' WAQAR AHMED SETH, J.--- Muhammad Sultan Khan and two other petitioners seek the constitutional jurisdiction of this Court praying for:--- "that on acceptance of this writ petition, the respondents may graciously be directed not to enter upon the property of the petitioners, they may further be refrained from construction of the road without completion of process of acquisition and the construction of road is without lawful!
Authority and of no legal effect."
2. Brief facts, as per contents of writ petition, are that the petitioners are owners in the property mentioned in the petition and respondent No,3 issued notification under section 4 of the Land Acquisition Act, 1894 for the purpose of construction of road over it. The respondent No,1 was requested time and again for deposit of compensation amount but to no avail, hence, the instant petition.
3. Arguments heard and record perused.
4. The Executive Engineer C&W Division Mansehra submitted comments to the writ petition and statement that the notification issued under section 4 of the Act was de-notified vide notification dated 31-8-2005 and ERRA has not been arrayed respondent in the petition. The record is suggestive of the fact that petitioners are/were owners in different khasras measuring 12 kanals, 11 marlas situated in the revenue estate of Malkan Goliganda and similarly in different khasras in Khan Tehsil and District Mansehra measuring 64 kanals, 19 marlas. Vide notification dated 6-7- 2004 issued under section 4 of the Act, the respondent No,3 acquired land for the purpose of construction of road namely Goligade to Karmang to Jalgali village Malkan, Goligade and Khan Tehsil and District Mansehra. In view of above said notification respondent No,1 was requested to deposit the compensation amount. Soon thereafter respondent No,1 department started work i.e, construction of road on the intended khasra numbers with a promise that the petitioners would be paid the compensation amount but till date nothing has been paid. In the year 2009 respondent No,1 started process of paving/black topping of the road through respondent No,6 and when petitioner approached them they were told that notification under section 4 dated 6-7-2004 of the Act has been withdrawn/cancelled vide impugned notification No,652- 56/Acq: Mansehra dated 31-8-2005. Initially respondents entered the land owned by petitioners without their consent and without completing the process of acquisition and then cancelled' the proceedings without informing the owners and converting and destroying the nature of land.
5. Comments were called from respondent No,1, wherein notification issued under section 4 of the Act has been admitted but in para-2 it, has been stated that "out of approved cost of Rs,91.887 (M) only Rs,10.00 (M) was released. The work started on KM-1 to 4. After dissolution of National Assembly in October, 1999, no further fund has been provided, therefore, notification under section 4 of Land Acquisition Act was de-notified on 31-8-2005". In para-5 it is admitted that ERRA Authority has, started paving/black topping the road. ERRA authorities were made party/respondent No,7 vide order dated 14-5-2013 of this Court and upon appearance they requested to file comments on 3- 9-2014 within 10 days positively. Date by court i.e, 25-9-2014 as given but none appeared on behalf of added respondents.
6. It is admitted position that land of petitioners was acquired under A section 4 of the Act, possession was obtained and construction started A and till date it is with the respondents or added respondents. The respondents are grabbing the petitioners' legitimate rights since 2004.
Section 48 of the Land Acquisition Act, 1894 provides:- "48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. --- (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
' Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.
' Section 48-A (N.-W.F.P. Amendment) provides:--- "48-A. Compensation to be awarded when land not acquired within one year. --- (1) If within a period of one year from the date of publication of declaration under section 6 in respect of any land, the Collector has not made an award under section 11 in respect to such land, the owner of the land shall unless he has been to a material extend responsible for the delay, he entitled to receive compensation for the damage suffered by him in consequence of delay.
(2) The provisions of Part II of this Act shall apply, so far as may be possible, to the determination of the compensation payable under this section".
7. A plain reading of section 48 of the Act would reflect that this is the only section of law permitting the. Government to withdraw but only when no possession has been obtained. In the instant case not only possession was obtained but road has been constructed and the land is of no use to the petitioners.
8. In essence, the provisions of section 48(1) of the Act empower the Government regarding unilaterally withdrawal from the acquisition of any land of which possession has not been taken.
The Government can exercise this power without seeking consent of the landowner and without any sanction or approval from any authority under the Act or from any court. The sole liability with which the Court be saddled is the case of withdrawal from any such acquisition is the payment of compensation determined by the consequences of the notice or of any proceedings thereunder and the payment of costs reasonably by person interested in prosecution of the proceedings under the Land Acquisition Act, 1894.
9. Since in the year 2004 the possession of the land has been obtained by the respondents when first notification under section 4 of the Act was issued, till date, therefore, we have no hesitation in holding that impugned order/de-notifying notification dated 31-8-2005 of respondent No,3 was not only passed in contravention of the express provisions of section 48 of the Act but it also suffered from mala' fides.
10. In the case of Fida Hussain v. Province of Punjab reported as 2002 CLC 790, it has been held as under:- "After taking over the possession and vesting of the, said land in the Government, respondents Nos. 1 to 4 had no authority in law or otherwise to recede from acquisition. Appellants had been deprived of their land through a confiscatory legislation. They also had to suffer the ignominy and indignity of being subjected to financial, losses, harassment, allegations, investigations, re inquires and non-payment of compensation from 1993 till date. As stated above, the road was completed and put to public use in 1996-97. The assessed compensation was deposited by respondent No,5 i.e, Acquiring Department in 1996 upon demand of respondent No,3, where after no reason or ground existed to withdraw the acquisition notifications for, any reason whatsoever. The Hon'ble Supreme Court of Pakistan in the case, of Mr. Sadiq 'Hussain Qureshi etc. v. Ahbab Cooperative Housing Society Ltd., Lahore etc. NLR 1979 Revenue SC 210 and this Court in the'same case i.e, Ahbab Cooperative Housing Society Ltd., Lahore etc. v. Commissioner, Lahore Division, Lahore and 61 others PLD 1978 Lah. 273 struck down withdrawal order of acquisition fair being mala fide for' the reason that the same was not for the benefit of Government. In the present case, Government having taken over possession absolutely acquired the land. The road was also completed.
Receding from acquisition, as was done, cannot by any stretch, be held to be in benefit of the Government.
' In view thereof the impugned order of withdrawal is patently mala fide as well, and therefore, unsustainable.
'Having declared the impugned order dated 22-7-1998 as mala fide and without lawful authority, we are of the opinion that the respondents are under statutory duty to finalise the last stage of acquisition by announcing the award in terms of section 11 of the Land Acquisition Act without any further delay.
' In the referred case of AIR 1965 Mysore 222 (Vol. 52 C 47), noted supra, it was also held that:- "It seems to me that once a proceeding is commenced under the Land Acquisition Act, every step enjoined by that Act must be taken and every relevant statutory provision contained in that Act must be obeyed, and that if an acquisition proceeding was started, it was incumbent on the Acquisition Officer conducting the acquisition to determine the compensation payable and that compensation should be determined in manner specified in section 15 and should be paid. If the claimant is dissatisfied with the determination of the compensation, he has a right to ask fora reference to the Court under section 18 and the Court is under a duty to determine the compensation by the employment of the process specified in section 23".
'A Division Bench of Patna High Court issued a writ of mandamus in the case of Pannalal Maheshwari v. State of Bihar and others, reported as AIR 1955 Patna 63 (Vol: 42, C.N.5) holding that:- "the Collector is under the statutory duty to make an inquiry into the valuation of the land and into the respective interest of the persons claiming compensation and to make an award in respect of the matters mentioned in section 11. Section 12 imposes a further duty upon the Land Acquisition Officer to file the award in the Collector's Office to give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made. It is clear to us in the present case that the Land Acquisition Officer has failed performance of the duties cast by the Acquisition Act.
' For these reasons we hold that a writ in the nature of mandamus" should be issued under Article, 226 of the Constitution commanding the Collector of Gaya the statutory duty imposed 'upon him under sections 11 and 12, Land Acquisition Act, and to bring the land acquisition proceedings to a conclusion in accordance with law as expeditiously as possible".
' Honourable Supreme Court of Pakistan in the recent case of Messrs Mehraj Flour Mill and another and Khizar Hayat Khan Muhammad Sultan Khan v. Deputy Director Works v. The Provincial Government and others 2001 SCM R 1806 pronounced the law as under:- "It is noted that no time has been fixed in between preliminary notification under section 4 and second notification under section 5, therefore, this expression assumes pivotal role for interpretation of section 5 which leaves the limitation period to he determined in each case on its own merits. Althdugh the expression 'at any time' cannot be taken to mean a year or otherwise, but certainly can be interpreted to mean within a reasonable time, which of course would be determined in each case looking to its own circumstances". In the present case despite holding number of _inquiries, no award has been made by respondents Nos.] to 4 in terms of section 11 of the Land Acquisition Act. The respondents have, thus, failed to perform their duty under the law.
' In view of the above, this appeal is accepted. Order dated 29-9-2000 passed by the learned Single Judge of this Court is set aside. Impugned order dated 22-7-1998 passed by respondent No,3 and omission of respondents to make the award, are held to be without lawful authority and of no legal effect. Respondent No,3 is directed to make and file an award under sections 11 and 12 of the Land Acquisition Act within a period of 90 days without fail. The appellants are directed to appear before respondent. No,3 on 1st November, 2001. The parties are left to bear their own costs."
11. As per respondents statement Rs,10.00 (M) have been spent and subsequently due to dissolution of National Assembly in October,, 1999 no further funds were provided. The very statement seems to be mala fide, baseless and irresponsible one, as the first notification was issued on 6-7-2004 and huge public revenue has been spent. The public revenue is a sacred trust and it is to be spent strictly for the purpose of State necessity, by maintaining highest financial discipline and for achieving a particular purpose. The public revenue should not be thrown and wasted just because of a technicality and inadequacy of the statute to meet the peculiar situation. State necessity, until and unless unamicable should not injure and affect the rights of the individuals guaranteed in the Constitution and the law. In the instant case the respondents attitude is totally negligent and irresponsible in respect of the public revenue and poor people of the country. Failure on the part(s) of public servant(s) in this regard is highly deplorable and to be met with strict action, with intimation to Additional Registrar of this Court within two months positively.
12. In view of the above, we allow the writ petition, set aside the impugned order, of de-notification dated 31-8-2005 and omission of making of award is held to be without lawful authority and of no legal effect. Respondents are directed to complete the process of award within 90 days and compliance report be submitted to the Additional Registrar of this Court after making payment of awarded money/compensation to the petitioners. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.