1. The petitioner has preferred this petition against the Government of Sindh, Land Acquiring Agency and Land Acquisition Officer with the following reliefs: "It is therefore prayed that his Honourable Court may be pleased to order, the respondents to deposit in this Honourable Court the compensation amount of Rs,149,823 along with mandatory benefits on account of delay in the payment of the compensation, up to the date of deposit of the entire amount in this Honourable Court."
2. Comments have been filed by the Land Acquisition Officers twice in which they admit that an amount of Rs,149,823 in terms of the award was outstanding but it has been stated that this amount includes the benefits under sections 23(2), 28(A) and 34 of the Land Acquisition Act.
3. Mr.Masood Noorani, learned A.A.-G. Has stated that though award has been given in these proceedings but no notification under sections 4 and 6 of the Land Acquisition Act was issued by the Sindh Government and, therefore, he states that the Petitioner should approach the Civil Court.
Mr. Masood Noorani, further has referred the order dated 13-5-2003 of a Division Bench passed in Constitutional Petitions Nos.D-10 and 11 of 2002, wherein it has been held by this Court that disputed questions of facts cannot be done into in writ jurisdiction and the petitions were dismissed in which identical questions were raised by the parties.
4. The learned A.A.-G. States that the order referred to hereinabove fully covers the present Petition and, therefore, prays for dismissal of the same with the liberty that the Petitioner may approach the civil Court either for recovery of the compensation amount or possession of land.
5. With profound respect to the learned A.A.-G. The case in hand is distinguishable on facts inasmuch as in the present proceedings the learned A.A.-G. Himself, concedes that the award has been given by the Land Acquisition Officer in absence of the notification under sections 4 and 6 of the Land Acquisition Act beside the fact that the amount of compensation of the award was not challenged by the Petitioner. On the contrary Petitioner has filed present proceedings in order to seek direction against the Government and/or Land Acquiring Agency to make payments.
Therefore, there was no factual enquiry required to be undertaken by this Court in regard to the determining the legal right of the Petitioner.
6, We are fortified by another order dated 15-10-1998 of a Division Bench of this Court passed in Constitutional Petitions Nos.D-157,D-158 and D-159 of 1998 which fully covers the case in hand and for the convenience reproduced hereunder:-- "It appears that in all these 3 petitions the land belonging to the petitioners were taken over by the respondents for construction of roads and the respective Land Acquisition Collectors also passed awards, directing payment of compensation, but, no compensation has actually be paid. During the course of hearing, however, it has transpired that appropriate notifications under the Land Acquisition Act, were never issued. In the circumstances, both learned counsel agree that the petitions be disposed of with a direction that the respondents will commence proceedings under the Land Acquisition Act, so as to ensure that award of compensation is made by the Collector within 3 months from today. It will further be ensured that the payment is made to the petitioners within 2 months of the award, subject to any further proceedings by way of reference to the Court under section 18 of the Land Acquisition Act. All these petitions stand disposed of in terms of the above said observations."
7. We also dispose of the above petition in terms of the order dated 15-10-1998 passed by the Division Bench of this Court. The respondents to comply with the directions contained in the referred order and within the time frame referred therein including other directions.
8. Statement filed by Mr.Noorani, learned A.A.-G. Is taken on record. However, we may observe that any directive or any letter of Law Secretary Sindh against the language of statute is not binding and the acquiring agency of the Government has authority in law to refuse benefit of sections 23(2), 28(A) and 34 of the Land Acquisition Act. Any letter and/or opinion of the Law Department cannot override the language of sections 23(2), 28(A) and 34 of the Land Acquisition Act. The letter and/or opinion of the Law Department would not bind the Land Acquisition Officer to ignore payment of solitium in terms of the mandatory sections of 23(2), 28(A) and 34 of the Land Acquisition Act. The para. 8 of the order dated 7-9-2004 is substituted hereinabove with the consent of the parties and learned' Addl. A.G. And would be read as para.8 of the said order of this Bench.