P L D 1979 Karachi 750 (PLP)

"9.‑(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him."

7. Reference may also be made to section 17 which confers special powers in cases of urgency. Subsection (1) of that section, as amended by the West Pakistan (Adaptation and Repeal of Laws) Act, 1967, reads as follows : ‑ "17.‑(1) In cases of urgency, whenever the Commissioner so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, subsection (1), take possession of any waste or arable land needed for public purposes or for a company. Such land shall thereupon vest absolutely in the Government free from all encumbrances."

8. A bare perusal of section 48(1) makes it plain that whereas Government has been permitted to withdraw from the acquisition of land of which possession has not been taken, there is no compulsion on the Government to withdraw from the acquisition proceeding even where possession has not been taken. The expression" at liberty to withdraw" occurring in the said section signifies that it would be permissible for Government, if it so chooses, or that it would be free to withdraw from the acquisition proceedings but cannot be construed to mean that Government must in all cases, where possession of land has not been taken, exercise that power. We are unable to agree with the contention of the learned counsel for the petitioners that the expression "at liberty to withdraw" has to be construed as "must withdraw", for if it could be so construed, the moment a notification under section 4 is issued or any other step is taken for the acquisition of land for a company, the Government must withdraw from the acquisition proceedings, unless of course possession has in the meantime been taken. Any such construction will render the provisions of the aforesaid subsection and the whole exercise of acquiring land for a company ineffective. It will be noticed that withdrawal from the acquisition proceedings is not contingent upon any such request being made by the company for whom the land is being acquired and consequently if the expression "at liberty to withdraw" is to be construed "as must withdraw", as contended by the learned counsel for the petitioners, after the very first step is taken by the Government for acquisition of land for a company, it must withdraw from such proceedings, irrespective of the fact whether the company has or has not made a request for withdrawal from acquisition proceedings and even in cases where the company may be urgently needing the land to be acquired. The learned counsel was unable to cite any authority in support of his contention that the expression "at liberty to withdraw has ‑to be construed as "must withdraw". The learned counsel, in support of his contention, however, relied upon the following passage from Maxwell on 'the Interpretation of Statutes, Twelfth Edition, pages 234, 235 :‑ "Section 13 of the weights and Measures Act, 1889, which provided that an inspector may take in respect of the verification and stamping of weights, measures, and weighing instruments the fees specified, was held to be obligatory and to impose on the inspector a duty to take the fees in all cases. An act which made it 'lawful' for a Court to stay proceedings in actions against companies under liquidation until proof of the plaintiff's debt, and a rule of Court which provided that where the Court has given no directions as to the disallowance of the costs of improper or unnecessary proceedings, 'the taxing master may look into the same for the purpose aforesaid,' were held equally imperative."

9. Apart from the fact that in the passage, immediately preceding the above two passages, it has been stated by Maxwell that "in ordinary usage, 'say' is permissible and 'must' is imperative, and, in accordance with such usage, the word 'may' in a statute will not generally be held to be mandatory", what we are called upon to construe in the instant case is not the construction to be given to the word "may" or lawful", but a wholly different expression, which expression, as already pointed but, cannot be construed as imperative or requiring the Government in all, cases to withdraw from the acquisition".

10. Coming to the second limb of argument of the learned counsel on this point, although the said Act contemplates taking of possession after the required notice under section 9(l) has been given, and furthermore provides for possession by the Collector, this does not mean that where possession has actually been given by the Government officers to the company, after the issuance of a notification under section 4(1) and the execution of an agreement by the company under section 41, the Government would still be at liberty to withdraw from the acquisition proceedings. In the instant case, as already indicated, the preliminary notification under section 4(1) was issued by the Commissioner on the 19th of February 1966, and further the agreement by the company was executed on the 20th May 1966, while posses sion of the land was taken by the company much later on 7‑7‑1966. Possession of the land having been taken and enjoyed by the petitioners, they now cannot object to the possession on the ground that it was not taken in the manner contemplated by the said Act, The petitioners cannot be allowed 'to have enjoyed the benefits of the possession and at the same time repudiate the possession for the purposes of section 48 of the said Act. The mere fact that demarcation and measurement of the land was to be made later made no difference to the factum of possession, for all that section 48(1) requires is possession, without requiring that it should be physical and not mere notional, or that possession must also include demarcation and measurement of the land. It may also be noted that it is only in the hand written acknowledgment, which is Annexure 4 to the petition that it stated that physical possession of the land would be given after demarcation and measurement. This acknowledgment does not bear the signature of the Tapedar of Talhar or any other Revenue Officer. The authenticity of this acknowledgment is, therefore, rather doubtful. On the other hand, the official respondents have produced photo copies of a type written receipt, dated 7th July 1966, wherein the Administrative Manager of the petitioners has in unequivocal language stated that in terms of the agreement dated 27‑5‑1966, executed by the petitioners, the petitioners have taken possession of the specified survey numbers from the Tapedar, Talhar. Next there is a letter from the Mukhtiarkar, Hadin, dated 9‑9‑1966, to the 6th respondent informing him that possession of the land in question was delivered to the petitioners on 7‑7‑1966. Finally, there is a letter, dated 30‑11‑1967, from the petitioners to the Assistant Commissioner, Tando Muhammad Khan, acknowledging that possession of the land was delivered to them by the Tapldar on 7-7-1956 and explaining that the compensation for the land had not been deposited by them so far as they had received no award about the amount of compensation. The act of possession on the part of the petitioner is further established by the fact that they had even paid the altered assesssment for the land in question and the survey expenses were deposited by them on 6-6-1963. We are accordingly of the view that apart from the question that under section 48(1) of the said Act, the Government was not bound to withdraw from the acquisition proceedings merely because such request was made to it by the petitioners, but further, the Government was not even competent, at the stage when the request for withdrawal from the acquisition proceedings was made to it, to accede to the request, as possession of the land had been given by the Revenue Authorities to the petitioners.

11. Point No. 2.-It was next contended by Mr. A. A. Fazeel that under section 48(1) of the said Act the power to withdraw from the acquisition proceedings vests in the Government, and the Commissioner, Hyderabad, was not competent to reject the request of petitioners for withdrawal from the acquisition proceedings. This is undoubtedly a correct assessment of the law. However, we find that the petitioners had made no request to the Government for withdrawal from the acquisition proceedings but bad made the request to the Land Acquisition Collector, who bad referred the matter to the Commissioner and the latter had rejected the petitioner's prayer. The request of the petitioners was rejected on the ground that possession of the land had already been taken by the petitioners. The ground for the rejection of the request, in our opinion, was sound and since the Government was no longer competent to withdraw from the acquisition proceedings, it would have been useless for the Commissioner to refer the matter to the Government. However, assuming that the petitioners wanted the orders of the Government, which was the competent authority A under section 48(1), they should have made an application to the Government and not to the Land Acquisition Collector. Since they have failed to apply to the Government in this behalf, they cannot now complain that their request for withdrawal from the acquisition proceedings was not considered by the Government. Mr. A. A. Fazeel tried to get over this objection by submitting that in accordance with the normal practice all correspondence by the company in regard to acquisition matters is made to or through the r Land Acquisition Collector. However, since the power under section 48(1) of the said Act can only be exercised by the Government, it is the Government which should have been approached by the petitioners in this behalf. Moreover, in their letter to the Land Acquisition Collector, the petitioners namely stated that they had decided to withdraw from the acquisition proceedings and made no request that the orders of the Government be obtained in this behalf. Perhaps the petitioners were under the dilusion that it was entirely upto them to withdraw from the acquisition proceedings and on their giving such notice to the Land Acquisition Collector, the acquisition proceedings would terminate and be withdrawn. In any case, since the petitioners failed to apply to the Government under section 48(t). they cannot complain that the Government did not consider their request for withdrawal from the acquisition proceedings.

12. Point No. 3.-In regard to the next point raised by Mr. A. A. Fazeel, his submissions were that the letter of the Land Acquisition Collector (Industries), dated 26th September 1968, relating to the plea of the petitioners to withdraw from the acquisition proceedings, should be considered as a finding by him, and that further such finding should not have been disturbed by the Commissioner without bearing the petitioners. The Land Acquisition Collector, however, exercises no powers under section 48 of the said Act, but as he is responsible for the acquisition of land he could make his recommendations or suggestions to the competent authority on a request made by the company or the Department for whom the land is being acquired. This is precisely what he has done and submitted to the Commissioner that the acquiring concern may be allowed to withdraw from acquisition as prayed by them and the lands in question be ordered to be denotified. Three grounds weighed with him in making this submission and recommendation. The first was that only notional possession and not actual or physical possession of the land had been taken and moreover possession was taken neither in accordance with the provisions of the said Act nor by the Collector but by the acquiring concern direct. We have already dealt with this aspect of the matter. The second ground that weighed with him was that denotification will prove beneficial to the owners and they will be free to sell their lands at more profit than what they envisaged. This ground was clearly without substance as according to Mr. A. A. Fazeel, even now, after several years, the value of the land is less than the amount awarded by the Land Acquisition Collector. The last ground on which the Land Acquisition Collector based his recommendation was that the land had been lying barren and uncultivated since even prior to the acquisition proceedings. This ground appears to us to be irrelevant and not material for the purposes of determining whether any land which was being acquired should be denotified. Moreover, since the land owners had as far back as in March 1964, got the land in question converted into sikni, the object of the land owners was clearly not to cultivate the land but use the same for the purposes of construction thereon. The Commissioner or the Government thus were not only not bound by the recommendation of the Land Acquisition Collector (Industries), but could freely ignore the same. All that they were required to consider was whether possession of the land had been taken, and even if it had not been taken, whether it was desirable or expedient to withdraw from the acquisition proceedings. The recommendation or submissions of the Land Acquisition Collector in this regard could have no binding effect on the competent authority and such recommendation cannot be considered as "findings".

13. As regards the second limb of the argument of the learned counsel for the petitioners that the Commissioner before rejecting the recommendation of the Land Acquisition Collector was required to give hearing to the petitioners, it may be pointed out that such hearing would have been necessary only if either the said Act so expressly provided or on the basis of the principle of natural justice. Admittedly there is nothing in the said Act requiring the Commissioner or the Government to give an opportunity to the company for which the land is required to be heard before either deciding to denotify or refusing to denotify the land in question. The principle of natural justice enshrined in the maxim "audi alteram partem" is applicable in those cases where a person has a vested right and that right is sought to be affected. In the instant case, Mr. A. A. Fazeel was unable to show that the petitioners had a vested right as regards the denotification of the land which was being acquired for them. The mere fact the land was being acquired for them and they had to pay compensation for the land cannot be considered as conferring any vested right on the petitioners in regard to the denotification of the, laud which was a matterentirely within the purview of the‑Government. . Moreover, since neither any request for denotification was made by the petitioners to the Government nor has the Government passed any orders refusing to denotify the land, the petitioners cannot make a grievance of the fact that they were not given 'a hearing. If it all any hearing was required to be given it was to be given by the Government as and when the matter was placed before it. Since this aspect of the matter does not appear to have been placed for orders before Government, the question of a hearing before the Government or its representative does not arise at all. However, it may be pointed out that the petitioners appear to have been given a full and adequate hearing before the Land Acquisition Collector and we consider that further hearing was not necessary in the circumstances. The principle of audi alteram partem is not of universal application and in any case it does not require hearing of the party at every stage of the proceedings. It is enough if at the material stage the party had been given a full and fair hearing.

14. Point No. 4.‑The next contention of Mr. A. A. Fazeel was that the award was invalid for want of compliance with sections 4, 6 and

17. This contention is grounded on the argument that the notifications under these sections were issued try an incompetent authority. The learned counsel submitted that by reason of the amendments and adaptations made in .the said Act by the West Pakistan (Adaptation and Repeal of Laws) Act. 1957, the expression "Provincial Government" appearing in sections 4, 5‑A, 6 and 17 of the said Act had been substituted by "Commissioner", and consequently, the notifications under the said sections can only be issued by the Commissioner and not the Provincial Government. This submission of the learned counsel is undoubtedly correct. He, however, conceded that the notification under section 4 of the said Act, dated the 19th February 1966, was issued by the Commissioner, Hyderabad, but submitted that this notification lost its force by reason of the corrigendum issued in respect of it on the 14th July 1966, which corrigendum was published in the Gazette of West Pakistan, dated 2nd September 1966. By this corrigendum, the expression "Provincial Government" was to be read for the expression "Commissioner, Hyderabad" in the notification in question. The effect of this' corrigendum, according to the learned counsel, was that not only the opinion whether the lands in question were required for the petitioner's mill was formed by the Provincial Government, and not by the Commissioner who was the competent authority, but further the character of the notification itself was wholly altered and it become a notification of the Provincial Government and not the Commissioner. The second modification affected in the notifica tion by the corrigendum was that the last paragraph of the notification was omitted. The said paragraph reads as follows :‑‑ "And, whereas, the acquisition of the said land is urgently necessary, the Commissioner, Hyderabad, is pleased to direct under subsection (4) of section 17 of the Land Acquisition Act, 1894, that the provisions of section 4‑A of the said Act shall not apply to the said land."

15. The effect of the second part of the corrigendum, according to the learned counsel, was that the provisions of section 5‑A of the said Act continued to apply to the said lands and these lands were not excepted from the requirements contained in the said section.

16. We find no, substance in the above contentions of the learned counsel of the petitioners. Since the corrigendum, like the original notification was issued by the Commissioner, Hyderabad Division, he could not speak for the Provincial Government and as such the notification of 19th February 1966, continues to be the notification of the Commissioner, who admittedly was the competent authority to issue the same. The corrigendum was issued because the adaptations made in the said Act by the West Pakistan (Adaptation and Repeal of Laws) Act, 1957, were apparently not brought to the notice of the Commissioner, Hyderabad. By reason of this corrigendum, it could not be said that the notification in question was issued by the provincial Government or that the opinion that the lands in questions were required for the construction of the petitioner's Sugar Mills at Talhar was formed by the Provincial Government and not the Commissioner. We, accordingly, are of the view that the notification of 19th February 1966, does not suffer from any serious defect and despite the corrigendum, continues to be a valid notification issued under section 4 of the said Act and was issued by a competent authority. The omission of the last paragraph of this notification, containing the direction under subsection (4) of section 17 of the Land Acquisition Act, 1944, the provisions of section 5‑A of the said Act shall not apply, also appears to have been due to the misconception that powers under the former subsection could only be exercised by the Provincial Government and not by the Commissioner as had been provided by the West Pakistan (Adaptation and Repeal of Laws) Act, 1957. In consequence of this omission, the Provincial Government appears to have issued a notification, bearing No. 11540‑66/1930, dated 5th October 1966, under section 17 (4) of the said Act, providing that the provisions of section 5‑A of the said Act shall not apply to the lands in question. This notification of the Provincial Government is referred to in the notification of the Commis sioner, Hyderabad, bearing No. 388‑9‑J/63, which is published in the Gazette of West Pakistan of 21st April 1967. The mere fact, however, that the Commissioner's notification under section 17(4) was wrongly omitted and equally wrongly the Provincial Government issued such a notification does not make the award invalid. In any case, it gives no cause of action to the petitioners. As these notifications and the corrigendum were published in the Government Gazette, they must have been aware of the same. In any case. they are assumed to have knowledge of the same. However, not only did they not protest against the issuance of the corrigendum as regards the notification under section 17 (4) of the issuance of the notification under the said section by the Provincial Government, but they continued to press for the acquisition of the land and it was only when the petitioners were informed in 1968 to deposit the estimate and cost of the land that they took up the plea that the cost was very high and was, therefore, not acceptable to them. Even then they took no objection to the fact that the notification under section 17(4) was issued by an incompetent authority. It might finally be mentioned that the issuance of the notification under section 17(4) by the Provincial Government did not in any way prejudice the petitioners and they cannot therefore be considered an aggrieved party so far as the said notification is concerned or the non‑application of section 5‑A to the lands in question. This notification was issued for their benefit and if any party could have been aggrieved by it, it was the owners of the land.

17. As regards the notification under section 6 of the said Act, Mr. A. A. Fazeel was unable to show us from what infirmity or defect it suffered. . This notification, which was published in the Gazette of West Pakistan of 21st April 1967, was issued by the Commissioner, Hyderabad, who was the competent authority to issue the same. No doubt, this notification states that the Collector, within 15 days of .the issuance of the notice under section 9(1) shall take possession of the lands in question, but this require ment or recital was redundant since possession had already been given to the petitioners on 7‑7‑1966. Fresh possession thus could no longer be taken either by the petitioners or by the Collector.

18. It was finally contended in regard to the award by Mr. A. A. Fazeel that the Land Acquisition Collector did not himself exercise his own discretion but acted under the instructions of the Commissioner, so much so that before making the award, he obtained the approval of the Commissioner thereto. This contention, we find, is factually incorrect. A perusal of the endorsement on the award made by the Land Acquisition Collector indicates that after the Land Acquisition Collector had made the award, he sent all the papers to the Commissioner for perusal and early return. This by no means indicates that the award was either made on the directions or with the approval of the Commissioner. Apparently the Land Acquisition Collector wanted to bring the Commissioner into the picture before actually announcing the award and requiring the petitioners to deposit the compensation awarded to the land owners. It may be pointed out that the amount of compensation demanded from the petitioner is the same as has been specified in the award. This shows that the Commissioner bad exercised no control over the Land Acquisition Collector in the matter of determination of compensation and the award was that of the Collector. We are fortified in this view by the decision of this Court reported in P L D 1969 Kar. 214 (?).

19. Point No. S.‑It only remains to be considered the last contention of Mr. A. A. Fazeel, namely that the conduct of the Revenue Officers, specifically the Land Acquisition Collector and the Commissioner, was mala fide. The burden of establishing mala fide was heavy on the petitioners and we find that they have failed to establish any fact from which such mala fides can be reasonably inferred. Mr. A. A. Fazeel attempted to establish mala fides on the part of the Revenue Officers from various circumstances. The first circumstance which he pressed into service was that the case was suddenly transferred by the Commissioner, Hyderabad, in mid proceedings from the Land Acquisition Collector (Industries) to the Additional Deputy Commissioner and Acquisition Collector, Hyderabad. It may be pointed out that under the said Act the Collector of a District/Deputy Commissioner, is principally the Land Acquisition Collector under the said Act, but the Collector under the said Act, but the Commissioner has been empowered to appoint any other officer to perform the functions of a Collector under the said Act. It was thus within the purview of the Commissioner to change a Land Acquisition Collector. A person cannot be said to be acting mala fide if he exercises his powers according to law. The mere fact that the Commissioner did not accept the recommendation of the Land Acquisition Collector (Industries), that the petitioners be permitted to withdraw from the acquisition proceedings, does not even remotely suggest that the Commissioner, in transferring the proceedings from him to another Land Acquisition Collector, was acting rnala fide. The Commissioner, as already pointed out, had declined to accept the recommendation of the first Land Acquisition Collector, as possession of the lands had already been delivered to the petitioners and the withdrawal from the acquisition proceedings would have been against the provisions of section 48(1) of the said Act. Even if the Commissioner had misconstrued the provisions of the said section, neither his refusal to agree to the withdrawal by the petitioners from the acquisition proceedings nor the transfer of the matter from the Land Acquisition Collector (Industries) to the Additional Deputy Commissioner, Hyderabad, could be considered to be mala fide acts.

20. It was never contended by Mr. A. A. Fazeel that the second Land Acquisition Collector acted mala fide and contravened the provisions of law is not even giving notice to the petitioner as required by section 9(t) of the Act. Such notice, however, is only to be given to the person interested, namely, persons claiming an interest in compensation, and not to the company for whom the land is being acquired. However, under subsection (2) of section 50 of the said Act the company for whom any land is acquired is entitled, in proceedings held before a Collector or Court; to appear and adduce evidence for the purpose of determining the amount of compensation. It was contended that such right can only be properly exercised if either the company is given notice of the proceedings or otherwise becomes aware of the same. In the instant case, the petitioners were not only aware of the acquisition proceedings but were actively associated with the same throughout. In their letter, dated 5th August 1968, they have expressly admitted the receipt of the notice under section

9. In their subsequent application to the Land Acquisition Collector, dated 6‑8‑1968, the petitioners have not only again explicitly admitted receipt of the notice, dated 17‑7‑1968, under section 9, but have made detailed objections as regards the amount of compensation. Mr. A. A. Fazeel, however, made grievance of the fact that a fresh notice under section 9(1) was not issued by the second Land Acquisition Collector to the petitioners. The learned counsel, however, was unable to show us any requirement of law whereby the second Land Acquisition Collector had to issue fresh notice to the petitioners. The petitioners had already made their objections to the notice under section 9(1) and the claims by the owners of the land. However, it appears from the letter, dated 4th August 1969, from the Land Acquisition Collector to the petitioners, that the petitioners intentionally avoided to appear before him. The petitioners thus can have no grievance for not being personally heard by the Second Land Acquisition Collector. A Division Bench of this Court in the case of Sind Industrial Trading Estates Limited v. First Assistant Judge, Hyderabad (P L D 1960 Kar. 826) has held that despite the fact that under section 50 (2) of the said Act, the company for whom land is being acquired is entitled to appear and adduce evidence before a Collector or a Court for the purpose of determining the amount of compensation, no duty is cast upon the Court or the Collector to send notice to the company.

21. Mr. A. A. Fazeel further submitted that the award of the Land Acquisition Collector was perverse because though the persons interested had claimed compensation at the rate of 50 paisas per sft. and the Land Acquisition Collector himself was of opinion that compensation at the rate of Rs. 1 per sft. would be excessive, he has nevertheless awarded compensation at the said rate of Rs. 1 per sft. We find that this contention of the learned counsel is without substance for more reasons than one. In the first place, it is grounded on false premises. A bare perusal of the award shows that in response to the notice under section 9 the land owners had claimed compensation for their land at the rate of Rs. 5 per sft, on the grounds that the land was located near the Pucca road connecting the railway station with the town, was situated in the industrial area immediately adjacent to the Sugar Mill and the land was within the limits of the Town Committee of Talhar. Moreover, as pointed out in the case of Kasim Bhai v. Deputy Commissioner, Dadu (P L D 1968 Kar. 126) there is no injustice if the company or Local Authority is not allowed to become a party because there is no compulsion of such company or Local Authority for acquiring land under the provisions of the Land Acquisition Act: The authority for, whose benefit the land is to be acquired cannot be said to have privity with the owners of land and hence cannot act as a party to the proceedings held in respect of those transactions. If the petitioners cannot claim even to be impleaded as a party in the land acquisition proceedings either before the Land Acquisition Collector or the Court, or to challenge the award under section 13 of the said Act; it obviously cannot be allowed to challenge the award by means of a constitutional petition.

22. Mr. A. A. Fazeel also submitted that the act of the Revenue Authorities in permitting the land owners to convert the land in question into sikni 'was mala fide, knowing that proposals were afoot to acquire the land for the company. He was, however, unable to cite any provision of law or authority which prohibited the Revenue Authorities from permitting the land to be converted into Sikni. The orders of the Revenue Officer allowing such permission are subject to appeal and revision and it was open to the petitioners to have challenged the conversion by way of appeal or revision, which they have apparently failed to do. Moreover, the said Act contemplates the assessment of compensation according to the market value of the land at the time of the issuance of the notification under section 4(1). Since the conversion of the land into Sikni was made much before the issuance of the said notification, the petitioners can neither have a legitimate grievance again such conversion nor the assessment of compensation on the basis that the land had been converted into Sikni.

23. We have given very careful consideration to the contentions raised on behalf of the petitioners but regret to find that there is no substance in them. The upshot of the above discussion, therefore, is that the petition fails and is accordingly dismissed hereby with costs. S. A. H. Petition dismissed