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Civil Appeal No. 276 of 1977, decided on 20th June, 1984.

(On appeal from the Judgment and Order of the Lahore High Court, dated 20‑12‑1976, in R. S. A. No. 13/67).

‑‑ Art. 185 (3)‑Land Acquisition Act (I of 1894), S. 40‑Leave to appeal granted to consider question whether in an enquiry under S. 40, Land Acquisition Act, 1894 it was a legal requirement to give an opportunity of hearing to interested party whose land was proposed to be acquired for a company.

‑‑‑ Ss. 17, 5‑A & 4‑Power vesting in Commissioner by virtue of S. 17 could not be invoked before previous consent of Government obtained and agreement with company was concluded‑Notification under S. 17 issued before previous consent of Government was ob tained and agreement with company was concluded‑Such notifica tion, therefore, was palpably ineffective and did not have effect of suspending operation of S. 5‑A which gave right to affected party to object t o acquisition of land to be given opportunity of being beard‑Objections in terms of S. 5‑A could be filed within 30 days after issue of notification under S. .4.

--Ss. 6 & 5‑A‑Notification under S. 6 could be issued after con sidering report made under S. 5‑A(2) when Commissioner was satisfied that land was needed for a company‑When a proper direction under S. 17 (4) was issued, provisions of S. 5‑A should not apply and re port of Collector under S. 5‑A could be dispensed with.

‑‑ Ss. 17, 40, 41, 5‑A & 6‑Land required for purposes of a company ‑Provisions of S. 17 could be brought into force only after com pliance with Ss. 40 & 41‑Non‑compliance with provisions of Ss. 40 & 41‑Only alternative for Government was to issue notification under S. 6 after report of Collector under S. 5‑A in which case land owners had to be given an opportunity of hearing.

-----Ss. 6, 17, & 5‑A ‑Notification under N. 6 issued but withdrawn subsequently‑Affected party could not file objections until notification under S. 6 was in field‑Issuance of notification under S. 17‑Affected party not given 30 days' time to file objections under S. 5‑A since fresh notification under S. 6 was issued before expiry of such 30 days‑‑Both notifications issued under S. 17 and under S. 6, held, were contrary to law and, therefore, entire proceedings for acquisition of land were vitiated.

Muhammad Farooq, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Samad Mahmood, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for respondents Nos. 1 and 2.

Respondents Nos. 3 to 5 : Ex parse.

Date of hearing : 20th June, 1984.

‑The legal question raised in this appeal to consider which leave was granted was whether in an enquiry under A section 40 of the Land Acquisition Act, 1894, it was a legal requirement to give an opportunity of hearing to the interested party, whose land is proposed to be acquired for a company.

The facts briefly are that the Commissioner, Multan Division, Multan, issued a Notification published in the Gazette of West Pakistan, dated 20‑12‑1963, under section 4 of the Land Acquisition Act declaring "that land is likely to be required to be taken by the Co‑operative Zenith In dustries Ltd., Dera Ghazi Khan (appellant), at the expense of the com pany for the purpose of the Company, namely, for establishment of Engineering Workshop at Dera Ghazi Khan". The same notification also made the urgency provisions of section 17 (1) of the Land Acquisition Act, applicable and a direction was given that provisions of sections 5 and 5‑A of the same Act shall not apply in the case. The schedule attached to this notification described the land in dispute comprising 1.9 Kanals 12 Marlas, situate in Choratta Sind Janubi. Tehsil and District Dera Ghazi Khan. Simultaneously another notification under section 6 of the Act was published declaring that the aforesaid land was required for the aforesaid purpose.

Respondents Nos. 1 and 2, being the owners in possession of the land, filed a suit against the appellants in the civil Court at Dera Ghazi Khan, challenging the vires of the acquisition proceedings. It appears that on 13‑8‑1964, the Commissioner, Multan Division, Multan, withdrew the notification under section 6 of the Act and thereupon the said respon dents withdrew their suit from the civil Court with permission to bring a fresh one on the same cause of action, if necessary.

However, a fresh notification under section 6 was issued on 11‑6‑1964, which was published in the official Gazette on 22‑9‑1964. The first two respondents then brought a fresh suit on 17‑12‑1964, from which the present appeal has arisen, challenging the legality of the acquisition proceedings once again. One of the grounds on which the respondent challenged the validity of the acquisition proceedings was that the consent of the Gov ernment, which was a prerequisite for acquisition of land for the purpose of the company had not been obtained and similarly no agreement as required by section 41 of the Land Acquisition Act was entered into by the appellant with Provincial Government prior to putting into force the relevant provisions of the Act for acquiring the land, The recourse to the provisions of section 17 of the Land Acquisition Act and the exclusion of the provisions of section 5‑A was also challenged as ultra vires.

The suit was contested by the appellant alone. The rest of the defendants, namely, the Collector, Commissioner, Multan Division, Multan, and the Provincial Government, after filing written statement made a statement in Court saying that they did not wish to contest the suit. The appellant raised a number of legal pleas in his defence, including the plea that the provisions of section 41 of the Act had been complied with and an agreement between himself and the Government had been executed, as well as notified prior to the notification under section 6 of the Act. The Trial Court framed several issues on the pleadings of the parties includ ing issue No. 4 which reds as follows :‑

"Whether the impugned Notification under sections 4 and 17 and the declaration under section 6 of the Land Acquisition Act are with out jurisdiction, illegal, mala fide and void "

On 19‑5‑1966, the Administrative Civil Judge, Dera Ghazi Khan, dec reed the suit. On issue No. 4 the learned Judge held that the application of the urgency clause is a matter within the exclusive competence of the Provincial Government to decide and was accordingly not open to challenge. However, the trial Court came to the conclusion that the provisions of sections 6 and 17 were invoked before the execution of the agreement between the appellant and the Government. In this connection it will be advantageous to. reproduce the remarks of the trial Court which are as follows : ‑

"It was because of this realization that the declaration under section 6 was cancelled on 31‑7‑1964 vide notification published in the Gazette of 13‑8‑1964. To regularise the acquisition the agreement was then executed on 30‑8‑1964 and thereafter a fresh declaration was issued on 22‑9‑1964. It is obvious that in rectifying the mis take it escaped the attention of the authorities that even the noti fication under section 4 was illegal because it contained a notifica tion under section 17 also which should have also been cancelled. The fact that the notification under section 4 (Exh. P. 1) included notification under section17; made this notification illegal because of the provisions of the section 39 which says that sections 6 to 37 (both inclusive) shall not be put in force without previous consent of the Government and execution of an agreement with the company."

Being aggrieved by the judgment of the trial Court the appellant filed an appeal which was allowed by the learned District Judge, Dera Ghazi Khan, and the suit of the first two respondents was dismissed vide judgment, dated 15‑11‑1966.As regards the invalidity of the first notification, dated 20‑12‑1963, whereby the urgency provisions of section 17_ were applied and the provisions of section 5‑A were made an applicable' to the proposed acquisition of land, the learned District Judge took the view that by issuing notification under section 6, the Government must be taken to have acted under section 17 (4) of the Act meaning there by that the Government had 'formed the opinion that the provisions of section 5‑A shall not apply".

The first two respondents then filed a second appeal before the Lahore High Court which was allowed by the impugned judgment in this appeal dated 20‑12‑1966 on the ground that the objection raised by the first two respondents before the provisions of section 39 were complied with and application of section 5‑A was dispensed with, not having been heard and decided the acquisition proceeding were invalid and ineffective.

On a petition by the appellant this Court was referred to, two judgments of the Lahore High Court reported as Faqir Muhammad and 10 Others v. Government of West Pakistan (P L D 1973 Lah. 665) and Ghulam Malik v. Government of west Pakistan (P L D 1973 Lah. 613) on the interpretation of section, 39 and 40 of the Land Acquisition Act and granted leave to examine the view taken by the High Court and to consider whether it was incumbent on the Collector to have afforded an opportunity of hearing to the said respondents before submit ting his report to the Commissioner along with the' record of his inquiry under the provisions of section 39 of the Land Acquisition Act.

On behalf of the appellants it was mainly urged that the owners of the land proposed to be acquired had no locus standi to raise any objection and were not accordingly entitled to hearing in respect of an inquiry contemplated by section 40 of the Land Acquisition Act, which inter alia provides that the consent of the Government, as required by section 39, shall not be given unless the Provincial Government is sat isfied, either on the report of the Collector under section 5‑A, subsection (2), or by an inquiry held by an Officer appointed by the Government, that the purpose of Acquisition is as laid down in clauses (a) and (b) of sub section (1) of that section. It was submitted that the Government was not under any legal obligation to act in this behalf only on the report of the Collector under section 5‑A, but it was open to the Government to accord the necessary sanction on the basis of an inquiry conducted through its own officer, which was conducted in the present case. Thus, according to the learned counsel for the appellant, it was not neces sary to hear the objections of the interested party under section 5‑A before the consent was given by the Government. Support was sought by the learned counsel from the judgment already noticed in the leave granting order and some other cases.

After hearing the learned counsel we, however, feel that it is not neces sary to go into the question as to whether an affected party is entitled to a hearing by the Government in an inquiry contemplated by section 40 of the Land Acquisition Act, as on admitted facts the Land Acquisition proceedings whereby the land of the first two respondents was purported to be acquired were vitiated and rendered null and void, on the other ground on which the trial Court held them to be invalid. The admitted position is that the Commissioner had published the initial notification under section 4 alongwith the notification under section 17 (1) of the Land Acquisition Act on 18‑11‑1963, whereby the provisions of section 5‑A were also ex‑ cluded in their application to the proposed 'acquisition, The final notifi cation under section 6, however, having been found defective for want of compliance with sections 39 and 40 of the Act, it was withdrawn on 13‑8‑1964. The important thing to note is that the first notification, dated 18‑11‑1963, so far as it related to exclusion of the provisions of section 5‑A was not withdrawn and continued to remain in force, and during its currency the fresh notification under section 6 of the Act was issued on 11‑9‑1964 after the alleged compliance with the requirement of sections 40 and 4 of the Act. Now section 39 of the Land Acquisition Act stipulates under :‑

"The provisions of sections 6 to 37 (both inclusive) shall not be put in force in order to acquire land for any Company, unless with the previous consent of the (Provincial Government), nor uncle the Company shall have executed the agreement hereinafter mentioned."

It seems clear, therefore, that the power vesting in the Commissioner b, virtue of section 17 could not be invoked before the previous consent of the Government was obtained and agreement with the company was concluded. Admittedly these two events took place after 18‑11‑1963 when the notification under section 17 of the Act was published. Therefore the latter notifica tion was palpably ineffective in law and did not have the effect of suspend ing the operation of section 5‑A which gave the right to the affected party to object to the acquisition of the land and to be given an opportunity of being heard. Such objections, in terms of sections 5‑A, could be filed within 30 days after the issue of notification under section 4. Ordinarily the notification under section 6 can be issued after considering the report made under subsection (2) of section 5‑A when the Commissioner is satisfied that the land is needed for a company. It is only when a proper direction under subsection (4) of section 17 is issued that the provisions of section 5‑A shall not apply, that the report of the Collector under the last‑mentioned section can be dispensed with. But in the present case since the land was required for the purpose of a company, the provisions of section 17 of the Act could be brought into force only after compliance with sections 40 and 41 as discussed above. On the date of the notification under section 17, there having been no compliance with the requirement of law, the only alter native for the Government was to issue notification under section 6 after the report of the Collector under section 5‑A, in which case the first two respondents had to be given an opportunity of hearing.

Looking at the facts of the case from another angle it would appeal that there was no question of the affected party filing objections until the notification under section 6, dated 18‑11‑1963 was in the field, which was withdrawn on 13‑8‑1964. Even if under section 17 the notification was regarded as invalid by the affected party, they did not have the required 30 days time to file objections under section 5‑A, since the fresh notification under section 6 was issued before the expiry of the 30 days time on 11‑9‑1964. The conclusion, therefore, is that the notification issued under section 17, dated 18‑11‑1963 and the notification issued under section 6 on 13‑8‑1964 were both contrary to law and, therefore, the entire proceedings for the acquisition of the land in this case were vitiated.

In the result this appeal is dismissed with costs.

M. Z.M. Appeal dismissed.

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