P L D 1992 Peshawar 30 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J. ‑‑The brief facts giving rise to this petition and W.P. No.79/1989 are that the petitioners were owners of certain land described in para.3 of the petitions and situate respectively in villages Bagnotar and Sarbhanna, Tehsil and District, Abbottabad. In the year 1985‑86 the Government of N: W.F.P. undertook `improvement and widening of Abbottabad‑Murree Road on account of which the lands aforesaid ,and other property of the petitioners was not only encroached upon but was substantially damaged without any acquisition proceedings. The petitioners, therefore, instituted a suit on 20‑3‑1986 against respondent No.4 and others for a decree for permanent injunction restraining them from interfering in the disputed land without resorting to proper proceedings under the Land Acquisition Act, 1894 (I of 1894) (hereinafter, called as the Act) and also for restoration of possession of their lands and for payment of compensation for damages. In the meantime, Notification Nos.2459‑63 and 6595‑99 respectively dated 27‑3‑1986 and 3‑7‑1986 were issued under section 4 of the Act. Petitioners in W.P. No. 68/1989 were, therefore, obliged to withdraw their suit with permission to file fresh suit for compensation. Subsequently, Notification‑under section 17 of the Act was also issued and the respondents had taken over the possession of the disputed property mentioned in the notification aforesaid and had completed the improvement and widening of the Road. In this process, the valuable trees and houses belonging to the petitioners had ,been damaged. Respondent No.1 is stated to have made a part payment of compensation and had assured that fair and proper compensation would be assessed in respect of the land, trees, houses and other property of the petitioners very soon and that the entire compensation would be paid to the petitioners after the announcement of the award. The precise grievance of the petitioners in both the petitions is that the respondents despite being approached several times, were adamant to announce the award.

2. In support of his contention Mr. Muhammad Yunis Tanoli, learned counsel for the petitioners, pressed into service Pannalal Maheshwari v. State of Bihar and others (AIR 1955 Patna 63) and submitted that it was the duty of the respondents to have made an award expeditiously within the ,meaning of section 12 of the Act. '

3. Mr. Muhammad Aslam Khan, the learned Assistant Advocate?-General, appearing on behalf of the respondents, could not say anything in defence except that there is no provision in the Act, which enjoined the announcement of an award. While concluding his argument the learned Assistant Advocate‑General also submitted that due to financial constraints the award could not be announced by the Government.

4. The respondents cannot take the refuge under the so‑called financial constraints. In this context, the learned counsel for the petitioners has rightly observed that if the Provincial Government was facing financial constraints, the project of widening and improvement of road could well have been deferred and that when financial position of the Provincial Government had improved it should have been undertaken. We find every force in the stance taken up on behalf of the petitioners: The possession of the petitioners' lands in dispute had been taken and in the process, trees and buildings are also shown to have been damaged back in 1985‑

86. In the meantime, they have also been partly paid by way of compensation. It would, therefore, be too late in the day to say that due to financial constraints the announcement of the award was being withheld for the last over five or six years. Obviously, the ground of financial constraints being absolutely devoid of force thus stands repelled.

5. The contention of the learned Assistant Advocate‑General that there is no direct provision whereby the acquiring Department or the Agency may be compelled to announce an award within a specified period prima facie seems to be quite ingenious. In section 11 of the Act the words "???and shall make an award under his hand of ...." and the phraseology employed in sections 12 and 31 of the Act clearly point out to the mandatory nature of the provisions to announce the award and tender the payment of compensation. Nonetheless, in order to meet a similar objection, addition of the following subsection to section 11 by the Government of Balochistan was perhaps in the right direction:‑‑ "The existing section 11 shall be numbered as subsection (1) of that section and (i)????.. (1)????.. (a)????..(ii)????.. (b)????.(iii)????. (c)????.(iii)???? (iv)????.? ??????????? (ii)??????? after subsection (1) as so numbered, the following new subsection shall be added, namely:‑‑ "(2)????? The award shall be announced by the Collector within six months of the publication of declaration , under section 6, failing which the officials or officers found guilty for the inordinate delay by such authority and after such enquiry as may be prescribed by rules shall reimburse the Provincial Government the amount of the additional compensation assessed under section 28‑A for the period of delay.?

6. The Government of N:‑W.F.P. would also be well‑advised to make an identical addition to section 11 ibid so as to alleviate the sufferings of the people like the petitioners before us due to bureaucratic intransigence or stubbornness to announce awards at the earliest for ulterior motives. It is not denied on behalf of the respondents that no inquiry had been made in these cases under section 11 of the Act. There has been no doubt an unconscionable delay by the Land Acquisition Collector in conducting an inquiry under the Act to this illegal acquisition. 1n the case of Pannalal Maheshwari cited above, a Division Bench of Patna High Court had in almost similar circumstances observed as under:‑‑ "It is clear from the perusal of these two sections that the Collector is under the statutory duty to make an inquiry into the valuation of the land and into the respective interests of the persons claiming compensation and to make an award in respect of the matters mentioned in SAL Section 12 imposes a further duty upon the Land Acquisition Officer to file the award in the Collector's office to give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made." Respectfully following the dictum of the case of Pannalal Maheshwari from the Indian jurisdiction, referred to above, we hold that under sections 11 and 12 of the Act, respondent No.l is under a statutory duty to make an award in respect of the matter mentioned in section 11 and to file the award under section 12 and to give immediate notice thereof to such of the persons interested as are not present personally or by their representatives at that time. ; In the present cases, we are clear in our mind that the respondents had failed I in performing their statutory duties cast upon them under sections 11 and 12 of I the Act.

7. For the foregoing reasons, we hold that a writ in the nature of mandamus should be issued under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 directing the respondents to perform the statutory duties imposed upon them under sections 11 and 12 of the Act and to bring the land acquisition proceedings to a conclusion by making announcement of the award in accordance with law as expeditiously as possible but not later than three months and to arrange payment of compensation so determined to the petitioners within a period of three months thereafter. The petitions are accordingly allowed but we do not make any order as to costs. A.A./1278/P??????????????????????????????????????????????????????????????????????????????????????????????????? Petitions accepted.