Ibad-ur-Rehman Lodhi, J.:- With the concurrence of learned counsel for the parties, this case is being treated as pacca hearing.
2. Through this common judgment, following Constitutional petitions are to be disposed of together:- Writ Petition No. 11292 of 2003. (Chiniot Cooperative Housing Society vs. Government of Punjab & 2 others)
Writ Petition No. 11224 of 2003. (Islamic Research Scholars Cooperative Housing Society Limited vs. Lahore Development Authority & 5 others).
Writ Petition No. 8872 of 2003. (Electrical & Mechanical Engineers (EME) Cooperative Housing Society Limited vs. Lahore Development Authority & 3 others).
Writ Petition No. 14543 of 2010. (The Punjab Board of Revenue Employees Co-operative Housing Society Limited vs. Lahore Development Authority & 6 others).
Writ Petition No. 2692 of 2014. (Punjab Civil Secretariat Employees Cooperative Housing Society vs. Muhammad Arshad Bhatti & 8 others).
As common questions of law and facts are involved in all these petitions.
3. When Lahore Development Authority launched its scheme, known as LDA Avenue-I, on 03.12.2002, and proceeded to set up a residential scheme and shown its intention to acquire certain land for the said purpose, it offended and put the petitioners at guard, for the reason that, landed property, intended to be acquired for this purpose, was mostly included the landed property already purchased, owned and possessed by the petitioners' Societies, mainly for the purposes of setting up their residential schemes for the benefit of the respective members of the registered cooperative societies/petitioners.
4. In Writ Petition No. 11292 of 2003, firstly, a notification under Section 4 of The Land Acquisition Act, 1894 (hereinafter to be referred as "Act"), was issued on 18.12.2002 with regard to the land measuring 1500 acres, i.e. Equal to 12000 kanals. However, no further process was carried out in consequence of such notification. Another notification under Section 4 of the Act again was issued on 28.04.2003 with regard to the land measuring 850 acres, i.e. Equal to 6800 kanals in village Bhopatian, Tehsil & District, Lahore, and in consequence of such second notification under Section 4 of the Act, a subsequent notification under Section 17(4) read with Section 6 of the Act was issued on 04.07.2003 with regard to the land measuring 14458 kanals and 9-marlas.
In Writ Petition No. 11224 of 2003, 328 kanals of land, which was allotted to most of the members of petitioner's Society was shown in the intended land, to be acquired for the proposed scheme of LDA Avenue-I.
In Writ Petition No. 8872 of 2003, the petitioner's Society was originally known as "Electrical & Mechanical Engineers (EME)"; however, subsequently it was merged with Defence Housing Authority (DHA), and its 320 kanals of land in Mauza Musalla, Tehsil Lahore, which was contiguous to Block-A of petitioner's Society, was the subject-matter of the intention of LDA and notification under Section 4 of the Act was issued on 24.12.2002.
In Writ Petition No. 14543 of 2010, the petitioner's Society purchased through private negotiations, land measuring 391 kanals, 12 marlas, in village Dhana Singh Wala and Phase-II in village Bhopatian, a land measuring 1000 kanals and additional land measuring 182 kanals, 12 marlas was purchased, whereas, the LDA for its proposed residential scheme, shown its intention to include the land measuring 182 kanals, 10 marlas of petitioner's Society for its residential scheme.
In Writ Petition No. 2692 of 2014, the petitioner's Society purchased 25 kanals of land, whereas, with regard to the land measuring 300 kanals, it entered into agreement to sell on payment of earnest money, the possession was also taken over by the petitioner's Society for accommodation of its 700 members. The notification under Section 17(4) read with Section 6 of the Act, was also issued by the LDA showing the intention to include petitioner's property into their proposed launched scheme on 04.07.2003, published in Gazette on 08.07.2003.
5. Mian Bilal Bashir, Advocate for the petitioner in Writ Petition No. 11292 of 2003 has addressed the Court by means of his lead arguments The learned counsel, representing the other petitioners, have adopted the arguments of Mian Bilal Bashir, Advocate, with certain additions respecting to their separate writ petitions.
6. The main thrust of the petitioners remained to the effect that the petitioners, who, all are Tegistered Co-operative Societies, have acquired or entered into agreement to acquire the landed property, mainly for the purposes of accommodating their respective members in order to cater their residential problems by providing residential plots in developed housing schemes under the petitioners' Societies and, therefore, the same land, which was already earmarked for a specific purpose i.e. Provision of shelter to homeless persons, would not again be subject-matter of acquisitioning the same in the garb of "public purpose" by providing the same facility of residential plots to the contributors for LDA Avenue-I Scheme. Further, it was added that the notification issued under Section 17(4) read with Section 6 of the Act, was defective in nature and it does not qualify to be a valid notification under the land acquisitioning laws.
7. The learned counsel for the petitioners went on arguing that, even while showing the intention to acquire certain land belonging to petitioners' Societies in a complete defective manner, a member of housing societies holding the landed property in the same area were specifically exempted from the process of acquisitioning the land. The intention to take over the land of the petitioners'
Societies by the LDA was also termed as violative even to the provisions of The Lahore Development Authority Act, 1975 (hereinafter to be referred as "LDAA"), and that continuation of proceedings by petitioners' Societies for proposed residential schemes cannot be made subject to the sanction or approval of LDA, and at the most, even if any violation of LDA laws is alleged, that can be compounded only by means of imposition of penalty and not otherwise.
8. The contentions of the petitioners were refuted by the learned counsel representing the Lahore Development Authority, by maintaining that the schemes prepared, announced and undertaken by the petitioners, were not validly sanctioned schemes by the LDA and unless there is a sanction or approval by the LDA, no such scheme can be continued in the area fall within the control of LDA. It was further argued on behalf of the LDA that the public purpose for which LDA has shown its intention to acquire the land, including one owned or possessed by the petitioners, would be a valid and legal process of acquisition and the LDA would have a preferential right to be considered on a better footing than that of the petitioners Societies to acquire the land for the purposes of establishing a housing scheme thereon.
9. The initial notification issued under Section 4 of the Act on 18.12.2002, disclosing the intention of the Collector was made with regard to the land measuring 1500 acres, i.e. Equal to 12000 kanals.
However, when in consequence of such notification, a subsequent notification under Section 17(4) read with Section 6 of the Act, was issued, it was with regard to the land measuring 14458 kanals, 9 marlas, thus, in clear terms, the land mentioned in Section 4's notification was exceeded in the subsequent notification.
10. The situation has been visualized in Section 6(4) of the Act, which only caters the situation, where the area in respect of which notification under Section 6 or 17(4) of the Act is issued, is less than the area previously notified under Section 4(1), which is to be deemed to have been superseded by the said notification so far it relates to the excess area, but such provision does not cater with the situation, where the land notified under Section 6 read with Section 17(4) of the Act is exceeded to the one already notified under Section 4 of the Act.
The term "land" used either in Section 6 or Section 17(4) of the Act is necessarily referable to the term "land", used in Section 4(1) of the Act, as such, the land, to be notified either under Section 6 or 17(4) of the Act must not be in excess of the land notified under Section 4 of the Act. The notification, thus, issued under Section 17(4) read with Section 6 of the Act acquiring the land excess than the land already notified under Section 4(1) is defective and not a valid notification.
11. So far as "public purpose" is concerned, which is the basic and necessary ingredient for acquisitioning of any land, it would be seen that as to whether the members of the petitioners'
Societies would fall within the definition of "public" or only contributors to LDA Avenue-I would be considered the members of public. Keeping in view the categories of members of the petitioners'
Societies, who are mainly low paid salaried persons of different organizations or the educationists, who would have no shelter in their career life on account of their meager financial sources and are provided by the Co-operative Societies the chance to invest as members of Co-operative Societies, to have at least one shelter either at the fag end of their career or at their retirement, could not have been ousted from consideration to be a member of a class of public, as such, the landed property already arranged for their residential purposes, cannot be taken back to the disadvantage to such needy people in order to accommodate the members of the LDA scheme, who are better placed than that of the members of the petitioners' Societies, if not similarly placed in the social set up.
12. The term "purpose" would be applicable to both of the classes i.e. Members of the petitioners'
Societies and also the contributor to LDA Avenue-I, and once the petitioners have accommodated their members for the purpose of extending residential accommodation to them, they cannot be deprived from such benefit simply in order to accommodate the members of LDA Avenue-I, which is not the intention of even the acquisitioning law. The members of the petitioners' Societies are protected to be dealt with under Co-operative Societies Act, 1925.
13. Another aspect, which is to be taken into consideration is that a "land" is to be acquired under the Land Acquisition Act, 1894, or even The Lahore Development Authority Act, 1975, but acquiring agency or the Collector would have no competence to acquire the shares of members of the Co- operative Societies. In the cases, in hand, the members of the petitioners' Societies are purchasers of the shares of the society and their such shares can, in no way, be subject-matter of land acquisitioning proceedings.
14. The direct issuance of notification under Section 17(4) of the Act, by dispensing with the requirements as provided in Section 5 and 5-A of the Act is again a nullity in the eye of law, for, the Collector and the acquiring agency have failed to demonstrate as to the emergent nature of the affair, whereunder the entertainment of objections, hearing the same and disposal thereof could have been dispensed with.
15. Now by insertion of Article 10A in the Constitution by means of Constitutional (Eighteenth Amendment) Act, 2010, fair trial has been taken as a fundamental and basic right of the citizens of Pakistan and depriving any interested person from raising any objection as to his intended deprivation from his any right, would be an act, which can conveniently be termed as violative to the concept of fair trial.
16. The arguments advanced by the learned counsel representing the Lahore Development Authority, to the effect that, the schemes introduced by the petitioners' Societies were having no legal sanction or approval of the LDA and, thus, were not worthy to be continued, would be nullified by the bare reading of Section 13(5) of The Lahore Development Authority Act, 1975, which provides that, no planning or development scheme shall be prepared by any person or local body or Government agency within the area except with the concurrence of the Authority. It is neither sanction nor approval of the authority, which is required for any development scheme, rather its "concurrence" is the maximum requirement of law and the silence on the part of LDA for a long time, after the schemes by the petitioners' Societies were publically launched, would amount to concurrence, particularly, when violation of such non-concurrence would have been given no consequential effect, rather in view of Section 33 of the LDAA in case of any contravention of any provision of the LDAA or any rules or regulations made thereudner, imposition of penalty or a punishment, which may extend maximum to a term of six months or with fine or with both are the steps, which can be enforced by LDA. Even absence of such concurrence would not create any adverse effect upon the future proceedings of a Co-operative Society.
17. I have been informed that in almost all the schemes of the petitioners' Societies, development process has been completed, allotments have been made and in some schemes, some houses by the members have already been constructed thereon.
18. Such questions involved in the present petitions and discussed herein-above, the Courts in our country as well as in the neighbouring country, in the past have dealt with in the following manner: The Hon'ble Supreme Court of Pakistan in case of Federation of Pakistan through G.M. Telegraph & Telephone Department, Lahore Telephone Region, Lahore vs. Province of Punjab through Land Acquisition Collector/Assistant Commissioner, Headquarters, Lahore and 2 others (1993 SCMR 1673) has dealt with the object of "public purpose", which is the basic and a necessary component of the land acquisition process and it was held that enquiry under Section 40 of Land Acquisition Act, 1894 is factual in nature in which hearing is given to the objectors. It is a channel to place information before the Commissioner for his satisfaction to enable him to have a correct perception of the situation before making a declaration that the land is needed for a public purpose and consequently its acquisition is warrantable, but the satisfaction of the Commissioner should be deliberate and arrived at after due care and proper application of the mind to the facts appearing on the record. It was further taken note of by the apex Court in the reported matter that when the land with reference to which the declaration under Section 6 was made by the Commissioner was already held by the writ petitioners for paramount public purpose, the issuance of notification under Section 6 was held as not warranted.
Dealing with the case of Lahore Improvement Trust (the predecessor of the respondents-LDA), the Hon'ble Supreme Court of Pakistan in Ch Mehraj Din and others vs. Lahore Improvement Trust, Lahore through the Chairman (PLD 1986 Supreme Court 673), while discussing the different provisions of law relating to the Improvement Trust or as the case may be, the Development Authorities has emphasized the requirements of raising objections by the land owners as against indented acquisition of their land either by the Improvement Trust or any Development Authority and dispensation of the requirement of raising objection by the land owners and hearing the same by the Commissioner has been held as not valid. In the reported matter, by placing reliance on an earlier view reported as Mian Fazal Din v. Lahore Improvement Trust (PLD 1969 Supreme Court 225), again the importance of notice to public, notice to the owners affected, raising of objections by the said owners and hearing the objections, have been termed the steps towards the provision of fair opportunity of representing he case of land owners.
The Hon'ble Supreme Court of Pakistan in case reported as Federal Government Employees'
Housing Foundation through Director-General, Islamabad and another vs. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad (2002 PLC (C.S) 1655) has emphasized the requirement of the hearing of objections and also dealt with the comparison of the personal benefit of one or some individuals with that of the benefit of a particular class of employees. Even benefit to be extended to a particular class of employees has not been considered as "public purpose" with reference to land acquisition law.
A Division Bench of this Court in case of Nazir Ahmad and 7 others vs. Commissioner, Lahore Division, Lahore and 3 others (2000 MLD 322), on the subject, has held that dispensing with the requirement of raising objection by the land owners as against the intended process of land acquisition is in fact a classic example of misuse of State machinery for the benefit of individuals, which was against the basic purpose of Land Acquisition Act, 1894. It was also considered as violative to the fundamental rights guaranteed in the Constitution of Islamic Republic of Pakistan, particularly, Articles 23 and 24 of the Constitution, according to which, no person shall be deprived of the property, except in due course of law and there shall be no compulsory acquisition save for the public purposes. It was also held that the Land Acquisition Act is based on the rule to rob Peter to pay Paul. However, it was held that there was no scope for such type of action in the Islamic State as the same offended the Inunctions of Islam. The rule to enrich privileged one at the cost of poor is legacy of imperialism and had no place in an ideological State like Pakistan. In the reported matter like present one, the real purpose for land acquisition was to establish a Housing Scheme for the benefit of few individuals and it was clear from the record that same was not a need of the society, but in fact purpose behind such acquisition was to establish a residential colony and that too, after committing the dacoity on the valuable rights of the land owners guaranteed under Articles 23 and 24 of the Constitution.
A Full Bench of this Court constituted to examine different provisions of Land Acquisition Act, in case of Muhammad Ahmad Siddiqui and 11 others vs. Collector, Lahore District, Lahore and 4 others (2000 MLD 820), after holding that the application of independent mind by the land acquisitioning authorities is a condition precedent and the Courts will always be duty bound to see that during course of said procedures, the authorities concerned have applied their mind or not, has further held that the Land Acquisition Authorities moved in the matter in a mechanical manner and the only urgency, as apparent on record, was for pushing through the process of acquisition without complying with the duties imposed upon them by law. It was held that it was a matter of concern that the Collector and the Commissioner faithfully followed the report placed by them by the authorities under their control and gave a declaration that the land is required for the public purpose, without taking into consideration that the land intended to be acquired was in fact already held by the petitioners' societies for the same purpose and benefit of their number of members to cater with the requirements of their residential problems and finally by observing that exhibiting lack of transparency in the process of decision-making, the power of judicial review under Article 199 of the Constitution, was available with the Courts to see whether or not such had been arrived at by the public functionaries concerned in manner which did not contravene the fundamental rights or the Constitutional guarantees.
The Indian Supreme Court on the same issue in case of Darshan Lal Nagpal (dead) by L.Rs. v.
Government of NCT of Delhi & ORs. (AIR 2012 Supreme Court 412) mainly on the urgency in the acquisition process and the import of the objections by the land owners of the intended land to be acquired and hearing, as well as, disposal of the same in a transparent manner, has held as follows:- "21. It is also apposite to mention that no tangible evidence was produced by the respondents before the Court to show that the task of establishing the sub-station at Mandoli was required to be accomplished within a fixed schedule and the urgency was such that even few months time, which may have been consumed in the filing of objections by the land owners and other interested persons under Section 5A(1) and holding of inquiry by the Collector under Section 5A(2), would have frustrated the project. It seems that the Bench of the High Court was unduly influenced by the fact that consumption of power in Delhi was increasing everyday and the DTL was making an effort to ensure supply of power to different areas and for that purpose establishment of sub-station at village Mandoli was absolutely imperative. In our view, the High Court was not justified in rejecting the appellants' challenge to the invoking of urgency provisions on the premise that the land was required for implementation of a project which would benefit large section of the society. It needs no emphasis that majority of the projects undertaken by the State and its agencies/instrumentalities, the implementation of which requires public money, are meant to benefit the people at large or substantially large segment of the society. If what the High Court has observed is treated as a correct statement of law, then in all such cases the acquiring authority will be justified in invoking Section 17 of the Act and dispense with the inquiry contemplated under Section 5A, which would necessarily result in depriving the owner of his property without any opportunity to raise legitimate objection. However, as has been repeatedly held by this Court, the invoking of the urgency provisions can be justified only if there exists real emergency which cannot brook delay of even few weeks or months. In other words, the urgency provisions can be invoked only if even small delay of few weeks or months may frustrate the public purpose for which the land is sought to be acquired. Nobody can contest that the purpose for which the appellants' land and land belonging to others was sought to be acquired was a public purpose but it is one thing to say that the State and its instrumentality wants to execute a project of public importance without loss of time and it is an altogether different thing to say that for execution of such project private individuals should be deprived of their property without even being heard. It appears that attention of the High Court was not drawn to the following observations made in State of Punjab v. Gurdial Singh (AIR 1980 SC 318) (supra): " It is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry under Section 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power."
Applying the above rule to the present cases, it can safely be held that urgency, even if existed in the year 2003 in acquiring the land by dispensing with the provisions of Sections 5 and 5-A of the Act, whereafter more than a decade has gone, it has in fact vanished by efflux of time and presently, the respondents are not in a position to still claim that the land is immediately required by dispensing with the fundamental rights of the land owners to raise objections and disposal of the same in a fair and transparent manner.
In an unreported matter, when Writ Petition No.7160 of 2007 (Sulemna Daud vs. Lahore Development Authority), was decided on 21.05.2008, by the then Hon'ble Chief Justice of this Court, vide para-6 of the same judgment, it was held as under:- "6. Another aspect of equally importance, which cannot be lost sight of is that the properties of number of persons, companies, societies have been excluded from the purview of the Scheme. The petitioner can thus have a legitimate grievance to urge that he is not being dealt with like others similarly placed and situated. One may at this juncture revert to the provisions of Constitution of the Islamic Republic of Pakistan, 1973. According to Article 23, every citizen has the right to acquire, hold and dispose of property in any part of Pakistan subject to the constitution and any reasonable restriction imposed by law in the public interest. Article 24 further guarantees that "No person shall be deprived of his property save in accordance with law".
19. The result of above discussion is that, all the writ petitions are allowed. The notifications issued earlier under Section 4 and then under Section 17(4) read with Section 6 of the Land Acquisition Act, 1984, are set-aside and the process initiated by the respondents authorities for the acquisition of the land of the petitioners is quashed.