1986 PLP 2650 (MLD)

HAIDER ALI PIRZADA, J.‑‑By this petition under Article 9 of the Provisional Constitution Order, 1981, the petitioner challenged the validity of notification issued under sections 4 and 17(4) of the Land Acquisition Act, 1874 on 3‑‑4‑1983 and 'the proposed acquisition of plot of land bearing ST‑1‑A, Block ,;B',. North Nazimabad admeasuring 2,400 square yards for a public purpose viz. expansion of the North Nazimabad Bridge. The facts leading to the filing of the above petition are that a plot of land known as car. parking area ST‑1‑A, Block B , was reserved for extension of road over‑bridge And future fly‑over inter‑section. In the year 1973 the plot in question had been carved out from the said reserved area for c‑5nema in pursuance of the ,order of the then Chief Minister and the Minister H.T.P. and L. G; to be allotted one Jam Anwar Ali. This plot was allotted on 30‑8‑1973 vide allotment Letter Wo.K.D,A./Land/Gut/cc/2923 for the construction of cinema house. Anwar Ali died on 3‑10‑1982 and the present petitioners are his legal heirs. It seems that possession order was issued, on 8-5‑1976 and the possession thereof was handed over on 29‑5‑1976. Since the residents of the area around said plot raised objection for construction of cinema house, the said Anwar Ali approached the respondent No.2, through his attorney for the conversion of the same from; cinema plot to commercial/residential plot Anwar Ali's request was accepted by the respondent No.2. By letter, dated 23‑2‑1981 the respondent No.2'demanded scrutiny fees of Rs.20 per square yard and conversion charges at Rs.300 per sq. yard minus occupancy value, it is the case of the petitioners that in the middle of the year 1981. Anwar Ali' decided to raise boundary walls around the said plot for which he had already got this plan approved from the concerned authority, lie was resisted site by one Muhammad Siddiqui Shaikh and, therefore, the said 'Anwar Ali filed Civil Suit No.1587 of 1981 against the said ,.Muhammad Siddiqui and K . D . A . , and, thereafter Suit No.2270 of 1981 'against said person and K.M.C., in which interim injunction was granted. The Assistant Director (E), Land, and Estate K . M . C . , in spite of approval of p)an issued a notice of demolition and demolished the boundary wall. Thereafter, the said Anwar Ali filed Suit No. 428 of 1981 for recovery of the damages in this Court. It is the case of the petitioners that the respondent No.2, issued a challan for Rs. 13,64,448.75 for payment of conversion charges which was almost double than the decision of Governing body of K. D. A. taken vide resolution No.45 of 3rd meeting held on 25‑1‑1981. As such the said Anwar Ali filed Suit No.714 of 1981 in this Court challenging the same and this Court issued an order of status quo on 22‑11‑1981. The stay was confirmed subject to furnishing of surety to the tune of Rs.13,63,446.75 to the satisfaction of the Nazir of this Court. The said Anwar Ali contacted the Karachi Building Control Authority for approval. Plans and issuance of no‑objection certificate for construction, sale and advertisement of fiats and shops according to rules which were issued on 24‑11‑1982 and 22‑11‑1982 respectively after detailed scrutiny and started construction according to the approved plan. It is the case of the petitioners that they started the construction on full swing and about fifty per cent booking of flats and shops was taken place and thus invested heavy amounts. On 19‑2‑1983 the petitioner received a notice from Assistant Controller of Karachi Building Control Authority. The petitioner representative was granted an interview and the petitioners came to know that the Major of K . M . C . had written a letter, dated 11‑2‑1983 and wherein he wrote that the plot in question be allotted to football club. The petitioners filed constitution petition No. D‑144 of 1983 challenging the impugned order of demolition of construction and stoppage of work in this Court. The petition was admitted for regular hearing and thereafter stay was granted on 1‑3‑1983 whereby the operation of impugned order was suspended. On 4‑4‑1983, the impugned notification was issued. This notification further declared that the provisions of section 5‑A of the Land Act shall not apply. Hence this petition challenging the aforesaid notification and the impugned action thereunder. The respondent No.2, filed counter‑affidavit and stated therein that the plot in question does not exist in the first layout plan of North Nazimabad prepared and printed in 1953 nor in the uptodate lay out plan of 1971. In the plan of 1971 the spaces reserved for the future intersection of roads were shown as parks and car parking etc., to keep the spaces intact until such a time when the civil authorities could enable themselves to undertake construction of expensive clover leaf/flyover intersection. In the year 1973 the dispute plot had been carved out for a cinema in pursuance of the order of the then Chief Minister H.T.P. and L.G., to be allotted to one Mr. Anwar Ali which was later on converted into a commercial site for shops and flats. It is the case of the respondent No.2 that express roads and bridges are generally built phase‑wise since they are generally very expensive propositions after making heavy budgetary provisions. The existing railway over bridge between Nazimabad and North Nazimabad, had been the first phase and now due to the increased traffic the necessity of widening of bridge has become imperative. In case of wide of the bridge the disputed plot will be affected and its acquisition is essential for the public purposes. It is further case of respondent No.2 that the plot in question was created for the petitioners and allotted under the orders of the then Chief Minister and the Minister, alongwith it was not feasible from this planning point of view. The respondent No.2 denied contents of para. 7 of the petition and stated that allegations whatsoever as alleged by the petitioners for malacious and mala fide act, are without substance, even vague, frivolous and baseless. It is further stated that in the light of the facts and circumstances it is clear that the acquisition of the plot in question is in good faith and in the National interest and the petition is liable to be dismissed. In support of the petition, we have heard Mr. Syed Zaki Muhammad the learned counsel for the petitioner. The respondent No.2, is represented by Mr. Sabir Hussain Qazilbash whereas respondent No.1 is represented by the learned Additional Advocate‑General Mr. Abdul Sattar Shaikh. Mr. Syed Zaki the learned Advocate, has contended that the impugned action is mala fide and this was not at all a case where the application of urgency clause could be said to be in any way warranted dispensing with the requirement of the inquiry under section 17 under section 5‑A of the Act and the relevant rules and the expansion overheaded bridge being a long drawn out process, in fact the purpose of acquisition was not of urgent importance. All the above contentions have been vehemently opposed by Mr. Sabir Hussain Qazilbash learned counsel for the respondent No.2 and Mr. Abdul Satter Sheikh learned Addl. Advocate‑General appearing on behalf of the respondent No.1. According to them the‑plot in dispute is being required for widening of railway bridge as well as for the construction of the expensive clover leaf/flyover intersection. It is advantageous to reproduce section 17(4) and section 5‑A of the Land Acquisition Act. 1874 hereinafter called the Sind Act which reads as under:‑ "Section 17(4). In case where in the opinion of the Commissioner, the provisions of subsection (1) or subsection (2) are applicable the Commissioner may direct that the provisions of sections 5 and 5‑A shall not apply, and, if he does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under subsection (1) of section 5." "Section 5‑A, Hearing of objections‑‑(1) Any persons interested in any land which has‑been under section 4. subsection (1) as being needed or likely to be needed for a public purpose or for a company may, within 30 days after the issue of the notification object to the acquisition of the land or of any land 'in the locality, as the case may be." Mr. Syed Zaki the learned counsel for the petitioner: has contended that this was not at all a case where the application of urgency clause could be said to be in any way warranted. As a result thereof, the petitioners were deprived of the opportunity of putting forth their objections before the acquiring authority and the latter in turn, was also correspondingly absolved of its duty to hear the petition, He has further urged that the tests involved for the application of urgency clause do not stand fulfilled in the present case, Mr. Sabir Hussain Qazilbash the learned Law Officer and Mr. Abdul Sattar Shaikh learned Additional Advocate‑General have counter these submissions contending that the K.D.A. and the Government are entitled to apply the urgency clause to a given case and in this particular case according to them, the application was more than justified and this Court, therefore, should not interfere with impugned acquisition. Considering the rival submissions of the respective Advocates in the light of the record. we are of the view that the contentions raised before us by the learned counsel for the petitioner are sound and justified , and accepting the same, this petition deserves to be allowed. Now, none can dispute the position that acquisition of land for the purpose of widening of the overhead bridge would, indeed, be an acquisition pre‑eminently for a public purpose nor there can be two opinions on the fact that this public purpose particularly widening the overhead bridge or a flyover is, indeed, one which all would desire to be implemented efficiently. But this, therefore, cannot per se justify stamping a land acquisition notification in that behalf with the impress and insignia of an urgency clause. That a given purpose is laudable is not by itself sufficient to indicate to the application of urgency clause so as to obviate even the minimum requirement of a hearing. Purpose such as widening of overhead bridge or construction of clover leaf /flyover intersection cannot be said to spring into existence over night unless of course it is a result of some unexpected exceptional or extraordinary situation or some specific clear cut time bound project likely to be rendered ipso facto nugatory and infructuous by even such lapse of time as would occur in the case of an acquisition without the urgency clause. While applying the urgency clause, the K . D . A . or the Provincial Government should indeed, act with considerable care and responsibility. It would not be out of place to observe that under the Constitution of the Islamic Republic of Pakistan all citizens have fundamental right to acquire, hold and dispose of their property. The Constitution and the Land Acquisition Act, no doubt enable the Government to acquire their property if it is needed for purpose mentioned therein, but it is extremely necessary that the provisions of the said Act should be strictly followed. Normally, every person, who‑ has interest in the land which is sought to be acquired should have notice of the notification which is issued under section 4(1) so that he is able to file his objection, if there be any. He should have an opportunity of being heard. The Law requires that there should be a proper inquiry and then the decision upon his objections should be that of Government and not of the officer inquiring into them. It is only after a decision regarding his objections is given, that a declaration under section 6 of the said Act should be made. In cases of urgency, special powers have been given under subsections (1) and (4) of section 17 of the said Act. The question of urgency may be justifiable but the powers must be used just to cover up the deficiencies, if any, by officer concerned under section 4(1) or section 5‑A. In the present case, we find that although this Plot ST‑1/A, 'Block 'B' does not exist in the first layout plan of North‑Nazimabad prepared and printed in 1953 nor in the updated layout plan of 1971. In the plan of 1971 the spaces reserved for the future intersection of roads were shown as parks and car parking to keep the spaces intact until such a time when the civil authorities could themselves to undertake construction of expensive clover leaf/flyover intersection. It was dropped in 1971 and the plot in question was carved out and allotted for construction of cinema. house. The possession only was issued on 8‑5‑1976 and physical possession was handed over on 29‑5‑1976. The residents of this area raised objections for the construction of cinema house. The said Anwar Ali approached for conversion of the same from cinema house to commercial/ residential plot. His request was accepted in the year 1981. The scrutiny fee and conversion charges were demanded from him. He applied for approval of plans and no objection certificate for construction, sale and advertisement of flats and shops were issued on 28‑11‑1982 and 22‑12‑1982. He invested huge amounts and assembled building materials for executing construction work. The petitioners commenced this work and according to the petitioners about fifty per cent of shops and flats were booked. The respondent No.2 though need for acquisition was felt right from the year 1981, even so for years together itself did not at all actively move in the matter with any urgency till it chose to recommend for acquisition of the plot in question and thus respondent No.1 chose to issue in its Own sweet time section 4 notification thereafter. Application of urgency clause cannot be a substitute for the laxity on the part of the K.D.A. or the Government administration in expeditiously initiating acquisition proceedings. Nor can it be involved to make up for the delay caused of the lethargy on the part of administration. Mr. Qazilbash has made a valiant attempt to justify the application of urgency clause . by reference to the parawise comments and the counter‑affidavit filed by the respondent No.2. Unfortunately for him, however, going through the counter‑affidavit, one finds that there is hardly any attempt to disclose facts and circumstances and factors and elements which went into the decision of the acquisition authority to invoke the urgency clause. The counter‑affidavit is not only vague but indeed silent on this crus of the challenge to the impugned acquisition. Apart from such inadequate and deficient counter affidavit, the learned counsel for the respondents 1 and 2 were even otherwise unable to satisfy us as to what were even generally the facts and considerations that weigh with the authority, while applying the urgency clause. It would normally not be open to this Court to substitute its own judgment in place of that of the acquiring authority on the question of existence of urgency and the consequent application of urgency clause if the Court finds that there were present before the acquiring authority factors and considerations relevant thereto. The acquiring authority is after all the best judge of the situation and its decision basically subjective, would normally not be interfered with by this Court. But where no factor is disclosed and no consideration revealed, where the Court is left in the lurch application of urgency clause is put in serious jeopardy, it stands exposed to Courts interference, and renders itself liable to be struck down. The very sine qua non for sustenance of urgency clause is absent. When the existence of circumstances on which an opinion has been arrived at has to be proved at least prima facie, it would not be sufficient for the authority which arrived at that opinion to assert that circumstances existed but give no clue whatever as to what such circumstances were. We are of the opinion that the burden of proving such circumstance at least prima facie, is on the respondents Nos. 1 and

2. As the respondents land 2 have brought no relevant material on the record. The respondents have failed to discharge the burden. We must in conclusion hold that the urgency provision under section 17(4) was not validly resorted to. In view of our above findings, it is not necessary to enter into an adjudication of the other controvercies raised by Mr. Syed Zaki Muhammad, the learned counsel for the petitioners, because once the petitioners are allowed an opportunity of hearing or objections under section 5‑A of the Land Acquisition Act, it would be open to them to raise all permissible objections and get adjudication from the competent authority. The result is that this petition is accepted, notification, dated 4‑4‑1983 (Annexure 'A'). Under section 4 of the said Act is upheld but invoking section 17 (4), the urgency clause from the notification 4‑4‑1983 (Annexure 'A') is deleted and cancelled. The matter will now stand relegated to the stand immediately after section 4 notification without urgency clause. The plot in question is already in possession of the petitioners. It is made clear that the petitioners would not raise any construction and would maintain status quo in the matter. It would be open to the respondents 1 and 2 to take fresh proceedings by following the procedure prescribed under section 5‑A of the said Act. It is further made clear that in case any extraordinary exceptional situation of urgency arises in future the respondents would be at liberty to invoke the powers under section 17(4) of the said Act, also parties will bear their own costs.