FAZAL SUBHAN, J. Petitioners Abdul Qadoos & others have filed the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, by invoking the jurisdiction of this Court with the following prayer:- It is therefore, prayed that on acceptance of instant petition, this Hon'ble Court may be pleased to declare the act of respondents, issuing of Award No. 20/LAC/Nathia Gali dated: 27.07.2012 and Corrigendum No. 127/LAC/Nathia Gali dated: 31.12.2013 as illegal, unlawful, void, ineffective upon the rights of the petitioners and direct the respondents to cancel the same.
2. Facts of the case in brief as narrated in the instant constitutional petition are that in the year 2011, the respondent/Provincial Housing Authority, Peshawar privately negotiated with the land owners and purchased 161 kanals 3 marals land from khasra No. 57 to 62, 70 to 74, 75/2, 75/1/2, 81/1/2, 81 and 82/1 situated in the village Darwaza Tehsil & District, Abbottabad for housing scheme and also took over the possession of land/property from the owners. In the meanwhile, respondent/Provincial Housing Authority, Peshawar, requested respondent No. 2/Land Acquisition Collector, Provincial Housing Authority, Peshawar for compulsory acquisition of land. Thereafter, respondent No. 2 issued notification under section 4 of Land Acquisition Act, 1894 and acquired the land through an Award No. 20/LAC/Nathia Gali on 27.07.2012. That the respondents collusively and malafidly acquired the land kind wise according to Aust Yaksala without issuing the notice under sections 5, 5-A and 9 of Land Acquisition Act, 1894 and also without hearing of land owners. That no specification of land (including khasra numbers, multistoried buildings of petitioners, numbers and kinds of fruits bearing trees and other trees) was mentioned in the Award. That after lapse of one year and five month i.e on 31.12.2013, a corrigendum No. 127/LAC/Nathia Gali was issued by respondent by including land bearing khasra No. 67 to 69. Petitioners No. 25 to 34 after getting knowledge of corrigendum, approached the respondent No. 5/District Officer Revenue & Estate (Deputy Commissioner), Abbottabad for initiating proceedings against responsible official/s but in vain, hence, being aggrieved from the impugned award as well as corrigendum, petitioners approached this Court by filing instant petition.
3. We have heard arguments of learned counsel for petitioners and considered the relevant record.
4. It transpires that in this case, after a negotiated settlement with private land owners by the Provincial Housing Authority, the respondent No. 2 was requested for issuance of notification under section 4 of the Land Acquisition Act, 1894 (The Act) but for unknown reasons, such notification was not issued. Subsequently, the impugned Award was issued on 27.07.2012 under section 11 of the Act.
5. On careful perusal of the said Award it is clear that though the impugned award was drawn under section 11 of the Act, but in the said notification in para 4, reference is made to notification under section 6 and 17 by the Commissioner Hazara Division. The scheme for acquisition of land for public purposes has been provided in the Act and whenever, land is needed for public purpose or for a company, firstly a notification under section 4 of the Act has to be issued. For elaboration and convenience, section 4 of the Act is reproduced as under: Section.
4. Publication of preliminary notification and powers of officers thereupon.
(1) Whenever it appears to the Provincial Government that land in any locality is needed or is likely to be needed for any public purpose or for a Company, a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.
(2) Thereupon it shall be lawful for any officer, either generally or specially authorized by said Government in this behalf and for his servants and workmen:- to enter upon and survey and take levels of any land in such locality; to dig or bore into the subsoil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and lines by placing marks and cutting trenches: and, where otherwise the survey cannot be completed and the levels taken and the boundaries and fines marked, to cut down and clear away any part of any standing crop, fence or jungle: Provided that no person shall enter into any building or upon any enclosed courtyard to garden attached to a dwelling-house (unless with the consent of the occupier thereof) with-out previously giving such occupier at least seven days' notice in writing of his intention to do so.
Provided further that entire process of land acquisition shall be completed within a period of one year failing which the notification made under sub-section (1) stand revoked.
6. The legislature through the said provision has made it mandatory that when notification is to be issued for acquisition of land for public purpose or company, it has to be issued in official gazette and shall also cause a public notice of the substance of such notification to be given at convenient places of the locality. The word "thereupon" in subsection (2) of section 4 has consequences relevant to issuance of notification under section 4 (1) of the Act, for the reasons that unless and until notification is not published in official gazette, the acquiring department cannot perform such acts as enumerated therein. Thus, non-publication of notification in official gazette, shall have far reaching effect and violation of the mandatory provision would make the whole process illegal and unlawful. In case of Dilshad and 2 others-Vs-Senior Superintendent of Police and 2 others reported in PLD 2007 Karachi 330, when the question of validity of an award came up before the Hon'ble Sindh High Court, it was held that:- Constitutional petition--Land acquisition-Award of compensation-Award given without publication of notification under section 4, Land Acquisition Act, 1894 in the official Gazzette.
Validity---Publication of notification under section 4, Land Acquisition Act, 1894 is mandatory and without publication of such notification, Land Acquisition Officer cannot assume jurisdiction-- Simple copy of notification cannot be equated or termed as notification published in the official Gazette--Burden to prove that notification under section 4 was published in the official Gazette was upon the authorities who failed to produce the same and without such production the requisites of section 4(1) of the Act cannot be said to have been complied with and further proceedings could not be taken without publication of notification under section 4---Record showed that statutory compliance of publication of notification had not been made before initiating proceedings under the Land Acquisition Act, 1894--Award in the circumstances, was without jurisdiction and lawful authority.
7. A similar matter, when came up before this Court, in the case of Umar Farooq-Vs-Acquisition Collector, Bannu and 4 others, reported as PLD 1975 Peshawar 103, it was declared that: Section 4(1) & 2 Land Acquisition-Jurisdiction-Collector's jurisdiction in acquisition cases under Act-Dependent upon prior publication of notice under section 4(1)-Entry upon surveying, and taking level of land-Can be done only after publication of such notice-Infraction by Collector of provisions of S.4--Renders entire proceedings without jurisdiction.
By reading subsection (1) and (2) of section 4 of Land Acquisition Act together, it would be evident that the publication of notification under section 4 of the Act would appear to be a condition precedent to the exercise of jurisdiction by Collector in all cases in which it appears to him that any land in the district is needed or is likely to be needed for public purpose or for a company. The word "shall" appearing in between the words notification to that effect" and "be published in the official Gazzette" would appear to convey the unmistakable intention of Legislature that the publication of said notification was not a mere formality. In point of fact, the word "thereupon" appearing in the beginning of subsection (2) of section 4 is a further pointer in that direction which, when read in the context of subsection (1) of that section, would leave no doubt in one's mind that in all acquisition cases under the Act the very jurisdiction of Collector would depend upon the prior publication of the required notification and only thereafter it shall be lawful for any officer authorized by him to enter upon and survey and take level of the land intended to be acquired by him.
8. Record further reveals that due to illegalities and reports of massive corruption committed in the process of acquisition, the matter was inquired by the National Accountability Bureau, Khyber Pakhtunkhwa and it seems that the said inquiry prompted the concerned authorities to issuance the impugned notification under section 11 of the Act, however, as per scheme of the Act, proceedings under section 11 are part and parcel of the process initiated only after issuance of notification under section 4 of the Act, hence, it gives a strong impression that Award under section 11 of the Act was issued to cover up the illegal practices committed and to avoid criminal proceedings initiated on the basis of NAB inquiry.
9. So far as reference made to issuance of notification by the Commissioner Hazara under section 6 and 17, as mentioned in the Award, is concerned, it is important to be noted firstly that the issuing authority itself was not clear whether award was to be issued under section 11 or section 17 of the Act. In the given situation where the acquisition was being made for purported housing society we could not find any urgency due to which Commissioner would have made a resort to provision of section 17. Neither could award be termed to have lawfully been issued under section 11 nor could it be justified to have been issued under section 17 of the Act.
10. It is further noticed that through impugned Award, land was acquired but no details of khasra numbers or khata numbers is mentioned therein and only specification is given and though a corrigendum was also issued on 31.12.2013 but the same khasra number with similar area is mentioned therein, which clearly indicates that the impugned Award was issued in a hasty and haphazard manner to justify their actions.
11. Learned AAG and learned private counsel appearing on behalf of respondents argued before us that when other efficacious and adequate remedies are available to the petitioners then constitutional petition is not maintainable. It was further argued that when disputed question of fact which needs inquiry and recording of evidence then constitutional jurisdiction cannot be invoked. In this respect reference was also made to the judgments of 2019 CLC, Lahore, 654, 2020 CLC 442 and 2018 CLC 449, Peshawar, however, with utmost respect and regard to the said pronouncements, it is held that the question involved in the said judgments are clearly distinguishable. In the present petition, the validity of an award issued under section 11 of the Act has been questioned with a prayer for declaring it to be illegal, unlawful and void and seeking its outright cancellation for being in gross violation of the law. The non-issuance of notification under section 4 of the Act and its non-publication in the official gazette is utter violation of the statutory provision laid down in section 4(1) of the Act, whereas, issuance of the Award under section 11 or section 17 in the circumstances of the case, is without jurisdiction and of no legal effect.
12. As a result of the above detailed discussion, we accept this petition and set-aside/cancel the impugned award No. 20/LAC.Nathia Gali dated: 27.7.2012 and corrigendum No. 127/LAC/Nathia Gali dated: 31.12.2013 as prayed for in this petition. It is however, directed that those land owners who have received compensation in lieu of the impugned award, shall return the same to the concerned Authority within period of three (3) months from the date of announcement of this judgment.