvements; and (iii) utility services, i.e. to stay water supply, drainage, sewerage, sanitation, electricity and fuel;" Section 3.‑‑Notwithstanding anything to the contrary contained in the Land Acquisition Act, 1894 or any other law for the time being in force, all land within the Province shall be liable to acquisition at any time under this Act for a housing scheme approved and notified by Governance or Official Development Agency. Section 4(l).‑‑Whenever it appears to the Deputy Commissioner that land in any locality is needed or is likely to be needed for any housing scheme a notification to that effect shall be published in the official Gazette and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. (2) Thereupon, it shall be lawful for any Officer either generally, or specially authorised by the Deputy Commissioner in this behalf and for his servants and workmen: to enter open and survey and take levels of any land in such locality; to dig or bore into the sub‑soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and lines by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and lines marked, to cut down and clear away any part of any standing crop, fence or jungle: "Section 8.‑‑Where any land is acquired under this Act there shall be paid compensation, the amount of which shall be determined by the Collector who shall be guided by the provisions of sections 9 and 10. Section 9.‑‑In determining the amount of compensation to be awarded for land acquired under this Act, the Collector shall take into consideration‑ (i) the market value of the land to be determined on the basis of two years average sale price of land similarly situated and put to similar use preceding the date of notification under section 4 (1); (ii) the damage, if any, sustained by the person interested at the time of taking possession of the land by reason of severing such land from the other land; (iii) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner or his earnings; (iv) If, in consequence of the acquisition of the land the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change: Provided that the maximum rate of compensation determined by the Collector under clauses (i) to (iv) shall not exceed Rupees Twenty Thousand per acre; and (v) the damage sustained by the person interested by reason of dispossession of any standing crops or trees or buildings or other structures or installations which may be existing on the land acquired. "Section 11 payment of compensation may be made in the form of cash, bonds, debentures, annuities over a period not exceeding 20 years or in the form of developed sites or in a combination of such forms in such manner as may be prescribed: Provided that‑ (i) payment in cash to each land‑owner shall be‑ (a) for the first four Kanals of the area acquired, hundred per cent, or the compensation awarded; (b) for the next three Kanals of the area acquired, seventy‑five per cent, of the compensation awarded; (c) for the next five Kanals of the area acquired, sixty‑five per cent, of the compensation awarded; (d) for the next ten Kanals of the area acquired, fifty per cent, of the compensation awarded; . . I (e) for the next ten Kanals of the area acquired, thirty per cent, of the compensation awarded; (1) for the next ten Kanals of the area acquired, ten per cent, of the compensation awarded; and (g) for all additional area acquired, rive per cent of the compensation warded; (ii) the maximum payment of compensation in cash to any individual land owner shall not exceed rupees one lac, the balance being payable in other forms: Provided further that a land‑owner whose total land acquired does not exceed eight Kanals shall have the option to select the form of payment of compensation." 3. PUNJAB ACQUISITION OF LAND (HOUSING) RULES, "Rule 6 (1).‑‑An organization that may be declared to be an official Development Agency under sub‑clause (iv) of clause (1) of subsection (1) of section 2 of the Act shall be bound by the following terms and conditions:‑ (i) The selection of a site for a housing scheme shall be subject to the approval of the Government. Before submission to the Government for approval, a proposal in this behalf shall pass scrutiny of and be cleared through such channels as the Government may require; (ii) A housing scheme to be submitted to Government for approval shall be accompanied by the following information:‑ (a) objectives of the scheme;‑ (b) area of the scheme; (c) proposed land‑use pattern; (d) number and size of plots, houses, apartments, etc. to be provided; (c) development standards and description of utility services to be provided; (f) approximate cost of the scheme supported by estimates and unit costs of developed plots, houses, apartments, etc. (g) proposed manner of disposal of plots, houses, apartments, etc. and tentative prices to be charged alongwith the mode of recovery of the prices; (h) time schedule for implementation and (i) any other information that the Government may require; (iii) Before commenecing the execution of work in an approved housing scheme, the Official Development Agency shall obtain sanction of the Government to a detailed project containing detailed plans, cost estimates, etc. and such information that the Government may require. (iv) the price at which Official Development Agency may dispose of the plots, houses, apartments, etc. in an approved housing scheme shall be subject to sanction of the Government. In support of its proposal in this behalf, the Official Development Agency shall supply such information as the Government may require." 4. PUNJAB DEVELOPMENT OF CITIES ACT, 1976. "Preamble.‑‑Whereas it is expedient in the public interest to establish a comprehensive system of planning and development in order to improve the quality of life in the cities of the Punjab, establish an integrated development approach and a continuing process of planning and development, to ensure optimum utilization of resources, economical and effective utilization of land and to evolve policies and programmes, relating to the improvement of the environment of housing, industrial development, traffic, transportation, health, education, water supply, sewerage, drainage, solid waste disposal and matters connected therewith and incidental thereto. "Section 12 (1).‑‑‑The Authority shall, in such form and in such n‑Lanner as may be prescribed, prepare schemes for the area of any part thereof and execute or have them executed in the prescribed manncr. (2) All such schemes prepared by the Authority shall be submitted to the Government for its approval, except those schemes, the provisional estimated cost of which does not exceed such limit as may be prescribed by rules or for which no loan or grant is required from the Government. (3) The Authority shall publish the sanctioning of any scheme in tile official Gazette. (4) The publication of a sanction under subsection (3) shall be conclusive evidence that the scheme has been duly framed and sanctioned. (5) No planning or development scheme shall be prepared by any person or Local Council as defined in the Punjab Local Government Act, 1975 or Government Agency within the area except with the concurrence of the Authority". Section 25.‑‑The Authority shall be deemed to be an 'Official Development Agency' and all schemes prepared by the Authority shall be deemed to be 'Housing Schemes' as defined in section 2 of the Punjab Acquisition of' Land (Housing) Act, 1973, for the purpose of acquiring land under this Act and the provisions of section 4 to section 20 of tile said Act, shall with all necessary adaptations, mutatis mutandis, apply as if they have been enacted and form part of this Act." 4. Learned counsel for the petitioner submitted that the construction of Bypass Phase‑11 cannot be deemed to be a housing scheme within the definition of section 2 of Act of 1973 and under section 25 of the Punjab Development of Cities Act, 1976 (hereinafter referred to as "Act of 1976"); that originally acquisition proceedings were initiated under section 4 (1) of Act of 1894; that the construction of the Bypass was entrusted to the Punjab Highway Department and an amount of Rs.20 lacs was paid to the department by the Authority, but before the petitioner could be compensated under the Act of 1894, a dishonest attempt was made to deprive him of his due compensation and the impugned notification was mala fidely issued only to pay less compensation @ Rs.20,000 per crore under Act of 1973; that the Deputy Commissioner could not declare a phase of Multan Bypass Scheme as housing scheme under Act of 1973; that no scheme was prepared, passed or sanctioned under the Act of 1976; that the construction of 17 miles long road/Bypass cannot be said to be ancillary/accidental to the housing scheme; that in W.P. No.1917/88, the Authority under similar circumstances has agreed to pay compensation to the land‑owners under Land Acquisition Act, 1894. Conversely, the learned counsel for the respond6nts have supported the impugned notification and the action taken under Act of 1973. 5. Learned counsel for the Authority submitted that the construction of the Bypass was/is a "housing scheme" under Act of 1973; that sections 4, 7 and 12 of Act of 1976 read together, will show that the acquisition of the land for the construction of Bypass was for the purpose of the Act and also within the power of the Authority and the Deputy Commissioner; that under sections 24 and 25 of Act of 1973, the scheme prepared by the Authority was/is a housing scheme. So, the provisions of Act of 1973 apply to the same; that the acquisition proceedings and notification under Act of 1973 were/are bona ride; that the disputed scheme was notified on 5‑3‑1979; that the publication of the scheme by itself is a conclusive proof and evidence that the same was duly framed and sanctioned; that the present petition is not maintainable and that since by now acquisition proceedings have been finalized, award announced and road constructed, therefore, this petition has become infructuous. 6. I have anxiously attended to the arguments addressed by the learned counsel for the parties and 4kave reviewed the entire material which has been placed on the file of this petition. I feel that the impugned notification and acquisition were/are mala fide, quite illegal, most unfair, oppressive in nature and the provisions of Acts of 1973 and 1976 have been used as a cloak to cover dishonest action and proceedings. The reasons are that before the initiation/issuance, of the impugned acquisition/notification under Act of 1973, a notification under section 4 of Act of 1894 was issued by the Deputy, Commissioner, Multan. According to this notification, the land of the petitioner was required to be taken by the Government at p6lic expenses for public purposes, i.e. for the construction of Bypass, 17 miles long. in this notification it has nowhere been stated that the construction of Multan Bypass shall be deemed to be a housing scheme nor there was any reference to the provisions of Act of 1976. The acquisition proceedings under the Act of 1894 continued for more than 3 years and were almost complete. So much so, Rs.20 locs, were paid to the Land Acquisition and Control Officer Punjab Highway Department Multan as an approximate amount of compensation for the land to be acquired (as is evident from letter No.W‑8/1586 dated 27‑7‑1970 reproduced in para‑3 of this judgment) when all of a sudden, the Authority/D.C. changed their mind and during the currency of the acquisition/notification under Act of 1894, fresh acquisition proceedings/action/notification were initiated/taken/issued by the Authority/Land Acquisition Collector/Deputy Commissioner, Multan, respondents, under the Act of 1973, although there was hardly any genuine cause to revert to the provisions of the Act of 1973 or of Act of 1976. Contrary to the notification under the Act of 1894 it was stated in the subsequent notification under the Act of 1973 that the land was needed by Multan Development Authority, Multan at its expenses for the construction of Bypass which shall be deemed to be a "housing scheme". The motive/intention of the departure from the course already adopted for the acquisition of the land was/is quite understandable. Under sections 11, 23 and 31 of Act of 1894, the petitioner was entitled to get the market price of his land and that, too, in lump sum, whereas under sections 9 and 11 (1) of Act of 1973, the maximum rate of compensation to be paid to the petitioner by the Authority shall not exceed Rs.20,000 per crocr and that, too, in shape of bonds, cash, debentures, annuities over a period not exceeding 20 years or in the form of developed sites which was not possible in case of acquisition of land for pure Bypass or in case of acquisition of land under Act of 1894. So, there are reasons to doubt that the impugned acquisition or the notification was bona ride. There are rather reasons to believe that the respondents have reverted to Act of 1973 and Act of 1976 with a view to deprive the petitioner of the compensation i.e. award under Act of 1894. Otherwise, there was no genuine cause for the impugned acquisition and notification during the currency of the earlier action/notification under Act of 1894. The close comparison of the provisions of Act of 1894 and Act of 1973 and of the two notifications issued under the aforesaid statutes will show that there are clear cut and rational grounds of distinction between the two statutes and the two notifications issued for the acquisition of the same land. Act of 1894 was/is more beneficial to the affectee land‑owners/petitioner and Act of 1973 was advantage out to the Authority. The land of the petitioner situate in Multan City is obviously very valuable for which they expected to get much more price under Act of 1894. It is a matter of common knowledge that the prices of the land have registered a phenomenal increase with passage of time whereas under Act of 1973, the Authority could acquire even the most valuable land anywhere in the Province of Punjab, notwithstanding its actual market value at a nominal sum Rs.20,0(X) per acre on the ground/pretext that it was required for scheme". In the instant case, the Authority/D.C. by one stroke of fresh, notification under Act of 1973 has gained considerable amount and has simultaneously caused wrongful loss of a sizable amount to the petitioner. It is evident from letter No. W‑8/1586 dated 27‑7‑1970 reproduced in para.3 of the judgment that the Authority had asked the Land Acquisition and Control Officer, Punjab Highway Deptt. to refund the amount of Rs 10 lacs to it which had been deposited with the latter on account of costs of compensation. I am convinced that the impugned notification/acquisition was not only a naked fraud in power of the Authority/D.C. and highhandedness but also dishonest departue from the earlier action/notification under Act of 1894. The Authority and the Deputy Commissioner Multan both with mala ride intention and ulterior motives have frustrated the provisions of Act of 1894 and the provisions of Act of 1973 and of 1970 have been used as a cloak to cover acts which in reality were not taken although it purports to have been taken under the statutes. This being the position, the impugned notification and the entire proceedings/action culminating in physical acquisition of the land of the petitioner will not, in accordance with the long line decision in Pakistan be treated as an order under the statutes. A mala'. ride act by its nature is an act without jurisdiction. The law does not contemplate mala fide exercise of powers. The argument of the learned counsel for the Authority that the impugned action/notification is immune from judicial scrutiny by the High Court in exercise of its Constitutional. powers, is an argument for the sake of argument. There remains no doubt that the High Court in exercise of its writ jurisdiction is always competent to examine the bona rides of the action taken by the Authority and the notification issued by the Deputy Commissioner. If the High Court rinds that the Authority or the Deputy Commissioner had acted in a mala ride, unjust, unfair, oppressive and illegal manner then it has power to grant relief to the aggrieved party by declaring the acquisition proccedings/notification, to be illegal and without lawful authority. 7. The impugned acquisition/notification was illegal and was also made in flagrant violation of Act of 1973 in that; different reasons were given at different stages for the acquisition of the land; that the original scheme for the construction of Highway Bypass was prepared by the Highway Department and tile same was dishonestly abandoned; that the alleged housing scheme does not appear to have been. prepared by the Authority or approved by tile Government as required by Section 12 of Act of 1976; that acquisition under Act of 1973 was made when the land was already under acquisition under Act of 1894 and was not available for fresh acquisition under Act of 1973; that acquisition of land for a Bypass simpliciter was/is foreign to the provisions of Act of 1973 and Act of 1976; that the land to be utili7ed exclusively for the construction of a Bypass only can neither be recognized as a "housing scheme" nor it could be acquired under Act of 1973; that from the aforesaid state of affairs it is very much obvious that the impugned acquisition was not for tile purpose of the Ordinance, inasmuch as, there was no provision/scope for/of residential sites, houses or apartments around or on the two sides of 17 miles long Bypass; that the construction of 17 miles long, about 40/60 feet wide road without any provision for residential sites, houses or apartments can hardly be treated as an ancillary land used such as transportation, communication or approach roads within the meanings of the provisions of Act of 1973 and Act of 1976; that the acquisition/notification under Act of 1973 was subject to reasonable reference to purpose of Act and also strictly in accordance with the provisions of the Act; that the Act of 1894 was/is a valid/good law whereas Supreme Court of Pakistan in case reported as P L D 1983 S.C. 151 did not approve Act of 1973 being harsh and most unreasonable, and the same was ultimately repealed. The respondent's act of abandoning action/notification under a valid and good law and of reverting to a bad law (Act of 1973) was by itself dishonest, illegal and malicious, which cannot and should not be approved by this Court. For all these reasons, the contentions raised by the learned counsel for the respondents including the objections with regard to the authority of this Court to question the legality of the impugned action/notification are overruled being devoid of force and substance. Pursuant to the above discussion, this petition is accepted. Notification dated 21‑1‑1980 issued by Deputy Commissioner Multan, action taken by Multan Development Authority and the Land Acquisition Collector, Multan, in the matter of the acquisition of the land of the petitioner under the provisions of Act of 1973, are declared to be without lawful authority and of no legal effect. Resultantly, the petitioner will be entitled to get award /compensation in accordance with the provisions of the Land Acquisition Act, 1894. The parties shall bear their own costs. A.A./N‑436/L Petition accepted.