MAZHAR ALAM KHAN MIANKHEL, J.---The petitioners through instant writ petition have asked for issuance of an appropriate writ directing the respondents not to interfere in the lands of the petitioners and land acquisition Award dated 4-8-2007 under Section of Land Acquisition Act. 1894, be declared illegal, void, without lawful authority and of no legal effect against their rights.
2. The brief but the material facts of the case are that for construction of three tube-wells and certain quarters, the Land Acquisition Collector issued a notification under section 4 of the Land Acquisition Act 1984 at the request of Public Health Department (at that time the entire lands were owned by grandfather of the petitioners who later on gifted the same. To the petitioners in equal shares and the property proposed for said acquisition fell in the lot of petitioners). The notification under section 4 of the Act ibid was published somewhere in May, 1980 and then notification under sections-5 & 6 of the Act, ibid, were issued by the Commissioner Malakand Division, dated 13-10- 1980, which were later on published in the Government Gazette. But thereafter, the land acquisition process was stopped for the reasons best known to department.
The Land Acquisition Collector, on the strength of twenty-nine years old notification under Section- 4, tried to encroach upon the lands of the petitioners through illegal means and wanted to construct boundary walls at midnight, which were later on stopped by the petitioners with the help and intervention of the local police. The respondent No. 4, , Tehsil Municipal Administration, then asked the respondent No. 5 to initiate the acquisition process once again, abandoned somewhere in 1980. The Collector then issued notices under sections 9 and 10 of the Land Acquisition Act on 30- 3-2007. The petitioners, then through their attorney filed objections before the Land Acquisition Collector which were received in the office of respondent No.5 on 20-4-2007. The respondent No.5, instead of deciding the objections filed by the petitioners, announced the Award in question on 4- 8-2007. Issuance of this Award has annoyed the petitioners, who have come to this Court through instant writ petition.
3. The learned counsel for the petitioners submitted that the act of the Land Acquisition Collector at the instance of Tehsil. Municipal Administration, Tehsil Swat, through Tehsil Nazim, respondent No.4, is entirely against the law; that the initial acquisition process initiated at the instance of Public Health Department in the year 1980 was dropped without anything in black and white. He next contended that issuance of fresh notice straightaway under sections 9 & 10 of the Act, ibid, on the strength of first notice in the year 1980 at the instance of Public Health Engineering Department is once again against the law, as under the law, notice under section 5(2) of. Act is to be issued within a period of one year of the issuance .Of notification under section 4, otherwise the acquisition process itself comes to an end. While further arguing his case, he submitted that the announcement of Award without giving any finding on the objections filed by the petitioners is not permissible under the law and such Award is no Award in the eye of law, having no adverse effect on their rights and that being illegal and void is liable to be set aside. The learned counsel also placed reliance on 1993 CLC 1489 "Cantonment Executive Officer, M.E. Section, Cantonment Board, Bahawalpur v. Syed Iqbal Mo. Tafa and 2 others" and 1986 CLC 530 "Province of Punjab and 2 others v. Muhammad Hazig and 3 others".
As against that, the learned counsel for respondent No.4 and learned D.A.G. Appearing on behalf of respondent No.5 submitted that under the law, there is no such bar and any property under the law can be acquired for the public purpose. He next submitted that the Award announced was for the acquisition of land for construction of quarters for the operators and other staff of the already constructed tube-wells. He further argued that the entire process was initiated in accordance with law and no illegality was committed by the respondents and the writ of the petitioners, being merit-less, is liable to be dismissed.
4. The learned counsel for the parties were heard and record of the case was perused.
5. The perusal of record would reveal that the Public Health Department needed some piece of land for construction of three tube-wells and its staff quarters for which the Land Acquisition Collector was requested for acquisition of the property, for above-said public purpose under Land Acquisition Act of 1894. The Collector accordingly initiated the process by issuing a notification under section-4 of the Act ibid, which was later on published in the official Gazette in May, 1980, whereafter notification under Section-5 was issued by the Commissioner, Malakand Division, on 13- 10-1980 and the same was later on published in the Gazette. Then it was directed that notice under section 5-A of the Act, ibid, be given to the interested persons but instead of waiting for that, it was further directed that notification under sections 6 & 7 of the Land Acquisition Act be issued.
The land acquisition file would reveal that without passing any order or taking any other proceedings, the acquisition process was dropped and then for the first time after about 27/28.
Years, in the year 2007, notices under 'sections 9 & 10 of the Act, ibid, were issued by placing reliance on notifications/notices under sections 4 & 5 of the year 1980-81. Strange enough that the department, after awakening from a deep slumber, restarted the acquisition process which was earlier dropped with no reason and justification. This time, these notifications were issued at the instance of Tehsil Municipal Administration instead of Public Health Engineering Department. This act on the part of respondents Nos.4 & 5, itself, appears to be without any legal justification and against law, when the government or the concerned department i.e. The Public Health Engineering dropped its idea to acquire the land for the public purpose, then after lapse of 27/28 years, those initial notifications cannot be made basis for. Initiating onward process under the Land Acquisition Act. So, the notices issued under sections 9. & 10 by the Collector are in derogation of the law on the subject. The argument of learned counsel for. Petitioner that non-issuance of notification under section-5 of the Act within a period of one year after issuance of notification under section-4, would automatically drop the matter of acquisition though is in accordance with law, as the provisions of section 5(2)(3) are very much clear in this regard, but his argument to this extent, in the circumstances of the case, would have no' legal force behind it, as the notification under section 5 of the Act was accordingly issued by the Commissioner and then was published within the stipulated time and objections of the interested persons were also asked for under section 5-A of the Act, ibid, and to initiate further process, directions for issuance of notification under sections 6 & 7 of the Act were also issued. Though there is nothing on the record regarding stoppage of acquisition process, but silence of the Department/Land Acquisition Collector in this regard would be sufficient to observe that the department had dropped its idea to acquire the land. The case- law referred to by the learned counsel for the petitioner is also in respect of section 5 of the Act, ibid. So, the case of the petitioners though do, not fall under the provisions of section 5(2)(3), but considerable delay and silence of the department itself is sufficient to declare the land acquisition process to be nullity in B the eye of law, as the Land Acquisition Collector while announcing the Award in the year 2007, had assessed the market value of the property to be acquired from the period of issuance of notification under section 4, which itself is a mockery of Law, absurd and irrational. Though the Government under the law, can acquire any property for public purposes, but that acquisition must be in accordance with law and should not defeat the very provisions of law in this regard. The owners of the property to be acquired, be fairly compensated for their lands. If instead of Public Health Engineering Department, Tehsil Municipal Administration was in the need of the same property, then it could have easily asked the Land Acquisition Collector to initiate the process of acquisition under the law and should not have taken shelter under the previous abandoned acquisition process. It is ridiculous to assess the market value in the year 2007, prevailing in the year 1980, at the time of issuance of notification under section 4. So, the Award announced by the Collector is illegal, against the law and without lawful authority having no adverse effect against the rights of the petitioner which is hereby set aside. Needless to say that the Department would be at liberty to acquire the property if is in the need of it, but through a fresh process under the law.
This writ petition is thus allowed in the above terms.