2002 PLP 3227 (YLR)

8. Moulvi Ijaz‑ul‑Haq, Advocate, the learned counsel for the petitioners submitted that the very commencement of the proceedings of acquisition were ultra vires of Act VIII of 1973. He referred to the section 3 of the Act to contend that in order that any land is liable to acquisition, it is mandatory that a Housing Scheme is approved and notified by the Government or Official Development Agency (ODA). Making reference to the initial Notification No.SO(TP)1‑18/72 (H) Vol. 48 dated 28‑5‑1976 (Exh.D.2), it is contended that the failure of publishing this notification in the official Gazette shall denud this document of all legal efficacy. The learned counsel for the petitioners referred to the definition of notification as contained in section 2(41) of the West Pakistan General Clauses Act, 1956 to urge that publication in the official Gazette is a sine quo non of a valid notification. He referred to the cases of Mst. Sobia Hanif v. The Collector (Deputy Commissioner), Lahore District, Lahore and 5 others (1993 C.L.C. 2073) and Muhammad Suleman etc. v. Abdul Ghani (PLD 1978 SC 190) in support of his contention.

9. The learned counsel for the petitioners next referred to the Policy for Selection of Site for Housing Scheme which has been placed on the record as Exh.D.8. Referring to rule 4 (ii), he contended that first preference for locating a housing scheme should be given to area lying vacant in the immediate vicinity of densely populated localities, which have a potential for being converted into residential areas. He also submitted that the preference is also to be made' for lands belonging to the Government itself and lands which are barren. Reference is made to the case of Syed Muhammad Khurshid Abbas Gardezi and others v. Multan Development Authority and others (PLD 1983 SC 151). The learned counsel further objected to very constitution of the Selection Committee which according to him was not constituted as per rule 3 of the Policy. Summing up, he concluded that where the very foundation is illegal, all super structure raised thereupon shall also fall to be ground. Reference was made to the case of Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak) 104.

10. On the other hand, Raja Saeed Akram Khan, learned Assistant Advocate General, Punjab supported the judgment of the learned appellate Court With reference to section 3 and section 4 of the Punjab Acquisition of Land (Housing) Act VIII of 1973, he emphatically stated where the Statute requires a notification to be published in the official Gazette, it is specifically provided in the Statute itself. Elaborating his submissions he stated that there is a noticeable distinction between the provisions of section 3 and section 4 of Act VIII of 1973. Whereas section 3 provides only for the Housing Scheme to be "approved" and "notified" and is silent about the publication of this notification, section 4 particularly provides the publication of notification in the official Gazette. He contended that whenever a Statute provides a particular manner of doing a thing, it must be done in that specified manner. According to him, the notification dated 28‑5‑1976 was legal and valid even though it was not published in the official Gazette. He further stated that there was nothing unlawful about the constitution of the Committee for the selection of sites. After the process of acquisition, the possession of the land in question was obtained and that the Housing Scheme is almost complete. Ploting of the scheme has also been completed.

11. Arguments of the learned counsel for the parties have been heard and record perused.

12. The main submission of the learned counsel for the petitioners is that the notification dated 28‑5‑1976 issued in pursuance of section 3 of Act VIII of 1973 was invalid inasmuch as the said notification was not published in the official Gazette. In order to appreciate this contention, it is necessary to examine the purpose, object and Scheme of the Punjab Acquisition of Land (Housing) Act VIII of 1973. According to its Preamble, the Act was promulgated for the purpose of making provisions for acquisition of Land for Housing Schemes in urban and rural areas of the Province of Punjab. As a first step, a Housing Scheme has to be approved and notified by the Government of the official Development Agency (ODA). At the stage of being approved and notified, the Housing Scheme is merely decided to be set up. The scheme is initiated by the Government and is also approved and notified by it or Official Development Agency and that at that point of time, it does not affect any individual or public rights. It is in this context that the term "notified" shall be examined.

13. In Mst. Sobia Hanif's case (supra), section 27‑A of the Stamp Act, 1899 was interpreted which reads as under:‑ "S.27‑A. Valuation of urban land.‑‑‑(1) Where any instrument chargeable with ad valorem duty under sub‑Article (b) of Article 23 or sub‑Article (b) of Article 31 of Schedule relates to land only with any building or structure thereon, the value of the land shall be calculated according to the valuation table notified by the Collector in respect of land situated in the area or locality concerned. (2) Where an instrument, mentioned in subsection (1), relates to land with building or structure thereon, it shall state the value of the land and the building or structure separately and the value of the building or structure so stated, shall, subject to the provisions contained in this Act, be accepted. (3) Where the value of land stated in an instrument to which sub section (1) applies is more than the value fixed according to the valuation table, the value declared in the instrument shall be accepted as value for the purposes of duty. (4) Where the value given in the valuation table notified under sub section (1), when applied to any land, appears to be excessive, the Commissioner may, on application made to him by the aggrieved person, determine its correct value and for that purpose the provisions of section 31 and section 32 shall apply mutatis mutandis." While interpreting the said provisions of law, it was held that by applying the word "notified", the intention of the Legislature is manifest that the contents of the valuation table must be published and made known to those who are likely to be affected and especially the residents of the area or the locality where the property is situated. While coming to this conclusion, reliance was placed upon the definition of the word "notified" as made in Ballentine's Law Dictionary (3rd Edition) where it is defined as:‑-- "Having been given notice. In, legal proceedings and in respect to public matters, the word is generally, if not universally, used importing a notice given by some person, whose duty it was to give in some manner prescribed and to some person entitled to receive it or to be notified." Reference was also made to Black's Law Dictionary where "notified" means as:‑‑‑ "To give notice to inform by words or writing any person or by message or by any signs, which are understood, to make known to notify, (1) a fact (2) Notify one of fact is to make it known to him: to inform him by notice. In Words and Phrases (Permanent Edition), Volume 28‑A, the word "notified" has been defined as:‑‑ "In legal proceedings and in respect to public matters, the word `notified' is generally if not, universally used as implying a notice given by some person whose duty it was to give it in some manner prescribed, and to some person entitled to receive it or to be noticed."

14. The ratio deducible from the above is clearly that a notification is required to be published in the official Gazette with the object of making it known to the general public. This is for obvious reason. As long as an act of a public functionary through issuance of a notification is likely to affect the general public, it must be published in the official Gazette. However, where such rights are not affected, the generalization of the necessity of publishing all notifications in the official Gazette cannot be extended. This distinction has been drawn in the case of Trustees of the Port of Karachi through Secretary v. Gujranwala Steel Industries and another 1993 C.L.C.

744. In Muhammad Suleman's case (supra), the expression "declare by notification" in section 8(2) of the Punjab Pre‑emption Act, 1913 read with West Pakistan General Clauses Act (VI of 1956), section 2(41) fell for interpretation: The rule laid down in the said case was on the basis of the word "declare by notification". It was thus laid down that such a declaration is to be a public declaration.

15. Although, it is correct that the word "notification" according to section 2(41) of the West Pakistan General Clauses Act (VI of 1956) means " a notification published under proper authority in the official Gazette" yet while interpreting the term "notified", it has to be given in the manner which the Legislature ordained in a particular Statute.

16. The language of section 3 of the Punjab Acquisition of Land (Housing) Act VIII of 1973 provides for a Housing Scheme to be approved and notified by the Government. It is not the requirement of this provision that the Housing Scheme shall be notified by publication in the official Gazette. The omission of the expression "published in the official Gazette" in section 3 is conspicuous by its absence. By necessary intendment, the Legislature did not treat the act of approval or notifying of the Housing Scheme as an act touching or affecting public rights and did not deem it necessary to oblige the publication of the same in the official Gazette.

17. On the contrary, section 4 of the Act VIII of 1973 clearly provides the publication of preliminary notification in the official Gazette and also that the Collector shall cause public notice of the substance of such notification to be given at convenient places at the said locality. Section 4 of the Act is reproduced as under:‑‑ "S.4. Publication of preliminary notification and power of officers thereupon.‑ (1) 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 authorized by the Deputy Commissioner in this behalf and for his servants and workmen:‑‑ to enter upon and survey and takes levels of any land in such locality; to dig or bore into the subsoil; 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 line by placing marks and cutting trenches and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle: Provided that no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least 7 days notice in writing of his intention to do so." The distinction between section 3 and section 4 is manifest. It is the notification under section 4 where the Deputy Commissioner intends to acquire land which may, be needed or is likely to be needed for a Housing Scheme. It is also after the publication the notification under section 4 that the public functionary specified therein can do any or all acts necessary for the purpose of the Housing Scheme such as entering upon the land, making survey thereof, to dig or bore into the subsoil, to set out the boundaries of the land proposed to be taken etc.

18. Following the parity of reason as enunciated in the cases of Mst. Sobia Hanif v. The Collector etc. (supra), Muhammad Suleman etc. v. Abdul Ghani (supra) and Trustees of the Port of Karachi through 4 Secretary v. Gujranwala Steel Industries and another (supra), it is held that the Act of notifying of a Housing Scheme under section 3 of the Act VIII of 1973 is not intended by the Legislature to be published in the official Gazette and a notification issued under the said provisions of law shall not be in valid for its non‑publication.

19. It also needs no reiteration that where a thing is to be done in a particular manner, it shall be done in that manner or not at all.

20. The other contention of the learned counsel for the petitioners that according to the policy, only barren land or land belonging to the Government itself was to be utilized for the purposes of the Act VIII of 1973, suffice it to say that the Site Selection Committee had undertaken the necessary proceedings for the selection of sites for the Housing Scheme. Nothing has been pointed out in the proceedings of the Site Selection Committee to indicate any mala fides of the said Committee towards the petitioners. The learned appellate, Court came to the conclusion that the petitioners had failed to produce sufficient evidence to prove any mala fides. There is nothing on the record or in the submission of the learned counsel for the petitioners to pursuade this Court to take a different view.

21. The last submission of the learned counsel for the petitioners is that the constitution of the Committee for selection' of sites was not in accordance with the policy. It is observed that any minor change or deviation in the constitution of the Site Selection Committee would not vitiate the proceedings nor would it prejudices the case of the petitioners unless mala fides are attributed or proved against any particular public functionary.

22. According to the record, the scheme was approved and notified by the Government under section 3 of the Act vide notification dated 28‑5‑1976. The site was selected by the Committee. The plan of the said notification was approved by the Department on 30‑8-1976. Notification under section 4 of the Act was published in the Government Gazette on 7‑6‑1976. The land was marked and measured at the spot under section 5 of the said Act. Public notices as well as special notices were issued to the affected landowners. After hearing objections of the landowners, notification under section 13 of the said Act was published in the official Gazette on 15‑12‑1976. Physical possession was handed over to the representative of the Housing Department on 7‑1‑1977 and necessary report has been incorporated in the Revenue Record. The Award was made on 6‑11‑1977.

23. In view of the above legal and tactual position, there is no merit in this civil revision which is hereby dismissed. The parties to bear their own costs. H.B.T./S‑364/L Revision dismissed.