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Reference No. 151 of 1962, decided on 3rd May 1965.

Ss. 18, 19 & 20 Limitation‑Objections filed beyond time prescribed under proviso to S. 18‑Collector has powers to refuse reference to Court‑Court's powers on reference of such time‑barred applications‑Limited to determination of (i) measurement of land, (ii) amount of compensa tion, and (iii) person entitled to compensation and its apportion ment‑[Objection as to limitation rejected].

Bashir Ahmad v. The Collector, Multan P L D 1962 Lah. 292 and Abdur Rahman v. Abdul Haq P L D 1960 Kar. 626 ref.

Ss. 9 & 25(2)‑Imposi tion of penalty under S. 25(2) presupposes service of notice under S. 9 and refusal of claimant to comply with request‑Burden always on Collector to prove service of notice‑Provisions of S. 25(2) applicable only after notice in strict compliance with S. 9(2), (3) is served on land‑owner.

S. 11 read with S. 7 Provisiors of S. 11 mandatory Collector or Acquisition Officer personally responsible for making enquiry‑Award to be made by Collector himself and no other Officer.

S. A. Nusrat for Plaintiff.

Nathulal, Desa, Sayeed A. Shaikh, Muzafar Hassan, S. A. Hassan, Rauf and Hassan A. Shaikh for Respondents.

Date of hearing : 26th March 1965.

Award stated 19‑6‑1958, alleged to have been made by the Collector of Karachi, is disputed by all the landowners whose lands have been acquired under the provisions of Land Acquisition Act and the present reference has been made by him under section 18 of this Act. Inadequate compensation is the common ground or objection raised on behalf of these landlords. Their other contentions are that the Ordinance XXVI of 1948 is ultra vires, that award is not in accordance with the provisions of Land Acquisition Act, that two notifications under sections 4 and 6 of this Act were issued simultaneously, that no notice under section 9 was served upon them, and lastly, that no inquiry has been held as provided under section 11.

Award is dated 19‑6‑1958 while all these objections were filed between 22‑1‑1959 and 25‑2‑1960. Apparently all these objections are time‑barred but powers of this Court in dealing with objections under section 18 of the Land Acquisition Act are 4 very much limited after such reference is made by the Collector to this Court. Provisions of section 18 read with its proviso are very clear and there is no ambiguity about the powers of a Civil Court in this respect. A person who is interested in the land which has been acquired by the Government for the public purpose and he has not accepted the award can "by a 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 compensation, the person to whom it is payable or the apportionment of the com pensation among the persons interested". This Court has powers under section 18 when the reference is made to it by the Collector to determine the three points only, viz. (1) measurement of the land (2) amount of compensation, and (3) the person to whom it. is payable, and its apportionment. Proviso to section 18 fixes the period within which such applications are to be made by the person interested to the Collector under this section. Thus if such applications are made beyond the time prescribed under this proviso Collector has powers to refuse to make such reference to a Civil Court. This view has been expressed in several cases including the two reported in Bashir Ahmad v. The Collector, Multan (P L D 1962 Lah. 292) and Abdur Rahman v. Abdul Haq (P L D 1960 Kar. 626). I, therefore, find very little force in this objection and accordingly it is rejected.

There can be no doubt about the sovereign power of a State to acquire land for itself; lands situated within its jurisdiction provided it is for the purpose of some public utility and it is based on the famous maxim "the welfare of the people is paramount law". Two conditions attached to it are (1) that the owner of such lands must be heard, and (2) he must be paid adequate and due compensation for his land. Procedure is laid dawn under the Land Acquisition Act how a person owning this land has to be heard as well as for determination of due and adequate compensation for his land acquired by the Government for public purpose. This procedure is always followed by the Government as the statutory provisions of Land Acquisition Act are mandatory. Part II of this Act refers to acquisition and its sub‑head is preliminary investigation. Section 4 which is included in this Part II refers to publication of preliminary notification and powers of officers thereupon. It lays down that whenever it appears to the Government that some land "is likely to be needed for any public purpose, a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality." Its sub‑clause (2) refers to powers of officers after such notification is issued by the Government. Section 5 under this sub‑head refers to the payment of damages. Another relevant section for our purpose is section 5‑A with its sub‑head objections'. It lays down that any person who is interested in the land in respect of which notification has been issued under section 4 may "within 30. 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". It is clear from the provisions of this section that a person interested in the lane which is to be acquired by the Government can raise objection to its acquisition. Its sub‑clause (2) lays down that "Collector shall give the objector an opportunity of being heard either is person or by pleader and shall, after hearing all such objection and after making such further inquiry, if any, as he think necessary, submit the case for the decision of the Provincial Government together with the record of the proceedings held by him and a report containing his recommendations on the objections". Even though the. Government has powers to acquire land but it is clear from the provisions of section 5‑A that it cannot summarily acquire the land. Notification has to be issued under section 4 and thereafter time is given to the owner of such land to raise objection and he must be given opportunity to be heard by the Collector who has in addition to it to hold inquiry and then submit the report to the Provincial Government. Next relevant section for our purpose is section 6 with sub‑head of "declaration of intended acquisition". It empowers a Government to issue declaration when it is satisfied "after considering the report, .if any, made under section 5‑A, subsection (2) that any particular land is needed for a public purpose, or for a Company". Under section 8 after this procedure is followed this land has to be marked out and then Collector has to issue notice under section 9 to person interested that Government "intends to take possession of the land, and that claims to ‑ compensation for all interests in such land may be made to him." Section 11 is again material and relevant for our purpose and its sub‑head is "Enquiry into measurements, value and claims, and award by the Collector". It is the statutory duty of the Collector under this section to inquire into the objections filed pursuant to notice given under section 9 and thereafter he has to make award under his hand. After such award is made by him, he has to issue notice under section 12 (2). Section 17 refers to special powers of a Collector in respect of urgency. He has powers "on the expiration of fifteen days from the publication of the notice mentioned in section 9, subsection (1) to take possession of any waste or arable land needed for public purposes." Then comes Part III with heading "Reference to Court and procedure thereon". I have already referred to provisions of section 18 which is included in this Part III, section 23 refers to matters which must be taken into consideration by a Court in determining compensation. Lastly there is section 25 which refers to rules regarding fixation of the amount of compensation. This is the scheme under the Land Acquisition Act for acquiring land by Government for public purpose and determining adequate compensation in respect of it.

Having explained the scheme underlying the Land Acquisition Act and also having made reference to relevant and material provisions under it I will now refer to facts of this particular case. It is correct, as contended on behalf of these objectors or claimants that notification under section 4 and declaration under section 6 were made on the same date. Exh. 8/T is the notification dated Friday, August 23rd, 1957 at its page 145. Declaration under section 6 dated 13‑8‑1957 is published in the same issue of this Government Gazette at page 146. It was further directed in this notification under section 17, clause (4) of this Act that "as the acquisition of the said lands is urgently necessary the provisions of section 5‑A of the said Act shall not apply in respect of the said lands." It is correct that sub‑clause (4) of section 17 empowers the Provincial Government that any land to which in the opinion of the Provincial Government the provisions of subsection (1) or subsection (2) are applicable it may dispense with the provisions of section 5‑A. Declaration made under section 6 of this Act includes a paragraph directing "under subsection (1) of section 17 of the said Act that the Collector shall, on the expiration of 15 days from the publication of the notice relating to the said lands under subsection (1) of section 9 of the said Act take possession of all the waste or arable lands specified in the notification above‑mentioned". It would mean that Collector could take possession of this land 15 days after publication of notice under subsection (1) of section 9. Notice under section 9 of this Act was issued on 10‑9‑1957 stating that "as the acquisition of land has been notified under the urgency clause possession of the land will also be taken on 28‑9‑57." This notice is addressed to 24 persons with a note that "copy to Taluka Tapedar to paste on site and report compliance." Exh. 8/3 is a copy of notice dated 10‑9‑1957, under section 9 of this Act with similar direction that possession would be taken on 28‑9‑1957 and is addressed to Messrs Gut Bibi and 6 others (they are objectors) in respect of Survey No. 35 and its copy was sent to Taluka Tapedar "to paste on site and report compliance". Exh. 8/4 is notice dated 8‑11‑54 under section 9 of this Act and is addressed to Haji Abdul Rahim Gabole in respect of Survey No. 34 and its copy was sent to Taluka Tapedar "to‑paste on site and report compliance". Exhs. 8/8 and 8/9 are notifications dated 18‑9‑1954 issued under sections 4 and 6 of this Act respectively. ‑Exh‑. 9/10 is a notice dated 10‑9‑1957 issued under section 9 of this Act and is addressed to Gut Bibi and 6 others in respect of Survey No. 35 and its copy was sent to Taluka Tapedar "to paste on site and report compliance". In this connection I would refer to letter Exh. 9/7 of 1‑12‑1954 addressed by Gut Bibi to the Collector of Karachi in respect of compensation of Survery No. 34 and a letter Exh. 9/8 dated 30‑9‑1958 from Collector of Karachi to Messrs Gut Bibi and 6 others, informing them that compensation would be paid on receipt of funds. It is in reply to their letter Exh. 9/9 dated 12‑9‑58. Notice dated 11th November, 1954 under section 9 was issued to Hatim Bhai in respect of Survey No. 34 and its copy was sent to taluka tapedar "to paste on site and report compliance". I have referred to all the notices, notifications and declarations issued by the Collector of Karachi under sections 9, 4 and 6 read with section 17 (1) and (4) of the Land Acquisition Act. I do not find anything illegal in this connection. However, it was alleged by Ghulam Nabi Exh. 8 that possession of his two Survey Nos. 34 and 35 in Deb Digh and Drigh Road was taken over by Government in 1952 and quarters were constructed there. According to him notice under section 9 was received by him, on 1‑12‑1954 in respect of Survey No. 34 and on 12‑9‑57 in respect of Survey No. 35. I have already referred to these two notices which are Exhs. 8/3 and 8/5. Exh. 8/5 is a letter from the Collector to the Mukhtiarkar regarding Survey No. 36 and it is dated 16‑2‑1957 while Exh. 8/6 is a letter to the Collector regarding notice Exh. 8/4 and is dated 14‑2‑1957. He had further deposed before me that no notice under section 4 of the Land Acquisition Act was served on him in respect of these two survey numbers nor objections were heard under sections 5, 5‑A and 17 and lastly that no inquiry was held under section 11. One Nisar Ahmad Moghul Reader to the Deputy Collector Karachi Exh. 9 was examined on behalf of the Collector. He has denied all these allegations made by Ghulam Nabi but his evidence shows that he had no personal knowledge of these matters as he was not then working in this office. Section 25(2) pre‑supposes service of notice under section 9 and the refusal of the claimant to comply with the request contained therein. Burden is always upon the Collector to prove due service of notice under section 9 upon the claimant. Where the notice issued is in some respects in contravention of section 9 the only logical conclusion is that the penalty which section 25(2) imposes cannot be‑ taken advantage of by 'the Government. Provisions of section 25(2) can only be applied after a notice which is in strict compliance with section 9. subsections (2) and (3) has been served upon the land owner. A claimant who has not at all been given notice under section 9 cannot be affected. I have already referred to the endorsements of such notices but taluka tapedar in each case has not been examined, nor copy of that notice pasted on site has been produced. Nor report of its compliance by the taluka tapedar has been brought on record. I would agree with the claimant that no inquiry has been held under section 11 of this Act. Provisions of this section are mandatory. Such inquiry is to be held by the Collector after notice is given by him under section 9 in respect of the area of the land and its value and thereafter he has to make award. I have already pointed out that notice under section 9 of this Act have not been duly served upon the claimants. The award does not show that he had made any inquiry under this Act. Thus he has not followed the mandatory and statutory provisions of section 9. I also agree that this award is not in accordance with the provisions of Land Acquisition Act. Exh. 5/2 is letter dated 23‑7‑58 addressed by the Collector of Karachi, to one advocate in connection with his client Fida Hussain (one of the objectors) in respect of compensation regarding Survey No, 134. Para. 2 of this letter is relevant and it is reproduced below :‑

"The award in the matter has been framed and sent to the Chief Commissioner Karachi for his approval. After its return, the rate of compensation awarded for the above S. No. will be declared and payment made to your client."

Under section 11 of this Act award is to be made by the Collector himself. He cannot delegate this statutory duty to any other officer. Similarly the award made by him is not to be approved by any other officer. In this particular case, as this letter shows, the award was "framed" by him. Its draft has not been produced on record. Thus it cannot be said that the draft framed by the Collector of Karachi was approved by the Chief Commissioner Karachi or it was amended by him. The Collector or the Acquisition Officer duly appointed under section 7 of this Act is personally responsible for inquiry under section 11 and after this inquiry is completed he has to make his award himself. He has no rowers to approve the award made by arty other officer to whom the inquiry has been delegated. Thus the award, made in this particular case is not in accordance with law. I have already referred to the powers of the Court under section 18 of this Act. It is limited to 3 questions. i.e. (1) determination and decision of objections raised on behalf of the claimants in respect of measurement of the land (2) compensation awarded to them and the persons to whom it is payable, and (3) its apportionment amongst them. In this particular case, as held by me, the award is not in accordance with the provisions of the Land Acquisition Act and as such these objections cannot be considered by me. I, therefore, set aside this award and remit the case papers to the Collector of Karachi to hold inquiry under section 11 of the Land Acquisition Act and then make his award after taking into consideration the objections raised on behalf of the claimants.

One more objection which has been taken up before me is that Ordinance XXVI of 1948 is ultra vires, but I find that the Collector of Karachi when he made this award has observed that this Ordinance does not apply to the land acquired in the present case and as such finding on this question does not appear necessary.

S.A.H. Award set aside.

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