MUHAMMAD JEHANGIR ARSHAD, J. --- The petitioner who is owner of land measuring 8 Kanals situated in Chak No.28/10-R, District Khanewal through the instant Constitutional petition voices her grievance that her said land was acquired/taken up by the Irrigation Department, for construction of remodeling of 10-R Branch situated in Chak No.28/10-R, either without any acquisition proceedings or payment of compensation to her and thus, her fundamental right as protected by Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 was violated, hence the said act of the respondents be declared as without lawful authority and of no legal effect and the respondents be directed to pay compensation to the petitioner in accordance with law.
2. Vide order, dated 28-11-2005 report and parawise comments were sought for from respondents Nos.4, 5 and 6 which have been submitted. According to the report submitted by respondent No.4 the land of the petitioner was acquired with her consent though without payment of any compensation in the public interest and for excavating the water channel and petitioner being one of its beneficiaries impliedly consented for acquisition of her land without compensation. However, respondents Nos.5 and 6 namely District Coordination Officer and the Executive District Officer (Revenue), Khanewal in their comments for submitted that Notification under section 4 of the Land Acquisition Act, 1894 was published in the official Gazette on 28-1-2005 for acquisition of land including the land of the petitioner and thereafter, report from the Field Staff/D.D.O. (Revenue), Khanewal for the assessm ent of price of land was called and the matter was placed before the District Price Assessm ent Committee, Khanewal on 10-3-2005 and the said Committee approved the price of the land as Rs.1,90,000 per acre. Accordingly total price of land plus fifteen per cent land acquisition charges was calculated to be Rs.64, 78,525 and the Irrigation Department was asked to deposit the said price in the Government treasury and provide the receipt of Bank Challan with Notification under section 17(4) (6) of the Land Acquisition Act so that the same could be published in the Punjab Gazette and case in question be referred to the Board of Revenue, Punjab, Lahore for the approval of the price of land but as the department failed to deposit the said amount and provide necessary challan/notification hence, the matter could not proceed. It was further submitted in the comments by respondents Nos.5 and 6 that compensation would be distributed after approval of price by the District Price Assessment Committee, Khanewal after fulfilment of codal formalities approved by the Board of Revenue.
3. Today, the case has been heard in the presence of learned A.A.-G. As well as officers from respondent-Department. It has been argued by learned counsel for the petitioner that in terms of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 property rights of the petitioner are not only protected but also it has been ordained that person to be deprived of his property save in accordance with law and that no property shall be acquired or taken possession of save for public purpose and save by authority of law which provides for compensation and compensation to be determined in accordance with law. On the basis of the said Article 24 of the Constitution of Islamic Republic of Pakistan, 1973, it is submitted by learned counsel for the petitioner that the law referred to in the said Article means Land Acquisition Act, 1894 which lays down detailed procedure for acquisition of any land for public purpose and taking of possession as determined under the provisions of Land Acquisition Act. In the present case admittedly neither any valid proceeding for acquisition were initiated nor any compensation was ever determined or paid to the petitioner and land was taken over by the respondents in an unlawful manner. Further submits that petitioner never consented to give her land for construction of said remodeling of 10-R Branch either without acquisition proceedings or without payment of compensation and if any person gave such consent on her behalf, the same was not binding on her nor she authorized any person to give such consent.
4. On the other hand, learned A.A.-G. On instructions from Canal Authorities has argued that the land in question was acquired though without acquisition proceedings or payment of compensation for public purpose and with the consent of beneficiaries including the petitioner but has not been able to place on record any document to show that such consent was given by the petitioner expressly or impliedly except to argue that by raising no voice against taking over of her property for the last three years the petitioner was estopped from filing the present writ petition. To support his plea, the learned A.A.-G. Has placed on record a copy of the affidavit deposed by several landowners of the Chak No.42-A/10-(R) Tehsil Khanewal to the effect that they were ready to give their land free of cost for the construction of water channel in question.
5. Before deciding the question of legality of taking over of petitioner's land without due course of law as provided in Land Acquisition Act, I would like to dispose of the contention of learned Law Officer that the petitioner had given any undertaking for taking over of her property without compensation or acquisition proceedings. From the perusal of copy of affidavit deposed by several inhabitants of Chak No.42/A/M and 85/15-L, it is clear that petitioner never gave any such affidavit nor her name is mentioned in the said affidavit. Even admittedly the petitioner is not the resident of Chak No.42-A/M or 85/15-L and is residing in Chak No.28/10-R, Khanewal where her property, which has been taken over, is also situated; therefore, the contention of learned Law Officer is not sustainable being against the record.
6. Similarly, there is no force in the contention of learned Law Officer that petitioner was estopped from filing this petition having acquiesced her right by not agitating against the taking over of her land without compensation. It is evident from the copy of application dated 19-3-2005 that petitioner specifically prayed that water channel should not be laid in her land, otherwise, she should be given compensation at the market rate. Further the report of respondents Nos.5 and 6 clearly indicates that no step for initiating acquisition proceedings was taken at any stage, although Notification under section 4 of the Land Acquisition Act was published yet no further proceedings were initiated by the Revenue Authorities due to the non-availability of amount of price as determined by the District Price Assessment Committee. Even otherwise, the right of property is protected by Article 24 of the Constitution and taking over of possession without lawful authority or without initiating acquisition proceedings and payment of compensation as determined under the Land Acquisition Act, the petitioner could not be deprived of her property. It is an established principle of law that there is no estoppels against law and since the constitution is the basic law of the land which guarantees and protect the fundamental right of property and prohibits deprivation of property save in accordance with law, hence the petitioner cannot be non- suited on the ground of alleged estoppel and even against unconstitutional act/conduct of the respondents. It was held by this Court in Hakim Ali v. Member Power WAPDA and others PLD 2002 Lah. 28 (DB) that a person can only be deprived of his property under the authority of law and according to the provisions of and in case a person or authority is performing functions and doing the work in accordance with law only than Article 24 of the Constitution has no applicability in the matter. In the present case admittedly neither the acquisition proceedings were allowed to be completed within the law i.e. Land Acquisition Act nor any compensation was determined in accordance with provisions of said Act, even the Canal Authorities are not willing to pay any compensation to the petitioner, hence it can be safely concluded and declared that petitioner was deprived of her property not only in violation of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 protecting her property rights but also in clear breach of provisions of Land Acquisition Act and thus the writ petition filed by the petitioner merits acceptance which is accordingly accepted and it is declared that taking over of property of the petitioner without adopting the procedure required through acquisition proceedings as well as determination of payment of compensation in terms of the Land Acquisition Act as without lawful authority, hence, ineffective- qua he rights of the petitioner.
7. Admittedly the property of the petitioner has been taken over/used by the respondents though without lawful authority yet it would not be possible to direct the respondents for vacation and handing over of the same to the petitioner as it would involve huge expenditure at public' costs and would also lead to other practical complications, therefore, the respondents Nos.5 and 6 are directed to complete the acquisition proceedings by strictly following the procedure as laid down in the Land Acquisition Act and ensure that not only the award is made within a period of six months from the receipt of this order but compensation as determined in the award is also immediately paid to the petitioner subject to her legal right to challenge the said award in accordance with law. There is no order as to costs.