P L D 2007 Lahore 434 (PLP)

IQBAL HAMEEDUR REHMAN, J.

The present appeal under section 3 of the Law Reforms Ordinance, 1972 proceeds against the order dated 2-3-2005 passed by the learned Single Judge in Chamber, whereby he dismissed W.P. No.1030 of 2005 with the observation that if the acquired land is possessed without adequate compensation in accordance with law, the petitioners/appellants may approach respondent No. 1.

2. Brief facts leading to this appeal are that the appellants are owners of a parcel of land in Mauza Muhammadpur Khoata, Teshil Multan City Multan. The respondents planned to construct a Spur (Bund) on the land of the petitioners/appellants allegedly to control the flood water of river Chenab, which flows at some distance from the land of the appellants. The respondents had also earlier constructed a Spur (Bund) on the other land of the appellants adjacent to the land where the new "spur" (Bund) has been planned and initial work had started and valuable fertile land of the appellants had been acquired along with mangoes orchard and date-palm farm with millions of rupee in the year, 1999 but till date no compensation has been paid to the appellants despite knocking at the door of the respondents. Now further acquisition of their land is being made due to the construction of another Bund planned on the rest of the land or any other proceedings have been made as provided in the Land Acquisition Act, 1894, neither any objections have been invited so act of the respondents is illegal, without lawful authority and in violation of the law. The learned Single Judge in Chamber dismissed the writ petition with the observations that the appellants/petitioners may approach respondent No.1 with their grievances vide its judgment dated 2-3-2005. Hence this I.C.A.

3. The appeal was admitted and the comments were called from the respondents and the same have been submitted, wherein it was stated that Spur Bund has since been completed on the land of the appellants; that earlier old Spur Bund was constructed in the year 1993 to protect Mutlan City Shujabad Branch and infrastructures and the PC-I for land compensation was approved vide Sectary I&P No.M-82-SO(P)/2004 dated 4-9-2004, that the appellants namely, Allah Ditta and Haji Ahmad, were called by respondent No.3 on 13-6-2005 to receive the cheques on the ground that the compensation should be paid at the present market rates and not at the rate when the land was acquired in the year 1993; that new spur bund was proposed as a result of model study of Trimmu-Punjnad reach conducted by Hydraulic Research Station, Nandipur and the work of extending guide head spur 3-B RD.252000 Shujabad Branch had been completed on the land of the. appellants; that the said spur bund has been constructed for the safety of the life and property of the inhabitants/appellants for their own welfare; that the loan for the construction was given by Asian Development Bank with the condition that no compensation shall be allowed for the land coming under spur bund and that the construction of proposed spur bund is the need of the present day and the appellants being non-technical person cannot appreciate the threat of river water in case of high flood.

4. It is argued on behalf of the appellants that the matter involves the title and possession which is protected under the fundamental rights safe-guarded under the Constitution and that the land/property of the appellants had been taken over without acquisition even for public purpose and this is a breach of his fundamental rights which this Court is bound to enforce under the provisions of Article 199 and sub-Article (2) of the Constitution. Further that 8 Kanals have been acquired for constructing a bund but no compensation thereof has been paid. It is contended by the learned A.A.-G. that the land stated to have been acquired by the respondents is under the River Creek, as such the appellants are not entitled to any compensation with regard to the land acquired for the construction of new spur bund.

5. We have heard learned counsel for the appellants as well as the learned A.A.G. and also perused the comments.

6. Admittedly, the land of the appellants had been acquired without compensation for the construction of new spur bund of Trimmu-Punjnad which is stated to be constructed for the safety of life and property of the inhabitants/appellants for their welfare by the respondents because the loan was obtained by the respondents from the Asian Development Bank with the condition that no compensation shall be allowed for the land coming under the new spur bund. Any condition of loan advanced by the Asian Development Bank which had been accepted by the respondent, cannot usurp the rights of the appellants as they were entitled for the said compensation under the Land Acquisition Act, which fully safe-guards their vested rights. Thus, the rights of the appellants are to be fully safeguarded under the Fundamental Rights by the Constitution. The act of the respondents by not adopting the procedure of acquisition of the land of the appellants has resulted in a breach of the Fundamental Rights which this Court is bound to enforce under the provisions of Article 199 and sub-Article (2) of the Constitution of Islamic Republic of Pakistan, 1973. The same cannot also be justified on any touchstone of justice and equity as it is based on sheer arbitrariness, an abuse of the process of the authority without compliance to the legal provisions of law and against the principles of natural justice.

7. In view of the above circumstances, this appeal is accepted and the impugned order dated 2-3-2005 is set aside. The respondents are directed to pay compensation to the appellants after adopting proper procedure. H.B.T./A-55/L???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.