1. MUZAFFAR ALI, J.---This appeal calls in question the validity of the impugned judgment/decree, dated 13-11-2002, passed by the learned Referee Court, Skardu, whereby the learned Referee Court has granted the application under section 18 of the Land Acquisition Act, 1894 filed by the respondent.
2. The brief resume of the case is that a patch of land owned by and in possession of the petitioner bearing Khasra No.3502/2067 was selected by the Sitting Board in the year 1992 for construction of S.P. House at Skardu. The appellant No.1 prepared the Award bearing No.DK-1(1)/92-92, dated 2nd June, 1992 for payment of compensation of the acquired land at the rate of Rs.70,000 per Kanal. It is worth-mentioning here that the learned Collector has frankly conceded in the impugned award that proposed land was taken into possession by the petitioners long before, without resorting to compulsory provisions of the Land Acquisition Act, 1894, therefore, he made the award without compliance with the mandatory provisions of the said Act.
3. It is strange enough that the construction work was in progress long ago, before delivery of possession by the Revenue Authorities. However, the award so passed was impugned before the Referee Judge, Skardu who after recording the evidence accepted the petition under section 18 of Land Acquisition Act, vide his order, dated 2-8-1994. The judgment was appealed before this Court and resultantly the appeal was accepted and the case was remanded back to the Referee Judge for trial afresh after giving findings on each and every issue vide judgment, dated 23-4-1998.
4. After thorough trial the learned Land Acquisition Judge again accepted the petition vide his judgment/decree dated 13-11-2002, which was again challenged before this Court.
5. I heard both the learned standing Advocate-General and the counsel for the respondent and also have gone through the record.
6. The learned District Attorney on behalf of the learned Advocate-General has frankly conceded, that the petitioners have acted in utter violation of mandatory provisions of the Land Acquisition Act, 1894, by taking possession of the said land and starting the construction work on it prior to, have resort to the mandatory provisions of Land Acquisition Act by the Collector. The learned D.A.
7. (Standing Advocate-General) also conceded that since the petitioners themselves have broken the law as such all the proceedings taken by them are ab intio null and void, therefore, the revision petition is not competent.
8. The learned counsel for the respondent invited my judicial attention towards section 4 of the Land Acquisition Act, 1894, which is reproduced as under:- "4. Publication of preliminary notification and powers of officers thereupon.--- (1) Whenever it appears to the Collector of District that land in any locality is needed or is likely to be needed for any public purpose or a Company, 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.
(2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workmen: to enter upon and survey and take levels of any land in such locality; to dig or bore into the subsoil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to make such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle: Provided that no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so."
9. The plain reading of the above section is sufficient for shaking the judicial mind, that how the .Administrative functionaries feel themselves to be above law and how they cause undue losses to the State Treasury by their extra-judicial acts. The present case is the worse example of the law- breaking attitude of the officers. The Constitution of Pakistan (1973) as well as the Legal Frame Work Order, 1994, for Northern, Areas, both protect the right to property of a citizen as his fundamental right to enjoy and to possess, but the Land Acquisition Act provides an exception to the above fundamental right, wherein the owner or the possessor could not deny the Compulsory Acquisition of his land, if required to the Government for public purposes or a company, but that too, after compliance of the mandatory provisions of the Act, otherwise any action by the authorities to dispossess a landowner from the possession of the land amounts to breach of fundamental right of the person. In this regard my detailed judgment, dated 29-8-2005 in the case titled "Government of Pakistan through Ministry of Defence, Islamabad and others v. Collector Land Acquisition/Settlement Officer, Gilgit and others" 2006 CLC 1641 may be observed. (Copy of judgment is attached).
10. The conclusion of the above discussion is that the revision petition is dismissed with cost and the judgment/decree passed by the Referee Court is maintained, the respondent is also awarded the interest under section 28 of the Land Acquisition Act on the excesses compensation fixed by the Referee Court.