' M. TABASSUM AFTAB ALVI, J.---The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby vires of notifications dated 14-2-2011 and 27-8-2011, issued under section 4 read with section 17(4) of the Land Acquisition Act, 1894 along with its 'ancillary proceedings and notification dated 3-4-2007 pertaining to constitution of District Price Assessment Advisory Committee have been challenged for having been passed without lawful authority and is of no legal effect.
2. Precise facts giving rise to the instant writ petition are that petitioners are first class State subjects, who are owners in possession of immovable property comprising land and houses, situated in village Arlah, Tehsil and District Muzaffarabad. It is claimed that Deputy Commissioner/ Collector Muzaffarabad (respondent No,4) issued impugned notification dated 14-2-2011 under Section 4 of the Land Acquisition Act, for acquisition of the land and houses belonging to petitioners for construction of "Patriend Hydro Power Project" by Star Hydro Power Company Limited.
It is stated that the said Company is non-State-Subject and not registered in Azad Jammu and Kashmir, hence acquisition of land for the above company is neither lawful nor the land is being acquired for the public purpose. It is also claimed that Collector Land Acquisition Muzaffarabad, instead of assessing the market price of the land and houses belonging to petitioners himself, has entrusted the same to respondent No,1,0 for which the acquisition is being made, which is clear violation of basic provisions of the Land Acquisition Act. It is further stated that price of the land and houses has also been asse9sed by the District Price Advisory Committee-respondent No,6, headed by Deputy Commissioner/Collector Muzaffarabad as its Chairman and respondents 7 to 9 as its members. It is further stated that process of acquisition by respondents Nos.1 to 9 at the behest of (respondent No,10) a private company is in utter disregard and violation of the Constitution and Land Acquisition Act. The validity of notification dated 27-8-2011 issued under section 17(4) of Land Acquisition Act, during pendency of writ petition and notification dated 3-4-2007 pertaining to constitution of District Price Advisory Committee have also been challenged through amendment.
3. After admission of writ petition respondents Nos.1 to 9 filed written statement on 20-8-2011 stating therein that petitioners are not aggrieved, as they have an alternate remedy of reference, therefore, writ petition is not maintainable. It is also stated that disputed questions of fact have been raised which cannot be resolved in writ petition. It is also claimed that Patriend Hydro Power Project is a mega project, established for public purpose, which do not grant ownership to the private company rather the acquired land will be mutated in the name of Government. The respondent No,4 Deputy Commissioner/Collector filed separate written statement on 20-8-20.11 stating therein that proceedings for acquisition of land in question have been initiated in accordance with law and the market value of landed property was determined in accordance with market rates and in case of any objection petitioners can file reference before competent Court of law. It is stated that production of electricity is subject of Kashmir Council and Government of Azad Jammu and Kashmir can extend approval to the extent of 50 M.W. Electricity project through private power cell while approval of high powered projects can be granted by Government of Pakistan. It is further stated that landed property will be in the ownership of Azad Government, while status of Star Company-respondent is merely that of contractor/lessee. It is also claimed that price of land can be determined by Collector according to Land Acquisition Act, 1894; however, district price assessm ent advisory committee can only advise the Collector. The respondent No,10 also filed detailed separate written statement on 11-8-2011 stating therein that petitioners are not aggrieved because they got an alternate remedy under the provision of Land Acquisition Act, 1894.
It is stated that petitioners have not invoked jurisdiction of this Court with clean hands and have also raised multifarious matters and writ merits dismissal due to mis-joinder of cause of action. It was claimed that electricity in Pakistan and Azad Jammu and Kashmir is a drastic problem which is liable to be solved with help of the private sector. It was stated that earlier the Azad Jammu and Kashmir Government has given its water to WAPDA which has constructed Mangla Dam and now Neelum and Jhelum projects are under construction but even then the load shedding could not be controlled. It is further stated that the Azad Jammu and Kashmir Government has established a separate Department known as "Private Power Cell" which is entrusted to the responsibilities to arrange funds for establishment of power houses. At the instance of Private power cell respondent No,10 opted to launch a power house for producing 132 K.W. Electricity. It is claimed that after deciding the, terms and conditions of the Azad Jammu and Kashmir Government, Star company- respondent No,10 surveyed the project and spent billions rupees on the initial work of the project. It is stated that project will contribute in development of the State in addition to eradication of load shedding. It is also stated that after completion of project the respondent-company will own it for 35 years only and thereafter it will become property of Government and people of Azad Jammu and Kashmir. It is further claimed that Mangla Dam was constructed by WAPDA about 40 years ago and Neelum and Jhelum will be completed by 2017, whereby no water use charges have been given to Azad Jammu and Kashmir, whereas, water use charges fixed with respondent No,10 by Azad Government through P.P.C. Will be given directly to Azad Jammu and. Kashmir Government. It is also stated that tariff fixed by WAPDA is up to Rs,14 per unit, whereas approved rates fixed by Azad Government with answering respondent No,10 are lesser than the rates of WAPDA, therefore, project is beneficial for the Azad Jammu and Kashmir State and public at large. It is also claimed that at present electricity supply in Azad Jammu and Kashmir is under direct control of WAPDA which is also tripped from various places and the same causes disturbance in public life, whereas, the use of electricity likely to be produced by Star Company-respondent No,10 will be at the sweet will of Azad Jammu and Kashmir Government, hence, project in question is national project and is beneficial for people of Azad Jammu and Kashmir. It is also claimed that apart from petitioners' land the land from other villages Ghoran, Patriend, Mustafaabad, Noshera and Chothla is also in the process of acquisition, however, inhabitants of the above villages never objected the construction of national project rather they have supported it, although petitioners have been given More benefits. It is further stated that respondent No,10 being registered company has fulfilled the requirement of law i,e, sections 451 and 452 of the Companies Ordinance, 1984 as adapted in Azad Jammu and Kashmir. It is further stated that respondent No,10 has been granted registration certificate by the concerned authority which is legally enabled the company to execute the work at the proposed place and the executant Company has also established its office at Muzaffarabad. It is also claimed that land in question is acquired in the name of Azad Jammu and Kashmir Government and not for company, therefore, question of non-State Subject of answering respondent No,10 is baseless.
4. After filing written statements by respondents the petitioners moved an application for seeking amendment in writ petition on 5-9-2011 to challenge notification dated 3-4-2007 regarding constitution of Price Assessm ent Advisory Committee for assessment of price of land to be acquired under the provisions of Land Acquisition Act, 1894 and notification dated 27-8-2011 pertaining to emergency acquisition. However, as we proceeded to decide the main case and saving parties from prolonging the matter the amendment application was treated as part of pleading.
5. The learned counsel for petitioners Mr. Abdul Rasheed Abbasi, Advocate; submitted that impugned notification dated 14-2-2011 was issued in favour of Star Company-respondent which is not 'a state subject in terms of notification No,I-L/84 dated 20-4-1927 and according to law known as Jammu and Kashmir Alienation of Land Act, 1995 "Bik" land in the State cannot be transferred/alienated to or acquired in favour of a non-state subject. The learned counsel pressed into service that as Messrs Star Company is admittedly non-state subject and not registered under the Companies Ordinance, 1894, therefore, the acquisition proceedings are contrary to law, which are liable to be quashed. The learned counsel further submitted that requirement of sections 30, 31 and 32 of Companies Ordinance, 1984 have not been complied with, hence, no acquisition can be allowed without registration of the respondent-company.
6. The learned counsel for respondents, Messrs Syed Shahid Bahar and Noorullah Qureshi, Advocates, while controverting the arguments of learned counsel for petitioners submitted that respondent No,10 is a foreign company which has complied with the provisions of sections 451 and 452 of Companies Ordinance, 1984, as adapted in Azad Jammu and Kashmir and has been registered by the concerned authority and permission certificate has been issued to that extent.
7. We have heard learned counsel for the parties at length and have also examined the law on controversial point. For the purpose of resolution of the above point section 3(e) of the Land Acquisition Act, 1894 is reproduced as under:-- "3(e) the expression "Company" registered under the Indian Companies Act, 1882, or under the (English) Companies Acts, 1862 to 1890, or incorporated by an Act of Parliament or [by a Pakistan jaw] or by Royal Charter or Letters Patent [and includes a society registered under the Societies Registration Act, 1860 and a registered society within the meaning of the Cooperative Societies Act, 1912;]"
' Section 4 of the Land Acquisition Act, 1894 relates to acquisition of land for any public purpose or for a company which postulates that; "4. Publication of preliminary notification and powers of officers thereupon.--- (1) [whenever it appears to the Collector of the District that the land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.J.........
' Similarly, for proper appreciation of the controversy sections 30, 31 and 32 of Companies Ordinance, 1984 are reproduced as under:-- "30. Registration of memorandum and articles, etc.
(1) The memorandum and the articles, if any, shall be filed with the registrar in the Province or the part of Pakistan not forming part of a Province, as the case may be, in which the registered office of the company is stated by the memorandum to be situate.
(2) A declaration by such person as may be prescribed in this behalf, or by a person named in the articles as ,a director, or other officer of the company, of compliance with all or any of the requirements of this Ordinance and .The rules made thereunder shall be filed with the registrar; and the registrar may accept such a declaration as sufficient evidence of such compliance.
(3) If the registrar is satisfied that the company is being formed for lawful purposes, that none of its objects stated in the memorandum is inappropriate or deceptive or insufficiently expressive and that all the requirements of this Ordinance and the rules made thereunder have been complied with in respect of registration and matters precedent and incidental thereto, he shall retain and register the memorandum and articles, if any.
(4) If registration of the memorandum is refused, the subscribers of the memorandum or anyone of them authorized, by them in writing may either supply the deficiency and remove the defect pointed out, or within thirty days of the order of refusal prefer an appeal--
(a) where the order of refusal has been passed by an additional registrar, a joint registrar, a deputy registrar or an assistant registrar, to the registrar; and
(b) where the order of refusal has been passed, or upheld in appeal, by the- registrar, to the Authority.
(5) An order of the Authority under subsection (4) shall be final and shall not be called in question before any Court or other authority.
31. Effect of memorandum and articles.--- (1) The memorandum and articles shall, when registered, bind the company and the members thereof to the same extent as if they respectively had been signed by each member and contained a covenant on the part of each member, his heirs, and legal representatives, to observe and be bound by all the provisions of the memorandum and of the articles, subject to the provisions of this Ordinance.
(2) All money payable by any member to the company under the memorandum or articles shall be a debt due from him to the company 32. Effect of registration.---( 1) On the registration of the memorandum of a company, the registrar shall certify under his hand that the company is incorporated and in the case of a limited company, that the company is limited by shares or guarantee, as the case may be.
(2) From the date of incorporation mentioned in the certificate of incorporation, the subscribers of the memorandum, together with such other persons as may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Ordinance."
8. Likewise section 451 of the Companies Ordinance, 1984 is also reproduced as under:-- "451. Document to be delivered to registrar bu foreign companies. (1) Every foreign company which, after the commencement of this Ordinance, establishes a place of business in Pakistan shall, within thirty days of the establishment of the place of business, deliver to the registrar---.
(a) a certified copy of the charter, statute or memorandum and articles of the company, or other instrument constituting or defining the constitution of the company, and if the instrument is not written in the English or Urdu language, a certified translation thereof in the English or Urdu language;
(b) the full address of the registered or principal office of the company;
(c) a list of the directors, chief executive and secretaries (if any) of the company;
(d) a return showing the full present and former names and surnames, father's name or, in the case of a married woman or widow, the name of her husband or deceased husband, present and former nationality designation and full address in Pakistan of the principal officer of the company in Pakistan by whatever name called;
(e) the full present and former names and ,surnames, father's name, or, in case of a married woman or widow, the name of her husband or deceased husband, present and former nationality, occupation and full addresses of some one or more persons resident in Pakistan authorized to accept on behalf of the company service of process and any notice or other document required to be served on the company together with his consent to do so; and
(f) the full address of that office of the company in Pakistan is to be deemed its principal place of business in Pakistan of the company.
(2) The list referred to in clause (c) of subsection (1) shall contain the following particulars, that is to say,--
(a) with respect to each director,-
(i) in the case of an individual, his present and former name and surname in full, his usual residential address, his nationality, and if that nationality is not the nationality of origin, his nationality of origin, and his business occupation, if any, and any other directorship which he holds;
(ii) in the case of a body corporate, its corporate name and registered or principal office; and the full name, address, nationality and nationality of origin, if different from that nationality, of each of its directors;
(b) with respect to the secretary, or where there are joint secretaries, with respect to each of them--
(i) in the case of an individual, his present and former name and surname, and his usual residential address;
(ii) in the case of a body corporate, its corporate name and registered or principal office: ' Provided that, where all the partners in a firm are joint secretaries of the company, the name and principal office of the firm may be stated instead of the particulars mentioned in clause (b)
(3) Every foreign company, other than a company mentioned in subsection (1) shall, if it has not delivered to the registrar before the commencement of this Ordinance the documents and particulars specified in section 227 of the Companies Act, 1913 (VII of 1913), shall continue to be subject to the obligation to deliver those documents and particulars and be liable to penalties in accordance with the provisions of that Act."
9. According to section 4 of Land Acquisition Act, 1894, land in any locality which is needed or is likely to be needed for any public purpose or for a company can be acquired and in this regard the Collector of District shall issue notification to that effect. The term "Company" means a company registered under the Companies Ordinance, .1984. The only controversy needs resolution, is that whether Star Company-respondent, which is a foreign company, has been registered in Azad Jammu and Kashmir and compliance of section 451 of the Ordinance has been made or it is foreign company as has been argued by the learned counsel for the petitioners. A perusal of certificate issued by Registrar of Joint Stock Companies and Firms Muzaffarabad dated 21-6-2011, reveals that respondent-company has delivered the necessary documents required per sections 30, 31, 32 and 451 of Companies Ordinance, 1984 and thereafter the proceedings of acquisition of land in the company's favour have been made. Once any company is registered after fulfilling the requirements of proceedings then it cannot be said that the company is non-State. Subject.
Acquisition for the said company although the process for which the land is being acquired is of public utility.
10. Even otherwise, as admitted by respondent-company in the written statement that though the acquisition proceedings are being taken in favour of respondent company but ownership of Patriend Hydro Power Project will be given to Azad Jammu and Kashmir Government, hence, the controversy that respondent-company is not a State subject becomes irrelevant. The same stand has been taken by the Azad Jammu and Kashmir Government in its written statement. The company-respondent has also categorically stated in written statement that their status is that of contractor/lessee and they will use the project only for 35 years subject to payment of settled tariff to Azad Govt. Therefore, contention of learned counsel for the petitioners that landed property has been acquired for respondent-company is misconceived which is hereby turned down.
10(sic.). The next contention of learned counsel for petitioners that impugned notification dated 14- 2-2011 has been issued in favour of Star Company for construction of Partiend Hydro Power Project is not for public purpose as defined in section 4 of the Land Acquisition Act, 1894. The learned counsel emphasized, that abovementioned project is for the benefit of company-respondent which will have to earn billions of rupees by giving a minor share to Azad Government and the same cannot be termed as public purpose. The learned counsel also strenuously argued that company-respondent by acquiring land will become owner, thereof, which will be serious violation of State laws. The learned counsel emphasized that petitioners being State Subjects have fundamental right to acquire, hold, dispose of property and they cannot be deprived from the same in accordance with law.
11. The learned counsel for respondents, while controverting the arguments of the learned counsel for petitioners submitted that question of public purpose cannot be determined by this Court in exercise of writ jurisdiction because it is prerogative of Collector Land Acquisition to determine as to whether the purpose is a public purpose or not. The learned counsel further submitted that land in question is acquired by Government of Azad Jammu and Kashmir which shall remain under the ownership of Azad Govt. And status of Star Company-respondent is only that of contractor-lessee and not that of owner. The learned counsel also submitted that after 35 years, project will also be handed over to Azad Government, therefore, the suit land is required for public purpose.
12. After hearing, learned counsel for the parties we have given our anxious thought to the point involved. For the purpose of resolution of controversy section 4 of the Land Acquisition Act, 1894 is again reproduced as under:-- "4. Publication of preliminary notification and powers of officers thereupon.----( 1) (Whenever it appears to the Collector of the District that the land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality "
The bare reading of the abovementioned basic provision of statutory law makes it clear that it is prerogative of Collector Land Acquisition to determine as to whether purpose is a public purpose or not. The question of public purpose cannot be determined by this Court in exercise of writ jurisdiction. Our this view is fortified by leading precedent of the apex Court of Azad Jammu and Kashmir in case titled Administrator Municipal Corporation Committee Kotli and others v.
Muhammad Abdullah and 3 others [2001 YLR 3367].
13. Even otherwise as disputed immovable property has been acquired by Government for construction of project by B Star Company-respondent and property will remain in the ownership of Azad Government and after using 35 years as a contractor the project will be handed over to Azad Government as admitted in written statement and during course of arguments by the learned counsel for respondents, hence, we are constrained to hold that land in question is required for public purpose within the meaning ofsection 4 of the Land Acquisition Act, 1894, therefore, petitioners were not deprived of their property. For the above reasons prayer for abrogation of notification dated 27-8-2011 pertaining to emergency acquisition is also declined.
14. The next contention of Mr. Abdul Rasheed Abbasi, Advocate is that notification pertaining to constitution of District Price Assessm ent Advisory Committee for the purpose of acquisition of land dated 3-4-2007 is contrary to basic provisions of Land Acquisition Act, 1894. It is strenuously argued by the learned counsel that according to statutory law, it is prerogative of Collector to assess and fix the price and not by committee. In support of his contention the learned counsel for petitioners referred to and relied upon following case-law.
(i) Messrs Qureshi Vegetables and Ghee Mills v. Deputy Collector Excise and Taxation Mirpur and others [1994 SCR 123];
(ii) Iqbal Razzaq Butt v. Abdus Salam Butt and 6 others, [1999 MLD 261];
(iii) Walayat Khan and 2 others v. Muhammad Azam and 12 others [PLD 1996 SC (AJK) 18];
(iv) Messrs Haroon Brothers v. Drugs Registration Board and another [1992 CLC 1017];
(v) Attaullah Atta v. Ghulam Bashir Mughal and 5 others [1996 CLC 1551];
(vi) Federation of Pakistan through Ministry of Defence and 2 others v. Muhammad Khan and another [PLD 1991 SC (AJ&K) 33].
' It was held in case titled Messrs Qureshi Vegetables and Ghee Mills v. Deputy Collector Excise and Taxation Mirpur and others [1994 SCR 123] that actions, which are mala fide, coram non judice or without jurisdiction cannot be validated if the same are found to be without jurisdiction even after passing the. Valid legislation/operated retrospectively.
' In case titled Iqbal Razzaq Butt v. Abdus Salam Butt and 6 others, [1999 MLD 261] it was held that remedy by way of appeal, which is not disposed of for years together, is neither adequate nor efficacious.
' In case titled Walayat Khan and 2 others v. Muhammad Azam and 12 others [Pa) 1996 SC(AJ&K)
18] it was held that where any mala fide or excess or abuse of power was attributed and sufficient inference from material on record was gathered in support of such allegation, jurisdiction of High Court to entertain constitutional petition and granting necessary relief in the nature of certiorari was not prohibited by law.
' In case titled Messrs Haroon Brothers v. Drugs Registration Board and another- [1992 CLC 1017] it was held that alternate remedy neither efficacious nor speedy, hence not bar to hearing of constitutional petition.
' In case titled Attaullah Atta v. Ghulam Bashir Mughal and 5 others [1996 CLC 1551] it was held that Departmental remedies were not efficacious in the circumstances of the case as considerable time would be consumed in obtaining the decisions from the relevant authorities with the result that recommendation of Public Service Commission would become redundant, therefore, writ petition was declared as maintainable.
' In case titled Federation of Pakistan through Ministry of Defence and 2 others v. Muhammad Khan and another [PLD 1991 SC (AJ&K) 33] it was held that Revenue Assistant Kotli performed functions as Collector under the Land Acquisition Act although he had not been appointed to perform those functions, therefore, his proceedings were declared as courm non judice.
15. The learned counsel for respondents Messrs Syed Shahid Bahar and Noorullah Qureshi, Advocates, while controverting the arguments of learned counsel for the petitioners submitted that status of advisory committee is only to advise the Collector and price will be assessed by the Collector only.
16. For the purpose of resolution of above legal point it is essential to reproduce section 15 of the Land Acquisition Act, 1894 which is as below:- "15. Matters to be considered and neglected.---In determining the amount of compensation, the Collector shall be guided by the provisions contained in sections 23 and 24."
The bare study of the abovementioned statutory provision makes it clear that it is sole' prerogative of Collector to determine the amount of compensation. The constitution of advisory committee through impugned notification dated 3-4-2007 is contrary to basic provision of the Land Acquisition Act, 1894. The learned counsel for respondents failed to cite any provision of law under which the abovementioned notification was promulgated. A pen;-a1 of record also reveals that price of the land in question was determined by advisory committee and not by the Collector while exercising its independent power.
17. The nub of above discussion is that the impugned notification dated 3-4-2007 pertaining to the constitution of District Price Assessm ent Advisory Committee for the purpose of acquisition of land is hereby quashed, consequently, ancillary proceedings of the advisory committee regarding fixation of market value of immovable property in question, are hereby declared without jurisdiction, hence, set aside. The Collector-respondent is directed to assess the market value of the land including other things i,e, houses, trees etc. Attached to the said land in accordance with the provision of section 15 of the Land Acquisition Act, 1894.
Writ petition is partly accepted.