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‑‑Art. 9‑Constitutional petition‑Lashes‑Explanation for delay only vague and lacking material particulars‑‑Delay, held, not explained.

‑‑ Art. 9‑‑Constitutional petition‑Lashes‑Condonation‑Distinction has to be made between a simpliciter ]aches and laches coupled with change of position by other party to his disadvantage‑Court in former case would be inclined to overlook laches, if it did not violate any principle of justice, but in latter case Court would be reluctant to condone laches to disadvantage of other party who has altered his position during period which has lapsed from date of impugned order/action and date of filing of constitutional petition.‑[Lashes].

Muhammad Aman and 2 others v. Atta Muhammad and another 1982 S C M R 270 and Sahibzadi Masima Begum v. Settlement and Rehabilitation Commissioner 1982 S C M R 913 ref.

‑‑S. 4‑.Acquisition of land‑Statutory notice‑Publication of noti fication for acquiring petitioner's land but on an application by him the Deputy Commissioner intimating through a letter that petitioner's land had been exempted from acquisition, without issuing a second notification cancelling former one by which notice of acquisition was given‑Collector, sometimes after, giving award in respect of lands mentioned in notification including petitioner's land‑Letter of Deputy Commissioner intimating exemption of petitioner's land from acquisition, held, could not be equated with a notification published in terms of S. 4 of Act.

Umar Farooq v. Acquisition Collector, Bannu and 4 others P L D 1975 Pesh. 103 : Abdul Ghant and another v. Province of Baluchistan and 2 others P L D 1982 Quetta 63 ; Sahib Dad Khan v. The Commissioner, Rawalpindi Division and others 1969 S C M R 317 ; Syed Mohib Jahanya Shah Gurdezi and others v. The Province of West Pakistan and others 1969 S C M R 206 and Haji Feroze Din and othems v. Government of West Pakistan and others P L D 1961 (W. P.) Lah. 304 ref.

Ss. 3, 4 & 5‑Acquisition‑Notification‑Slight misdescription of property, held could not vitiate entire acquisition proceedings -Requirement of correct and full description of property sought to be acquired is to put interested persons to notice so that they may come for , and contest acquisition proceedings‑if such object is achiev ed any slight misdescription of property, held, could not vitiate entire proceedings particularly in a case where said question was not agitated or expressly pleaded.

Tahir Muhammad Khan for Petitioner:

Amir‑ul‑Mulk Mengal, A. G. for Respondent.

Date of bearing : 1st October; 1985.

AJMAL MIAN, ACTG. C. J.‑This petition is directed against the acquisi tion proceedings in respect of agricultural land (hereinafter referred to as the land') measuring 1‑0‑16 bearing No. 739/1 situated in 'Mauza Patra', Tehsil Hub, District Lasbella. The brief facts leading to the filing of the above petition are that the petitioner had purchased the above land measuring 2 acres, out of Khasra No. 739, from one Sher Ali son of Muhammad Siddique through Mutation No. 475, dated 14th October, 1979. The respondent issued a notification (hereinafter, referred to as the Notification') No. 13853‑57/5 (83)/RB, dated 18th October, 1980 under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') stating therein that the Khasra number (the details of which is as follows), were likely to be required, to be taken by the Government. for public purpose, namely for the construction of a telephone exchange building at Hub :‑

Khasra No. Location Area

739 ............... Monza Pathra 1.‑0-16

740 ............... ‑do‑ 0‑3‑06

738 ............... ‑do‑ 0‑0‑18

................................................ 2‑0‑0

2. In response to the above Notification; the petitioner addressed an application, dated 24th January, 1981 to the Deputy Commissioner, Lasbella requesting him not to acquire the land, as he intended to set up an industrial unit under the name of Munir Industries Ltd. The above letter was replied to by the respondent's Office letter No. 4083/Rev/5 (83), dated 26th April, 1981 stating that Survey No. 739, of which, some portion had been acquired for telephone exchange, was exempted from acquisition. Afterwards, the respondent gave an Award, dated 11th July, 1983 in respect of the land mentioned therein including the petitioner's land, referred to hereinabove in para. 1 i.e. 1‑0‑16 acres and awarded Rs. 21,000 per plus 15 per cent. statutory allowance as laid down in the Act. The detail of the land is as follows :‑‑

"Ownership.‑The land belong to the following private persons as per record of rights maintained in the Tehsil Hub, District Lasbella :‑

S. No. Name of owner Area

Area Road Pole

1. Abdu/Guloo sons of Mubarak and Faqir

Muhammad son of Ghulam. . 0‑0‑18

2. Abdul Razaq son of Haji Ghani. 1‑0‑16

3. Shahbaz Anwar son of ‑ Muhammad

Siddique. 0‑3‑06

_________________

Total : 2‑0‑00."

_________________

The petitioner being aggrieved by the above award has filed the present petition on 3rd April, 1985 i.e. after the expiry of about one year and nine months.

3. In support of the above petition, Mr. Tapir Muhammad Khan, learned counsel for the petitioner has urged as under :‑

(i) That the' re was no publication of the notice in terms of section 4 of the Act and, therefore, the acquisition proceedings stood vitiated ;

(if) That the respondent had withdrawn his Notification, dated 18th October, 1980 by his aforesaid letter, dated 26th April, 1981 and, therefore, no further acquisition proceedings resulting into an Award, here could have been taken ;

(iii) That since the land was snot correctly described in the Notification, the acquisition proceedings stood vitiated, and

(iv) That the proceedings were mala fide as the adjacent Survey Nos. 738 and 740 belong‑d to the Government which could have been acquired by the Government for construction of telephone exchange building.

On the other hand, Mr. Amirul Mulk Mengal, learned Advocate -General appearing for the respondent has submitted as follows :‑

(i) That since the petition suffers from laches, it is liable to be dismissed on that account ;

(ii) That since the petitioner has not raised any plea expressly in the petition to the effect that the Notification was not published in the official Gazette in terms of section 4 of the Act, the petitioner cannot be allowed to raise the same during the arguments ;

(iii) That the land was correctly described iii the Notification, and

(iv) That the acquisition proceedings ware bona fide and the Survey Nos. 738 and 740 did ,not belong to the Government.

4. Before touching on the merits of the petition, it may be pertinent to take up the question of laches. As observed hereinabove, the Award was given on 11th July, 1983, whereas, the present petition was filed on 3^rd April, 1985. Mr. Tahir Muhammad Khan, learned counsel for the petitioner has referred to paras. 9 and 10 of the petition, in order to explain the delay which reads as follows :

"9. The, petitioner vide his representation, dated 28th September, 1983 protested to the Collector/Deputy Commissioner Lesbella, against the said acquisition and award contending that since the award is based on Notification No. 13853‑57/5(83)/RB, dated 18‑10‑1'980 which has been withdrawn by the Collector, Lasbella as communicated to the petitioner vide Collector's Letter No. Rev (83)/5/Rev‑6008‑11. dated 7‑6‑1982, therefore, the entire proceedings and consequences whereof are void ab initio. However, as an abundant cautious and without prejudice to the said contention the petitioner requested the Collector/Deputy Commissioner, Lashella to refer the award to District Judge. Application for reference dated 28th September, 1983 is enclosed herewith and marked as Annexure‑I.

10. Thereafter, the petitioner several times approached the Deputy Commissioner, Lasbella who from time to time promised that he would look into the matter but so far nothing has been heard. No reply to his representation (Annexure‑1) has been received so far."

It may be pertinent to observe that the learned Advocate‑General has vehemently denied the factum that the petitioner had filed the alleged representation, dated 28th September, 1983 for getting a reference made to the District Judge in terms of section IS of the Act. Be that, as it may, it is an admitted position that the possession of the land was taken over and was handed over to the Telephone Department, inasmuch as, even the cons truction work had commenced. The petitioner in his petition though has alleged that he was in possession of the land, but Mr. Tahir Muhammad Khan, learned counsel for the petitioner has candidly submitted that factu ally on a portion of the land, the construction work by the Telephone Department has been executed. The contents of the above quoted paras of the petition, in our view, do not explain the delay in filing of the petition after the expiry of one year and nine months. It may be pointed out that the above‑quoted para. 10 of the petition is vague as to the dates or months or the year when the petitioner allegedly made several approaches to the Deputy Commissioner, I.asbella and when the latter allegedly made promises. .

5. We are inclined to hold that such vague averment, which lack material particulars cannot explain the laches of the above period. Mr. Amirul Mulk Mengal, learned Advocate‑General has referred to the following cases :,.

(i) Muhammad Aman and 2 others v. Atta Muhammaa and another 1982 S C M R 270, in which, the Honourable Supreme Court declined leave to appeal against a judgment of the Lahore High Court and quoted with approval the factum that the learned Single Judge of the Lahore High Court dismissed the petition, inter alto, on the ground of delay default and mis‑representation on the part of the petitioner.

(ii) Sahibzadi Nasima Begum v. Settlement and Rehabilitation Commis sioner 1982 S C M R 913. In the above case, the Honourable Supreme Court while dismissing an appeal against a judgment of the Lahore High Court passed in Constitutional .Writ Petition, also dilated on the question of laches and observed as follows :

"The accepted principles for applying the bar of ]aches are

(i) Acquiescence on the plaintiff's part ;

(ii) Any change of position that has occurred on the defendant's part. Applying these tests the petitioners would not appear to be at fault by her conduct because she made it clear that she was not submitting or accepting the reduction but was challenging it. Besides being in possession as allottee there was no question of the other side's position being altered to their disadvantage. We would, therefore, consider that this was not a case where the principle of laches or res Judicata could have been applied so as to entail dismissal of a con stitutional petition."

6. We are of the view that a distinction is to be made between simpliciter laches and the laches coupled with the change of position by the other party to his disadvantage. In the former case, the Court will b inclined to over‑look the laches, if it does not violate any principle n justice, but in the latter case, the Court ..will be reluctant to condone the laches to the disadvantage of the other party, who has altered his position during the period which has lapsed from the date of impugned order/action and the date of filing of the writ petition. In the instant case, as pointed out hereinabove, the possession of the land was handed over to the Telephone Department and the work had commenced admittedly, inter alia, on the land. The Telephone Department at whose instance the land was acquired, has altered its position till the time of filing of the above petition inasmuch as, deposited the compensation amount and stated the construction work. We cannot also be unmindful of the fact that construction t Telephone Exchange is beneficial to the public at large of the area and, before, it will not foster the Cause of justice to undo what has already done because of the laches.

7. In this view of the matter, the petition is liable to be dismiss that account. However, we intend to deal with the merits of petition as well, as in our view, the petition even otherwise has no merits.

8. Adverting to the contention of Mr. Tahir Muhammad Khan, learned counsel for the petitioner that there was no publication of the Notification in terms of section 4 of the Act, it maybe observed that has referred to ground 'C' of the petition, which reads as follows :‑

"C. That no Notification or statutory notice as required under the Land Acquisition Act, 1894 have been issued or served upon the petitioner and, therefore, the purported acquisition is void."

From the above quoted ground, it is evident that the petitioner has not pressly pleaded that there was no publication of the Notification in terms 'section 4 of the Act, what has been pleaded is that no Notification or statutory notice as required under the Act have been issued. Mr. Tahir Muhammad Khan, learned counsel for the petitioner has referred to the allowing cases :‑

(1) Umar Farooq v. Acquisition Collector, . Bannu and 4 others P L D 1975 Pesh. 103 in which a Division Bench of the Peshawar High Court on the basis of the plain language of subsections (1) and (2) of section 4 of the Act, held that the condition precedent to the exercise of jurisdiction by the Collector is the publication of Notification under the above section 4.

(ii) Abdul Ghani and another v. Province of Baluchistan and 1 others P L D 1982 Quetta 63. In the above case, a Division Beach of this Court, while construing sections 4, 6 and 45 of the Act, held that mere publication of Notification in the official Gazette is not sufficient, but the Notification should also be displayed at convenient places in locality concerned. It was also held that service not effected in accordance with section 45 of the Act, is no service in the eye of law.

Both the above cases have no application to the instant case, in as much as,‑that in the above Peshawar case, it was the admitted position that there was no publication of the Notification. whereas, in the present case, as pointed out hereinabove, the petitioner has not expressly pleaded that there was no publication. If any such plea would have been expressly raised. the respondent would have the opportunity to produce the original Gazette. Whereas, in the latter case, the point in issue was different than the instant controversy. It is not the case of the petitioner that the Notification was not displayed or that the notice was not served. It is an admitted position that the petitioner filed his objection to the acquisition proceedings.

9. As regards Mr.‑Tahir. Muhammad Khan's second submission that factually the Notification was withdrawn by the respondent's aforesaid letter dated 26th April, 1951, it may be observed that he has referred to the case of Sahib Dad Khan v. The Commissioner, Rawalpindi Division and others 1969SCMR317, in which the Honourable Supreme Court, while declining leave to appeal against a judgment of the erstwhile High Court of West Pakistan Lahore, observed that the legal effect of the , second Notification was that the first Notification stood impliedly cancelled. In the present case, there is no second Notification and, therefore, the above case has no application. The above letter referred to by the learned counsel for the petitioner, cannot be equated with a Notification published in terms of section 4 of the Act. It is true that the above letter has not been happily worded, but it is a fact that out of the total two acres or the land owned by the petitioner, only 1‑0‑16 acres was acquired and, therefore, there still remains a portion of the land, ‑which according to the learned Advocate‑General, was referred to in the above letter and not the land in respect of which various Notifications were issued.

10. Reverting to the, contention of Mr. Tahir Muhammad Khan that since the land has not been correctly described, the acquisition proceedings stood vitiated, it may be observed that he has referred to Anneaure‑"A" to the petition, which is an extract of Mutation No. 475 dated 14th October, 1979 from the relevant record. which indicates that' the vendor of the land Sher Ali, out of the total agricul tural land measuring 2‑0‑32 acres, only sold two acres. thus leaving with him 0‑0‑32 acre. It also indicates that the land sold to the petitioner was assigned Survey No. 739/1. He has also referred to Annexure "D" to the petition, which is copy of the Notification, wherein, instead of word "Mauna Patra", the words "Monza Pathra" have been used. It has. there fore, been vehemently contended by the learned counsel for the petitioner that on account of the above misdescription incorrect description of the land, the entire proceedings art vitiated. In order to fortify his above sub mission, he has referred to the following cases :‑

(i) Syed Mohib Jahanya Shah Gardezi and others v. The Province of West Pakistan and others 1969 S C M R 206 in which. the facts were that the Government initiated proceeding for the acquiring of Bahawalpur House situated in .the Civil Lines. Multan. but in the Notification the location shown was Taraf Ismail. Tehsil Multan. The Hon'ble Supreme Court granted leave to appeal against the Judgment of the erstwhile High Court of West Pakistan for considering inter alia the above question, whether the misdescription of tile property vitiated the acquisition proceeding.

(ii) Haji Feroze Bin and others v. Government of West Pakistan and others P L D 1961 (W. P.) Lah. 304. In the above case, the acquisi tion proceedings were challenged through a Constitutional Writ Petition, inter aria, on the ground that though the property which was sought to be acquired was situated in the heart of Lahore City. but in the Notification, instead of giving name of the road or "Muhalla", it was shown as situated in village "Naulakha". The writ seas allowed. inter aria, on the above ground. '

11. The above two cases, in our view, have no bearing to the present case for more than one reasons, namely (i) in both the above cases the persons interested in the properties could not appear before the Land Acquisition Officer on account of misdescription of the property. where as, in the present case, admittedly the petitioner had filed Ills objections and had the knowledge of the fact that his land was acquired, (ii) that the petitioner in his present petition as well as in his aforesaid objection, dated 24th January, 1981 has himself given the Khasra number as 739, which was given in the Notification and not as 739/1. This fact even has not been pleaded in the petition. The learned counsel apparently on the basis of the above extract from the Revenue record (Annexure "A" to the petition) has urged the above point. Even otherwise, the petitioner having himself described his land bearing Khasra No. 739, cannot be allowed to urge that the same description given in the Notification was not correct, and (iii) that the mentioning of the word "Monza" instead of "Mauza" is apparently a clerical mistake, which cannot vitiate the acquisition proceeding.

12. It may be observed that the requirement of the correct and full description of the property sought to be acquired is to put the interested persons to notice, so that they may come forward and contest the acquisition proceedings. If the above object is achie ved, any slight misdescription of the property, in our view, cannot vitiate the entire acquisition proceedings, particularly in a case where this question was not agitated before the Collector. or even it has not been expressly pleaded in the present petition. The petitioner has admittedly appeared before the Collector and admittedly knew that his land was the subject‑matter of acquisition proceeding and, therefore; he cannot make any grievance on account of the above alleged misdescription or incorrect description of the land.

13. This lead us to the last submission made by Mr. Tahir Muhammad Khan, learned counsel for the petitioner that the proceedings are males fide as the Government could have acquired Survey Nos. 738 and 740, situated adjacent to the land. In this regard,. it may be observed that no such plea has been raised in the petition.. Even otherwise, this plea is unfounded as is evident from the extracts quoted hereinabove in paras. 1 and 2 from the Notification‑and from the Award. It may be pointed out that from Survey No. 738, a portion of land measuring 0‑0‑18 was acquired, which is shown as owned in the Award by one Abdu/Guloo sons of Mubarak and Faqir Muhammad son of Ghulam, whereas, from Survey No. 740, a portion of 0‑3‑06 was acquired, which is shown in the Award as owned by Shahbaz Anwar son of Muhammad Siddique. The above persons have been awarded compensation for the above portions of the above two Survey numbers. It is, therefore, evident that the above Survey numbers were not owned by the Government as was alleged by the petitioner in his,objection, dated 24th January, 1981 though not pleaded in the present petition.

14. For the aforesaid reasons, we find no merits in the petition and, therefore, it is dismissed with no orders as to cost.

The, above are our reasons in pursuance of our short order of even date.

M. Y. H Petition dismissed.

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