2008 PLP 401 (CLC)

SABIHUDDIN AHMAD, J.

The relevant facts appear to be that some land belonging to the petitioner was acquired by the Muhammad Bin Qasim Port Authority and appropriate notification under sections 4 and 6 of the Land Acquisition Act for acquisition of land for a public purpose, were duly issued. Inter alia, the petitioners submitted their statement of claim and proceedings were commenced by the Collector. Nevertheless it appears that contemporaneous proceedings for grant of alternate. land in exchange for the land acquired were also commenced and on 24-12-1979, the respondent No.4 accorded permission to the respondent No.5 to sanction equivalent State land as compensation for 69-34 Acres of land acquired for Port Qasim Authority. However, merely two months thereafter the Collector made his award dated 18-2-1980, awarding Rs.20,000 per Acre together with statutory compensation and allowances.

2. However, no particular piece of land was allotted to the petitioner and apparently the respondent No.4 after according sanction for the grant of equivalent State land sent up the matter to the Provincial Government as no land was available with the Commissioner for granting to the petitioner. By letter, dated 31-12-1987 the respondent No.4 was informed by Deputy Secretary in the Board of Revenue that an area of 44.36 acre of land already acquired be re-transferred to the petitioner upon payment of differential value of Rs.15,172 per acre as stipulated by the Finance Department.

3. Mr. Muhammad Saleem Samo, learned counsel for the petitioners argued that though the order was passed and rights were created in favour of the petitioners way back in 1987 the respondents were failing to implement their own decision and moreover even the compensation which could be payable was denied to the petitioners.

4. Mr. Ahmad Pirzada, learned Additional Advocate-General in reply raised a two fold contention. In the first place he argued that under section 31(3) of the Land Acquisition Act, land in lieu of monetary compensation could only be granted by the Collector subject to the approval of the Provincial Government and therefore, the order of the respondent No.4, dated 24-12-1979 was totally without jurisdiction. Secondly he contended that even otherwise land in exchange under section 31(3) could only be transferred in case the acquisition had taken place for the benefit of the Provincial Government and since in the present case the petitioners land had been acquired by the Port Qasim Authority, working under the Federal Government, the Provincial Government could not, in law, offer its land in compensation for the acquisition. We have carefully examined both these contentions and regret to say that we find both to be completely devoid of force.

5. As far as the power of the Commissioner to accord sanction to a proposal of the Collector under section 31(3) is concerned it is no doubt correct that under the Land Acquisition Act, originally enacted, such power vested with the Provincial Government only. However, after the establishment of Province of West Pakistan, the West Pakistan (Adaptation and Repeal of Laws) Act, 1957, was enacted and certain amendments were made in a number of Statutes. Through Schedule 3, the Land Acquisition Act was amended and the words "Provincial Government" were required to be substituted by the word "Commissioner". Indeed this legal position, .as pointed out by Mr. Muhammad Saleem, was noticed by a Division Bench in this very petition in its order dated 12-3-1991, whereafter the then Additional Advocate-General sought time to advise the respondents to re-consider the case.

6. As regards the second objection, it needs to be kept in view that the Land Acquisition Act only allows the Provincial Government to acquire land for a public purpose or for a company upon payment of compensation to the owner. The Collector acts as agent of Provincial Government while making his award under section 11 and is required to pay the compensation determined by him subject to a decision on a reference under section 18 and an appeal under section

54. This becomes evident from reading of sections 39, 40 and 50 which provide that when land is acquired at the costs of any fund controlled or managed by a local authority or a company, charges of and incidental to such acquisition are to be defrayed from such fund or by the company and. in the latter case a company must enter into an agreement with the Government undertaking to pay such costs. It does not say that the owner is required to recover compensation from the beneficiary.

7. It is equally important to note that the Federal Government, a local authority or a company for whose benefit property is acquired is neither authorized through a reference to a Court under section 18 nor prefer an appeal to the High Court under section 54 as held by the seven members Bench of the Honourable Supreme Court in Iftikhar Hussain Shah v. Pakistan 1991 SCMR 2193. It is therefore, explicitly clear that acquisition of land under the aforesaid Act is strictly a matter between the Provincial Government and the owners and there is no force in this contention either. At the same time however, we have noticed that the powers under section 31(3) can be exercised for granting land in lieu of monetary compensation and it is difficult to understand that when proceedings for determination of quantum of compensation were pending before Collector what prompted him to seek sanction for granting land to the petitioners. At the same time it has to be acknowledged that once an award in terms of money compensation had actually been made the Government ceased to have any jurisdiction to grant other lands under section 31(3) and the direction issued seven years later would practically nullify the acquisition proceedings. Moreover, it needs to be seen that section 31(3) does not contemplate enrichment of the landowner, whose land was acquired by allocating extra land to him as there appear to be no requirement that exactly the same area of land should be allotted to person whose land is acquired. It is also arguable whether section 31(3) could be invoked in favour of owners of land or merely those having a limited interest therein.

9. We may also profitably refer to a Division Bench of West Pakistan High Court in the case of Mirza Muhammad Hussain Beg and others v. The Government of West Pakistan and others PLD 1961 (W.P.) Lah. 696, in which it was held:

"A Court cannot force the Government to compensate a person whose land has been acquired by giving some other land and, therefore, the prayer of Mst. Zarina Begum that the Collector or the Provincial Government should be directed to give her land in lieu of the land taken away from her cannot be accepted. With regard to the second of .her prayers, however I am of the view that the issuance of a writ is justified. The learned counsel who appeared for the respondent in this case said that the compensation proceedings had been completed and Mst. Zarina Begum would be given the amount that she is found entitled on her making an application in that behalf to the Collector. If this assertion is correct, then the issue of a writ in favour of Mst. Zarina Begum cannot adversely affect the respondents."

10. In view of the above we are of the opinion that ample justification existed for the respondents to recall the order, dated 13-12-1987. Nevertheless they are directed to pay the entire amount of compensation together with all permissible statutory increases within two months from today. The petition is dismissed subject to the above observations. S.A.K./R-26/K Petition dismissed.