MUHAMMAD. JAFER NAIM, J.-The petitioners seek a declaration that Acquisition proceedings in respect of lands belonging to the petitioners in Khasra Nos. 47, 47/1 and 48 Deh Pathra Thesil Hab are without lawful authority and of no legal consequence. They have further prayed for an order directing the respondents, their servants and agents to forebear from enforcing the said acquisition orders or from interfering with the possession of the land of petitioner No. 2. The facts of the case as stated in. The petitioner, briefly, are that petitioner No. 2 is a registered Public Limited Company having been registered on 9-1-1980 with the main object of establishing a Jute Mill in Tehsil Hab of the Lesbella District. In support of their intention to establish a Jute Mill they have furnished copy of the letter from Director-General Investment Promotion Bureau, Ministry of Industries Government of Pakistan dated 31-8-1978 whereby they were permitted to establish the industrial undertaking. The petitioner No. 1 had purchased land measuring 166 acres in the above Khasra Numbers for the benefit of petitioner No. 2. This land was purchased from Muhammad Aslam according to mutation photostat copy of which is Annexure `D' to the petition. Later petitioner No. 1 made a declaration on 13th March, 1979, to the effect that the land described in the declaration had been purchased by petitioner No. 1 for and on behalf of the actual owners whose names are given in the declaration. Photostat copy of . Which is Annexure `E'.
2. On or about 16th September, 1980 the petitioner came to know that the Deputy Commissioner and Collector of Lesbella, respondent No. 3 bad issued a Gazette Notification on 1-6-1980 whereby intention was expressed to acquire land including the land under Khasra Nos. 47 and 47/1. Copy of the said notification is Annexure 'F'. Similar notification was issued in respect of land in Khasra No. 48 belonging to the petitioner. Copy of the Gazette Notification is Annexure `G'. These notifications were followed by a notifications by the Commissioner Kalat Division, respondent No. 2, under section 6 of the Land Acquisition Act, 1894. Photostat copy of the said notification is Annexure `H'.
3. These proceedings taken by respondents Nos. 2 and 3 are assailed by the petitioners on the grounds that the action taken under Land Acquisition Act of 1894 are ultra vires and without jurisdiction since by virtue of enact--ment of Baluchistan Acquisition of Land (Housing and Development Schemes in the Rural Areas) Act of 1974, the Central Act ceased to be valid law in the Province of Baluchistan meaning thereby that land could not be acquired under the provisions of the Central Act and if such an action was proposed to be taken it could be done only under Baluchistan Act of 1974. The proceedings even if taken under Baluchistan Act of 1974 would not be lawful because there is no provision for acquisition of land for the benefit of a company under this Act. Alternatively, the petitioners have challenged the legality of the proceedings under the Land Acquisition Act of 1894 on the ground that the respondents did not take any steps for bringing the substance of the notification under section 4 of the Land Acquisition Act of 1894 to the knowledge of the persons interested or owners of the land and secondly the notification made under section 6 of the Act was not published according to mandatory provision of the Act itself. The failure on the part of respondents comply to the provisions of sections 4 and 6 the Act and also by not fulfilling the requirements of section 39 of the Act the proceedings are without lawful authority and ultra vices.
4. The respondent No. 3 has submitted parawise comments/reply whereby they have contested the right of ownership of the land on claimed by the petitioners on the ground that no Sale Deed or conveyance has been registered in favour of the petitioners with Sub-Registrar and the mutation as shown in Annexure 'D' is not sufficient to establish the title. That the ownership rights of the petitioner No. 1 had been cancelled by the Government of Baluchistan Revenue Department's Notification dated 6-12-1979.
5. On other aspects of the case the reply is in paragraph No. 5 of the rejoinder/comments where it is stated that the land under the process of acquisition falls within the Town Committee Area of Hab Town as is declared by notification of the Local Government of Baluchistan dated 31-3-1980 while the Baluchistan Acquisition of Land (Housing and Develop--ment in Rural Areas) Act, 1974, applies to the rural areas of the Province only. It is further maintained that the Land Acquisition Act of 1894 has not been repealed and it applies to the whole of Baluchistan while the provincial Act had a limited application. The respondent No. 3 goes on to maintain that the notification issued under sections 4 and 6 of the Land Acquisition Act of 1894 were correct and publication was done according to the requirements of law. It is further maintained that as stated in notification under section 4 of the Act the land was to be acquired for the purpose of a Cement Factory and the name of the Company had also been mentioned therein. The Baluchistan Act of 1974 has no provision for acquiring land for company purpose, so the proceedings were taken under Land Revenue Act of 1894. The acquisition of land for company purpose is a bona fide exercise of the powers vested in the Provincial Government. The respondents justified their action to be correct and lawful.
6. The learned counsel for the petitioner r,-.r. Muhammad Ali Sayyed contended that before the enforcement of 1973 Constitution, land acquisition was a Central subject and as such the Federal Legislature could legislate for and in respect of land acquisition. The position had been altered after the promulgation of 1973 Constitution whereby land acquisition became provincial subject since this does not find place in the Federal Legislative list or the Concurrent Legislative List. Under Article 142, sub-Article (c) of the Constitution a Provincial Assembly shall and Parliament shall not have power to make laws with respect to any matter not provided in either the Federal Legislative List or the Concurrent Legislative List. His contention is that since Land Acquisition is not included in either of the two lists, the exclu--sive power to make laws for Land Acquisition vests in the Provincial Assembly or the Government. He further stated that on account of this situation the Baluchistan Acquisition of Land (Housing and Development Schemes in the Rural Areas) Act, 1974 was promulgated. The promulgation of this Act automatically throws out the Central Act from the Province, and for the purpose of land acquisition, the Provincial Act alone would remain in the field.
7. The Advocate-General has controverted this position saying that the Provincial Act of 1974 was made for a limited purpose and by it an ouster of the Central Act was neither intended nor made.
His other contention was that the land of the petitioners which has been acquired is within the Hab Town and as such goes out of the scope of the Provincial Act as the Provincial Act applied to rural areas. He has also referred to sub-Article (1) of Article 268 of the Constitution in support of his argument that all existing laws shall subject to the Constitution continue to remain in force so far as applicable with necessary adaptation until altered repealed or amended by the appropriate Legislature.
8. The first question to be considered is as to whether in respect of acquisition of land in this Province et will be the Land Acquisition Act of 1894 or the Baluchistan Act XVIII of 1974 that would be applicable.
9. The Baluchistan Act XVIII of 1974 had initially been enacted for acquisition of land for the purpose of Housing and Development Schemes in the Rural Areas of Baluchistan. At the very inception of the Act the object of legislation was to acquire land for Housing and Development Schemes in Rural areas, only. Secondly since the word "Development" has been used along with housing it cannot be interpreted in isolated manner and the word would mean to include something akin to housing or directly or indirectly related to it. I will show that the Provincial Act had a restricted application.
10. The learned Advocate-General had submitted that Ordinance VIII of 1976 on which the Baluchistan Acquisition of Land Act of 1974 was amended inasmuch as that the word rural areas were dropped from the title of the pre--amble and also in subsection (1) of section 1 had expired within 3 months of its promulgation. This expiry ensues from the provision of Article 128(2)(x) of the Constitution. The date of publication of this Ordinance was 13th September, 1976 and as it was not placed before the Assembly within 3 months next it would automatically stand repealed after the expiration of the period of 3 months. This automatic repeal would mean that the words, a Rural Areas occurring in the Preamble and title of the Baluchistan Act of 1974 and in subsection (1) of section 1 of the same would revive and so this Act could not apply to the Town area wherein the land sought to be acquire is situated. This argument has force and for the acquisition of land in the area Central Act had to be resorted to.
11. The next point to be examined is as to what would be the effect of the promulgation of Provincial Act of 1974 on the Land Acquisition Act of 1894. According to the counsel of the petitioners the Central Act of 1,894 would have to go out of the field upon the enactment of the Provincial Act on the same subject. The learned Advocate-General has repelled this argument by resorting to Article 268(1) of the Constitution which lays down that "except as provided by this Article all existing laws shall, subject to the Constitution, continue in force so far as applicable and with necessary adaptation until altered repealed or amended by the appropriate Legislature". Reverting back to the argument of the learned counsel of the petitioner, the subject of land acquisition does not find place in either the Federal Legislative List or the Concurrent Legislative List and so the Provincial Assembly/Government would alone be competent to make laws on the subjects of land acquisition in the Province. The learned Advocate-General has not said anything .About the inclusion of this subject in either of the two lists or omission of land acquisition in the two lists. The subject of legislation in this behalf goes to the Provincial sphere and there cannot be two opinions about it.
12. The next question which corps up is as to whether the promulgation of the Baluchistan Acquisition of Land Act of 1974 would repeal the Central Act of 1894 at not by its own force.
According to the provision of sub-Article (1) of Article 268, the repeal should be express and unless that is done expressly the Central Act would continue to remain in for as an existing law under Article 268(1) of the Constitution. This argument e the Advocate-General further finds support from the fact that the Provincial Act was an Act of limited application when it was introduced. It only applied at that- time to Housing and Development Schemes in the rural area and later to urban areas as well. With this limited application it could not mean to repeal the Pakistan Land Acquisition Act of 1894 even by implication. Further section 3 of the Baluchistan Acquisition of Land Act, 1974 lays down that notwithstanding anything to the contrary, contained in the Land Acquisition Act of 1894 or any other law for the time being in force all land within the Province shall be liable to acquisition a any time under this Act for Housing and Development Schemes approved b Government or by an Official Development Agency of the Government. This provision is a clear indication that the Land Acquisition Act of 1894 was not intended to be repealed by this Act but wherever land was to b acquired for Housing and Development Schemes approved and notified b the Government the land would be acquired under the Provisions of Provincial Act and not the Central Act. The condition prerequisite for requisitioning land under the Provincial Act was that it should be acquired for Housing and Development Schemes notified as such by the Provincial Government or the official Development Agency. If the land was to be acquired for any other purpose than that for Housing and Development Schemes notified as such by the Government or the Development Agency, the proceedings would be governed by the provisions of the Central Act.
For the purposes of this petition the question of repugnancy of the Provincial Act to Central Act need not be gone into as it is nobody's case. Thus it will be seen that both the Acts can co-exist.
Since the provisions of the Provincial Act are not exhaustive on the subject of land acquisition the Central Act stays. On this premises as well the doctrine of repeal by implication cannot be pressed into service. The Central Act of 1894 very much remained in the field in spite of the enforcement of the Provincial Act.
13. The learned Advocate-General submitted that the Baluchistan Land Acquisition Act of 1974 was repealed by Baluchistan Ordinance XVII of 1979. Section 17 of the Ordinance repeals the Baluchistan Acquisition of Land Act, 1974. The counsel of the petitioners pointed out that Quetta Acquisition of Land (Housing and Development Schemes) Ordinance XVII of 1979 could not repeal the Baluchistan Acquisition of Land Act of 1974 as a whole throughout the Province for the reason that the Ordinance of 1979 extents to the Quetta District only. It could repeal the Act so far as it was applicable to Quetta District and not beyond it. This argument of the counsel of the petitioners has force and agreeing with him it is observed that the Ordinance XVII of 1979 has repealed the Baluchistan Land Acquisition of Land Act of :974 as far as it was applicable to the District of Quetta alone. The result would be that Baluchistan Acquisition of Land Act of 1974 would continue to remain in force in other parts of the province including Bella District.
14. The learned counsel of the petitioner has also urged that the Land Acquisition Act of 1894 would prevail only if this subject was included in the concurrent list in the 4th Schedule of the Constitution.
His contention is that since the Provincial Act does not retain any of the provisions of the Central Act and it would go down in face of the Provincial enactment according to the Article 143 of the Constitution. Again, provisions of Article 268 (1) of the Constitution would come into play whereby the appropriate Legislature could alter or repeal the enactment. The requirements of Constitutional Provisions are to be complied with in letter and spirit. In the absence of such express repeal and in the absence of factors where co-existence was impossible the Central Act will have its way.
15. The proposition made by the learned counsel of the petitioner that the retention of some provisions of Central Act are not spelt out in the Provincial Act of 1974. The extent of exclusion of the provisions of the Central Act has been given in section 3 of the Baluchistan Acquisition of Land Act, 1974. Retention of the provisions of the Central Act in the Provincial Act was not necessary in order to give life to the provisions of the Central Act. They were alive by their own force. The complete ouster of the Central Act had to be specifically provided for in the Provincial Act. Therefore if land was to be acquired for any purposes other than that provided for in the Provincial Act of 1974, it had to be acquired under the Land Acquisition Act of 1894.
16. The question next to be determined would be as to whether the notifications regarding Acquisition of Land under sections 4 and 6 of the Land Acquisition Act of 1894 are a proper and sufficient compliance of the provisions of the Act or not on the admitted facts. The proceedings for Acquisition of Land have been taken by the respondents under the Land Acquisition Act of 1894.
Two notices had been issued, one on 1st June 1980, and the other on 2nd July 1980. These two notices dealt with different Khasra Numbers in Mauza Pathra, Tebsil Hab. The petitioners are interested in Khasra No. 47 from where 118-3-04 acres of land were to be acquired by notice dated 1st June, 1980 and in 48-1-21 acres were to be acquired from Khasra No. 48 under notice dated 2nd July 1930. The Gazette publication of the notices is Annexures 'F' and 'G'. These notices are purported to be under section 4 of the Land Acquisition Act and are meant to be given to all whom they concern. The contention of the learned counsel of the petitioners was that since the Baluchistan Acquisition of Land Act, 1974 had come in the field ousting the Central Act and there was no provisions in the Baluchistan Act for the acquisition of land for company purpose, these notices were defective inasmuch as acquisition for this purpose is not provided for in section 4 of the Baluchistan Act of 1974. The respondent's stand is also that such provision did not exist in the Baluchistan Act. It is an admitted position now that when land was to be acquired for company purpose it could not be done under the Provincial Act. The respondents have acted under the Central Act as they wished to acquire land for company purpose which they could not do under the Provincial Act.
17. The notices issued on 1st June and 2nd July 1981 show that the land was acquired for company purpose. After the issuance of these notices any person interested in the land could file objection to such acquisition under section 5 (a) of the Land Acquisition Act of 1894 whereafter the Collector would hear the objection and would make such inquiry . As he thought necessary and then submit the case for decision of the Provincial Government. The Provincial Government after its satisfaction and after considering the report if any made to it by the Collector under section S(a) subsection (2), of the Act, would make a declaration that such land was required for a public purpose or for a Company and that declaration would be published in the official Gazette. After a declaration is made by Provincial Government, the Provincial Government would direct the Collector to take the order for acquisition of the land.
18. The Collector would cause a public notice to be given at convenient places or near the land to be taken stating that the Government intended to take possession of the land and that compensation in such land may be made to these interested persons. The Land Acquisition Act of 1894 prescribes an elaborate procedure for acquisition of land starting from a notification under section 4 of the Act.
19. The notifications issued on 1st June 1980, and 2nd July, 1980, conform to section 4 of the Act. The notice/notification should be published in the official Gazette and the Collector had to cause public notice of the substance of such notification to be given at convenient places in the said locality.
Mere publication of the notification in the official Gazette is not sufficient. It has been made obligatory upon the Collector to cause public notice of the substance of such notification to be displayed at convenient places in the said locality. The counsel of the petitioners reference to section 45 of the Act which specifically prescribes the mode of service of notice under section 4 of the Act. Such a notice should be served by delivering or tendering a signed copy to the person named therein when--ever practically possible and when such person cannot be found, the service on any other adult member of his family and if no such adult member can be found then by affixation of the copy of notice on the outer door of the house where that person resides. A copy had to be affixed on some conspicuous place in the office of the Collector and also on some conspicuous part of the land to be acquired. In the present case the Collector Lasbella only issued notifications for publication in the official Gazette but made no effort to serve it in accordance with the provisions of section 45 of the Act.
20. The learned Advocate-General referred to two letters from the Deputy Commissioner and Assistant Commissioner Bella and Hab respectively. The Deputy Commissioner issued a letter on 5- 3-1981 asking the Assistant Commissioner to send report about publication and service of the notice dated 1st June, 1980 and 2nd July, 1980. The Assistant Commissioner by reply dated 31-3-1981 stated that he had published the notice in an extensive manner. It may be mentioned here that these documents had been obtained much after the filing of the present petition and still they do not contain anything to fulfil the mandatory requirements of section 45 of the Act. There is no mention in these letters about service of the notice on the interested person or that they were affixed on a conspicuous place of the land to be acquired. A sweeping statement of the Assistant Commissioner that extensive publicity was done does not remove the defect in the proceedings.
21.The contention of the learned counsel of the petitioners that non-compliance of the mandatory provision of section 45 of the Act vitiates the entire proceedings of acquisition. In this behalf he has relied upon the case of Narinderjit Singh v. The State of W. P. And others AIR 1973 SC 552It was held in that case that if the Collector fails to cause public notice of the substance of the notification to be given at convenient places in the locality where the lands sought to be acquired are, the whole acquisition proceedings are vitiated, There is another Full Bench case cited and that is Rattan Singh and others v. The State of Punjab and others AIR 1976 Pb. & Har. 279, in which the same view was taken. It has been held therein that besides publication of the notice in the official Gazette substance of such notification should be displayed at convenient places in the locality and both these conditions should be complied with to make a valid notice. In another case of Punjab & Haryana High Court in AIR 197.1 Pb. & Har. 124 it was held that failure to cause a public notice to be given with-- in 30 days of the date of publication of the notification under section 4 of the Act would tie fatal to be acquisition proceedings and invalidate acquisition. The counsel of the petitioner also cited AIR 1975 All. 202, AIR 1974 Cal. 210, AIR 1972 Pb. & Har.
12. In all these cases there is consensus of opinion on this point. The object of the service of the substance of the notice is to afford an opportunity to the interested persons to file objections under section 5(a) of the Apt which confers valuable rights to the interest persons. They cannot be deprived of this right and the rights cannot circumvented by obtaining a letter from the Assistant Commissioner.
22. The Commissioner Kalat Division is said to have issued two notices on 1st August, 1980, declaring that the lands described therein were required by the Provincial Government for public purpose at the Company expense for construction or establishment of a Cement Factory. Copies of these notifications have been filed by respondent No. 3 along with the comments. These notifications purported to be notifications under section 6 of the Land Acquisition Act of 1894. Before issuing a notification the Provincial Govern--ment shall require the Company to enter into an agreement providing for payment of cost of acquisition, the acquisition, transfer of land to the Company, the terms on which lands was to be held by the Company etc. To the satisfaction of Provincial Government. The provisions from section 6 or section 37 of the Act shall not be put in force, and order to acquire land for a company not made, unless the Company has executed an agreement with the Provincial Government as is contemplated under section 41 of the Act. No such agreement is said to have been executed by the Company and so notification under section 6 of the Act could not be issued. The notices issued by the Commissioner dated 1-8-80 become useless documents and are of no consequence in acquisition proceedings. The acquisition proceedings would come to an abrupt and even if section 4 was properly complied with unless provision of section 41 are also complied. The defects left by the respondents are incurable.
23. The learned Advocate-General had raised a preliminary objection that the petitioner have no locus standi to file this petition. It may be mentioned at the very outset that this objecti3n was not taken before. However the parties, counsel are heard on these points. The petitioner No. 1 had obtained this land through lease-deed copy of which are Annexures 'B' and 'C' to the petition. They have also filed copy of mutation dated 1-3-1978 whereby petitioner No. 1 acquired an interest in the land. He made declaration on 13th March, 1979, stating that it was a Benami transac--tion and actually owners were those shown in the declaration. It is stated in para. 3 of the petition that petitioner No. 1 had purchased this land for the benefit of the promoters of the Company known as Ahmed Jute Mill which is a registered Company and has got a subsisting sanction from the Government of Pakistan. To this sanction the learned Advocate-General objected that it was granted for a period of 6 months and since plant and machinery has not been brought and construction not started within 6 months the sanction lapsed. Sub-paragraph (2) of paragraph 1 of this letter copy of which is attached to the petition an Annexure 'A' shows that on failure of licence the Investment Promotion Bureau could automatically withdraw the sanction. It has not been shown that it has been withdrawn and unless the penal provision is shown to have been restored to, the sanction as contained in Annexure 'A' would continue to operate.
The learned Advocate-General has also referred to the notification of Board of Revenue dated 6- 12-1979 which says that the Board of Revenue was satisfied that the fresh revision of record of right in respect of Hab Tehsil was called for and he had given a direction for revision on record of right.
This notification by itself does not cancel all the entries in the Record of Right but affects only those entries which had wrongly been entered. A copy of Schedule VIII has been filed as Annexure 'B'-to the comments/reply. Mutations were carried out on the basis of notification dated 6-12-1979. Copy of such mutation is Annexure 'C'. These mutations were carried out on 12-6-1980 only on the basis of the notification and unilaterally. It will be seen that the notification does not automatically and finally take away the right to claim or interest of petitioner No. 1 which he possessed by virtue of a mutation shown in Annexure 'D' and the lease deeds, copies of which are Annexures 'B' and 'C'. The mutations done on 12-6-1980 were so done after first notice under section 4 of the Land Acquisition Act had been issued and were carried out unilaterally. The lease deeds 'have not been cancelled and are admitted by the respondent. The land is shown to be in possession of the petitioner No. 1 according to Annexures 'B' and 'C' filed by the respondents. The learned Advocate-General contended that the petitioner No. 1 is not setting up a Jute Mill himself. The stand taken by petitioners is also the same. Petitioner No. 1 had made a declara--tion on 13-31981 that he had purchased' this land for the benefit of other persons and in para. 3 of the petition it is said that he had purchased the land for the benefit of the Company i. e. petitioner No. 2.
24. The counsel of the petitioners in reply urged that the petitioners are interested persons within the meaning of Land Acquisition Act. According to the definition of the term in that Act, it is sufficient if the person claims an interest in the compensation to be made. The question of entitle-- ment and ownership are to be determined in a proper forum. The petitioner No. 1 and his assignees are to be treated as person or persons interested. More--over petitioner No. 1 is said to be in po3session of the land. Petitioner No. 1 on account of possession and petitioner No. 2 on account of surrender of interest by petitioner No. 1 in his favour would be the persons directly, affected by acquisition and as such would be aggrieved parties. The conten--tion of the learned Advocate- General that petitioners have no locus stand! has no force.
25. The acquisition proceedings entertained by the Collector Lasbella by notices dated Ist June, 1980, and 2nd July, 1980, in respect of the petitioner's land described above suffers from serious infirmities and have to be declared as illegal and inoperative and the respondents are restrained from disturbing the possession of the petitioners on the basis of these proceedings.
S. A. H