2025 PLP 2396 (YLR)

Mohsin Akhtar Kayani, J.

Through the instant appeal, the appellants have assailed the judgment and decree dated 29.06.2021, passed by learned Senior Civil Judge-III (East), Islamabad, whereby suit for declaration and permanent injunction has been dismissed.

2. Brief facts referred in the instant appeal are that appellants filed suit for declaration and permanent injunction alleging therein that they are owners in possession of land measuring 23 Kanal 06 Marlas out of total land measuring 49 Kanal 13 Marlas bearing Khasra Nos. 1688 to 1707 and 2627, situated in Revenue Estate of Village Sihala, Tehsil and District, Islamabad, whereby respondent No.1, Land Acquisition Collector vide Notification dated 27.06.2007 initiated the proceedings of acquisition through public notice and thereafter issued a notice to the appellants under Section 9 of the Land Acquisition Act, 1894 to appear before him on 08.01.2010 for further proceedings. As per stance of the appellants, they are aggrieved with the entire acquisition, which has not yet been concluded nor any award has been passed on the following grounds:- That Land Acquisition Act, 1894 is not applicable for the purpose of acquisition within the specified area of Islamabad Capital Territory. The land situated within the limit of Islamabad Capital Territory can be acquired under only Capital Development Ordinance, 1960. The land of the applicants is situated in the area of village Sihala, Islamabad Capital Territory. The notification issued under Sections 4 and 9 of the Land Acquisition Act 1894 are illegal, against the facts and liable to be set aside. That it is the matter of record that suit land proposed to be acquired is commercial as well as residential and the same is thickly populated area. There are shops and plazas constructed on the suit land and the market value of the suit land is almost Rs. 600,000/- per marlas as it is situated on the front of Kahuta Road. The suit land is no more agricultural and it cannot be acquired as proposed by defendant No.1. That the notification under section 4 of Land Acquisition Act, 1894 was issued on 27.06.2007 and the defendant No.1 cannot continue the proceedings of acquisition as the same has become time barred, it is mandatory provision of law that defendant No.1 should have completed the proceedings of acquisition within 1 year of the notification under section 4 of the Land Acquisition Act. That it has came to the knowledge of the plaintiff that almost half of the land out of total land measuring 49 Kanal 13 marlas which has been proposed for acquisition under notification dated 27.06.2007 has been purchased by KLR through private negotiation and bargain with the owners. This facts also shows that suit land cannot be acquired under Land Acquisition Act. That the suit land have not being acquired for any public purpose.

3. The suit has been contested by the respondents, who filed their separate written statement and raised question of maintainability of the suit on the ground that Civil Works Organization/respondent No.2 has status of organization for defence, purposes. It has also been highlighted by respondent No.2 in the written statement that land measuring 29 Kanal 09 Marlas was acquired and directly purchased from the owners and said land was exempted from the acquisition process. It has further been referred in the written statement that in terms of Land Acquisition Act, 1894, it is applicable to entire Pakistan without exemption of Islamabad Capital territory. It was further referred that appellants have every right to raise objections if any before Land Acquisition Collector under Land Acquisition Act, 1894 subject to fulfillment of requirement.

4. The trial Court while considering the pro and contra arguments of the parties dismissed the suit on the following grounds:- Keeping in view the above since the Land Acquisition Act, 1894 had been made applicable to the Islamabad Capital Territory and in view of Section 5 read with fourth schedule of the Federal Laws, (revision and declaration) Ordinance 1981 which had amended the Land Acquisition Act in its application to the Islamabad Capital Territory which Act provides compensation to be determined by the collector. The said Act aims to provide procedure for compulsory acquisition of privately owned land required for public purposes ses and companies and for such mode and manner of determination of compensation to be awarded to the lawful owner of the acquired property through a specific mechanism for redressal of grievances of persons interested in the land being compulsorily required are provided. The plaintiffs being the land owners can recourse to the provisions of the Land Acquisition Act, 1894 and the suit before this court is barred by law.

5. In the initial round of proceedings, the trial Court has framed the preliminary issue "Whether the Land Acquisition Act 1894 was not applicable in Islamabad Capital Territory, hence, the notification issued under sections 4 and 9 of Land Acquisition Act 1894 are illegal, vide ab-initio, without any authority and liable to be cancelled? OPP. However, such aspect has been adjudicated finally up to the Supreme Court of Pakistan in judgment reported as 2021 SCMR 201 (Federal Government Employees Housing Foundation (FGEHF), Islamabad v. Malik Ghulam Mustafa) with the following observations:- Hence, the conclusion of the learned bench in para 23 of the impugned judgment cannot be sustained, as the CDAO, 1960 neither contains an overriding nor a non-obstante clause that may nudge out LAA, 1894 from its applicability in ICT. Having examined both the enactments, we are also of the view that CDAO, 1960 is purpose specific law that caters to the requirement of planning and development of the new capital of Pakistan and such kind of enactment provides a complete mechanism in itself, which is a self-contained enactment, having no dependency for the acquisition of land on the LAA, 1894, unlike similar statutes catering for planning and development of major and developing cities as discussed in succeeding paragraph

66. No arguments strong enough have been put forth to show that the CDAO, 1960 could override the provisions of the LAA, 1894. In absence of overriding or superseding or 'non-obstante provision within the CDAO, 1960, we see no reason strong enough as to why the CDAO, 1960 should override the provisions of the LAA, 1894 as held by the learned Bench in the impugned judgment. In conclusion, as stated above, the legislations are merely overlapping and there appears to be no conflict between both the statutes. There is no apparent reason as to why these statutes cannot exist coextensively as each of them caters to a different object and purpose. ii. Construing the words of the CDAO, 1960 in their natural, ordinary, or popular meaning.

6. In the light of above decision of the Supreme Court of Pakistan, the matter was again remanded to the trial Court, whereby plaint has been rejected through the impugned order.

7. Arguments heard and record perused.

8. Perusal of record reflects that appellants are owners in possession of land measuring 23 Kanal 06 Marlas out of total land measuring 49 Kanal 13 Marlas bearing Khasra Nos. 1688 to 1707 and 2627, situated in Revenue Estate of Village Sihala, Tehsil and District, Islamabad as referred in para-01 of the plaint. The Land Acquisition Collector, Islamabad under Section 4 of the Land Acquisition Act 1894 has published notification dated 27.06.2007 for 49 Kanals 13 Marlas of total land and another notification for acquisition process was issued on 30.05.2009, however, land measuring 29 Kanals 09 Marlas was directly purchased by respondent No.2, hence total land measuring 20 Kanals 04 Marlas situated in Mouza Sihala, Islamabad is required for acquisition process by CWO. In terms of Section 9 of the Land Acquisition Act, 1894, notice was issued on 08.01.2010 by the Chief Commissioner and fixed the rate Rs.20 lac per Kanal, whereby CWO deposited payment Rs.43,642,500/- on 03.10.2011 through cross cheque in the account of LC, therefore, the required land for acquisition process is 18 Kanal and 19-1/5 Marlas. As per Section 17(4) of The Land Acquisition Act, 1894, notices were given to the appellants on 02.05.2007 and as per stance of the appellants, they have challenged the entire initiation of acquisition proceedings carried out against their own land.

9. I have confronted the appellants' counsel as to whether such phenomena is available in terms of Section 42 of the Specific Relief Act, 1877, especially when the acquisition process has not yet been completed, even no award has been issued till date to confer the rights of the respondents and the entire lis is premature in this regard, however no justiciable answer has been given, therefore, this Court only confines itself to the legal question with reference maintainability of the suit. The Land Acquisition Act, 1894 is applicable to whole Pakistan and provides a complete mechanism of acquisition proceedings by way of preliminary investigation through a notification highlighting the need of land for public purpose, then objections could be invited and declaration be given that land is required for public purpose. The Land Acquisition Collector shall measure the land after its identification and marketing and plan the execution process, whereafter notices will be issued in terms of Section 9 to the interested person, who could have been directed to record their names and statements highlighting their interest. In terms of Section 11 after conclusion of enquiry, award shall be announced by the Collector. In the process of acquisition, the private negotiations have also been acknowledged. The Collector has been given vast powers to conclude the award finally while considering the market value and potentiality of the land, even special powers in cases of urgency have been provided in Section 17 to the Collector. Section 18 of the Land Acquisition Act, 1894 also provides a mechanism qua filing of Reference to the Court against acquisition, whereby Court shall determine the additional compensation, enhancement of compensation and other related issues.

10. From the reading of entire Act, it reveals that it provides a remedy of Section 18 against the conclusion of award, whereby any person interested, who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable or the apportionment of the compensation among the persons interested. This aspect may also be taken with reference to the provision of Section 5A of the Act, which is as under:- 5-A. Hearing of objections.-(1) Any person interested in any land which has been notified under section 5 as being needed for a public purpose or for a Company may within thirty 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. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the Commissioner or the objections shall be final. (3) When land is needed for a Company, the Collector shall, after making such enquiries as he deems necessary, also make his recommendations to the Commissioner with regard to the area that in his opinion is reasonable for the purpose. (4) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.

11. The above referred provision extends every right to interested person to object the need for public purpose as claimed by the land acquisition authority against any land, all such objections should be settled accordingly prior to the award. This aspect reflects that all procedures have been provided to deal with the acquisition process as well as award if given after the end of the proceedings. Even Section 18(1) of the Act does not authorize or permit or provide for a person aggrieved, to make an application directly to the Civil Court; and the Trial Court had no jurisdiction whatsoever to decide the points arising in the application, therefore, the proceedings of the Senior Civil Judge were void ab initio as held in 2019 MLD 968 (The Land Acquisition Collector, Pak-Arab Refinery Limited v. Khan (deceased).

12. Learned counsel for the appellants has argued that respondent No.2/Organization is only protecting their commercial interest and they will raise construction on the proposed land for commercial purpose, in which they have also purchased the land directly from the land owners such aspect outrightly disclosed the denial of public purpose as claimed by the respondent and if this question could not be determined unless acquisition process has been completed in accordance with law and the remedy provided under Land Acquisition Act if exercised by the interested or aggrieved person will determine these questions finally.

13. Now question arises as to whether mere initiation of acquisition process, effect the rights of appellants, who can exercise the jurisdiction to challenge those proceedings, the answer is in negative unless any right has been accrued in favour of respondents. Mere issuance of notice in terms of Section 4 of the Act does not create any right or interest in favour of the beneficiary. Similarly, the determination of public notice does not fall within the domain of Civil Court through civil suit in terms of Section 9 of the C.P.C 1908. which oust the jurisdiction of the Civil Court regarding those matters, which are either expressly or impliedly barred in any other law and statute. The Land Acquisition Act, 1894 covers within the ouster jurisdiction concept in terms of Section 9 of C.P.C.

14. It is a well settled principle that jurisdiction of civil Courts even if barred and conferred upon special tribunals, civil Courts being Courts of ultimate jurisdiction have jurisdiction to examine acts of such forums to see if such are in accordance with law, or illegal, or even mala fide as held in 1974 SCMR 356 (Hamid Husain v. Government of West Pakistan). Where the authority or the tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court as held in 2009 SCMR 1058 (Gul Shah v. Hafiz Ghulam Muhammad), PLD 1996 SC 827 (Samiullah v. Fazle Malik).

15. On the other hand, the suit for declaration to challenge an order passed by an official in discharge of his public duty was not maintainable under Section 42 of the Specific Relief Act, 1877 as held in PLD 2012 Balochistan 154 (Haji Abdul Mateen Akhundzada v. District Coordination Officer/ Deputy Commissioner, Quetta). Similar view has also been highlighted in PLD 1966 SC 628 (Khalid M. Ishaque v. Chief justice and the Judges of the High Court of West Pakistan, Lahore).

16. There is no cavil to the proposition that acquisition process and proceedings under The Land Acquisition Act, 1894 covers within the concept of act of State as the defence purpose claimed by CWO/respondent No.2 could not be adjudicated by Civil Court whether the same is justiciable or not, hence the view rendered by the trial Court that plaintiffs being the land owners can recourse to the provisions of The Land Acquisition Act, 1894, which is within four corners of law and suit is not maintainable, especially on the ground that the legislative intent is clear from the wording of the Act, which has not provided any pre-determination remedy prior to passing of award to challenge the proceedings for Civil Court or constitutional jurisdiction, therefore, when specific process and procedure has been provided, the same has to be applied in strict sense.

17. In view of above, instant appeal is not made out, therefore, same is hereby DISMISSED. MH/159/Isl. Appeal dismissed.