' RUAF AHMAD SHEIKH, J.---The petitioners have prayed that Notifications No,300/LAC/DO(R) dated 22-7-2005 and No,1134/LAC/EDO(R) dated 24-9-2005 be declared as illegal, unconstitutional, unwarranted, unprecedented, void, without jurisdiction, against the principles of natural justice and dictums of the Superior Courts of the country, good governance, moral values, religious commands and ineffective qua the rights of the petitioners and other land owners and as such the same be struck down/quashed/set aside.
2. It is stated that the petitioners are inhabitants and owners of land in Mauza Gali, Post Office Kharkan, Tehsil and District Rawalpindi; that the land owned by them is ancestral property and inherited by them from their predecessors; that vide notification dated 22-7-2005 published in the Punjab Gazette on 30-7-2005 issued under section 4 of the Land Acquisition Act, 1894, it was notified that the land measuring 1296 Kanals, 14 Marlas and 4 Sarsais was likely to be acquired for Bahria Town (Pvt.) Limited to meet the housing requirements of the general public at their expenses; that subsequently notification No,1134/LAC/ EDO(R) dated 24-9-2005 was got published under section 17(4) of the Land Acquisition Act, 1894 in the Punjab Gazette on 1-10-2005, whereby it was maintained that the land was urgently required and the provisions of sections 5 and 5-A of the Land Acquisition Act, 1894, would not be applicable in the case in order to deprive the petitioners and other land owners of their properties through mala fide act and mutual connivance of the respondents; that Bahria Town is a Private Housing Scheme and does not provide any house or plot at State expenses rather its activities are purely commercial in nature and profit oriented; that objections were not invited from the land owners as required under Rule 5 of the Punjab Private Site Development Schemes (Regulation) Rules, 2005 in the name of urgency, which did not exist; that the provisions of sections 5 and 5-A of the Act ibid were made inapplicable to deprive the petitioners to defend the illegal acquisition proceedings; that the act of the respondents is violative of the fundamental rights guaranteed under Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan, 1973; that no notice was issued to the petitioners as required under the law but even then they made hue and cry but the fate of the same was not communicated to them; that the notice was not served in accordance with the provisions of section 45 of the Land Acquisition Act, 1894 so the petitioners and others were deprived of their rights to file the objections; that the public functionaries did not act fairly, justly and impartially and an impression was created that they were on pay roll of Bahria Town; that the petitioners are owners of small pieces of land, which is used for residential purposes or grazing their cattle but the attempt has been made to deprive them of the shelter and livelihood and that respondent No,4 purchased land through private negotiations at the rate of RS.300,000 to Rs,500,000 per Kanal but only nominal price has been fixed in favour of the petitioners and other land owners.
3. Respondent No,4 contested the writ petition. It was urged that it has already purchased land measuring 16789 Kanals and 17 Marlas, which is more than 80% of the total area of the Scheme and as such acquisition of the remaining land measuring 1296 Kanals, 14 Marais and 4 Sarsais was lawful and permissible; that the notifications issued in the official gazette were sufficient notice to the land owners but no objection was filed by the petitioners; that notice regarding acquisition of this land was duly issued under section .9 of the Land Acquisition Act, 1894 and was served and the award was announced on 17-11-2005 after completing all formalities; that most of the land owners received the compensation and the entries were duly made in the revenue record in pursuance of the award; that the respondent No,4 is a Private Limited Company and has established number of Housing Projects in various cities of Pakistan to fulfil the housing requirements of the public at large; that the RDA had sanctioned the Houing Scheme after completing all codal formalities and as such the notification could have not been assailed as laid down in Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 others (1997 SCMR 296) and that the acquisition proceedings are in accordance with the Punjab Private Site Development Schemes (Regulation) Rules, 2005.
4. Respondents Nos.1 to 3 contended that the acquisition proceedings in respect of land measuring 1296 Kanals, 14 Marlas were launched after approval of the Board of Revenue, Government of the Punjab vide Letter No,479-2005/826-S.IV dated 19-7-2005; that after issuance of notification under section 4 of the Land Acquisition Act, 1894, the District Price Assessment Committee, Rawalpindi, in its meeting dated 19-8-2005 approved the estimated cost and decided to waive off the provisions of sections 5 and 5-A of the Act ibid and thereafter notification under sections 17(4) and 6 of the Act ibid was issued on 24-9-2005 and published in the Punjab Gazette on 1-10-2005 and that eight persons including petitioners Nos. 2, 3, 10, 11 and 13 appeared before the L.A.C., whereas petitioner No,4 was represented by his real father Muhammad Maskeen i.e, petitioner No,10.
5. Respondent No,5 contended that the acquisition proceedings were initiated and completed by the Land Acquisition Collector in accordance with law and that respondent No,5 is only a pro forma respondent and that a developer, who has acquired 80% land of Scheme is entitled to the acquisition of the remaining 20% land under the Punjab Private Site Development Schemes (Regulation) Rules, 2005.
6. There is no dispute regarding ownership of the properties of the petitioners. The Local Commission appointed by this Court made a report that the petitioners Nos.1 to 13 have constructed their houses in the land acquired. It was reported that the petitioner in Writ Petition No,892 of 2006 had sold her house. It was further reported that the network of roads was constructed at the spot.
7. Learned counsel for the petitioners has vehemently contended that Safdar Saleem Ullah, Deputy District Officer (Revenue)/Land Acquisition Collector, Rawalpindi, is an employee of Bahria Town and he had committed the mischief of conducting the proceedings secretly and keeping the award under a shelf so the award was not announced in accordance with law and could not be assailed. It is also contended that there was no reason to waive off the provisions of sections 5 and 5-A of the Act and as such the petitioners have been deprived of their valuable property by violating their fundamental rights as guaranteed under Articles 23 and 24 of the Constitution. In support of the contention raised, reliance is placed on Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad (PLD 2002 SC 1079), Ghulshan Hussain and another v. Commissioner (Revenue), Islamabad/Deputy Commissioner/District, Collector I.C.T./Assistant Commissioner, Saddar, Islamabad and another (2000 YLR 1711)(Lahore), Nazir Ahmad and 8 others v.
Commissioner, Lahore Division, Lahore and 3 others (2000 MLD 322) (Lahore) and Shalimar Fabrics v. D.O.R. 2005 MLD 789. It is urged that the award was never final and did not attain any legal status as no notice under section 12(2) of the Land Acquisition Act, 1894, was served so the petitioners were not required to challenge the same.
8, The learned counsel for respondent No,4 has vehemently controverted the above arguments and reiterated the contentions reproduced in para No,3 above. It is urged that the acquisition proceedings were initiated and completed in a transparent and impartial manner. It is urged that most of the land owners accepted the notifications and award and received huge amounts and thereafter the land has been developed into residential Scheme, where people have constructed the houses by spending their life time savings and as such at this belated stage the impugned mutations cannot be quashed. In support of these contentions, reliance is placed on Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 others (1997 SCMR 296) and Bostan v. Land Acquisition Collector, Rawalpindi and 4 others (PLD 2004 Lahore 47).
The learned A.A.-G. Has also opposed the petition.
9. No tangible proof has been put-forth by any of the respondents to disprove the contention of the petitioners regarding non-service of notice under section 12(2) in terms of section 45 of the Act ibid. Even it is not denied that Safdar Saleem Ullah, the then Deputy District Officer (Revenue)/Land Acquisition Collector, Rawalpindi, is now serving in Bahria Town (Pvt.) Limited and as such the contention of the petitioners that no impartial proceedings were conducted is not without force.
According to notifications dated 22-7-2005 and 24-9-2005, Bahria Town had purchased 2345 Kanals, 01 Marla and 05 Sarsais out of land measuring 3641 Kanals, 16 Marlas and 0 Sarsai and thereafter had made a request for acquisition 'of land measuring 1296 Kanals, 14 Marlas and 04 Sarsais. Under Rule 2(g) of the Punjab Private Site Development Schemes (Regulation) Rules, 2005, the land acquired cannot exceed 20% of the total area of the Scheme. As per the above- mentioned notifications and the award, the total land acquired was more than the prescribed limit of 20% and only land measuring 728 Kanals and 07 Marlas i.e, 20% of the total area could have been acquired.
10. The most important aspect of the matter is that there was no emergency to dispense with the provisions of sections 5 and 5-A of the Land Acquisition Act, 1894. Messrs Bahria Town is a Private Limited Company and is involved in the business of real estate. The Company does not provide houses to the public at large or any class of the public on philanthropic basis or at the actual purchase price including development expenses. It is as good a private developer as any other individual, firm or Company engaged in this business. There was no justification at all to waive of the provisions of sections 5 and 5-A of 'the Land Acquisition Act, 1894 and deprive the owners of their rights to file the objections. Through this act of the respondents, the basic rights of the petitioners regarding holding and protection of the property as, guaranteed under Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan, 1973, have been infringed and violated. No justification was available to complete the proceedings in such unholy haste. The whole proceedings become highly doubtful due to the sole reason that the person completing the same had liaison with the Company and is now serving with it. The case-law cited at the bar by learned counsel for respondent No,4 i.e, 1997 SCMR 296 and PLD 2004 Lahore 47, therefore, is not applicable on the facts of the present writ petition. However, the land owners other than the petitioners have not come forward and have not raised any grievance. Admittedly, the land owned by them has been developed and is under construction of houses. They have received the compensation. Many bona fide purchasers have stepped into shoes of respondent No,4. These landlords have not come to the Court and it would be presumed that they have no grievance and are satisfied over the events, which had taken place. The petitioners Nos.2, 3, 10, 11 and 13 had participated in the proceedings before the Land Acquisition Collector, whereas petitioner No,4 was represented by his real father i.e, petitioner No,10. Their only grievance was that the compensation assessed was very low as compared to the market value of the property. They had efficacious remedy in form of a Reference under section 18 of the Land Acquisition Act, 1894 and could have moved an application before the Land Acquisition Collector for forwarding the same to the court of competent jurisdiction. However, petitioners Nos.1, 5, 6, 7, 8, 9 and 12 have been deprived of their property illegally and as such the impugned notifications and the award to their extent are illegal and void.
The writ petition to the extent of these ,petitioners stands accepted, whereas it is dismissed to the extent of petitioners Nos.2, 3, 4, 10, 11 and 13.