P L D 1965 (W (PLP)

(a) Land Acquisition Act (I of 1894), S. 40--‑Non‑issuance of notice to owner of land in course of inquiry under S. 40 has no effect on validity of consent given by Commissioner to acquisition of land‑--Owner not "person interested"‑--Natural justice--‑Right to be heard‑Constitution of Pakistan (1962), Art.

98. A comparison of provisions of sections 4, 5, 5‑A and 9 with the provisions of section 40 of the Land Acquisition Act, 1894 will show that wherever it Has intended by the Legislature that the person affected will have a right to show cause, a distinct provision to that effect is made. The omission in section 40 of a provision as regards notice to "persons interested" in the land to be acquired for the benefit of a Company is, thus deliberate; the underlying consideration being that the satisfaction of the Commissioner is not in the nature of an adjudication whether land belonging to a person shall be acquired for the benefit of a Company or not but is intended to provide material for determining whether the Government shall act on behalf of a Company in that behalf or not. The non‑issuance of the notice to the petitioner in the inquiry under section 40 has, thus, no effect on the validity of the consent given by the Commissioner to the acquisition in question. The rule of natural justice is not of universal application. Manzoor ul Haq v. Controlling Authority P L D 1963 S C 652 ref. Faridsons Ltd. v. Government of Pakistan P L D 1961 S C 537; Province of East Pakistan v. Nur Ahmad P L D 1964 S C 451 and Abul A'la Maudoodi v. Government of West Pakistan P L D 1964 S C 673 at 676 considered. (b) Land Acquisition Act (I of 1894), S. 17(4) read with Ss. 5, 5‑A & 39‑--Land required for "public purpose" (supply of natural gas for industrial purposes)‑Company, executing work it connection with laying pipeline for gas, having 1/3rd of its capital subscribed by Government of Pakistan from public revenue‑Held: Provisions of S. 17(4) were properly invoked to dispense With application of Ss. 5 & 5‑A before execution of agreement by company under S. 39‑[Jhandu Lal v. State of Punjab A I R 1959 Punj. 535; Somawanti v. State of Punjab ‑A 1 R 1963 S C 151 ref. Fernze Din v. Government of West Pakistan P L D 1961. Lah. 304 distinguished.] JUDGMENT MUHAMMAD YAQUB ALI, J.‑--Chaudhry Khushi Muhammad of Village Virgarh, Tehsil Kabirwala, District Multan, has by this petition under Article 98 of the Constitution challenged the legality of acquisition of 5 Kanals 15 Marlas of his land for the benefit of Sui Northern Gas Pipelines Limited (respondent No. 2) under the Land Acquisition Act (I of 1894) (hereinafter referred to in this order as the Act.)

2. The relevant facts are that the Sui‑Multan Gas Pipeline stretching from Sui to Multan belonged to the Government of Pakistan, while Dhulian/Wah/Pindi Gas Pipeline system belonged to Attock Oil Company Limited. As supply of natural gas was required in the northern part of West Pakistan an agreement was made and executed on the 14th of May 1963, between the President of Pakistan and the West Pakistan Industrial Develop?ment Corporation, being a Corporation established under the West Pakistan Industrial Development Corporation Ordinance, 1962, and the Burmah Oil Company Limited to form a new Company under the name and style of Sui Northern Gas Pipelines Limited to take over the ownership and operations of the Sui‑Multan Line and the Dhulian/Wah/Pindi system and to extend the same with such branch and distribution lines as may be mutually decided upon.

3. It is not necessary to give details of the promoters agreement except to mention that one‑third of the issued capital of the respondent No. 2 was subscribed by the Government of Pakistan is the manner provided for in Para, 3 (b) and para. 9 (a), (b), (c) (i) and (ii). The respondent No. 2 was incorporated under the Companies Act on the 17th of June 1963, and proceedings for acquisition of land, or rather a right of way over land 40 feet wide between Multan terminal and Lyallpur, were initiated under the Act with the issuance of 'a notification under section 4 on the 31st of December 1963, in which it is mentioned that land was required for a `public purpose'. Simultaneously, an estimate of the market price of the land proposed to be acquired was got prepared by the Revenue Officer of the Government of West Pakistan and a sum of rupees five lac odd deposited by the respondent No. 2 with the Collector, Multan, for payment as compensation to the owners. The description of the land to be acquired was given in the form of a Schedule to the Notification under section 4 as follows: District Tehsil Locality/villages Approximate area to be acquired Multan Multan Kabirwala Piran Ghaib, Jahangirabad, Dhop Khan, Sujanpur, Dhair, Kirpalpur, Kherabad, Saidpur, Qadirpur Ran, Rawan, Bohar.??????????? Cangho Leg Kohi Wala, Virgarh‑Solgi, Jiwand Singh Wala, Mulepur, Kabirwala, Mubarakpur,??????????????? ??????????? Alipur, Burewala, Rehana? Shah Bhatian Wala, Hosain?abad, Nihale Wala, Kot Malana, Jhanar Bagar, Dina?pur Haveli Diwan Singh, P. O. Horhandit Kand, Trene 18‑D Chak Bahader, Bilawal?pur Ata, Jodhpur, Jahanpur, Hitharan, Allahu, Jalal, Haveli Divan Singh, Sui Sahu, 7‑D Chak, 6‑D, Chak, 5‑D, Chak. Acres 74 177 Total : 251 Note.‑A plan of the land can be inspected in the office of the Land Acquisition Collector, Multan.

4. In view of the urgent requirement of the gas in the northern part of the West Pakistan, as recited in the promoters agreement, dated the 14th of May 1963, the Commissioner, Multan (respondent No. 1) invoked the provisions of section 17 (4) of the Act and in the Notification under section 4 dispensed with the application of sections 5 and 5‑A, with the result that the owners of the land to be acquired were precluded from, objecting to the acquisition proceedings and their interest was confined to the quantum of compensation only. On the 29th of July 1964, the respondent‑Company executed an agreement as enjoined by section 39 of the Act, and on the 1st of August 1964, a Notification under section 6 was issued by the respondent No. I compulsorily acquiring, among other areas, 5 Kanals and 15 Marlas of land belonging to the petitioner, comprising parts of Killas Nos. 6, 7, 12, 13, 14 and 18 of Square No. 10, situated in Village Virgarh (Tehsil Kabirwala). In pursuance to the Notification, possession of the petitioner's land was taken by the respondent No. 2, on the 14 of October 1964.

5. Aggrieved by the compulsory acquisition of his aforesaid land, Khushi Muhammad filed the present petition challenging the validity of acquisition proceedings on the grounds to the effect (i) The agreement executed by the respondent No. 2 was defective in that it did not show the terms on which the public shall be entitled to use the work. (ii) The respondent No. 1 did not hold a proper inquiry under section 40 of the Act and consent given by him was not in respect of the petitioner's land. The inquiry was also vitiated because no opportunity was allowed to the petitioner to show cause against the acquisition. (iii) The notification under section 4 did not include the petitioner's land but an Overseer of the respondent No. 2, at the instance of the enemies of the petitioner had mala fide changed the alignment of the pipeline and, thereby, the petitioner's land was included in the Notification under section 6. (iv) The provision of section 17 (4) of the Act were ultra vires of the Fundamental Rights embodied in the Constitution. (v) The change in the alignment of Gas Pipeline running through the petitioner's land was mala fide and without any basis as the new route was curved and would cost more money.

6. At the hearing of the petition in motion, another ground was raised orally by the learned counsel for the petitioner, namely, that the provisions of section 17 (4) were illegally invoked in that no agreement was executed by the respondent No. 2 at or before the issuance of the Notification under section 4 of the Act. A rule was accordingly issued and the respondent No. 2 has filed a written statement supported by a number of charts, documents and affidavit of Mr. R. C. Galtress, Project Engineer (Survey), who has affirmed: "that the general route to be taken by the proposed gas pipeline from Multan to Lyallpur was decided upon by him after a detailed examination and study of topographical maps published by the Survey of Pakistan of aerial photographs obtained from that Department and by aerial inspection of the whole area. The general routing so selected was largely dictated by the position of existing towns, villages, roads, railways and Irrigation Canals etc., the natural obstacles to be avoided or overcome being of a minor nature. Prior to the promulgation of section 4 work on the ground was limited to a physical examination of the soil in areas traversed by public roads and to the taking of cross sections of roads, railways and canals etc. in the general vicinity of places where they were likely to be cut or crossed by the proposed pipeline. There were, however, many petty obstacles which are not shown, or not adequately shown on the maps and aerial photographs, which for technical, social or financial reasons it is desirable to avoid. These obstacles include electricity poles and pylons, tube and open wells, hutments, isolated houses of permanent construction factories, graveyards orchards etc. The exact effect that these obstacles will have on the general route cannot be determined until section 4 has been promulgated since the process of determining the position of these obstacles usually entails the damaging or destroying of crops and the trimming or cutting down of trees etc., these being operations which can only be legally done . . . . . . . . The collective effect of these obstacles was often such that considerable deviation from the provisional alignment was found necessary, and the final route from Multan to Layallpur measuring 128.87 miles, was changed in direction 167 times, that is, at an interval of less than one mile from the provisional alignment."

7. The objections raised by the petitioner, in substance, are‑ (i) that it was originally not proposed to acquire the petitioner's land, but it was mala fide included in the Notification under section 6; (ii) that a proper inquiry was not held before the respondent No. 1 gave consent under section 40 of the Act for acquisition of the petitioner's land for the benefit of the respondent No. 2; (iii) that the agreement executed by the respondent No. 2 under section 39 of the Act was defective; and (iv) that since the agreement had not been executed by the respondent No. 2 before the issuance of the Notification under section 4, the respondent No. 1 was not competent to make resort to the provisions of section 17 (4) of the Act and dispense with the application of sections 5 and 5‑A of the Act.

8. The first two grounds are factually incorrect. We have satisfied ourselves that no change was made in the original alignment of the proposed gas pipeline running through the petitioner's land. As mentioned earlier, the precise field numbers through which the gas pipeline was to pass were not mentioned in the Notification under section 4 of the Act nor indicated in the plan, referred to in the Schedule to the Notification. Indeed, it was only after the route was surveyed that a final alignment could be made and to meet this situation names of all the villages falling in the route in the Multan and Kabirwala Tehsils were set out in the Notification. The affidavit of Mr. R. C. Galtress, from which relevant extracts have been reproduced above is in fact conclusive on the point and nothing has been brought to our notice to doubt its correctness. If a straight line had been drawn across village Virgarh, a graveyard, a garden and some hutments would have come in its way and it was to avoid them that the proposed route was slightly curved here and there, thereby including the petitioner's land, measuring 5 Kanals 15 Marlas, in it. It is also not plausible that an officer of the status of an Overseer could change the proposed route of the gas pipeline fixed by the respondent No. 2, after elaborate survey, as to deposed to by Mr. R. C. Galtress.

9. The validity of the inquiry under section 40 of the Act was challenged on two grounds: (a) that the omission to afford the petitioner an opportunity to show‑cause against the proposed acquisition was opposed to the rule of natural justice (the plea of repugnancy to funda?mental rights was given up during the hearing) ; and (b) that the inquiry was not held in accordance with the conditions laid down in section

40. In support of the first plea, reliance was placed on the decision of the Supreme Court in Faridsons Ltd. v. Government of Pakistan (P L D 1961 S C 537), Province of East Pakistan v. Nur Ahmad (P L D 1964 S C 451) and Abul A'la Maudoodi v. Government of West Pakistan (P L D 1964 S C 673 at 676). The rule of natural justice relied upon by the learned counsel is, however, not of universal application and the facts of the present case fall more aptly within the ambit of a later decision of their Lordships in Manzoor ul Haq v. Controlling Authority (P L D 1963 S C 652). At page 662 of the report, it is laid down:‑ "A person has, in accordance with the principles of natural justice, a right that he will not be condemned unheard. But the difficulty is that the provisions with which we are concerned do not support even a simple right to be heard. The use of the word `may' in rule 6 (4) is not consistent with the existence of a full right in accordance with the principles of natural justice to show cause. In the absence of a provision to the contrary we would presume that principles of natural justice were to be observed but here there is a provision to the contrary. The office involved is of importance and it is unfortunate that a person may be condemned and removed from a membership of a Local Council without an opportunity to show cause but the law has to be administered as it is. While the District Council has power to make the enquiry it is not bound to do so and the decision really depends on votes". A comparison of provisions of sections 4, 5, 5‑A and 9 with the provisions of section 40 will show that wherever it was intended by the Legislature that the person affected will have a right to show cause, a distinct provision to that effect is made. For example, under section 4, "the Collector shall cause public notice of the substance of the Notification to be given at convenient places in the locality where the land proposed to be acquired is situated". Section 5 makes provision for inspection of the plan of the land included in the Notification under section 4, and under section 5‑A "any person interested in any land" which has been notified under section 5 as being needed for a public purpose, or for a Company, may within thirty days object to the Notification. Section 9 is, of course, entitled "Notice to persons interested". The omission of a notice to "persons interested" in the land to be acquired for the benefit of a Company in section 40 is, thus, deliberate; the, underlying consideration being that the satisfaction of the Commissioner is not in the nature of an adjudication whether land belonging to a person shall be acquired for the benefit of a Company or not but is Intended to provide material for determining whether the Government shall act on behalf of a Company in that behalf or not. The non‑issuance of the notice to the petitioner in the inquiry under section 40 had, thus, no effect of the validity of the consent given by the respondent No. 1 to the acquisition in question.

10. The second ground is disproved by the record. The acquisition file showed that at the instance of the Commissioner an inquiry, as envisaged under section 40, was held and the Collector reported that the proposed acquisition satisfied the requirements of section 41 of the Act and it was on the report of the Collector that the respondent No. 1 had given his consent. Both the grounds on which the validity of the inquiry under section 40 is disputed have, thus, no merit.

11. In support of the third objection, it was maintained that the provisions of subsection (5) of section 41, namely, "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" were not complied with. The pipeline in question is to be laid five feet beneath the surface level and in such a manner that neither the right of way nor any irrigational facility of the owners of the land adjacent to it is interrupted. No fence is, accordingly, raised on either side of the forty feet wide strip of land acquired in the impugned proceedings. The concluding provisions of section 39 were, thus, not applicable to the facts of this caser The other two contentions, namely, that the time between which and the conditions on which the work is to be completed are specifically set out in the agreement and we fail to see on what basis the objection was raised by the petitioner. The provision of the two years' time to complete the work is incorporated in clause (2) of the agreement and the conditions on which the work is to be executed' are set out in clauses (1) and (3) to (14).

12. The last ground, at first sight, appeared to be attractive, but on proper analysis was found to have no merit. The sequence of dates mentioned in the earlier part of this order will show that when the Notification under section 4 of the Act was issued and the application of sections 5 and 5‑A dispensed with by the respondent No. 1, an agreement within the purview of section 39 had not been executed by the respondent No.

2. It was, therefore, urged vehemently by Mr. Karam Elahi Chohan, learned counsel for the petitioner, that the respondent No. 1 had acted without lawful authority in making resort to the provisions of section 17 (4) of the Act. Section 39 is, no doubt, in mandatory terms and provides that sections 6 to 37 of the Act (both inclusive) shall not be put in force in order to acquire land for any Company, unless with the previous consent of the Commissioner nor unless the Company shall have executed the agreement hereinafter mentioned. If the acquisition in the present case was for the benefit of a Company simpliciter, the respondent No. 1 would, undoubtedly, have been incompetent to dispense with the provisions of sections 5 and 5‑A of the Act, before the execution of the agreement under section 39 of the Act. But, as mentioned above, one‑third capita of the respondent No. 2 has been subscribed by the Government o Pakistan out of public revenue and a loan in the sum of 6 crore 32 lacs advanced to finance the respondent‑Company. This investment was apparently made because, as recited in the promoters agreement, gas was urgently needed for industrial purposes in the northern region of the Province of West Pakistan and for that reason it is mentioned in the Notification under section 4 that land is required for a public purpose. The need for the acquisition in this case was, thus for a public purpose to be executed by a Company within the purview of section 6 of the Act. The provisions of section 1 7 (4) were, thus, properly invoked to dispense with the application of sections 5 and 5‑A before the execution of an agreement by the respondent No. 2, as required by section 39 of the Act. We are fortified in this view by some authorities from the Indian jurisdiction. In Jhandu Lal v. State of Punjab (A I R 1959 Pb. 535) it is laid down:‑ "Whenever land is required for a public purpose, even though the company is to bear all the expenses and use the land, there is no need to comply with the provisions of Part VII, in the matter of execution of an agreement as contemplated by sections 39 and 41." Similarly, in Somaivanti v. State of Punjab (A I R 1963 S C 151) it has been held that: "It is common ground that those provisions were not complied with. The reason for that is that according to the respondents the acquisition is not for a company but for a public purpose, partly at public expense. Indeed, the respondents at no stage have relied on the provisions of Part VII of the Act and, therefore, the main question to be considered is whether the acquisition is for a public purpose partly at public expense or not."

13. There is another aspect of the case. In paragraph 9 we have held that the petitioner had no interest in the proceedings under section 40 of the Act, because the inquiry was not in the nature of an adjudication whether the petitioner's land should be acquired ur not. A right to that effect is given by sections 5 and 5‑A, which may be dispensed with, as in the present case, under section 17 (4) of the Act. If such a right was traced in section 40, it would have the effect of rendering the latter provisions of the Act nugatory, and as that would be an inapt interpretation it follows that the inquiry under section 40 is meant for a distinct purpose. The same considerations apply to the execution of an agreement under section 39 by a Company for whose benefit land is acquired under the Act. The primary object of requiring a Company to execute an agreement before the provisions of sections 6 to 37 are put into operation is to determine that the acquisition is for purposes enumerated in section 41 of the Act and to safeguard against the Company resiling from the acquisition proceedings after some decisive steps have been taken in the case. In the present case, the promoters agreement, itself, contained the necessary conditions of acquisition and the estimated amount of compensation deposited by the respondent No. 2 before the Notification under section 6 was issued. The considerations underlying the provisions for execution of an agreement were thus satisfied in the case and the petitioner had no just grievance to make. In any case, he had no locus standi t object to acquisition proceedings on the basis of an infraction of section 39 of the Act for he was not a person interested in the execution of the agreement.

14. A word may be said a out the authorities cited by the learned counsel for the petitioner in support of ground (iv). All of them were distinguishable inasmuch as the acquisition in those cases was for the benefit of a Company and no public purpose was involved therein. Tie decision in Feroze Din v. Government of West Pakistan (P L D 1961 Lah. 304), on which reliance was placed by the learned counsel, was concerned with the authority of the Government to enter upon acquisition proceedings on behalf of a firm which had not been incorporated as a Company on the date when Notifica?tions under sections 4 and 5 were issued. The Government was, thus, incompetent to enter upon acquisition proceedings in that case.

15. For the foregoing reasons, we find no legal defect in the proceedings under which the petitioner's land, measuring 5 Kanals and 15 Marlas, has been acquired for the benefit of the respondent No. 2, and dismiss this petition. In the circumstances, there will, however, be no order as to costs. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.