CH. MUHAMMAD IQBAL, J.---Through this Writ Petition, the petitioner has challenged the Order of De-Notification No,550-A dated 14.09.2010 whereby the Executive District Officer (Revenue) Mandi Baha-ud-Din De-notified the acquired land measuring 142-Kanals 13-Marlas which was acquired for public purpose for the construction of DHQ Hospital, Mandi Baha ud Din.
2.Brief facts of the case are that land measuring 142-Kanals 13-Marlas of Village Wasu and measuring 451-Kanals 9-Marlas of Village Sohawa Bulani Tehsil and Distict Mandi Baha-ud-Din was acquired for a public purpose i,e, "Construction of State of the Art, District Headquarters Hospital and Allied Facilities, Mandi Bahaud-Din near District Complex Mandi Baha-ud-Din. The Notification under section 4 of the Land Acquisition Act, 1894 was published in Punjab Gazette dated 03.01.2006 and 17.04.2006 respectively. The Notification under sections 5 and 5(a) of the said Act was dispensed with and Notification under section 17(4) of the Act was issued on 16.04.2007 and published in Punjab Gazette dated 20.04.2007 and after deciding the objections of the Land owners, Award was announced on 04.06.2007. A Mutation No,18265 was duly sanctioned in favour of Health Department on 05.06.2007.
3.Umar Hayat Javed, etc. filed a Writ Petition No, 1782 of 2006 which was disposed of on 15.05.2006.
The said petitioners filed I.C.A. No, 154/2006 which was also dismissed in limine vide Order dated 05.06.2006. Respondents No,8 and other land owners of Villages Wasu and Sohawa Bulani filed two Writ Petitions Nos. 4474/2007 and 5480/2007 which were also dismissed vide Order dated 29.06.2007 by this Court through a single Order which was reported as Muhammad Aslam Faiz and 8 others v. Executive District Officer (Revenue), Mandl Baha ud Din and 6 others (2007 CLC 1724).
Only four persons filed a Reference under Section 18 of Land Acquisition Act, 1894. Respondent No,8, however, withdrew his Reference from the Court of learned Senior Civil Judge Mandl Baha-ud-Dln on 22.12.2010.
4.During the pendency of I.C.A. No, 199/2007 the respondent No,8 filed an application before the then Executive District Officer (Revenue) Mandl Baha-ud-Din namely (Khalid Nazir Watoo) on 25.08.2010 seeking De-notification of the acquired land. The Executive District Officer (Revenue) without getting the reply of the said application from the concerned quarter, on 14.09.2010 denotified the acquired land measuring 142-Kanals 13-Marlas. Hence, this Writ Petition.
5.Learned counsel for the petitioner submits the De-Notification order dated 14.09.2010 passed by the Executive District Officer (Revenue) Mandi Baha-ud-Din regarding the acquired land is illegal, void ab-initio and is not sustainable in the eyes of law. The land was duly acquired for the public purpose i,e, for construction of Hospital for the welfare of public at large. The Mutation has duly been sanctioned in favour of Health Department. The petitioner has already withdrawn his Reference under section 18 of the Land Acquisition Act, 1894. The Writ Petition filed by the petitioner has already been dismissed by this Court. The respondent No,8 is only owner of land measuring 5- Kanals 13-Marlas whereas the Executive District Officer (Revenue) Mandi Baha-ud-Din de-notified the entire piece of acquired land i,e, 142-Kanals 13-Marlas. Furthermore, the Executive District Officer (Revenue) Mandi Baha-ud-Din who allegedly passed the impugned Order was not working at Mandi Baha-ud-Din but was transferred on 04.09.2010 from Mandi Baha-ud-Din to (S&G)
Department Government of Punjab. The impugned Order was passed in ante-dated. In this regard, on the complaint charge sheet has been served upon the said Officer. Learned counsel for the petitioner further submits that Patwari Halqa was dismissed. Further submits that under Section 48 of the Land Acquisition Act, 1894 and under Rule 14 of the Punjab Land Acquisition Rules, 1983, the Executive District Officer (Revenue) is not stand anywhere, as such, the impugned Order is illegal on the face of it and it may kindly be set-aside.
6.Learned Law Officer relied upon the arguments of the learned counsel for the petitioner and added that under Section 48 of the Land Acquisition Act, 1894 only Government has a power to de- notify the acquired land under the Land Acquisition Act, 1894. Further submits that the land was acquired for the public purpose and for welfare of the public at large for construction of DHQ Hospital Mandi Baha-ud-Din, as such, the illegal act of the Executive District Officer (Revenue) is not sustainable in the eyes of law.
7.Learned counsel appearing on behalf of the respondent No,8 submits that the land has already been acquired for that purpose measuring 200-Kanals which is still kept vacant, that the Executive District Officer (Revenue) has power under Section 48 of the Land Acquisition Act, 1894 to de-notify the acquired land; that the possession of the land is still with the respondent No,8 and rest of the owners have also not made party in this Writ Petition. Further submits that a Review Petition is still pending before the Commissioner against the impugned Order. The petitioner has no locus standi to file this Writ Petition and the same may kindly be dismissed.
8.I have heard the arguments advanced by learned counsel for the parties and gone through the record, appended herewith.
9.It is an admitted fact that the land measuring 142- Kanals 13-Marlas of Village Wasu and measuring 451- Kanals 09-Marlas of Village Sohawa Bulani, Tehsil and District Mandi Baha-ud-Din was acquired for "Construction of State of the Art, District Headquarters Hospital and allied facilities, Mandl, Baha-ud-Din near District Complex Mandi Baha-ud-Din. In this regard Award has already been announced on 04.06.2007 and thereafter a Mutation was duly sanctioned in favour of the Health Department. The respondent No,8 challenged the Notification under Section 4 of Land Acquisition Act, 1894 through Writ Petition No, 1782/2006 which was disposed of on 15.06.2006. The respondent No,8 withdrew his Reference under Section 18 of the Land Acquisition Act, 1894 from the Court of Learned Senior Civil Judge Mandi Baha-udDin and filed the application in the office of Executive District Officer(Revenue) for de-notification of the acquired land measuring 142-Kanals 13-Marlas during the pendency of Intra Court Appeal and the acquired land has been de-notified by the then Executive District Officer (Revenue) Mandi Baha-ud-Din vide Order dated 14.09.2010.
10. Under Section 48 of the Land Acquisition Act, 1894 only Government has an exclusive jurisdiction to withdraw the acquisition process and Executive District Officer (Revenue) is not stand anywhere. Section 48 is as under:-- 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.
11. Under Section 48 Ibid, the Government has liberty to withdraw acquisition proceedings of any land on which possession has not been taken whereas there is no intention of the Government to withdraw the acquisition proceedings is on record. The Government acquired the land in question for the welfare of the public at large/for construction of a Hospital. The Executive District Officer (Revenue) passed the impugned Order without obtaining any permission or instructions from the Government, as such, the impugned Order is a classic example of misuse of official power, as such, it is illegal, without lawful authority. Reliance is placed on the cases reported as National Police Foundation Co-operative Housing Society Ltd v. Board of Revenue, Government of Punjab, Lahore and 2 others (PLD 1984 Lahore 191) Fida Hussain and 2 others v. Province of Punjab through Secretary, Settlement, Board of Revenue Punjab Lahore and 4 others, (2002 CLC 790).
12. The learned Law Officer informed this Court that charge sheet on 17.08.2013 has been issued and Inquiry Officer was appointed. The inquiry proceedings are in progress against the said Executive District Officer (Revenue).
13. Further under Rule 14 of the Punjab Land Acquisition Rules 1983, the Collector has power to dispose of acquired land but subject to orders of the Government. In the Punjab Land Acquisition Rules, 1983. Rule 2(ii) Government means "the Government of the Punjab". Rule 14 is as under:--
(1) Where any land has been acquired for any Department of the Government or a local authority for a public purpose and it is proposed to abandon the same, it shall be handed over to the Collector who shall be responsible for the disposal of the same in accordance with the orders of Government.
(2) The disposal of land under sub-rule(1) shall be made by Government in its discretion, and its possession restored to the persons from whom it was acquired or to they heirs as under:-- (i)Free of cost the original owners or their heirs, if compensation for the acquisition of land has not been paid.
(ii)On refunding the amount paid as compensation less than 15 percent granted for compulsory acquisition, if the original landowners or their heirs have already received cash compensation in respect of their land. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by the use to which Government has put it.
(3) Where the original land-owners or their heirs were provided alternate land in lieu of their acquired land, such land shall not be restored to them, but shall be utilized or disposed of by the Board of Revenue in accordance with the policy of the Government regarding disposal and alienation of lands.
14. The respondent No,8 namely Muhammad Aslam Faiz and 8 others filed Writ Petitions No,4474/2007 and 5480/2007, challenged the acquisition proceedings before this Court, on 29 June, 2007 this Court dismissed the said Writ Petitions, declared that the land was acquired for public purpose and welfare of the public at large/construction of Hospital and has been made in the best interest of the public. The said case is reported as Muhammad Aslam Faiz and 8 others v.
Executive District Officer(Revenue), Mandi Bahauddin and 6 others (2007 CLC 1724).
15.Furthermore, Umar Huai Javed, etc. challenged 'the Notification under Section 4 of the Land Acquisition Act, 1894 in Writ Petition No, 1782/2006 regarding the same subject matter. The Writ petition was dismissed being not maintainable. The said Order was challenged by Umar Hayat Javed, and others through I.C.A. No, 154/2006 which was also dismissed vide Order dated 05.06.2006 by this Court. The matter regarding the acquisition, Award in respect of acquired land and land in question has already been declared by this Court is for public purpose. The said Orders are still in field. In the presence of above mentioned Judgments and Orders the Executive District Officer (Revenue) Mandi Baha-ud-Din could not pass the impugned Order.
16. In latest Judgment of the Hon'ble Supreme Court of Pakistan titled as Province of Punjab through A.D Fisheries Sialkot v. Rana Abdul Hameed and others (2014 SCMR 1187) it was held that no Court/forum with the Revenue hierarchy can set aside the acquisition of land or the order which have been passed including Notification under sections 4 and 17 of the Land Acquisition Act, 1894 which is as under:- The revenue forums in nutshell have proceeded to decide the case by holding that the land acquired should be returned to respondent Rana Abdul. Hameed etc. It is quite clear that the revenue hierarchy does not figure am'where in land acquisition proceedings. No Court/forum within the revenue hierarchy can, therefore, set aside the acquisition of land or the orders which have been passed including notifications under sections 4 and 17 of the Land Acquisition Act pursuant to which title in the land stood transferred to the Fisheries Department of the Province.
Considering the above, we are clear that the orders including the impugned judgment proceeded on the erroneous premise, that the revenue forums had jurisdiction in the matter. Learned counsel representing the respondents acknowledged that the Revenue forums had no jurisdiction to interfere in land acquisition proceedings, or to direct the Government to return the acquired land to the respondents. The orders of the Revenue authorities, therefore, being without jurisdiction, are set aside. This petition, as a consequence, is converted into appeal and the same is accordingly allowed. It is stated, however, that compensation for the acquired land has not yet been paid to the respondents land owners. The said respondents subject to law, may avail whatever remedies are available to them under the law because the learned Law Officer states that the compensation awarded by the LAC was deposited with the Collector in 1976.
17. Muhammad Khalid Nazir, the then Executive District Officer (Revenue), was not competent to de-notify the acquired land. According to the Award and other relevant record it is crystal clear that the land has been delivered to the Health Department, which is still intact. The Health Department filed comments in this Writ Petition and prayed that the impugned De-Notification No,550-A dated 14.09.2010 may kindly be declared illegal, malafide, without lawful authority and of no legal effect. It means that the Health Department never surrendered the acquired land and it is required to be Health Department for the construction of hospital. The acquired land could not be de-notified. The Mutation has already been duly sanctioned in favour of the Health Department.
During process of de-notification, the Department never summoned, nor heard any person, all the process was kept in secret and the impugned order was also not endorsed to the acquiring Department.
18. It is settled principle of law that no 'one can pass order without notice/hearing of the concerned parties. The principle of natural justice enshrined in the maxim "Audi Alteram Partem" is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings. In this case, the Executive District Officer (Revenue), Mandi Baha-ud-Din without hearing the concerned department/parties passed the impugned Order, as such, the impugned Order dated 14.09.2010 is illegal: Reliance is placed on the case reported as Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others (2005 SCMR 678).
19. The impugned Order passed by the Executive District Officer (Revenue), Mandi Bahah ud Din which is impugned in this Writ Petition is without lawful authority and under the law, the Executive District Officer (Revenue) is not authorized to pass such order. When the Order passed by incompetent person, the said Order is not Order in the eye of law and also it cannot be implemented. Reliance is placed on the cases reported as Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208), Bashir Ahmad v. Meer Aslam Jan (2007 CLC 1544), Messrs East- West Insurance Company Ltd., through Chairman and another v. Messrs Muhammad Shaft and Company through Managing Partner and 2 others (2009 CLD 960).
20. The matter became past and close transaction, when this Court declared that the acquisition is for the public purpose and the said Executive District Officer (Revenue) has no jurisdiction to pass such order, therefore, the order in respect of De-Notification is illegal. Furthermore, where law provides for doing of particular act in a particular manner then same would be done in such a particular manner or not at all. Whereas the Executive District Officer does not stand anywhere in Land Acquisition Act, 1894 and under Section 48 of the Act Ibid. and Rule 14 of the Land Acquisition Rules, 1986, only government has exclusive jurisdiction to exclude the acquired land. Reliance is placed on the cases reported as Govt. of Punjab Food Department through Secretary Food and Another v. Messrs United Sugar Mills Limited and another (2008 SCMR 1148) and PLD 2010 Supreme Court 759 (In matter of Human Rights Cases Nos.4668 of 2006,1111 of 2007 and 15283-G of 2010).
21. For what has been discussed above, the de-notification order dated 14.09.2010 passed by the Executive District Officer (Revenue) Mandi Baha ud Din, is hereby declared illegal and passed without lawful authority, therefore, the same is set-aside. Resultantly, this writ petition is allowed.