2003 PLP 853 (MLD)

(b) The Provincial Government vide their Notification, published in official Gazette dated 3-12-1971, delegated certain powers to subordinate officers relating to various rules of Defence of Pakistan Rules. 1971. The District Magistrate and not District Collectors were authorised to issue Notification of acquisition under the rule 121, but was expressly barred to exercise the powers of sub-para. (4) of the rule 121, which at that stage remained with the Provincial Government, sub-para. (4) of the rule 121 gives the powers to determine the amount of compensation. In these circumstances, the District Magistrate issued Notification dated 6-11-1974 as amended on 17-5-1975, and finally published in Punjab Gazette dated 22-11-1976. In view of sub-para. (3) of rule 121, the title of the land is transferred to Central Government with the publication of Official Gazette. The transfer is with the operation of law hence no other deed or conveyance is to be written, or required. Revenue staff was supposed to effect the Mutation in view of this Notification alone, as land vests in Central Government since the date of Notification, but they have not mutated the land in about 14 years, which is now again ordered by District Magistrate through impugned order. (c) The amount of compensation as submitted earlier was not within the jurisdiction of District Magistrate and Provincial Government was supposed to determine. The Provincial Government vide their Notification dated 24-1-1975, authorised Commissioners of the Division to exercise these powers of the Central Government. Therefore, worthy Commissioner, Rawalpindi Division, exercise these powers and determined the compensation at Rs.4,02,257.59, vide his order dated 15-10-1989. (d) That after 1976 since the time/land is possessed and vests in the answering respondent, various landowners tried to encroach upon the land but were being checked through police and other administrative measures. In the year 1989 when the prices were increased few of appellants tried to give the acquisition proceedings a colour of acquisition under the Land Acquisition Act, on which through their manoeuvring a notice was issued by the District Collector considering the same proceedings as under the Land Acquisition Act Worthy District Collector, Rawalpindi was explained the position and he disposed of the application through impugned order. The appellants are trying to re-open the issue on the basis of this application before the District Collector and now before the honourable Court relating to a past and closed transaction. That appellants are not entitled to re-agitate the matter and as a matter of fact they have made legal and factually incorrect statement in their memo of appeal. In alternate Constitution petition parawise reply is submitted as follows:--

1. That para. No. 1 is denied, a proper notice as provided under Defence of Pakistan Rules was given and published and even possession of the land was taken over and tubewells etc., were constructed and land is in possession- of answering respondent. Appellants have wrongly stated that they were informed about acquisition of year 1976, through an application, in year 1989, was moved by the owners and not respondents, the application itself negates their version.

2. That-para. No.3 is incorrect. The land vests in the respondents through operation of law, the landowners through their mala fide manoeuvres with Halqa Patwari, etc., delayed the change in Revenue Record, therefore, now the District Magistrate had to make a specific order through impugned order.

3. That para. 3 as stated is not correct, the District Magistrate had not determined any compensation nor District Magistrate is Competent Authority for compensation. The compensation was determined by worthy Commissioner on behalf of Central Government and when District Magistrate was informed that Commissioner has not only determined the compensation under law, but the same stands deposited with the Government, he has only directed to disburse the amount to the landowners, and also directed to correct the Revenue Record, through mutation. (a) That para. No.(a) is correct, entire acquisition proceedings have taken place as mentioned in this para. and Commissioner has determined the compensation through his order dated 15-10-1989, the District Magistrate/Collector has only asked to disburse the amount to landowners. There is no denial that District Magistrate is not Competent Authority to make an award of compensation under the rule 121(4). (b) That para. (b) is denied, based on misunderstanding of law and facts, the proceedings were in accordance with law and no illegality has been committed. (c) That para. No.(c) is denied, there were no proceedings under the Land Acquisition Act, therefore; same is not relevant in any case proceedings were conducted exactly in accordance with Defence of Pakistan Rules. That para. No. (d) is denied, and based on misunderstanding of law and facts. (e) That para. No.(e) is legally and factually incorrect, the legal position is already submitted. (f) That para. (f) is denied. (g) That para. No.(g) is incorrect, the land was acquired for industry 100% owned by the Central Government for National Defence and Public Purposes. The pipeline is laid in the vacant area and remaining portion is for the installation of further tubewell, etc., unfortunately the local Revenue Staff and others are considering this public property a booty of their loot, which is apparent from the fact that worthy Collector has made the orders of mutation after about 16 years and still the Revenue staff has not implemented the same in last about one year, and mutation has not been carried out in revision records as yet. (h) That para. No.(h) is denied.

4. The perusal of Award dated 26-9-1991 given by District Magistrate/District Collector would show that in para. No. 1 the past history of the acquisition of the land in question was given in second para. the objections raised by the respondents (ex-owners) were mentioned, and the explanation given by Military Estate Officer was discussed, in para. No.3, the competency of Commissioner Rawalpindi to determine the compensation and details of compensation amounting to Rs.4,02,257.79 were discussed and in para. No.4 the objections raised and answers thereof were discussed, basically it was objected from the side of owners that their land is being acquired under the provisions of Defence of Pakistan Rules, 1971 which stood repealed since long and does not hold good the field and these rules were formulated during the emergency situation which no longer exits, therefore, the process of acquisition be set aside whereas from the opposite side it was replied that notice of acquisition was served on the owners and published in the official Gazette intimating that property in dispute shall vest in the Central Government free from any mortgage, pledge, lien or other similar encumbrance, and in view of para. No.3 under rule 121 the land stands transferred to the Central Government with the publication in official Gazette and that the amount of compensation has already been deposited and the only matter pending is to effect the mutation in Revenue Record in accordance with Notification published on 22-11-1976 and in the last para, the learned District Magistrate agreed with the view-point of the applicant and observed that the tubewell over some piece of land acquired already stands installed and are in operation, Notification has already published in 1976, therefore, the only is point left behind is incorporation of the entries in the Revenue Record, therefore, he directed to Tehsildar District to incorporate the necessary entries in the Revenue Record and to make payment of compensation in accordance with the shares of the landowners out of the amount as mentioned above.

5. I have heard the learned counsel for the appellants and the learned counsel for the respondents. I have also gone through the copies of the relevant record attached by the parties with their pleadings.

6. After hearing the learned counsel for the parties some important points for determination are as under:- (a) Whether award dated 26-9-1991 announced by the D/Moriot/District Magistrate, Rawalpindi was actually an award under the provisions of Defence of Pakistan Rules, 1971 and Defence of Pakistan Ordinance? (b) Whether the notices were essential to be served on the parties to invite objections and hear arguments on the Award under section 9 of the Land Acquisition Act of 1894 regarding compensation and measurement of land when Commissioner, Rawalpindi Division vide his Memorandum No.KC/AC/RWP/No.6373, dated 15-10-1989 had already assessed the compensation? (c) Whether Memorandum No. KC/AC/RWP/No.6373, dated 15-10-1989 was essential to be challenged at any forum and particularly in this appeal/petition? (d) Whether this petition suffers from laches wherein Notification dated 23-4-1976 and 22-11-1976 have also been challenged, if it is treated as the writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973? and (f) Whether the Notifications, dated 23-4-1976, 22-11-1976 and Award dated 26-9-1991 if any are based on mala fide.

7. Learned counsel for the appellants/petitioners argued that after the Commissioner had fixed the compensation vide his order dated 15-10-1989 the Deputy Commissioner, Rawalpindi issued 57 Notices dated 16-12-19.89 and were sent to Taxila for effecting service on the owners for filing the objections which are available on the record and those were served on the owners, the owners after their appearance filed objections and the Award was announced by the learned Commissioner vide his order dated 26-9-1991 by fixing the amount of compensation and this Award is liable to be set aside because it was a matter relating to the acquisition of private property under the Defence of Pakistan Ordinance and Defence of Pakistan Rules, 1971 which provisions are extraordinary in nature which are applied in emergencies therefore, it was mandatory that prior to any action under the provisions of the above mentioned law the opinion of the Central Government should have been obtained as it was essential to determine that the property was being acquired for ensuring security, public safety or interest, Defence of Pakistan, or for securing the maintenance of public order. Therefore, anything which was done must have nexus with the purpose and object of the above mentioned law and when any land was to be acquired to carry out the work of any Corporation, the provisions of general law of the Land Acquisition Act, 1894 with rules can be invoked that after requisitioning of the property the Federal Government may acquire the property by serving on the owner a notice for the object of acquisition and the service of notice was mandatory in nature and publication of Notification in the Official Gazette is not an alternative but it can only be applied where the owner is not readily traceable or the ownership is in dispute but none of the conditions mandatory in law have been taken into consideration in this case despite of the fact that the owners were available and their availability is proved from the fact that the notices later on issued by the learned District Magistrate were served on the appellants/petitioners at the very first instance; that it was not determined by the Central Government that the requisition/acquisition of the property in question was necessary for any purpose specified in the Defence of Pakistan Ordinance and Rules; that after requisitioning of the property no notice of acquiring the property under sub-rule (2) of rule 121 of the Defence of Pakistan Rules was served on the appellants/owners which was a condition precedent before publishing the notice in the Official Gazette; that in fact while requisitioning/acquiring the land in question, the authority violated the mode prescribed by law, thus the whole proceedings are nullity in the eyes of law; that section 18 of the Defence of Pakistan Rules, states that when a property is acquired by Federal Government under section 19 or under any Rules under this Ordinance, there shall be compensation and this compensation must be paid to the owners within reasonable time as laid down in 1999 SCMR 2189. But here in the instant case it is quite astonishing that the land was acquired in the year 1976 and the Award was announced in the year 1991 i.e. after a lapse of 16 years, therefore, this period of 16 years cannot be treated as reasonable time, therefore, when the Award was not made within the reasonable time, its whole proceedings were nullity in the eyes of law, even no compensation has been paid to the owners so far; that for making Award, section 18 provides the mode for determination of compensation and making of award by fixing the same by an agreement and where no such agreement can be made, the Central Government shall appoint an arbitrator who has been a Judge, of the High Court or qualified to be appointed a Judge of the High Court, but there is nothing on the record to show that the parties had reached to a compromise or that the Award was made by arbitrator appointed by the Central Government whereas in the instant case the Award has been made by the Deputy Commissioner, Rawalpindi, so it being against the law is liable to be set aside.

8. Learned counsel for the appellant further argued that the alleged Notification for acquisition dated 22-11-1976 is bad in law because there was no Emergency at that time; that war emergency was over as by that time Shimla Accord was signed and it was for this reason that the very law was repealed only after about nine months of the acquisition of Notification; that the requisite Notification dated 10-12-1975 was published after an inordinate delay of more than one year i.e. in April, 1976; that the compensation was arbitrarily fixed with gross violation of the procedure; that the learned District Magistrate did not give weight to the objections raised by the appellants; that actually the land in question is not needed at all because except a small piece of land used for the construction of few tubewells the remaining land still remains in the possession of the owners; that a lot of land is available with HMC (Pvt.) Ltd. which is being leased out to different persons on which there is multiple litigation in between the parties in Civil Court at Taxila; that the land in question does not belong to Ministry of Defence as it is proved through documents on record, therefore, the notification as mentioned above and the award are illegal and based on mala fide but despite this appellants/owners are prepared to ensure and give undertaking that used for installation of tubewell may be retained for the remaining land may be released to the owners in the Finally submitted that if in accordance with the respondent No.4 the Award is simply an proceedings are nullity in the eyes of to the cases reported in Muhammad Awais Khan and others v. Pakistan and 2 others (1989 MLD 3011 (Lah.); Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others (PLD 1970 Lah. 321), Abdul Ghani and another v. Province of Baluchistan and 2 others, PLD 1982 Quetta 63; Samir Kumar Choudhury and Ishaque Meah v. The Province of East Pakistan and 2 others PLD 1968 Dacca 41, Arab and 36 others v. Pakistan through Secretary, Ministry of Defence Islamabad and 3 others 1992 MLD 1126 (Kar.) and Lahore Improvement Trust v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1970 Lah. 257), in support of his arguments. While the learned counsel for the respondent opposed these arguments advanced by the learned counsel for the appellants and submitted that the appeal filed by the owners is not maintainable, moreover, it is barred by time and if it is treated as a writ petition then it suffers from lathes; that the award announced by the learned District Magistrate is not an award but is an administrative order obtained collusively and that the land in question has already been acquired in accordance with law and that the amount of compensation determined by the Commissioner Rawalpindi has been deposited, therefore, this appeal/petition is liable to be dismissed. He referred to the cases reported in Mian Muhammad Nazeer and another v. The Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others (1980 CLC 687 (Lah.); Sh. Ata Muhammad v. Zubair Mahmood Khan and 7 others (1980 CLC 446); The Ramjas Foundation and others v. union of India and others (1993 PSC 1115 (SC of Ind.)) and Sona and another v. The State and 3 others (PLD 1970 SC 264), in support of his arguments.

9. It appears from the perusal of sub-rule (1) of rule 121 of the Defence of Pakistan Rules, 1971 that in order to achieve the object to ensure the security, the public safety or interest or the defence of Pakistan, or for securing the maintenance of public order the efficient conduct of military operations or prosecution of war, or for maintaining supplies and services essential to the life of the community, the federal Government may requisition any movable or immovable property, so it is obvious that maintaining of supplies and services the essentials of the life of the community is one of the established object as given in this rule. This object can be achieved by the Federal Government by direct involving in the affairs or this task may be assigned to any private company and for this reason Letter No. 1/55/LH/ML&C/92/RWP., dated 13th July, 1992 was written, to the Military Estate Officer, indicating therein that the land in question' does not belong to Ministry of Defence and is owned by the Heavy Mechanical Complex (Private Limited). Section 3 of the Defence of Pakistan Ordinance, 1971 empowers the Central Government to make rules which may be essential to achieve the, objects as given above and under section 5 such powers may be conferred on the Provincial Government as a consequence of which the Governor Punjab is competent to issue the Notification, authorizing the officers and the authorities within their respective jurisdiction to exercise powers or to perform the duty in order to achieve any object as mentioned above that is why by Notification No.9-25-H- Spl. 1/71, dated 3rd December, 1971. Powers under Rules 121 and 122 of the Defence of Pakistan Ordinance, 1971 were conferred on the District Magistrate except powers under sub-rule (4) of rule 121 which will continue to vest in the Provincial Government. It may be mentioned here that there is rubbing on rule 121 by the ink in the photo copy of the Gazette attached with this petition, but rule 121 is quite visible, meaning thereby, for the objects, as mentioned above, the requisition of the property is in the authority of the Provincial Government which powers further have been conferred generally on the District Magistrate. Therefore, as a consequence of it vide Office Order dated 11-12-1974, issued by the District Magistrate, Rawalpindi the land in question was requisitioned for the Heavy Foundry and Forge Project, Taxila. Under all relevant provisions of Defence of Pakistan Rules and the Notification No.6-25-H/Spl. 71 issued by the Provincial Government and later on in order to acquire the land in question Notification No. 1.7532 was published in the Punjab Gazette. On November 22, 1976. Meaning thereby the land in question was requisitioned and acquired for one of the objects as given in rule 121, of the Defence of Pakistan Rules, 1971 although this object/exercise was to complete by a company (private limited) (sic). And when the property was acquired by publication of Notification in the official Gazette, a Notice as required by sub7rule (2) of rule 121 of the Defence of Pakistan Rules, 1971 had been served on the owners. The relevant para. 3 of the Notification was as under:-- "

3. It is notified for the information of all the landowners and other persons interested that the land in question shall on and from the beginning of the day, on which the notice is so published vest absolutely in the Government free from all encumbrances and period of requisition of such land shall end." Meaning thereby the land in question was acquired strictly in accordance with section 19 of the Defence of Pakistan Ordinance (XXX of 1971) and that of rule 121 of the Defence of Pakistan Rules, 1971. After acquisition of the land no other question is left behind except the manner of compensation for the owners of the land in question. This procedure has been given in section 18 of the Defence of Pakistan Ordinance, 1971. It says that where the amount of compensation can be fixed by an agreement it shall be paid in accordance with such agreement (and where no such agreement can be materialized the Central Government shall appoint an arbitrator, a person who is qualified to be appointed as a Judge of the High Court and that the Central Government may in any particular case, nominate a person having expert knowledge as to the nature of the property acquired to assists the arbitrator and where such nomination is made, the person who is to be compensated may also nominate an assessor for the said purpose. Clause (f) of section 18 of Defence of Pakistan Rules, 1971 provides that an appeal shall lie to the High Court against award of an arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government. But the perusal of language of the Award dated 26-9-1991 would show that this award was not announced by any arbitrator appointed by the Central Government or the Provincial Government even otherwise, an arbitrator should be qualified for his appointment as a Judge of the High Court whereas the District Magistrates can never have such qualification so it is also established that the award announced by him was not under the relevant provisions of Defence of Pakistan Ordinance, 1971 as under section 18 either the amount or compensation was to be settled through an agreement or through an arbitrator. The point for examination is as to what is the value and I importance of Award dated 26-9-1991. Its perusal would show that the details of compensation have already been settled by Commissioner, Rawalpindi Division vide his Memorandum No.KC/AC/RWP/6373, dated 15-10-1989 as a consequence with the price was settled at Rs.4,02,257.59. It may be mentioned here that this order or compensation has not been challenged at any forum as it reflects from the documents available on the record. Even otherwise it is not clear as to what was the settlement in between the parties before the Commissioner Rawalpindi in the year 1989 and, perhaps it was only disclosed by the appellants or the writ petitioners that they came to know about acquisition in the year 1989 from the office of the Land Acquisition Collector, Texila. In fact such determination about the knowledge requires recording of evidence which is not possible either at this stage of appeal or by treating this appeal as a writ petition but because of inordinate delay one can believe that the writ petition suffers from laches. The further perusal of this award would show that the District Magistrate issued notices to the owners under section 9 of the Land Acquisition Act, 1894 for the purpose of compensation and measurement of land. He could issue a public notice if the matter of compensation had not been disposed of earlier by the Commissioner Rawalpindi vide his memorandum dated 15-10-1989, as mentioned above, which means that the issuance of public notice by him was either due to lack of knowledge on his part or due to mischief and connivance by his staff to provide blood to a matter which was dead. Anyhow he realized the situation and last of all admitted that tubewells over the piece of land acquired stand constructed and are in operation and in this regard the notification under the provisions of Defence Rules of Pakistan, 1971 had already been published in 1976 and that the only point left to be implemented was registration of mutation in the Land Revenue Record in the name of Heavy Foundry and Forge Project, Taxila, therefore, he issued a direction to the Tehsildar in this regard. Meaning thereby the award dated 26-9-1991 was so-called award and that in fact it was an order on the administrative side and nothing else, therefore, by treating this order, as if given by an Arbitrator under the relevant provisions of Defence of Pakistan Ordinance, 1971, no appeal could be filed at such belated stage, in order to challenge the Notification published in the year 1976 nor the writ petition could be filed. Therefore, neither the appeal nor the writ petition was competent.

10. The land in question was requisitioned or acquired when the Defence of Pakistan Ordinance, 1971 was in force as it was repealed by Ordinance No.XXXII of 1977 and this Ordinance was promulgated on 15-9-1977. The land in question was acquired in the year 1976. Learned counsel for the appellants/petitioners himself stated in the written arguments that the Defence of Pakistan Ordinance was repealed only after about nine months of the publication of the Notification, meaning thereby, the acquisition of the land in question in the year 1976 was in accordance with the spirit of Defence of Pakistan Ordinance and Defence of Pakistan Rules of 1971. The learned counsel for the appellants/petitioners failed to point out any illegality in the process or requisition and acquisition.

11. The final point for examination is as to whether there is any chance of release from the requisition. The authority of release has been explained in section 20 of the Defence of Pakistan Ordinance, 1979 which is deeply connected with the word "necessity", certainly the determination of necessity deeds upon the recording of evidence. The learned counsel for the appellants/petitioners offered again and again that G the land utilized for the construction of tubewells may remain acquired and that the rest of the land be released and given to the owners for the purpose of cultivation. This offer was not accepted by the learned counsel for the respondents despite consultation on this point on many dates. Since the matter of release depends upon the determination of the question of necessity, therefore, it can be observed on the moral side that if possible that the land lying vacant or which is not in use at present or in future may be given to the owners permanently or on lease for the purpose of cultivation or for any other objection accepted by the respondents. The requisition and acquisition of land depends upon the necessity but in the same way the requisition and acquisition of the land is connected with the difficulties to be faced by the affectees, therefore, in order to feel the difficulties of the affectees the provisions of Rules in the shape of section 20 in Defence of Pakistan Ordinance, 1971 has been provided.

12. Anyhow, this appeal/petition being not maintainable stands dismissed. S.A.K./L-58/L Appeal/Petition dismissed