' UMAR ATA BANDIAL, J.---The petitioner owned a marble factory on a plot of land measuring 1- kanal 16 marlas, situated in khasra No,874, mouza Gohawa, Tehsil Cantt., Lahore. By waqf deed dated 20-1-2010 and registered on 16-3-2010 with the Sub-Registrar, Lahore Cantt, he dedicated the said property for celebrating the "Urs" at Chora Sharif, District Attock and for the construction of a Orphanage at the said Shrine.
2. By a notification under section 4 of the Land Acquisition Act, 1894 ("Act") dated 29-4-2010 the said land of the petitioner was acquired by the respondents for construction of the Lahore Ring Road Project Package 11-A ("Package 11-A"). Pursuant to another notification dated 14-2-2011 issued under section 17(4) and section 6 of the Act, a declaration has been made that the provisions of section 5 and section 5-A of the Act are not applicable to the acquisition of the said land and that the Collector should take order for acquisition of land under sections 6 and 7 of the Act. This notification contains a Note by its author to the effect that religious place of worship, graveyard or any immovable property attached to any institution has been excluded from acquisition.
3. Learned counsel for the petitioner emphasizes that the Note fails to mention the exclusion of waqf land. He contends that Rule 10(1)(ii) and Rule 11(iii) of the Punjab Land Acquisition Rules, 1983 ("Rules") impose a prohibition upon the compulsory acquisition of land comprising waqf, State and evacuee lands, tombs, graveyard and places of religious character. In the present case, waqf land of the petitioner has been acquired contrary to the said prohibition in the Rules which is illegal. In the above context, he adds that Standing Order No.28 dated 26-6-1909 by the Financial Commissioner is still in the field for barring waqf land being acquired as noted in Syed Zulfiqar Ali Shah v. LDA (1989 SCM R 873). Secondly, he submits that waqf land cannot be acquired because its title vests in Almighty Allah and places reliance on Sahibzada Mansoor Ahmad v. Chief Administrator, Auqaf (1993 M LD 2529). He explains that in any event the respondents are prevented from taking possession of the petitioner's acquired land under section 16 of the Act as the said provision has been declared to be un-islamic by the learned Federal Shariat Court in Inre:- The Land Acquisition Act (1 of 1894) (PLD 1992 FSC 398). The aforenoted judgment also declares section 23 of the Act to be un-islamic. The upshot of the above judgment is that possession can be secured by the respondents only after payment of compensation agreed upon.
4. Thirdly, it is argued by learned counsel for the petitioner that the respondents failed to serve upon the petitioner prior notice of the acquisition of his land under section 4 of the Act. As such the petitioner has been deprived of his right to due process of law guaranteed in Article 4 of the Constitution and otherwise explained in Muhammad Nadeem Arif v. Inspector General of Police, Punjab, Lahore (2011 SCM R 408). Finally, he contends that the registered waqf deed has not been challenged by respondents and therefore the petitioner, land cannot be acquired.
5. The learned Addl: A.G has rebutted the foregoing submissions vehemently. It is argued that the petitioner has approached the Court with unclean hands. On the one hand, the petitioner is taking the pious stand of having dedicated his land to a religious purpose whereas on the other hand, the petitioner is negotiating with the respondents for a higher rate of compensation for the land in question. This is evident from the objections to the acquisition filed by the petitioner before the Land Acquisition Collector, Ring Road as well as his reference under section 18 of the Act filed before the learned referee court.
6. Secondly, it is urged that there is no prohibition in the Rules on the acquisition of waqf land as held in Syed Zulfiqar Ali Shah v. LDA (1989 SCM R 973). Thirdly, it is contended that in any event the Rules upon which the petitioner relies are inconsistent with and ultra vires the provisions of the Act.
The parent statute does not make nor contemplates any type of land to be immune from compulsory acquisition for a public purpose.
7. In the present case, the impugned acquisition is being made for a public purpose of a great importance, namely, the Lahore Ring Road. This is a huge infrastructural project that allows entry of fast vehicular traffic into different areas of Lahore city at key points. The project has 17 packages/parts to execute which several places of religious significance were affected and have been relocated by the respondents. Thus 11 shrines, 152 graves, 15 mosques and 3 madrisas have been shifted to safe sites in order to clear the path for building the public project.
8. Fourthly, the present petition is merely a pressure tactic to extract higher compensation from the respondents. The waqf deed registered on 26-3-2010 is a sham transaction and is meant to be a bargaining tool. This is evident from the fact that the deed was framed after the petitioner found out about the requirement of his land for package 11-A when the entire land covered by the same was surveyed in October, 2009 and the exact coordinates of the affected land were established. A map of Package 11-A prepared by Nespak dated October, 2009 has been placed on record.
9. Finally, it is added that the notification dated 14-2-2011 under section 17(4) and section 6 of the Act excludes the right of objection to acquisition of land under section 5-A of the Act.
Consequently, there is no prohibition in the Act about the acquisition of waqf land or any other type of land from acquisition and also as a result of the notification dated 14-2-2011, no objection to acquisition is permissible under the Act. The foregoing legal position is consistent with Articles 23 and 24 of the constitution wherein there is no qualification or exclusion of land liable to compulsory acquisition.
10. Learned counsel for the parties have been heard. .
11. An ad interim injunction against demolition of structures on petitioner's property was granted on 10-3-2011. Accordingly, on the plea by the learned Addl: A.G. That the Ring Road Project stood interrupted, learned counsel were invited to make submissions on the matter of interim relief and that aspect of the dispute is being decided presently. Without going deeply into the merits of the case, the following points are clear.
' Neither the Act nor Articles 23 and 24 of the Constitution exclude any type of land from compulsory acquisition by the State. However, subordinate legislation that is consistent with the parent Act on the subject is permissible in law. Reference is made to Messrs Mehraj Flour-Mills v.
Provincial Government (2001 SCM R 1806) and Pakistan through Secretary Finance, Islamabad v.
Aryan Petro Chemical Industries (Pvt.), Ltd., Peshawar (2003 SCM R 370). Rules 10(1)(ii) and 11(iii) of the Rules contemplate that executive authorities give an assurance that the specified types of religious sites have been excluded from compulsory acquisition. However, these Rules do not prohibit or exempt the specified land from compulsory acquisition. Indeed no consequence of their breach is stated in the Rules. In essence therefore these rules are directory in effect and meant to safeguard such specific sites against desecration or destruction. It is in compliance with that direction in the Rules that several religious structures and sites falling within the area of Package 11- A have been relocated by the respondents; and more importantly these have not been spared from acquisition for the said project.
12. Therefore, the rules relied by the petitioner do take legal effect but not mandatorily and subject to the exigencies of the public purpose occasioning the acquisition. In such an event, the specified religious sites and structures are intended to be safeguarded by relocation or otherwise and not to be disrespected or desecrated. In the light of the foregoing discussion, the aforementioned Rules are, to the mind of this Court, not ultra vires to the Act but are to be applied in a directory manner to guide the lawful exercise of power, authority and functions of the respondents under the Act. As a result, there is no 'ground made out in the Rules to spare the petitioner's property from acquisition.
13. Secondly, it is plain that the petitioner is taking an alternate position in the matter of compulsory acquisition of the disputed land. Whilst opposing the acquisition, the petitioner is claiming compensation at a rate which is about eight times the settled rate of compensation that is being awarded for similar land falling under package 11-A of the Ring Road. The ambivalence of the petitioner in the matter indicates that there is a point of time/compensation when the petitioner is willing to trade his plea of waqf as a ploy and a bargaining point. That undermines the credibility of the plea taken.
14. From the language of the registered waqf deed dated 16-3-2010, it is plain that the petitioner's land in question contains a marble factory and not a religious site with some holiness attached to it. According to the deed, it is the income of the marble factory that stands dedicated to a religious purpose. Clearly, no injury or violence would be committed to the waqf if the marble factory is relocated or another income generating asset is built from the compensation for compulsory acquisition of the petitioner's land. Such measures are equally consistent with the waqf deed. The provisions of Sharia permit the alienation of the land dedicated to waqf and the re-application of the proceeds of its sale for the charitable purpose specified for the waqf. Reliance is placed on Bell Ram and Brothers v. Chaudhri Muhammad Afzal (PLD 1949 PC 8) and Mian Inam Karim v. Mirza Israr-ul-Qadir (1984 SCM R 1427). Indeed the waqf deed specifically authorizes the mutawali to sell the waqf property and to reapply its proceeds for the purposes of the orphanage. Also section 16 of the Punjab Waqf Properties. Ordinance authorizes the Chief Administrator to sell notified private waqf property where expedient and reapply its proceeds for, inter alia, the purposes of the waqf.
This is the precise ground that was adopted by this Court in the case of Syed Zulfiqar Ali Shah v. LDA which has been quoted with approval by the Hon'ble Supreme Court in its afore noted judgment titled Syed Zulfiqar Ali Shah v. LDA (1989 SCM R 873). It may be mentioned in passing that the provisions of section 16 and section 23 of the Land Acquisition Act, 1894 are not presently relevant.
The question in issue is the validity of the impugned acquisition and not the payment of compensation as a precondition for taking, over possession of the acquired land.
15. The foregoing grounds suffice to deal with the matter of interim injunction that is presently in issue. The respondents shall relocate the petitioner's marble factory in accordance with law or otherwise and shall fairly compensate the petitioner for the land, buildings and machinery constituting the acquired assets of the petitioner in accordance with law. As a result of the above discussion, the interim injunction dated 10-3-2011 is vacated.