The brief facts out of which the present writ petition arises are that land of the petitioners measuring 49 Kanals 12 Marlas was acquired by respondents No/I and 2 for respondent No.3.
Respondent No.2 fixed the estimated cost of the land in question at Rs.875.85 performance Kanal vide Notification dated 12.10.1981 under Section 4 of Land Acquisition Act. Agreement was also executed between respondent No.3 and respondents No.1 and 2 on 10.5.1982 which was published in official gazette under Section 40 of the Land Acquisition Act oh 30.6.1982 Notification under Section 17 was also published on 17.6.1984 and thereafter Notification under Section 6 and 7 was also issued' by the respondents on 22.10.1984. Award was announced by respondent No.2 on 16.1.1985. The petitioner being aggrieved filed this writ petition.
2. Learned counsel of the petitioner submits that acquisition of land of the petitioners under Section 4 and 6 is illegal, void and without jurisdiction as it was duty and obligation of respondent No.1 to hold inquiry under section 40 of the Land Acquisition Act which is a condition precedent for acquisition of land for respondent No.3 but this procedure was not adopted by respondent No.1, therefore, acquisition proceedings initiated by respondents No.1 and 2 are wholly without lawful authority. He further submits that respondents have initiated proceedings qua the acquisition of the land of the petitioners in violation of the parameters prescribed under Section 39 to 43 of the Land Acquisition Act. He further submits the Notification under Section 4 and 6 were issued by the respondents on 12.10.1981 and 22.10.1984 and the award was announced by respondent No.2 on 16.1.1985 which is in violation of the Punjab Land Acquisition Rules, 1983 especially Rule 6,7 and 7-A.
He further submits that all the proceedings of acquisition of the land of the Petitioner is in violation of the mandatory provisions of Land Acquisition Act.
3. Learned counsel of respondent No.3 submits that Rule 6,7 and 7-A of the Punjab Land Acquisition Rules, 1983 have been declared ultra vires by the Full of this Court and Honourable Supreme Court in support of his contention he relied upon the following judgments:- Allah Ditta's case (PLD 1997 Lahore 499)
Mehraj Flour Mills case (2001 SCMR 1806)
He further submits that objection raised by the learned counsel of the petitioner on the basis of Section 39 and 40 was also raised in a reported judgment and repelled by the Honourable Supreme Court in Muhammad Ishaq's case (2002 SCMR 1652). He further submits that respondent has acquired the land of the petitioner after completing all the legal formalities under the Land Acquisition Act as is evident from the report of Land Acquisition Collector submitted before this Court. He further submits that petitioner has filed a reference against the award for enhancement of the price of the land of the petitioners which was determined by the Land Acquisition Collector in its award dated 16.1.1985. He further submits that during the pendency of this writ petition the Referee Judge has decided the reference, therefore, Constitutional petition is not maintainable.
4. Mr. M. Hanif Khattana, Addl A.G submits that respondents have acquired the land of the petitioner after completing all the legal formalities and the petitioner has also availed alternative remedy by filing a reference under Section 18 before the competent Court. Therefore, Constitutional petition is liable to be dismissed.
5. Learned counsel of the petitioner in rebuttal submits that according to the report was held on 3- 3-1982 Whereas Notification under Section 4 was issued on 12.10.1981 and agreement was executed between respondent No.3 and respondents No.1 and 2 on 10-5-1982. Therefore, action of the respondents is not in accordance with the mandatory provisions of the Land Acquisition Act. He further submits that petitioner has availed the alternative remedy qua the price determined by the Land Acquisition Collector arid the present writ petition has no relevancy with the reference filed by the petitioner as the petitioner Tias challenged through this Constitutional petition the acquisition proceedings initiated by the respondents in violation of the mandatory provisions of law.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
7. The contention of the learned counsel of the petitioner that award announced by the Land Acquisition Collector on 16.1.1985 whereas the Notification under Section 4 was issued on 13.10.1981, therefore, proceedings are void in view of Rule 7 of Punjab Land Acquisition Rules, 1983 has no force on the following reasons. Notification under Section 4 was issued on 13.10.1981 whereas Punjab Land Acquisition Rules, 1983 have been enacted on 22.2.1983. Therefore, Rules have no retrospective effect and cannot affect the acquisition proceedings which has been initiated prior thereto, in arriving to this conclusion I am fortified by the following judgments:- Muhammad Hussain's case (1988 CLC 1745)
Liaqat Rashid's case (1993 CLC 558)
The aforesaid Rules were also declared ultra vires by the Full Bench of this Court in Allah Ditta's case (PLD 1997 Lahore 499). It is pertinent to mention here that judgment of the Full Bench of this Court was upheld by the Honourable Supreme Court in M/s Mehraj Flour Mills case (2001 SCMR 1806). It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties:-
(i) The site was approved by the Director Industries and on his request respondent No.2 issued Notification under Section 4 of the Land Acquisition Act for acquiring the land of the petitioner for respondent No.3 on 13.10.1981. The price was also estimated amounting to Rs.875.85 per Kanal. The estimated cost was deposited by respondent No.3.
(ii) Draft agreement under Section 41 and A2 was prepared. Thereafter inquiry under Section 40 was held by the Commissioner on 3.3.1982.
(iii) Agreement was executed between respondent No.3 and respondent No.1 and 2 which was published in the gazette Notification on 30.6. 1982.
(iv) Subsequently notification under Section 17 and Section 16 were issued and published on 12.7.1984 and 20.10.1984 respectively.
(v) Notices under Section 9 of the Land Acquisition Act were issued by the Land Acquisition Collector to the landowners which were received by the son of the petitioner namely Muhammad Hanif. Petitioner Ali Muhammad participated in the proceedings and his statement was recorded by the Land Acquisition Collector on 20.12,1984 and subsequently award was announced by Land Acquisition Collector under Section 11 of the Land Acquisition Act on 16.1.1985 against which petitioner has filed Reference under Section 18 for enhancement of the compensation.
It is settled principle of law that setting up Industries in country being obviously for public purpose, acquisition of land in question for respondent No.3 is held for public purpose, in arriving to this conclusion I am fortified by the law laid down in Mohsin A. Rehman's case (PLD 1983 F. S.C. 76). it is also settled principle of law that if the land has been acquired for public purpose then execution of agreement between the Government and company and consent of Provincial Government is not necessary prior to notice under Section 17.(4) in arriving to this conclusion I am fortified by the law laid down in the following judgments:- Main Abdul Waheed's case (PLD 1973 Lahore 739)
Ch. Khushi Muhammad's case (PLD 1956 Lahore 250)
Federation of Pakistan's case (NLR 1993 S.C.J. 635)
Abdul Ghaffar's case (KLR 1983 Civil cases 427)
Dr. Naseem Javed's case (PLD 1983 Lahore 552)
Allah Ditta's case (PLD 1997 Lahore 499)
Muhammad Ishaq's case (2000SCMR 1652)
It is also settled principle of law that in case of acquisition of land another principle which is attracted is that before an order passed by a public authority is struck down, it is the duty of the Court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance of which impugned order has been passed, in arriving to this conclusion I am fortified by the law laid down in Lahore Improvement Trust's case (PLD 1971 S.C.
811). It is also admitted fact that petitioner has accepted the award announced by the Land Acquisition Collector on 16.1.1985 and the Petitioner has filed Reference for enhancement of the compensation under Section 18 of the Land Acquisition Act, 1894 before filing the Constitutional petition. The said- Reference has been finally decided during the pendency of this writ petition, it is settled principle of law that this Court has ample jurisdiction to look into the subsequent events at the the of deciding the case as the law laid down by the Honourable Supreme Court in Mst. Amina Begum's case (PLD 1978 S.C 220). During the pendency of this writ petition the land in question is utilized for the purpose of establishing an industry and Reference, as. Mentioned above, has finally been decided by the competent Court, it is also settled principle of law that Constitutional jurisdiction is discretionary in character. Keeping in view the aforesaid circumstances highlighted in the proceeding paragraphs I am not inclined to exercise my discretion in favour of the petitioners as the law laid down by the Honourable Supreme Court in Nawab Syed Raunaq Ali's case(PLD 1973 S.C 236).
In view of what has been discussed above, this writ petition has no merit and the same is dismissed with no order as to costs.