Through this single order , I intend to decide the above titled writ petition along with connected Writ Petition Nos.5635, 5637 & 5641 of 2014 as common questions of law and facts are involved in these cases.
2. Brief facts of the case are that the petitioner Faqir Muhammad Rana was owner of a constructed building bearing Property No. SW.94-R-19, measuring 11-Marias 25 sq.ft situated at 19 Main Multan Road, Lahore.
Respondents issued notification under Section 4 of the Land Acquisition Act, 1894 published on 19.06.2013 for acquisition of the land for the purpose of "Dualization of Road from LOS Ferozpur Road to Multan Road by covering Cantt. Drain Lahore." while seco nd notification dated 17.08.2013 under Section 4 of the Land Acquisition Act was published in the same Gazette on 21.07.2013. In both the above notifications land measuring 3 Marlas 7 Sq. Ft. comprising Khasra Nos. 1655, 1656, 1657 and 1658 was acquired. Third Notification under the same provision of law was issued on 06.11.2013 and physically possession of land measuring 03-Marias, 7 sq.ft comprising Khasra No. 1653 was taken but the complete building of the petitioners was demolished. Petitioner has filed instant writ petition with the following prayer: "In view of the above, it is respectfully prayed as under:
(i) The demolition exercise conducted by the functionaries under the control of Respondent Commissioner and LDA in relation to a portion of building struct ure constructed on Khasra No. 1653, 1654, 1655 and 1656 ibid, is an unlawful act liable to be so declared.
(ii) Petitioners are entitled to be treated as owners of the land comprised in Khasra Numbers mentioned above, which were not included either in operational Section 4 Notification or in the subsequent Section 17(4) Notification by virtue of which physical possession of 3- marlas 7 sq.ft. was taken for the purpose of extension of road as per Drawings prepared by the Joint V enture engaged by Respondent LDA.
(iii) Respondents be restrained from interfering in the peaceful enjoyment and physical possession of the land described above in which full and absolute title still vests in the Petitioner ."
3. I have decided the learned counsels for the parties at full length and gone through the entire record with their able assistance.
4. The Khasra Nos. 1653-min, 1654-min, 1655-min, 1656-min, 1657-min & 1658-min of Mouza Nawan Kot were acquired by the LDA for expansion and dualization of Road from LOS Ferozpur Road to Multan by covering Cantt.
Drain Lahore. Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 18.06.2013 which was published in Punjab Gazette on 19.06.2013 whereafter corrigendum notification was also issued on 17.08.2013 which was published in the Punjab Gazette on 21.8.2013 whereby land measuring 3-Kanals and 07-Marlas of above Khasra numbers along with its respective land of Mouza Mozang and Nawan Kot, Tehsil and District Lahore was added in the acquisition. Another notification under Section 4 to the extent of remaining land measuring 3- Marlas 7-sq.ft of Khasra No. 1653 was issued on 14.10.2013 which was published in Punjab Gazette on 06.11.2013. Notification under Sections 17(4) and. 6 was issued on 05.10.2013 which was published in the Punjab Gazette on 08.10.2013. Another Notification under Sections 17(4) and 6 of Khasra No. 1653 measuring 3-marlas 7- sqft was issued on 31.01.2013 which was published in the Punjab Gazette on 31.12.2013, possession was taken and award under Section 11 of the Land Acquisition Act, 1894 was announced on 09.12.2013 and 04.02.2014.
After issuance of Notifications under Section 4 and 17(4) & (6) the formal possession of land measuring 11-Marlas 25-sqft, comprising over Khasra Nos.1655, 1656, 1657 &.1658 was taken and existing structure was removed.
5. Admittedly , the land of the petitioner was acquired after fulfillment of all the legal formalities, possession of acquired land had been taken and award had been issued. As per settled law that after issuance of the award ordinarily constitutional petition is not maintainable. An alike controversy has been resolved by the Hon'ble Supreme Court of Pakistan in a case titled as Habib Ullah vs. Land Acquisition Collector and others (2005 SCMR 1320 ) wherein it is held as under: "We have considered the contentions advanced by the learned counsel for the petitioner and have gone through the entire documents annexed with this petition. Admittedly the award in this case for orchards was announced on 4-6-1999. The petitioner in the circumstances had got statutory remedy of reference provided under Section 18 of the Act. The determination of compensati on for trees is admittedly a question of fact which certainly cannot for be made in the exercise of Constitutional jurisdiction. The argument of the learned counsel that the provision of Section 17(3) of the Act had been violated is devoid of any force, as already stated the award in the terms has already been announced qua orchards. Learned counsel for the petitioner has failed to point out any illegality or legal infirmity in the impugned judgment warranting interference in the impugned judgment."
Same principle has been emphasized in Muhammad Ashiq and another vs. Water and Manpower Development Authority , Lahore through Chairman, W APDA House and another (PLD 2008 SC 335 ).
In another case titled as Mahmud Khan and another versus Government of the Punjab through District Collector , Lahore and 2 others (2005 YLR 1 133) wherein it is observed as under: "The land acquisition Collector has annou nced the Supplementary Award after issuing/publishing the Corrigendum to Notification under Section 17(4) & (6), therefore, petitioners have alternative remedy to file a reference for enhancement of the compensation under the provisions of the Land Acquisition Act, 1894 before the competent authority/competent Court, therefore, Constitutional petition is not maintainable as per law laid down by the Honourable Supreme Court in Ch. Muhammad Ismail's case PLD 1996 SC 246. It is also a good ground not to exercise discretion in favour of the petitioners in view of the pendency of the reference before the Civil Court keeping in view ground of the reference, which is mentioned above as per law laid down by the Honourable Supreme Court in Ch. T anbir Ahmad Siddiky v . Province of East Pakistan and others PLD 1968 SC 185 ."
Reliance can also be placed on the case titled as Ch. Nazir Ahmad & 2 others versus Province of Punjab through District Officer (Revenue),Lahore & 5 others (2007 CLC 107 ) wherein it is held as under: "29. The learned counsel appearing on behalf of the private land owners whose land has been included in the notifications under Section 4 of the Punjab Land Acquisition Act, 1894 have expressed their fear that fair compensation shall not be paid. Suffice it to say that fair compensation can only be determined after a factual inquiry requiring the recording of evidenc e which is not possible in the exercise of constitutional jurisdiction by this Court. Furthermore, adequate alternative remedies are available under the Punjab Land Acquisition Act, 1894, whereby the grievance, if any , of such land owners can be redressed as and when the occasion arises."
This controversy has been resolved by this Court in a case titled as Mujaddad Ashraf and 5 Others vs. Commissioner Lahore Division, Lahore & 3 others (2014 CLC 230 ) wherein it is held as under: "6. Undisputedly , the above said notificati ons have been issued by the Government of the Punjab aimed to acquire the land of the petitioners and others for the MBR TS Project. There is no denial that the said Project is for public purpose. Under the Act, the Government has the power to acquire the land for public purpose. Upon issuance of notice under Section 17 (4) of the Act, the provisions of Sections 5 and 5-A of the Act are done away with, upon a direction of the Commissioner . The MBR TS is a project aimed at planned development of the city .
The land was required urgently , hence, provisions of Section 17(4) were involved, meaning that the requirements of Sections 5 and 5-A were dispensed with. In this regard it has been held in case of Muhammad Ashiq and another v.
Water and Manpower Development Authority , Lahore through Chairman, WAPDA House and another (PLD 2008 SC 335) that Section 17 (4) of the Act was based on the subjective satisfaction of the Competent Authority to apply the provisions or not according to the given circumstances which was not available for scrutiny by the Court.
Therefore, the petitioners' grievance that notices should have been served after the notification under Section 17
(4) is without basis. As to the procedure followed by the respondent for acquisition it is in accordance with the Act.
In this regard it has been held in Suo Motu case No. 13 of 2007 reported as PLD 2009 SC 217 as under: "The Act provides a systematic scheme for taking measurements of the property , assessment of its value and payment of compensation to the person interested, besides remedy for adjudication of rights of aggrieved persons in accordance with well- known norms of administration of justice. In the case involving any dispute of measurement of property or determination of its market value, the Act provides 'a remedy through a reference by the Collector to the Civil Court for settle ment of these disputes where parties have the opportunity to adduce evidence in support of their stance".
7. So far as the contention of the petitioners that the consent of the petitioners should have been sought before acquiring the land, suffice it to say that when the provisions of Section 17(4) of the Act are invoked and the urgency is declared, no prior notice or intimation to the owners of the land is required."
In another case titled as Aish Bahadar and others versus District Collector , Sahiwal and others (2014 YLR 2266 ) wherein it is observed as under: "15. The above reproduced prayer clearly shows that the claim of the petitioner is only of compensation for which the petitioners have alternate remedy in the form of reference under Section 18 of the Land Acquisition Act, 1894.
The present writ petitions are therefore, liable to be dismissed and ordered accordingly ."
In a case titled as Pir Ishfaq Ahmed versus Deputy Commissioner/Land Acquisition Collector , Charsadda and another (2018 CLC 449 ) wherein it is observed as under: "5. Notwithstanding plea of the responde nts that acquisition of the land measuring 14 marla was for the public purpose namely "dualization of Charsadda-T angi road I/C Utmanzai Bypass Mouza Sherpao, Tehsil Tangi, District Charsadda", as construction of drain was also a part of dualization of Charsadda-T angi road, the petitioner had the alternate adequate remedy of raising objection to the acquisition of land under Section 5-A of the Act of 1894 within 30 days of the issuance of notification under Section 4 of the Act of 1894 and also another remedy of raising objection under Section 9 of the Act of 1894 after issuance of notice under the said section of law. The petitioner , however , missed not only the opportunity of availing the remedy of raising objection to the acquisition on both the occasions, but also failed to require the Collector to make reference under Section 18 of the Act of 1894 after award under Section 11 of the Act of 1894 was announced on 24.10.2016; and instead, moved the instant writ petition, which was not maintainable in view of the other adequate remedies, referred to above, available to the petitioner ."
In another case titled as Rana Zahid Habib and 5 others versus Government of the Punjab and 3 others (2019 CLC 654) wherein the learned Divisional Bench of this Court held as under: "5. In view of the above, the learned Single Judge has rightly observed that the constitutional petition is not maintainable where alternate remedy is provided under a Statute and has relied upon the case titled Habib Ullah v.
Land Acquisition Collector and others (2005 SCMR 1320 ).
Reliance can also be placed on the cases titled as Jan Meah vs. Deputy Secretary to Government of East Pakistan, Revenue (Requisition) Departm ent, DACCA and others (PLD 1965 Dacca 36) and Muhammad Afzal Bhatti and 17 others vs. Province of Punjab through Collector , Rawalpindi and 4 others (1997 SCMR 296 ).
6. In view of above, these writ petitions are dismissed being not maintainable. However , the petitioners, if so desire, may avail remedy as provided under the Land Acquisition Act, 1894.