' SH. AZMAT SAEED, J.---The petitioners are apparently owners of 42 Kanals and 6 Marlas of land situated in Mauza Bhaikot, Raiwind, Tehsil City, District Lahore, who have filed the instant Constitutional petition to call into question the notification under section 4 dated 9-12-2009 and notification under sections 17(4) and 6 dated 8-7-2010 issued under the Land Acquisition Act, 1894.
2. It is the case of the petitioners as disclosed in this petition that the land in question is agricultural in nature situated in the vicinity of Raiwind City and hence not subject to the acquisition in view of Rule 10(3) of Punjab Land Acquisition Rules, 1983, which prohibits the acquisition of land situated near a town used for fodder cultivation or is otherwise culturable, It is further contended that though purportedly land is being acquired for the benefit of respondent No,2, the ultimate beneficiary of said acquisition is a foreign private company, hence the entire process is mala fide.
It is further added that respondent No,2 is a company and cannot transfer the acquired land to any other entity, as such transfer offends against section 43-A of Land Acquisition Act, 1894 and rule 15(1) of the Punjab Land Acquisition Rules, 1983. It is added that the requisite inquiry envisaged by law more particularly as contemplated under Rule 10(2) of the Rules 1983, has not been carried out, hence the notifications in question are liable to be struck down, It is further contended that as a consequence of the impugned acquisition the remaining land of the present petitioners in the same vicinity would become landlocked, which would constitute in effect depriving the petitioners of such remaining parcel of land without any compensation whereof offending against the fundamental rights of the petitioners guaranteed under Article 24 of the Constitution of Islamic Republic of Pakistan, 1973.
3. Both the Provincial Government and respondent No,2 have contested this petition by filing detailed report and parawise comments.
4. It is the case of the respondents that respondent No,2 is a company incorporated under section 42 of the Companies Ordinance, 1984, which is wholly owned by the Government of Punjab. The aims and objects of respondent No,2-Company are inter alia the rapid industrialization of the Province of Punjab by establishing "industrial estate", for which purpose respondent No,2 is authorized to acquire land. In pursuance of its declared objectives a industrial estate known as "Sundar Industrial Estate" has been established by respondent No,2 in the vicinity of Lahore (Raiwind). It is the case of the respondents that a Sweden based company registered in Pakistan in the name and style of Tetra Pak (Pakistan) Limited approached the respondents requiring 42 Acres of land to set up a project with an investment of 92 million Euros. A compact block in this behalf was not available in the already established "Sundar Industrial Estate", therefore, land measuring 89 Kanals and 18 Marlas needed to be acquired for the public purpose of forming part of such industrial estate to be used for setting up of the project of Messrs Tetra Pak (Pakistan) Limited. The petitioners are apparently, as earlier contended, the owners of 42 Kanals and 6 Marlas out of 89 Kanals and 18 Marlas of land. The balance land is owned by other land owners, who have not raised any objection to the acquisition. It is also contended that the acquisition is for the public purpose and in the public interest. It is categorically denied that the land in dispute is agricultural in nature or otherwise culturable. It is also denied that any other parcel of the land allegedly owned by the petitioners could become landlocked. It is also the case of the respondents that the Punjab Land Acquisition Rules, 1983 are mere guidelines for the benefit of the officers proceeding with the acquisition and not binding. It is added that even otherwise Rule 10(3) thereof relied upon by the petitioners is in conflict with the provisions of the main statute i,e, the Land Acquisition Act, 1894 and, therefore, ultra vires the same and thus, ineffective in law. It is further contended that the requisite inquiry has been conducted, the procedure as envisaged by law has been followed in letter and spirit and in future all actions required shall be taken strictly in accordance with law and after obtaining the requisite permissions and consents of the competent authority.
5. Learned counsel for the petitioners as well as the learned Additional Advocate-General, Punjab and learned counsel for respondent No,2 have been heard and the record perused.
6. In pith and substance, the case of the petitioners is that the acquisition and the impugned notifications in respect thereof' offend against Rule 10(3) of the Punjab Land Acquisition Rules, 1983 inasmuch as the land allegedly is not only being used for agricultural purposes but also is culturable. It is the case of the petitioners that the said rules relied upon by them have the force of law and are mandatory in nature. It is also the case of the petitioners that a parcel of land of the petitioners not being acquired would become landlocked and thereby depriving the petitioners thereof without compensation. It also appears to be the case of the petitioners that the land acquired cannot be transferred to Messrs Tetra Pak (Pakistan) Limited. The declared objective of the entire exercise violates section 43-A of the Land Acquisition Act, 1894 and Rule 15(1) of the Punjab Land Acquisition Rules, 1983. It is also the case of the petitioners that the prescribed procedure has not been followed. In support of his contentions, learned counsel for the petitioners relies upon the judgments reported as Devinder Singh and others v. State of Punjab others (AIR 2008 SC 261) and Nandipati Somireddy and others v. State of Andhra Pradesh and others (AIR 1977 Andhra Pradesh 377).
7. On the other hand, it has been urged by the learned Additional Advocate-General, Punjab that the rules in question are mere guidelines and not mandatory in nature. It is further contended that even otherwise same offend against the provisions of the Land Acquisition Act, 1894 and, therefore, ultra vires the same. The factual basis of the instant petition that the land is culturable is also denied. It is added that due process has been employed in letter and spirit. The acquisition is for public purpose and in the public interest and due compensation under the law will be paid to the petitioners. It is also urged that the requisite consents and the permissions as required by law have been obtained and shall be obtained if any other consent or permission is required by law. In support of his contentions, learned Additional Advocate-General, Punjab relies upon the judgments reported as Messrs Mehraj Flour Mills and others v. Provincial Government and others (2001 SCM R 1806), Suo Motu Case No,13 of 2007 (PLD 2009 SC 217), Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others (2003 SCM R 370) and Excise and Taxation Officer, Karachi and another v. Burmah Shell Storage and Distribution Company of Pakistan Ltd. And 5 others 1993 SCM R 338.
8. The main plank of the case of the petitioners is that the land in question is culturable. This contention is denied by the respondents in no uncertain terms both in the parawise comments as well as at the bar. Be that as it may, at the very outset, it could be appropriate to examine the status and effectiveness of the Punjab Land Acquisition Rules, 1983 relied upon by the petitioners.
The said rules have been framed in purported exercise of the powers conferred under section 55 of the Land Acquisition Act, 1894, which reads as follows:-- "55. Power to make rules.--The Provincial. Government shall have power to make rules consistent with this Act for the guidance of officers in all matters connected with its enforcement and may from time to time alter and add to the rules so made:---
(1) The power to make, alter and add to rules under subsection (1) shall be subject to the condition of the rules being made, altered or added to after previous publication.
(2) All such rules, alterations and additions shall be published in the official Gazette and shall thereupon have the force of law."
' The status of rules framed under the above quoted provisions i,e, section 55 came up before a Division Bench of this Court, which in the case reported as Province of Punjab through Collector, Jhang and 2 others v. Khan and 6 others (1988 M LD 1030), held as follows:-- "7. The rules framed under section 55 of the Act are for the guidance of the officers in all matters connected with the enforcement of the Act according to section 55 itself are not in any manner binding on the Court"
9. The Land Acquisition Act, 1894 permits the acquisition of land in accordance with the provisions thereof. The land has been defined in section 3(a) in the following terms:-- "(3) Definitions.-- In this Act, unless there is something repugnant in the subject or context,
(a) the expression "land" includes benefits to arise out of land, and things attached to .The earth or permanently fastened to anything attached to the earth;"
' The aforesaid definition of the expression of "land" as used in the Act of 1894 does not distinguish between culturable and non-culturable land, whether situated in the vicinity of a town or not. The learned counsel for the petitioners had been unable to point out any provision in the statute i,e, the Land Acquisition Act, 1894 which exempts culturable land from acquisition thereunder. Rule 10(3) of Punjab Land Acquisition Rules, 1983 purports to exclude culturable land in the vicinity of a town from the operation of the Act 1894. Thus, there is an obvious contradiction between Rule 10(3) of the Punjab Land Acquisition Rules, 1983 and the provisions of the Land Acquisition Act, 1894, in exercise of powers whereunder the said rules have been framed. In case of inconsistency between the rules and the parent statute the Hon'ble Supreme Court of Pakistan in the case reported as Messrs Mehraj Flour Mills and others v. Provincial Government and others (2001 SCM R 1806), was pleased to hold as follows:-- "(12) There is no cavil with the preposition that the rule shall always be consistent with the Act and no rule shall militate or render the provisions of the Act ineffective. The test of consistency is whether the provisions of the Act and that of rules can stand together. Main object of rules is to implement the provisions of the Act and in case of conflict between them the rule must give way to the provisions of the Act. In any case, the rules shall not be repugnant to the enactment under which they are made."
10. Incidentally, the validity of Rules 7 and 8 of the Punjab Land Acquisition Rules, 1983 was before the Hon'ble Supreme Court of Pakistan in the above mentioned case and the said rules were held to be ultra vires of the Land Acquisition Act, 1894.
11. A similar view has also been consistently taken by the Hon'-ble Supreme Court of Pakistan in the judgments reported as Suo Motu Case No,13 of 2007 (PLD 2009 SC 217); Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others (2003 SCM R 370) and Excise and Taxation Officer, Karachi and another v. Burmah Shell Storage and Distribution Company of Pakistan Ltd. And 5 others (1993 SCM R 338).
12. In each and every of the aforesaid judgments, the Hon'ble Supreme Court has held in unequivocal terms that in case of a contradiction or inconsistency between the parent statute and the rules framed thereunder, the statute would prevail and the rules must yield to the statute and shall be ultra vires thereof, therefore, ineffective in law. The contentions of the parties regarding rule 10(3) when examined in the context of the law as laid down by the Hon'ble Supreme Court of Pakistan and by this Court, referred to above, lead to an irresistible conclusion that the Punjab Land Acquisition Rules, 1983 are at best guidelines for the officers conducting the acquisition proceedings but not binding. Furthermore, rule 10(3.) is inconsistent with the provisions of the Land Acquisition Act, 1894 and, therefore, must yield to the provisions thereof and is ultra vires thereto.
Consequently, the acquisition proceedings in question and the impugned notifications cannot be struck down on the ground that they may offend against rule 10(3).
13. The reference to section 43-A of the Land Acquisition Act, 1894 and Rule 15(1) of the Punjab Land Acquisition Rules, 1983, by the counsel for the petitioners is also misconceived. The said provisions of law do not prohibit the transfer of acquired land by a company to a third party but merely requires that the same should be done with the permission and consent of the Provincial Government. In the instant case, the Provincial Government is a party and has expressed its consent for the transfer of the acquired land to Messrs Tetra Pak (Pakistan) Limited by contesting this petition and refuted the contentions raised by the petitioners in this behalf. If any formal permission is required by the respondents from the Provincial Government, the aforesaid would be material at the relevant point of time in the future and does not in any manner affect the validity of the notifications impugned by way of the instant petition.
14. The petitioners have also taken up the plea that a parcel of land owned by them and not subject to the instant acquisition shall become landlocked, which is denied by the opposite side.
The veracity and correctness of the said allegation cannot be determined without a detailed or factual inquiry, which course of action this Court ordinarily does not undertake in exercise of its Constitutional jurisdiction. Nothing has been urged at the bar so as to persuade this Court to make a departure from the settled course of action in the instant case.
15. The learned counsel for the petitioners has been unable to show from the record that any requirement of law and due process has not been followed or undertaken by the respondents during the course of the acquisition proceedings.
16. The judgments relied upon by the counsel for the petitioners are of no avail to them as they pertain to the Indian Law (rules) as interpreted by the Indian Courts, which are not really relevant in the presence of judgments of the Hon'ble Supreme Court of Pakistan and of this Court on the issues requiring adjudication.
17. There is yet another aspect of the matter. It is apparent from the body of the petition that Messrs Tetra Pak (Pakistan) Limited is the ultimate beneficiary of the impugned acquisition proceedings, hence was a necessary party but has not been impleaded as respondent. In the above circumstances, the very maintainability of this Constitutional petition is suspect.
18. For all the foregoing reasons, no case for interference in or invalidation of acquisition in question of the impugned notifications has been made out. This petition is without any merit and is dismissed accordingly.