2013 PLP 1188 (MLD)

MIAN FASIH-UL-MULK, J.

Petitioner is aggrieved of the discriminatory treatment of respondent No.1 in de-notifying his land as against those landowners whose lands were acquired under the same Award but the same were de-notified in similar circumstances.

2. Certain lands were acquired under section 53 of N.-W.F.P. Urban Planning Ordinance, 1978 on the request of Provincial Urban Development Board for construction of Ring Road vide Award No.1255-62/LAC/PUDB dated 10-12-1990 wherein land of petitioner comprising in khasra numbers 1774 and 1775 measuring 11 marla and 4 kanal 1 marla respectively situated in village Sarband was also acquired. As the said khasra numbers were outside the alignment of Ring Road, therefore, petitioner approached the Director General, City Development and Municipal Department, Peshawar (respondent No.3) for de-notification of unutilized area acquired by PUDB for Ring Road on repayment of the compensation amount received by him. The application was sent to District Revenue Officer, Peshawar for verification and report through Land Acquisition Collector CD&MD, Peshawar. The District Officer Revenue, Peshawar as well as the Land Acquisition Collector in their reports recommended for de-notification of the acquired land of petitioner in the two khasra numbers as the same was about 298 feet away from the constructed Ring Road. On receipt of such reports, the Director-General vide his letter dated 25-2-2008 referred the case for permission of Secretary Local Government to denotify khasra Nos.1774 and 1775 from the Award. The Secretary Local Government, however, vide impugned letter dated 9-1-2008 regretted the request on the ground that acquisition process had already been completed and payments were made according to award. Hence this writ petition.

3. We have heard arguments of learned counsel for their parties and have also perused the record.

4. The petitioner has annexed certain orders/letters of respondents whereby land of other co-owners acquired under the same Award in the same or adjacent area has been de-notified in the same circumstances when acquisition process was also complete and compensation was paid to the land owners. Annexure-G with the writ petition is a letter dated 18-7-2011 whereby certain land in village Hazarkhwani was de-notified under section 67 of the N.-W.F.P. Urban Planning Ordinance, 1978. Similarly, with regard to Khasra No.1695 situated in village Sarband, the Secretary Local Government vide letter dated 24-8-2005 accorded his approval for withdrawal of said khasra from the award and its de-notification. It may be mentioned that in the above cases too the Director-General City Development and Municipal Department, Peshawar had recommended de-notification of the land and sent the cases for approval of the Secretary Local Government. 4(sic). It is expected from the executives that they would base their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. The Courts have power to see that the Executive acts are lawful. It is no answer to the exercise of that power to say that the Executive acted bona fide. A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. Discretion does not empower a man to do what he likes merely because he is minded to do so. He must in the exercise of his discretion do not what he likes but what he ought. In other words, he must by use of his reason ascertain and follow the proper and just course. The discriminatory treatment of respondent No.1 to petitioner in this case is patent on record, in that, lands of other owners acquired under the same Award have been de-notified on the recommendation of Director General because as per reports of revenue authorities the same were not required and similar was the case of petitioner whose land being far away from the constructed road was inadvertently acquired under the same Award and to this effect the revenue staff after spot inspection had given a positive report for its de-notification.

5. The reason on which case of petitioner is regretted was very much available in the cases of other landowners; hence the impugned order of respondent No.1 is not sustainable in the eyes of law nor the same can be treated as a good reason advanced by respondent No.1 in the exercise of his discretion.

6. For the aforesaid reasons, this writ petition is accepted, the impugned order of respondent No.1 is set aside and he is directed to de-notify khasra Nos.1774 and 1775 from the award on the already submitted recommendations of Director-General (respondent No.3). Of course, such de-notification would be subject to repayment of the compensation amount received by petitioner. KMZ/36/P Petition allowed.