' CH. MUHAMMAD YOUNIS, J.---Briefly stated the facts relevant for the disposal of the instant constitutional petition are that land measuring 19 kanals bearing Khasra No,645 and 3 kanals 2 marls bearing Khasra No,2401/646 situated in village Thoa Bahadar owned by the petitioner was compulsorily acquired for the purpose of widening G.T. Road vide Notification under Section 4 of the Land Acquisition Act 1894. The said property was precious one due to its location and its surroundings, being situated on the main G.T. Road in front of bounded premises and buildings of Government Arid Agricultural Research Institute. It was just one kilometer away from the thickly populated area of the main village where the price of plot for house situated even at distance from the road was Rs,1,20,000/- per marla whereas on the main road the price was Rs,2,50,000/- per marla. The property of the petitioner was situated adjacent to Motorway CNG on its western side and near PSO Petrol Pump on eastern side. Three public schools were also situated in the vicinity.
The surroundings of the property have further been fully detailed in para. No,3 of the writ petition.
2. The petitioner was serving abroad. When he came to know in the last month of 2011 he was disturbed to know that the said plots have been forcibly taken over without paying even a single penny to him and the proposed price was based on formula of agricultural land whereas the land of the petitioner had attained almost commercial character. His land was acquired Rs,2,952/- per marla. This act of the respondents amounted to highhandedness. The vested legal rights of the petitioner as enshrined in Articles 2-A, 3, 4, 9, 10-A, 14 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 were violated and the petitioner was condemned unheard. Having no adequate and efficacious alternate remedy this writ petition has been filed. It has been prayed that a writ of certiorari may be issued in respect of the impugned decision and the same may be declared illegal, void and without, lawful authority. A direction of mandamus nature has also been sought to be issued for recalling the impugned decision of valuation of the said commercial plots on G.T.
Road belonging to the petitioner and fix its price on the basis of criteria under section 23 of the Land Acquisition Act and for issuing .a direction for valuation and preparation of all further records in that . Behalf including the award after due notice and opportunity of hearing to the petitioner or his attorney and provide copies of the same at all steps till final payment after taking into consideration the valid objections of the petitioner to enable him to claim reference under Section 18 of the Land Acquisition Act. The petitioner has also prayed for suspending the impugned decisions and all subsequent proceedings.
3. The petition has been vehemently resisted by the respondents. As per comments the Government of Punjab Highway Department had acquired the land measuring 255 kanals 12 marlas for widening/improvement of Sohawa-Talagang-Mianwali Road Section Chakwal to Balkassar Interchange known as Thoa Bahadr bye pass through an award No,6/LAC dated 27-9- 2010. All the codal formalities were completed. The Notification under section 4 of the Said Act was published as back as on 17-5-2006. The subsequent notification under sections 17(4), 6 was published on 6-6-2008. The respondents further' contended that proper service of notices issued under section 9 (1) of the said Act was effected and majority of the interested persons participated in the inquiry conducted by the Land Acquisition Collector. The award was announced on 27-9- 2010 in the common assembly. The petitioner had alternate remedies available to him but he instead of exhausting the same has filed the instant writ petition which is not maintainable. All other allegations of the petitioner have been rebutted in the para-wise comments submitted by the respondents. The amount of Rs,2,95,347/20 can be collected by the petitioner at any time. No fundamental rights of the petitioner were violated by the respondents.
4. The learned counsel for the petitioner contends that the petitioner was out of country and a copy of his Passport has' been produced on the record. The learned counsel for the petitioner emphasized that no notice was served upon the petitioner. After the award dated 27-9-2010 notice under section 12(2) of the band Acquisition Act which was mandatory in nature was never served upon the petitioner and on this score alone his award is liable to be set aside. The learned counsel for the petitioner has referred to 2003 MLD' 801 (Lahore), PLD 1979 (Quetta) 35, PLD 1970 (Lahore) 321 and PLD 2011 (Lahore) 402 in support of his arguments. The learned counsel maintained that in PLD 1970 (Lahore) 321 the award was set aside and the writ was allowed as no notice under section 12(2) of the Land Acquisition Act was given to the owner. He further referred to 1983 CLC 1879.
(Peshawar), AIR 1924 (Patna) 608, PLD 1972 (Lahore) 458, 1989 CLC 1941, PLD 1987 SC 447, 2010 SCMR 421, PLD 1998 SC 24, AIR 1980 SC 1037. On the point of maintainability of the writ petition even if alternate remedy is available if the impugned order is illegal, void ab initio, arbitrary or capricious he referred to 2007 SCMR 1357 and PLD 1972 SC 279. The learned counsel further maintained that it was held in PLD 1992 (Lahore) 151 that writ petition is maintainable even if civil suit was pending. In reference to an objection of the learned AAG about the writ petition being hit by laches, the learned counsel referred to PLD 2002 (Peshawar) .509).B), PLD 1976 (Lahore) 820, 2004 YLR 1969 (Lahore), PLD 1994 (Karachi) 140, PLD 1993 (Karachi) 237, 2004 PLC (C.S)Lahore 201. The learned counsel goes on to submit that Courts should proceed on the presumption that it is empowered to do whatever is not expressly prohibited by law. 'On this point he has referred to 2004 SCMR 649, 2003 SCMR 1025.
On the point of partial quashment of proceedings he referred to 2005 SCMR 594.
5. On the other hand the learned AAG referred to PLD 1967 SC 191, 1994 MLD 2425 (Lahore), PLD 1983 (Lahore) 578, PLD 1084 (Peshawar) 35, 2007 SCMR 38 = 2007 CLD 90 and KLR 2009 Civil Cases 9 (Karachi). He also relied on PLD 1970 (Lahore) 321. The learned AAG contends that alternate remedy was available to the petitioner by filing a reference but he did not avail the same and filed this writ petition at a belated stage so the writ petition is hit by laches. The road has already been constructed. Even if no notice was given after the award the petitioner could at the most file reference within six months. As regards the quantum of compensation the same cannot be resolved in writ petition involving a factual controversy. The learned AAG argued that the matter could not be reopened at this belated stage especially when the petitioner has already filed a reference before the Land Acquisition Collector which though barred by limitation is yet pending before the respondent No, 1 .
6. I have considered the arguments advanced from both the sides and perused the record.
7. It is an admitted fact that after the award dated 27-9-2010 no notice as required under section 12(2) of the Land Acquisition Act was given to the petitioner by the respondents. Section 12(2) provides that the Collector shall give immediate notice of his award to such of the persons ' interested as are not present personally or by their representative when the award is made.
Admittedly the petitioner was not present when the award was announced being out of country. So this notice was mandatory but the respondent No,1 admittedly issued no such notice to the petitioner. There is nothing on the record.To show that any earlier notices were also served upon the petitioner as was required by law. Every land owner has got an independent legal right in respect of his holding and no ex parte and arbitrary proceedings can be initiated by the respondents. The Land Acquisition Collector is bound to follow the provisions of Land Acquisition Act strictly. In the instant case the petitioner admittedly remained out of country from 22-8-2009 to 20-12-2011 and he filed this writ petition on 19-1-2012 soon after his arrival in Pakistan. Most of the case-law referred to above by the learned AAG relates to the limitation for filing reference. The facts and circumstances of the instant case are quite distinguishable from those of the cases referred to above by the learned AAG. The petition for reference though filed during the pendency of this writ petition is not likely to be beneficial for the petitioner and it is not likely to serve the purpose because the same may be rejected being time barred as the provisions of the Limitation Act are not applicable to the reference. As regards the case-law referred to above by the learned AAG as 1994 MLD 2425 (Lahore). The facts thereof are also distinguishable from those of the instant case on the point that the award was not challenged in the said case and the point in issue was as to whether reference could be made under Section 18 within six months from the 'knowledge or from the date of award. In the instant case the award has been challenged by the petitioner. As regards the plea of the learned AAG that the petitioner had alternate remedy available to him which he did not avail, it has rightly been argued by the learned counsel for the petitioner that the award itself was liable to be set aside due to failure of the respondent No,1 to issue the mandatory notice to the petitioner so the writ petition is maintainable because the impugned award is illegal and void ab initio to the extent of the petitioner. As per PLD 1962 (Lahore) 151 even'the pendency of the civil suit could not be formed basis for dismissal of the writ petition. In PLD 1970 (Lahore) 321 the matter has been discussed in detail regarding the effect of non-issuing of notice under section 12(2) of the Land Acquisition Act., Section 12 lays down that the award shall be final and conclusive but it also requires the Collector, to give immediate notice of the making of the award to such of the persons interested or not present when the award is made. The intention was to give full opportunity to the interested persons to make out a case for adequate compensation. It was held by this Court in the said case that giving of a notice under section 12 was an imperative provision of law and read with proviso to section 18 it becomes obligatory upon the Collector to give notice of the making of award within such time as would leave enough respite to a person to file an application under section 18 within a. Period of six months from the date of making of the award. If such a notice was not given it would be a non-compliance with an obligatory part of the statute and the result would be that the award given by the Collector would be vitiated and action under section 11 shall have to be taken afresh so that a new award be made. The said case-law is fully applicable in the instant case. It is an admitted position that the mandatory notice under section 12(2) of the Land Acquisition Act has not been given to the petitioner at all so the award to the extent of the petitioner is declared to be illegal and void so the writ petition is allowed to the extent that the award given by the Collector to the extent of the land of the petitioner acquired stands vitiated and set aside. The Land Acquisition Collector is directed to proceed under section 11 of the Land Acquisition Act afresh and after fulfilling all the requirements of law a new award shall be made in respect of the acquired land belonging to the petitioner.