P L D 2004 Azad J&K 30 (PLP)

(i) PLD 1978 SC .190; (ii) 1989 CLC 508; (iii) PLD 1972 SC 271; (iv) PLD 1978 SC (AJ&K) 118 and (v) PLD 1991 SC

124. Ch. Khalid Rashid, the learned Advocate appearing for Ch. Muhammad Munir and others, besides adopting the arguments of Ch. Muhammad Azam Khan, further submitted that the respondents have violated the provision of subsection (2) of section 9 of the Land Acquisition Act, 1894 which provides at least 15 days notice for objection to the affectees whereas in the present case the notices were issued on 27‑9 2003 whereby the petitioners were directed to appear on 29‑9‑2003 at 1 a.m, and remained unserved. The learned Advocate also added that even the agreement cannot deprive the petitioners of their right of fair compensation. The learned Advocate referred to and relied upon AIR 1958 Kerala 167 and 1997 PLC (C.S.)

297. Ch. Muhammad Reaz Alam, the learned counsel representing the other side, controverted the arguments advanced on behalf of the petitioners. The learned counsel submitted that admittedly the matter was negotiated between the parties and all the petitioners executed separate agreements with the Development Authority, therefore, they have an adequate and efficacious remedy in the Civil Court or in shape of reference. The learned counsel also submitted that the rules referred to and relied upon by the learned Advocates for the petitioners are inconsistent with the parent Act wherein no such limitation is provided, therefore, no allowance can be claimed on the basis of these rules. It is also stated that most of the petitioners have constructed, the houses or effected the improvements after issuance of the Notifications, under section 4, therefore, they are not entitled to any compensation. The learned counsel also maintained that the respondents are competent to enlarge the time and all the proceedings have been taken in a legal fashion and in accordance with law. I have heard the learned Advocate representing the parties and perused the record. Under the Land Acquisition Act, 1894 (hereinafter to be referred as the Act) issuance of Notification under section 4 is a sin‑qua‑non for initiation of proceedings for acquisition of the property. The Government, under section 55 of the Act has framed the rules known as the Azad Jammu and Kashmir Land Acquisition Rules, 1994. For understanding the controversy properly it will be useful to reproduce rules 6, 7 and 7‑A of the said Rules which are as follows:‑‑ '" "(6) After the issue of Notification under section 4, the Collector shall take immediate necessary step to have the areas surveyed and submit his report to the Commissioner not later than 60 days from the date of the publication of the Notification under section 4. (7) Where the land is to be acquired for a public purpose the Commissioner shall issue a Notification under section 5 of the Act not later than one year from the date of the publication of the Notification under section

4. If no Notification is issued under section 5 within the period specified in this rule, the Commissioner shall immediately report the matter to the Board of Revenue for extension in time and the Board of Revenue may, in its discretion, extend the time for the issue of a Notification under section 5, which shall not be more than sixty days. If the Board of Revenue declines to grant the extension applied for or if the Commissioner fails to issue a Notification under section 5 within the extended period the acquisition proceedings shall be deemed to have come to an end. However any time spent in the prosecution of a judicial remedy shall stand excluded from the period of litigation. (7A) (1) After the publication of Notification under section 5, the Commissioner shall within six months issue a declaration under section 6 of the Act and .if no Notification is issued within the said prescribed date the acquisition proceedings shall be deemed to have come to an end. Provided the, Board of Revenue may in its discretion extend the time for the issuance of Notification under section 6 which shall not be more than sixty days. Any time spent in the prosecution of a judicial remedy shall stand excluded from. the period of litigation. (2) After the publication of declaration under section 6 of the Act the Land Acquisition Collector shall announce the award within a period of six months, failing which the entire responsibility towards the payments of 8% compound interest shall fall on the, officials/officers found guilty for inordinate delay." A perusal of the above rules reveals that the Collector after issuance of Notification under section 4 has to report the Commissioner not later, than 60 days from the date of publication ,of the Notification and after receiving the report, the Commissioner has to issue Notification under section 5 of the Act within a period of one year from the date of publication of the Notification under section

4. It is postulated that if no Notification is issued by the Commissioner within the period specified in the rules, the Commissioner shall immediately report the matter to, the Board of Revenue for extension of time. In case of extension the Commissioner has to issue the Notification under section 5 within the extended period, failing which proceedings shall be deemed to have come to an end. In the present cases it has sufficiently been proved from the record that the Notification under section 4 was issued on 27‑3‑1997 and no further proceedings were taken up till 27‑4‑1998 as is evident from letter of Deputy Commissioner, dated 27‑4‑1998. It was a futile exercise to constitute a fresh Committee for judging the suitability after issuance of the Notification under section 4 of the Land Acquisition Act which itself is proof of the fact that the‑land being suitable and is likely to be acquired for the public purpose. It also appears that the authorities were conscious of the fact that they cannot take fresh proceedings without reviving the cause by issuing a fresh Notification under section 4 of the. Act. The letter of the Deputy Commissioner/Collector, dated 27‑4‑1998 is to the same effect. It also appears that the suitability was reported to the Collector on 22‑11‑2002. The Collector forwarded the case for further proceedings and extension of time on 22‑9‑2003 and the Commissioner granted the approval on 25‑9‑9003 without reporting the matter to the Board of Revenue as was the requirement of the rules.. It is the settled law that if an action is to be taken in a particular manner and is not taken in that manner, it shall be deemed not to have been taken at all which in other words means that the action so taken is without lawful authority. A reference may be made to PLD 1978 SC (AJ&K)

37. The authority cited by Ch. Muhammad Azam Khan as `PLD 1972 SC 271' is also to the same effect wherein it has been opined that if a mandatory condition for exercise of jurisdiction before the Board, tribunal or authority is not fulfilled, the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings is appeal or revision equally suffer from illegality and are without jurisdiction. It has also been rightly contended by Ch. Khalid Rashid, the learned Advocate, that section 9 subsection (2) has practically been violated by the respondents. The scope of rule 7 of the Land Acquisition Rules, 1983, which are pari materia with the Rules in force in AJ&K (reproduced hereinabove) has been considered in Nazar ul‑Hussain's case (PLD 1990 Lah 472). The relevant portion is as under:‑‑ "(8) The rule is unambiguous and is capable of no other interpretation except that if within the prescribed time the requisite steps are not taken, the proceedings stand frustrated. The rule is couched in emphatic terms which leaves no doubt as to the intention of its framers that on the failure to take action as contemplated by this rule, within specified period the proceedings shall be deemed to have come to an end. The contention of the learned Advocate General as also learned counsel for respondent No.5 that the rule is directory and not mandatory in character cannot be accepted. The consequence was following from the non‑observance of the rule having been provided in the rule itself it cannot, be construed as directory but emphatic." The learned Judge in the above case has also considered the argument, as has been argued by Ch. Reaz Alam, that no limitation for completion of the proceedings is fixed by the parent Act, therefore, the time specified by the rules cannot override the provision of the Act. While answering the similar objection, the learned Judge at page 482 of the report observed as under:‑‑ "(13) The question may be examined from another angle. After having issued Notification under section 4 it is open to the Govt. at any time before taking possession of the land to withdraw from the acquisition by rescinding the Notification. By framing rule 7, the Government has placed restriction upon its functionaries that the Notification under section 5 must be issued within the specified period failing which the proceedings shall be deemed to have come to an end. Rule 7 can be construed as a direction by the Government that if further proceedings are not taken within the period prescribed, the Notification under section 4 of the Land Acquisition Act, shall stand rescinded. Consequently, it cannot be argued with any success that the Government is not empowered to fix limitation as to time in which the proceedings for acquisition must be proceeded with. It is well accepted principle of law that before striking down any provision of the rule, efforts may, be made to harmonise the rules with the Statute and it is only where the inconsistency exists between the Rules and the Act that the rule should be struck down. Section 17 by its language does not provide any limit as to time during which the action contemplated by. it must be taken. It is well‑settled that if the Statute has not fixed any specified period for the purpose a particular time, it must be performed within reasonable time. It is of advantage to reproduce the following statement of law appearing in `Craies on Statute Law' at page 282 of the 7th Edition: (iv) Statutory powers of interference with property must be exercised within a reasonable time.‑Powers conferred by Act of parliament must, as a general rule, be exercised within a reasonable time after notice has been given to the persons whose property will be affected by their exercise, otherwise the notice will be liable to be treated as being no longer effective. Where powers are given to take lands compulsorily for the execution of works, the exercise of powers must be bona fide commenced within the time limited for the completion of the work." It need also to be noticed that section 17(1) provides for taking emergent measures in case of urgency. The object of enacting such, a provision obviously was to allow the Authority to proceed in the matter without waiting for other formalities to be completed, as the purpose for which the land was being acquired brooked no delay. It would, therefore, be self‑contradictory to contend that though section 17 contemplates the existence of urgency, the action thereunder can be taken despite even after a number of years. The contention of the learned counsel for respondent No.5 that rule 7 is unreasonable and should not be given effect to has no merit. The period prescribed for issuance of Notification under section 5 in the said rule is one year from the date of Notification under section 4 which period can further be extended by the Board of Revenue by another sixty days. The period of one year and two months, cannot be any stretch of imagination be considered as unreasonable. The reliance of the learned counsel on Muhammad Ashraf v. Nasreen Begum through Legal Heirs and 3 others (PLD 1989.Lah. 69) is not well‑placed for, the decision in that case was with regard to the interpretation of `reasonable time' as used in section 9 of the Punjab Family Courts Act, 1964. The result of the above discussion is that by not having issued Notification under sections 5 and 5A or for that matter under section 17 of the Act, within the period prescribed by rule 7, the proceedings for acquisition came to an end and the subsequent Notifications are clearly without lawful authority." Respectfully following the ratio of the aforesaid authority, I am convinced that the proceedings taken by the respondents on the basis of a time‑barred Notification under section 4, and all the subsequent proceedings taken by the respondents, including the award No.25LAC/EAC/03, dated 30‑9‑2003 are hereby declared to have been taken without lawful authority and are of no legal effect. In presence of the aforesaid findings, decision on the other points would be academic. The upshot of the above discussion is that all the writ petitions are accepted with costs in the manner indicated above. H.B.T./5/AJ&K Petition accepted.