MUHAMMAD KHALID MEHMOOD KHAN, J.---The petitioners ere the owners of land in village No,94/ 6-R Tehsil and District Sahiwal, the detail of which is given in para No,2 of the petition. The respondent No,2 decided to acquire land situated in the village referred to above for public purpose/defence for the benefit of respondent No, 1 . Notification under section 4 of the Land Acquisition Act 1894 (hereinafter referred to Act of 1894) was issued and published in official Gazette on 9-8-1986. After publication of notice under section 4 of the Act of 1894, no further action was taken till 14-12-1989. After the lapse of three years on 14-12-1989 notice under section 17(4) of the Land Acquisition Act, 1894 was issued which was gazetted on 31-12-1989. Board of Revenue Punjab vide letter dated 28-10-1996 declared the acquisition proceedings without any lawful authority and directed the acquisition collector to commence fresh acquisition proceedings. On 22-6-2000 the Land Acquisition Collector proceeded to take possession of petitioner's land measuring 70 Acre 3 Kanals and 8 Marlas without announcing award and without notice to the petitioner after the lapse of 14 years of issuance of notice under section 4 of the Act of 1894. It is further averred that adjacent to petitioner's land owned by the Government of Punjab was also acquired for the same purpose, but surprisingly the compensation of Govt. land was fixed Rs,400,000 per acre whereas the petitioner's land was fixed Rs,175,000 per acre. The petitioners claimed that their land was acquired wrongly, and the price of same has been fixed less than the actual market value. Through the petition the petitioners have challenged the acquisition of their land.
2. Notices were issued to respondents. They appeared and filed report and parawise comments.
Respondents Nos.2 to 4 took the stance that acquisition proceedings were never stopped, the Board of Revenue Punjab, vide letter No,654-98/ 596-S.II dated 3-4-1998 in supersession of earlier letter dated 28-10-1996 approved the compensation of acquired land as Rs,175,000 per acre with 15% compulsory charges. No doubt the petitioners protested against the acquisition proceedings, but mostly their objection was against the price, which was not accepted by the Collector and award under section 11 of the Act of 1894 was announced on 20-7-2000, it is also stated that all legal formalities were completed in accordance with law and no illegality was committed, it was further averred that petitioners have received the assessed compensation and as such the petition is liable to be dismissed. The respondent No,1 also took the stance that all legal formalities were completed in accordance with law, however about the allegations of different price for two owners of land in same village, it was alleged that price was fixed exorbitant and demanded the return of excess price paid.
3. The petition was admitted for regular, hearing on 12-3-2001 and both the parties stated that they will rely on the available record. Both the parties argued their case at length.
4. Learned counsel for the petitioners submits that Board of Revenue vide letter dated 1-12-1998 declared the notice under section 4 and notice under section 17(4) of Act of 1895 illegal, hence all subsequent proceedings are illegal and void. He submits that award under section 11 of the Act of 1895 was announced after the lapse of 14 years and as such is against law and fact. He argues that taking of possession before announcement of award is against law, no notice as provided in law was served upon them and as such the petitioners were condemned unheard. The value of land was fixed unilaterally without any justification. Lastly adds that if it is admitted for the sake of arguments the land was acquired legally then petitioners are entitled for compensation (eh Rs,400,000 per acre equal to the Government land.
5. Learned A.A.-G. submits that Hon'ble Divisional Bench of this Court declared the Rule 7 framed under section 48 of the Act, 1894 are ultra vires and as such the respondents have rightly completed the acquisition proceedings and announced the award. He submits that petitioners have received the compensation and as such they have waived their right to challenge the acquisition proceedings as well as the price of land. He submits that beneficiaries of acquisition is respondent No,1 and as such the petitioners have no claim against them and petition is not maintainable. He supports the impugned award and acquisition proceedings.
6. Learned Standing Counsel for respondent No,1 adopted the arguments of learned A.A.-G. and adds that under Rule 7 ibid no order was ever passed by the Provincial Government which alone has the power to do so and as such any order scraping the acquisition proceedings passed by Board of Revenue is illegal, he submits that price of land was fixed on higher side and they are entitled for reimbursement of excess amount paid from petitioners as well as the respondents. He submits that land has been utilized for the purpose for which it was acquired, hence, no order can be passed for setting aside of acquisition proceedings. He lastly adds that petitioners have filed the suit before civil court and as such the petition is liable to be dismissed.
7. Learned counsel stated at bar that the petitioners have withdrawn the suit and no proceedings are pending in Civil Court.
8. Heard and record perused.
9.The main dispute between the parties revolve around the interpretation of Rule 7 framed under section 48 of Acquisition Act 1894. The argument of learned counsel for the petitioners is that after issuance of notification under section 4 of Land Acquisition Act, 1894, the land Acquisition Collector has to issue notice under section 5 of the Act within one year which was admittedly not issued, notification under section 4 was issued on 9-8-1986 and no notice under sections and 5-A was issued, but on 3-12-1989 the respondent No,2 issued notification under section 17(4) of the Act of 1894. Learned counsel for the petitioners has relied on Muhammad Yousaf v. Chief Settlement Commissioner (1989 CLC 1020). In this case the Notification under section 4 of the Act of 1894 was challenged but the respondent in this case admitted the allegations of petitioners and on the statement of respondents the notification was set-aside. In this case the wires of Rules 7 and 8 of the Rules of 1983 was not direct in challenge. The second judgment relied on by the petitioners is Province of Punjab and 2 others v. Muhammad Haziq and 3 others (1986 CLC 530). In this case Notification under section 4 of Act of 1895 was issued, but subsequently the Governor withdrew the notification under section 48 of the Act of 1894, the parties entered into an agreement and the respondents addressed a letter to Deputy Commissioner for restoration of land to its original owners, after that dispute arose between the parties as WAPDA for whose benefit the land was acquired claimed the land and backed out from the earlier agreement for restoration of land to the owners. The land owners tiled a suit for permanent injunction restraining the respondents to interfere in their possession. The suit was dismissed but was decreed by the appeal court and this court upheld the judgment of appeal court, holding that, after agreeing to restore the land to original owner, the WAPDA was not authorized through Government to acquire the land again under old notification and it was held that:-- "Government could not have done so under old notification because once Government withdrew from acquisition of land all previous notifications stood automatically cancelled. Although Government was entitled to reconsider its previous decision and restart acquisition proceedings, yet it had to start fresh proceedings and State purpose for which land was to be acquired and a fresh notification under section 4 of Land Acquisition Act 1894 was necessary and a fresh award was to be given."
' The facts of this judgment are distinguishable.
' The third judgment relied on by the petitioners is Cantonment Executive Officer, M.E. Section, Cantonment Board, Bahawalpur v. Syed Iqbal Mustafa and 2 others (1993 CLC 1489). In this case the dispute was about the authority of functionary of Government under section 48 of the Act of 1894. The facts of this case were, land was acquired under the Act, 1894 and notification under section 4 was published in official Gazette, but no further proceedings were taken under section 5 of the Act of 1894 within one year from the date of publication of notification under section 4 of the Act of 1894 and the department for whose benefit the land was acquired deposited the amount after 1 year and 5 months. The department after depositing the compensation approached the Commissioner for publication of Notification under section 17(4) of the Act of 1894. The Commissioner informed the department that in view of operation of Rule 7 of the Punjab Acquisition Rules, 1983 the acquisition came to an end and fresh proceedings are required. The department whose benefit the land was acquired challenged the refusal of commissioner claiming that under section 48 of the Act of 1894 powers to withdraw the proceedings are available to Provincial Government only and Commissioner has no power to act under section 48 of the Act of 1894. In the circumstances of this case this court held that: -- "There is no cavil with the proposition that under section 48 of the Land Acquisition Act, it is Provincial Government which could withdraw from the acquisition. The fact remains that the Punjab Land Acquisition Rules, 1983, have been framed by the Provincial Government in pursuance of power derivable from - section 55 of the Act."
"The argument that the Commissioner was not vested with the power to withdraw the notification is not applicable in this case as the Commissioner had only intimated to the Department in response to their application for taking further steps that such steps could not be taken as by operation of Rule 7 the acquisition had come to an end. It was not an order passed by the Commissioner for withdrawal from acquisition. The withdrawal from acquisition had already been made by operation of Rule 7 which shall be deemed to have been done by the Provincial Government as stated above."
' In the present case petitioner's land measuring 70 Acre 3 kanals 18 marlas along with Government land measuring 29 Acre 4 Kanals 13 Marlas was acquired by the Land Acquisition Collector for the benefit of respondent No, 1 . The Secretary Government of Punjab Colonies Department on 11-1-1990 informed the Deputy Commissioner Sahiwal as under:- "Reference to your memo No, 901/ TCC-I/Cly(S), dated 4-10-1989, on the subject cited above.
' Government of the Punjab in Colonies Department is pleased to accord sanction to the sale of state land measuring 28 Acres 4 Kanals and 15 Marlas comprising Killa Nos. 28/1 to 12,13/1, 28/26, 49, 39/5,6,7,14,17,19,20, 21, 28/27/1, 39/28, situated in Chak No,94/6-R, Tehsil and District Sahiwal, at the rate of Rs,4,00,000 (Rupees four lac only) per acre plus 10% surcharge on account of sale by private treaty plus capitalized value of land revenue assessable thereon, in favour of Defence Department, Government of Pakistan, required for Army use in the National interest.
3. The total price of the land should be recovered in lump-sum and deposited into Government Treasury under the proper head of account within a period of six months.
Sd/Under Secretary (Colonies) for Secretary to Government of the Punjab, colonies department."
10.The petitioner's land measuring 70 Acres 3 Kanals 18 Marlas was also acquired with respondent No,1 's land vide notification dated 8-7-1986 issued under section 4 of the Act of 1894, notification was published in official Gazette on 9-8-1986 but after that notice under section 5-A was not issued and suddenly on 14-12-1989 the Commissioner Multan issued notification under section 17(4) which was published in office Gazette on 31-12-1989. Respondent No,1 deposited the compensation with respondent No,2 and vide letter dated 8-5-2000 requested respondent No,1 for finalization of acquisition proceedings and announcing the award. The Board of Revenue vide letter dated 2302-96/1031-S-Il dated 28-10-1996 held that notification under section 4 of Land Acquisition Act 1894 was published in Official Gazette on 9-8-1986 and next notification under section 17(4) ibid was to be issued within a period of one year. The said notification was published in official Gazette on 31-12-1989 which has rendered the acquisition proceedings ultra vires under Rule 7 of Land Acquisition Rules, 1983 and as such a fresh proceedings be initiated and respondent No,1 was directed vide letter No,61-M/DRA dated 29-1-1997 for fresh acquisition of land. It was also observed by the Board of Revenue that after the declaration of acquisition proceedings as ultravires by the Board of Revenue the acquiring department never applied for initiation of fresh proceedings.
11.The matter was pending disposal with respondents when this Court pronounced a judgment in Writ Petition No,2694 of 1990 declaring the rules 7 and 8 of Land Acquisition Rules, 1983 ultra vires and not applicable in future. On the basis of said judgment the Commissioner Multan Division Multan vide letter dated 19-6-2000 requested the Secretary (Settlement) Board of Revenue Punjab Lahore in the following order:-- "(1) I am enclosing a letter bearing number 861/DRA of June 10, 2000 from Deputy Commissioner Sahiwal on, the above subject.
(2)Apparently, confusion has arisen on account of the fact that BOR first declared the acquisition proceedings void because of 3 gap of more than one year between notifications under sections 4 and 17(4) but subsequently allowed the proceedings in the wake of decision of the Hon'ble Full Bench of Lahore High Court in Writ Petition No,2694 of 1990, wherein Rules 7 and 8 of Land Acquisition Rules, 1983 were declared ultra vires and not applicable in future.
(3)Deputy Commissioner is of the view that this order would not be operative in retrospect.
Please advise."
12. As the acquisition proceedings were pending and the Land Acquisition Collector announced the award. The petitioners have assailed the said acquisition on the ground that once acquisition proceedings become ineffective in terms of Rules, 7 and 8 of Land Acquisition Rules, 1983 no land can be acquired except through fresh proceedings.
13. Learned counsel for the petitioner has referred a letter dated 1-12-1998 from Secretary (Settlements), Board of Revenue, Punjab to all the Commissioners and Deputy Commissioners in the Punjab with the following directions:-- "In Writ Petition No,2694 of 90 the Hon'ble Full Bench of Lahore High Court, Lahore, has decided that the Rules 7 and 8 framed for the land Acquisition Rules 1983 are ultra vires. The Hon'ble court has observed as under:-- "We, therefore, hold that both Rules 7 and 8 of the Rules are ultra virse the Act and declare them to be bad in Law and strike them down as being of no legal effect leaving the competent legislature to make suitable amendments by fresh legislation,"
You are therefore, requested that in the light of the judgment of the Hon 'able Lahore High Court, Lahore, that the Rules 7 and 8 are declared ultra virse and not applicable in future and case of 60 days extension in acquisition cases may not be forwarded to the Board of Revenue and the case be processed under Land Acquisition Act, 1894, accordingly."
By relying the said letter the petitioner's requested for initiation of fresh acquisition proceedings which were declined. It is an admitted fact between the parties that notification under section 4 issued on 8-7-1986 published on 9-8-1986 and notification under section 17(4) was published in official Gazette on 13-12-1989 and admittedly at that time both the rules were in action. Issue of Rules 7 and 8 of Land Acquisition Rule, 1983 came before Hon'ble Supreme Court of Pakistan in a case Government of Pakistan, Secretaries, Works, Communications and Physical Planning v. Tauqir Ahmad Khan and others (1996 SCM R 968). In this case respondent whose land stood acquired, challenged the acquisition proceedings on the ground that the acquisition proceedings were to be deemed to have come to an end as no notification under section 5 ibid, was issued within one year from the date of the publication of the notification under section 4, the. High Court upheld the above contention and declared the proceedings taken after the expiry of one year to be void and without jurisdiction. The Hon'ble Supreme Court of Pakistan endorsed the view of this Court.
14. The same issue was also came up before the Hon'ble Supreme Court of Pakistan in a case of Messers Mehraj Flour Mills and others v. Provincial Government and others (2001 SCM R 1806) and it was held as under:-- "Under section 55 of the Act the Government has powers to make rules, which shall be consistent with the Act. The Rules 7 and 8, ex facie, militate the provisions of section 55. These rules being inconsistent with the provisions of the Act were rightly declared by High Court, as ultra vires of the Act, leaving the competent legislature to make equitable amendments therein."
15. In the present case admittedly rules, were declared ultra vires subsequent to the initiation of acquisition proceedings. The. Board of Revenue relying on the High Court judgment directed all the Commissioners and Deputy Commissioners that these rules will not be applicable in future, meaning thereby the effect of judgment of this Court will be prospective and not retrospective. The acquisition proceedings in the present case were initiated in 1986 and notice under section 17(4) of Land Acquisition Act was published in 31-12-1996. No notice under section 5 of the Act, 1894 inviting the objections by the land owners was issued and the award was declared on 20-7-2000 under section 11 of the Land Acquisition Act 1894.
16. The record shows that after the publication of notification under section 17(4) of the Act, notices under sections 9 and 10 of the Act of 1894 were issued to the land owners. They raised objections regarding payment of compensation, however their objections were rejected and the price of petitioner's land was fixed as Rs,175,000 per acre. Respondent No,2 has taken over the possession of land and has constructed their building etc.
17. The argument of learned counsel for the petitioners that the original acquisition proceedings were null and void as no notice under Rule 5 of the Act of 1894 was issued with in one year under Rule 7 of Acquisition Rules, 1983, has no force. The acquisition proceedings remained pending and was finalized on issuance of award on 20-7-2000 and as such this argument is not available to the petitioners as till the finalization of acquisition proceedings the acquisition is not complete and the declaration of Court will be applicable in these circumstances.
18.The other argument of learned A counsel for the petitioner that land adjacent to the petitioner's land owned by respondent/Government was acquired by respondents at the rate of Rs,400,000 per acre but the petitioner's land was assessed at the rate of Rs,175,000 per acre on the ground of discrimination, has a force. There is no denial on the part of respondents that respondent No,1 was paid Rs,400,000 per acre the compensation of their land but petitioners were awarded Rs,175,000 per acre the compensation of their land. It is not understandable what was the reason for decreasing the compensation of petitioner from Rs,400,000 to Rs,175,000, specially when both the lands are in same village and adjacent to each other. The said act of respondents Nos.1 and 2 amounts to a discrimination as respondents have no authority . to acquire the land of private person less than the price assessed for the Government land. In the eye of law Government as well as private persons are equal and as such the act of respondents for payment of less compensation to the petitioners against the Government land is without lawful authority.
19. There is another aspect of this case that petitioners themselves have demanded the compensation of their land as Rs,366,436 per acre at the relevant time and as such they maximum can claim the said amount and Rs,400,000 per acre and not Rs,400,000 per acre.
20. As discussed above, the acquisition proceedings were according to law and the land was rightly acquired by respondent No,2 for respondent No,1, however it is proved on record that while assessing the price of petitioners' land they have been discriminated. The petitioners have already received the amount of compensation at the rate of Rs,175,000 and as such they are entitled for the balance amount only as it has been proved that the fixation of price of petitioner's land was mala fide and was against the facts available on record fat the relevant time.
21. The upshot of the above discussion is that respondents are liable to pay Rs,366,436 per acre to petitioners. Respondent No,2 being ultimate beneficiary of acquired land is directed to pay the balance amount to the petitioners.
22. This writ petition is partially allowed.