1. NADEEM AZHAR SIDDIQUI, J. --- The petitioners by way of filing of this petition have challenged the Award dated 18.7.2001 passed by Assistant Commissioner/Land Acquisition Collector, Mirpur Mathelo in respect of an area of (0-26) ghuntas out of survey No 228. Deh *Jahan Khan UnarTaluka Mirpur Mathelo District Ghotki.
2. Unar Taluka Mirpur Mathelo. Three ghuntas land out of said survey number has already been acquired for National Highway, therefore, one acre of land remained in balance in the record as well as on site within the control and possession of the petitioners. Respondent No. 2 addressed a letter to, the respondent No. 3 for construction of Police Office. Under the direction of Respondent No. 2 measurement was taken place by the survey party, after measurement 'B' Form was prepared by the Survey party resultantly whole survey number was not found within alignment of the boundary wall of the police lines hence, no area was taken out from said survey number and as such same was not included in the 'B' Form for the purpose of compensation and acquisition, therefore the disputed portion of (00-33) ghuntas out of Survey No. 228 Deh Jahan Khan Unar Taluka Mirpur Mathelo was not made subject-matter of the award dated 13.3.1997 and no any compensation thereof was paid to the petitioners and the petitioners were cultivating the said land without any disturbance from any quarter, when the police officials on the behest of Respondent No. 1 ,made hindrance to vacate the said disputed portion. The petitioners intimated the respondents that the land which, they are in possession are the Qabooli Land and made various applications to the various authorities intimating the highhandedness of the, police officials regarding illegal occupying of the suit land and issuance of threats of dire consequences and' as such the bundles of wheat of the petitioners are also lying in the land without threshing and his all efforts and struggles went in vain and as such the petitioners filed FC Suit No 39/1999 in the Court of Senior Civil Judge, Mirpur Mathelo and learned Trial Court after hearing the parties dismissed the application under Order No. 39, Rules 1 & 2, C.P.C. The petitioners being aggrieved and dis-satisfied filed Civil Misc. Appeal in the Court of learned District Judge, Ghotki During the pendency of the said Civil Misc. Appeal the respondent No. 1 after using tactics got award dated 18.7.2001 from Respondent No. 2. Due to changed situation learned District Judge, Ghotki dismissed the Civil Misc.
3. Appeal and as such the petitioners withdrew the suit from the Trial Court with permission to file a fresh suit in view` of the changed situation. Thereafter Respondent No. 1 having knowledge of the contents of the plaint made alternation on the site of the case land in order to defeat the petitioners as the land of the petitioners was out side the boundary wall of the police line. The official boundary constructed but it was demolished. Another mud plaster un-authorized wall was privately constructed by the respondent No. 1 in order to bring the petitioners land within the enclosed area, the same was not even constructed from Government expenses nor tenders were called.
4. The comments were filed by the Respondent No 2 (Land Acquisition Officer) in, which he has submitted the possession of survey No. 228 to the extent of 0-33 acres was already taken as per Notification dated 8.5.1995 but as the said land was not included in B Form as such no award was passed for the specific survey number. He further states that compensation amount of disputed number is lying with him and he is ready to pay the same to petitioner.
5. The comments were also filed. .On behalf of the Respondent NO. 1 (Senior Superintendent of Police) in which, he has submitted that on 10.5.1995 the Land Acquisition Officer issued notice for acquisition of 33 Ghuntas from Survey No. 228 alongwith other land for the construction of public lands at Mirpur Mathelo for newly created District Ghotki, such Notification under Section 4, dated 21.3.1995 and Section 6, dated 10.4.1995 of Land Acquisition Act was issued. The possession of the above land was handed over and award of Rs. 71,162/- was passed. The police line has been completed and functioning properly. He further states that disputed survey number was already acquired by way of Notification dated 8.5.1995 and the possession was taken over but the award was not passed due to the connivance of the petitioner with the survey department who had not included the disputed survey number in B Form though it was coming with in the boundaries of the acquired land.
6. The learned counsel for the petitioner has submitted that after passing of the First Award dated 10th July, 2001 the Land Acquisition Officer has became functus officio. He further submits that the proceedings started on the issuance of notice under Section 4 of the. Land Acquisition Act and was terminated on pronouncement of Award and the Second Award is not warranted under law. He further submits, that jurisdiction to acquire land is dependent upon prior publication of Notification under Section 4 of the Land Acquisition Act. The learned counsel also submits that Notification as contemplated under Section 4 of Land Acquisition was not at all issued and the Land Acquisition, Officer has no jurisdiction and authority to pass the Award.
7. The learned counsel for the petitioner has relied upon the following reported cases:---
(1) Umer Farooque v. Acquisition Collector, Bannu and 4 others (PLD 1975 Peshawar 103) (D.B.).
(2) Assistant Commissioner, Mianwali v. Muhammad Amin and others (1987 CLC 2095) (D.B.
8. Lahore).
(3) Mst. Sardar Begum v. Lahore Improvement Trust, Lahore (PLD 1972 Lahore 458) (D.B.).
9. The learned Additional Advocate-General submits that the Award can only be challenged by way of proceedings under Section 18 of the Land Acquisition Act and not by way of filing of Petition. He further submits that earlier the petitioner has availed remedy by way of filing of the suit and after withdrawal of suit is precluded from filing petition on the same cause of action. He further submits that no illegality or irregularity has been shown in the Award, which was properly passed after hearing the petitioner.
10. We have heard learned counsel for the parties and perused the record made available before us.
11. The contention ot leamed counsel for the petitioner is two folds. The first contention pis that after passing- of the Award dated 13.3.1997 no 2nd 'Award can be passed on the basis of same Notification. The;,2nd contention is that since notice under Section 4 of Land Acquisition Act was not published in official Gazette the acquisition of 28 ghuntas of land is illegal.
12. The Notification under Section 4 of the Land Acquisition Act was claimed to have been published on 21.3.1995. At the request of respondents time was also allowed to produce and place a copy of the alleged Notification on record, but no copy of Gazette was produced inspite of grant of time.
13. The Notification under Section 6 of the Land Acquisition was published on 8.5.1995 and copy of the Gazette Notification was produced. In the said Notification after the survey No. Of disputed land area was mentioned as 33 ghuntas. On the basis of above two Notifications the Award dated'
14. 13.3.1997 was passed but Survey Number 228 was not included in that award. In this award though issuance of Notification under Section 4 of Land Acquisition Act was mentioned but no date was mentioned. From perusal of Section 4 of the Land Acquisition Act, it appears that publication of Notification under Section 4 is mandatory and without publication of Notification under Section 4 the Land Acquisition Officer cannot assume jurisdiction. In this case a simple copy of Notification dated 21.3.1995 was placed on record but inspite of opportunity the learned Additional Advocate- General was unable to produce the Notification published in the official Gazette. The simple copy of the Notification cannot be equated or termed as Notification published in the official Gazette: The 'GAZETTE or OFFICIAL GAZETTE' has been defined in Section 2 of the West Pakistan General Clauses Act, 1956 as under:-
2. Definition:
3. 4
26. "Gazette or official gazette" shall mean the West Pakistan Gazette published under the authority of the Governor of West Pakistan.
15. From the above, it is clear that the statutory compliance has not been made before initiating proceedings under the Land Acquisition Act. In the reported case of Umer Farooq (supra) a learned Division Bench of Peshawar High Court has held as under:--- By reading these two sub-sections together, it would be evident that the publication of Notification under Section 4 of the Act would appear to be a condition precedent to the exercise of jurisdiction by Collector in all cases in which it appears to him that any land in the district is needed or it likely to be needed for a public purpose or for a company. The word 'shall' appearing in between the words 'a Notification to that effect' and 'be published in the official Gazette' would appear to convey the unmistakable intention of Legislature that the publication of said Notification was not a mere formality. In point of fact, the word 'there upon' appearing in the beginning of sub-section (2) of Section 4 ibid, is a further pointer in that direction which, when read in the context of subsection (1) of that section, would leave no doubt in one's mind that in all acquisition cases under the Act the very jurisdiction of Collector' would depend upon the prior publication of the required Notification and only thereafter it shall be lawful for any officer authorized by him to enter upon and survey and take level of the land intended to be acquitted by him.'
16. "A close scrutiny of Section 4 ibid would show that it contains public policy of far-reaching consequences inasmuch as it not only enables Government to acquire, without the consent of land-owner, his land for a public purpose, but the date on which Notification mentioned in it is required to be published would provide the determine the market value of the land in order to award compensation to land-owner. We are, therefore, inclined to take the view that any infraction by Collector of the provisions of this section would give to a land-owner a valid cause for grievance to say that the entire proceedings conducted by him were without jurisdiction."
17. The burden to prove that Notification under Section 4 was published in official Gazette is upon the respondents who have failed to produce the same and without such production the requisite of sub-section (1) of Section 4 of the Act would not comply with and further proceedings cannot be taken without publication of notice under Section 4 of the Act.
18. The contention of Mr. Shahani that writ is not maintainable in view of Section 18 of the Land Acquisition Act is concerned, it may suffice to say that the proceedings were challenged on the ground of jurisdiction. The rate of compensation is not challenged. The legality of the very proceedings on the basis of non-issuance of notice under Section 4 of the Land Acquisition Act is challenged which is not hit by provision of Section 18 Acquisition Act. A Petition on the ground of jurisdiction can be maintained. In the case of Mst. Sardar Begum supra learned Division Bench of the Lahore High Court held that the petitioner, however, interested not in compensation but in exemption from acquisition and exemption from acquisition being nor available under Section 18 of the Act nor legality or irregularity of Award is possible under Section 18, remedy provided under Section 18 is adequate and writ petition is competent.
19. Since we have held that the proceedings cannot be taken without publication of notice under Section 4 of the Act. Therefore in the absence of such notification under Section 4 Award is without lawful authority further discussion on other points raised by the learned counsel is not necessary.
20. Under the circumstance the parties are left to bear their own cost. .