MIRZA VIQAS RAUF, J. This single judgment shall govern the instant writ petition as well as W.Ps.No.2432 of 2021, 3714 of 2019, 2457 of 2021 and 248 of 2022 on account of involvement of similar questions of law and fact.
2. The petitioners herein are the land owners of property situated in Tehsil & District Rawalpindi as well as Tehsil Fateh Jang, District Attock. They are offended with the publication of notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as "Act, 1894"), whereby District Collectors, Rawalpindi and Attock proceeded to acquire the land owned by the petitioners for Civil Aviation Authority (hereinafter referred to as "CAA") at the public expense for a public purpose namely Future Runway, future development and security reasons for construction of New Benazir Bhutto International Airport in Tehsil & District Rawalpindi. It is the grievance of the petitioners that after issuance of notification under Section 4 of the "Act, 1894", no further proceedings have been carried out by the respondents, as no notification under Sections 5, 6 and 17 of the "Act, 1894" is issued till date. It is asserted that a considerable land has already been acquired for construction of New Benazir Bhutto International Airport, which has been completed and became operational in the year 2018. The notifications under Section 4 of the "Act, 1894" are assailed on the ground that these are illegal, void, outcome of malafide and became ineffective with the afflux of time.
3. In response to these petitions, the respondents have submitted their report and parawise comments, whereby they justified the process of acquisition and resisted the petitions on factual as well as legal grounds.
4. These petitions are still at pre-admission stage but in view of the nature of controversy involved in these petitions, both the sides have requested to treat the same as "Pacca case" and decide these as such.
5. Syed Zulfiqar Abbas Naqvi, Advocate, learned counsel for the petitioners submitted that after the issuance of notification in the year 2013, no further step has been taken by the respondents and the petitioners have been kept under a constant threat of so-called acquisition proceedings. It is contended that impugned notification is the outcome of malafide in order to deprive the petitioners from their property in an illegal and unlawful manner. Learned counsel emphasized that with the afflux of time, notification under Section 4 of the "Act, 1894" is supposed to have become redundant. While making reference to Act No.XXIII of 2017, learned counsel submitted that the amendment introduced in Section 4 makes it clear that after the lapse of one year, if the acquisition proceedings are not completed, the notification shall stand revoked. Learned counsel added that even otherwise, the respondents were supposed to complete the acquisition proceedings within reasonable time, which in no way can extend to years. It is argued with vehemence that right to property is an inalienable right and no person can be deprived of his property without due Course of law. In order to supplement his contentions, learned counsel has placed reliance on Messrs MEHRAJ FLOUR MILLS and others v. PROVINCIAL GOVERNMENT and others (2001 SCMR 1806) and QASIM ALI and 2 others v. PROVINCE OF PUNJAB through Secretary, Irrigation Department, Lahore and 4 others (2021 YLR 1261).
6. While adding to the submissions recorded hereinabove, Mr. Haroon Dugal, Advocate for petitioners in W.P.No.2457 of 2021, contended that the respondents were though obliged to seek permission from the environmental agency for the establishment of Airport but no approval was obtained as is required under Section 12 of the Punjab Environmental Protection Act, 1997. Learned counsel submitted that being the major development project, it was expected from the respondents to get approval of PC-I and PC-II but it has not been done at all. While making reference to sub-section 4 of Section 6 of the "Act, 1894", learned counsel emphasized that as the land in question was not utilized by the respondents in the first instance, so previous notification under Section 4 of the "Act, 1894" shall cease to have any effect. Learned counsel maintained that the land in question is not at all feasible for the proposed runway as it will be built upon the darn, which is existing at the site.
7. M/s Ch. Afrasiab Khan, Ch. Shaharyar Tariq and Ch. Qaiser Mushtaq, Advocates representing the petitioners in connected W.Ps.No.2432/2021, 3714/2019 and 248/2022 opted to adopt the arguments of learned counsel for the petitioners in W.Ps.No.2439 of 2021 and 2457 of 2021.
8. On the other hand, Ms. Amna Warsi, Advocate representing the "CAA" resisted the instant petition mainly on the ground that the land in question is being acquired for public purpose. Added that this Hon'ble Court being the Court of ultimate jurisdiction is restrained from exercising constitutional jurisdiction in the matters wherein alternate remedy is available. Emphasized that there is no time limit for completion of the acquisition process and reasonable time is to be determined by the Court. In order to supplement her contentions, learned counsel places reliance on KHALID MEHMOOD v. COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, LAHORE (1999 SCMR 1881), COMMISSIONER INLAND REVENUE LEGAL DIVISION. RTO III KARACHI v. YASMEEN BANO and 3 others (2020 SCMR 1120) and FEDERAL LAND COMMISSION through Chairman v. Rais HABIB AHMED and others (PLD 2011 Supreme Court 842).
9. Malik Muhammad Siddique Awan, Additional Attorney General for Pakistan while adding to the submissions of learned counsel representing the "CAA", contended that the impugned project is not controlled by one department rather it is to be supervised by three departments. He added that due to financial constraints, the project could not be finalized. Learned counsel emphasized that the project relating to airport and its runway/air root is according to international law. It is argued that the petitioners have an alternate remedy in the form of recovery of compensation in lieu of their acquired land. It is argued that acquisition proceedings have only been challenged by some of the land owners. In order to supplement his contentions, learned Law Officer placed reliance on BAHADUR SHAH and 6 others v. ACQUISITION COLLECTOR VI, TERBELA DAM, TEHSIL HARIPUR and 2 others (1995 SCMR 1077), "PROVINCE OF SINDH through Collector of District Dadu and others v. RAMZAN and others" (PLD 2004 Supreme Court 512). Learned Law Officer for the Province adopted the above arguments.
10. Heard. Record perused.
11. The impugned herein are the notifications issued under Section 4 of the "Act, 1894" by the District Collectors, Rawalpindi and Attock, so as to set a path to acquire the land owned by the petitioners for "CAA" more precisely for the purpose namely "Future Runway, future development and security reasons for construction of New Benazir Bhutto International Airport, Islamabad." The detail of the notifications under challenge is as under:- W.P. No. Notification No.Dated.
2439 of 2021153/LAC/DC 11.09.2013 2432 of 2021B-V 812/276-DRA13.03.2018 248 of 2022155/LAC/DC 11.09.2013 3714 of 2019157/LAC/DC 11.09.2013 2457 of 20217621 12.06.2021
12. The abovesaid notifications have though been questioned on various grounds e.g. malafide, non-application of mandatory provisions of the "Act, 1894", the Punjab Environmental Protection Act, 1997 and non-feasibility of the land in question for the said purpose but the star point raised is that with the afflux of time, the impugned notifications cease to have any effect. The moot point for determination of this Court is thus as to what would be the reasonable time for keeping the notification under Section 4 of the "Act, 1894" alive?
13. Before pondering upon the matter in issue, it would be advantageous to have a glimpse of history relating to protection of right to property. The most relevant is in the case of expansion of Masjid-Al-Nabvi, In 17Hj. The "Masjid" was expanded in the direction of Qibla. Concerning this, Hazrat Umar once said, "If I had not heard the Messenger of Allah saying, 'The "Masjid" will need to be expanded, I would not have expanded it in the least." (Musnad Ahmad, vol. 1, p. 414, no. 330). Hazrat Umar purchased the houses that surrounded the Masjid-Al-Nabvi. After demolishing them, the area was utilized for the extension of the "Masjid". House of Hazrat Abbas also surrounded the "Masjid" and he refused to sell his house and sued the state in the Court of the Qazi Ubay bin Kab.
The Court gave its verdict against the state, and held that the property could not be acquired compulsorily. Hazrat Umar accepted the verdict of the Court. Thereupon Hazrat Abbas voluntarily gifted his house for the extension of the "Masjid". Hazrat Umar accepted the gift gratefully, and provided alternative accommodation to Abbas. Said event is also narrated in Asr-al-Khilifih Ar- Rrishidah, p. 227 & Fath-Al-Bari, 4/98.
14. The Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution") also guarantees the fundamental rights of the citizens in terms of Chagter-I Part-U.
Article 24 of the "Constitution" provides a protection of property rights to every citizen, which reads as under: -
24. Protection of property rights.--(1) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of---
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or
(b) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or
(c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law; or
(d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property, or for the benefit of its owner; or
(e) any law providing for the acquisition of any class of property for the purpose of
(i) providing education and medical aid to all or any specific class of citizens; or
(ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specific class of citizens; or
(iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or
(f) any existing law or any law made in pursuance of Article 253.
(4) The adequacy of otherwise of any compensation provides for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any court.
It is clearly evident from the above that a person cannot be deprived of his property in the ordinary circumstances. Law, however, provides a departure and permits to acquire the property of any person for the public purpose and after payment of due compensation as ordained under the relevant law.
15. Article 173 of the "Constitution" bestows power upon the executive to acquire property on behalf of Federal Government or the Provincial Government subject to any Act of the appropriate Legislature. On the strength of above referred constitutional provisions, "Act, 1894" comes into play, which deals with the acquisition of land needed for public purpose and for companies and for determining the amount of compensation to be paid on account of such acquisition.
16. Part-II of the "Act, 1894" deals with the acquisition. Section 4 authorizes the Collector of the District to issue a notification whenever it appears to him that land in any locality is needed or likely to be needed for any public purpose or for a Company. When a particular land is needed for a public purpose or for a Company, the Commissioner or the Provincial Government as the case may be, if satisfied after considering result of the survey, if any, made under subsection (2) of section 4, or if no survey is necessary, at any time, that any particular land included in a locality notified under subsection (1) of section 4 is needed for public purpose or a Company, as the case may be, a notification to that effect shall be published in the official Gazette, stating the District or other territorial division in which the land is situated, the purpose for which it is needed, its approximate area and situation, and where a plan has been made of the land, the place where such plan may be inspected, and the Collector shall cause public notice to be given of the substance of the notification at convenient places on or near the land to be acquired. After the issuance of notification under Section 5 of the "Act, 1894", any person interested in any land, which has been notified thereunder may within 30 days after the issuance of notification object to the acquisition of land or any land of the locality as the case may be.
17. It is an admitted position that after issuance of notification under section 4 of the "Act, 1894", no further step has been taken by the respondents. To this effect, a report was also requisitioned from the Collector concerned, which is also part of record. From the perusal of the report, it is manifestly clear that no valid justification is available as to why no further action was initiated by the respondents after the issuance of notification under Section 4 of the "Act, 1894" despite lapse of so many years.
18. The judgments in the cases of BAHADUR SHAH and 6 others v. ACQUISITION COLLECTOR VI, TERBELA DAM, TEHSIL HARIPUR and 2 others (1995 SCMR 1077), "PROVINCE OF SINDH through Collector of District Dada and others v. RAMZAN and others" (PLD 2004 Supreme Court 512) and KHALID MEHMOOD v. COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, LAHORE (1999 SCMR 1881) have though been relied by the learned Law Officer as well as Ms. Amna Warsi, Advocate representing the "CAA" but facts and propositions involved therein are totally distinct and apart from the proposition in hand. In all these cases, matter in issue is with regard to determination of compensation in lieu of acquired land. So far judgment in the case of FEDERAL LAND COMMISSION through Chairman v. Rais HABIB AHMED and others supra is concerned, that too runs on entirely different facts and is not attracted to the case in hand In the case of COMMISSIONER INLAND REVENUE LEGAL DIVISION, RTO III KARACHI v. YASMEEN BANO and 3 others supra, the Hon'ble Supreme Court of Pakistan, while dealing with the question that when a statute is silent about limitation, held that reasonable time limit was to be supplied by the Court. It is also held that in carrying out this exercise, no general standards can be set out and such time is and shall be dependent on the purpose of the law to be achieved by an act or function to be performed. One should keep in mind that these observations were made with reference to Section 17, 17B and 25 (2) of the Wealth Tax Act, 1963.
19. Adverting to the moot point, it is observed that at some point of time, Rule 7 of the Punjab Land Acquisition Rules, 1983 (hereinafter referred to as "Rules, 1983") prescribed a period of one year for issuance of notification under Section 5 of the "Act, 1894" from the date of issuance of notification under section 4 of the "Act, 1894". Rule 7 ibid was, however, declared ultra vires by this Court, which judgment was affirmed by the Hon'ble Supreme Court of Pakistan in the case of Messrs MEHRAJ FLOUR MILLS and others v. PROVINCIAL GOVERNMENT and others (2001 SCMR 1806). The relevant extract from the same is reproduced below:- "15. It is significant to note that no case-law of this Court has been cited before us in which the scope of expression "at any time", as appearing in section 5, was examined: Above expression has its own significance and cannot be ignored altogether. 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 be determined in each case on its own merits. Although 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.
16. Under section 55 of the Act the Government has powers to make rules, which shall be consistent with the Act. The rules 7 and 8, ex facie, militate the provisions of section 5. These rules being inconsistent with the provisions of the Act were rightly declared by High Court, as ultra vires of the Act, leaving the competent Legislature to make equitable amendments therein."
It is thus apparent from the above that while declaring rule 7 as ultra vires, the matter was left with the legislature to make equitable amendments in the law.
20. Law is always based on reasonableness and if no time is prescribed under the law for performing an act, it does not mean that the executive should sleep over the matter and put the citizens in agony of waiting the outcome of proceedings resulting into offending their property rights in the garb of acquisition. In somewhat similar circumstances, this Court in the case of QASIM ALI and 2 others v. PROVINCE OF PUNJAB through Secretary, Irrigation Department, Lahore and 4 others (2021 YLR 1261) held as under:-
5. As far as availability of unlimited time or otherwise with the respondents is concerned, it is an admitted fact the respondents issued notification under section 4 of the Act on 02.11.2010 for acquisition of land measuring 3005 kanal-17 marla which was published in official gazette on 03.11.2010. Thereafter, there was complete silence for more than 9 years and four months and then, addendum acquisition notification including further land measuring 806 kanals-8 marla was issued on 12.03.2020 which was published in official gazette on 13.03.2020. No notification under Section 5 of the Act was issued nor any extension was sought for, nor granted by the Board of Revenue nor any other proceedings took place in pursuance of notification under Section 4 of the Act rather addendum was issued on 12.03.2020 after more than 9 years and 4 months of notification under section 4 of the Act and then notification under section 17(4) of the Act was issued to invoke urgency in the matter. Though the provisions of Rule 7 of the Punjab Land Acquisition Rules, 1983, which prescribed a period of one year for issuance of notice under section 5 from the date of issuance of Notification under section 4 of the Act, were declared to be ultra vires to the Act, in case Messrs Mehraj Flour Mills and others v. Provincial Government and others (2001 SCMR 1806) yet it nowhere gives unfettered powers to the acquiring agency to sleepover the rights of the citizens and not to the conclude the acquisition proceedings and had unlimited time to conclude the acquisition process rather the respondents were required to complete the acquisition proceedings within a reasonable time as the land owners, whose lands were proposed to be acquired, could not be put in agony of uncertainty for such a long period of more than nine years. Therefore, notification under section 4 of the Act dated 02.11.2010 has become redundant and unproceedable. Reliance is placed upon the law laid down in cases Divisional Engineer (Dev.) N-II T & T Gujranwala and 3 others v. Rana Muhammad Sharif (2002 CLC 985 Lahore) and Chiniot Co- operative Housing Society Limited through President v. Government of Punjab through Secretary Cooperative Department and 2 others (PLD 2016 Lahore 293). There may not be an exact definition for the term "reasonable time" and the same vary in different cases. In case titled Mst. Kubra Amjad v. Mst. Yasmeen Tariq and others (PLD 2019 SC 704), the Hoteble Supreme Court of Pakistan has interpreted the term "reasonable period" in the following words: "It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circum-stances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit."
(Emphasis provided)
21. Though learned counsel for the "CAA" and the learned Law Officers have tried their best to draw a distinction between the facts of the cases in hand from the case of "QASIM ALI" supra but they remained unable to point out any distinctive feature. It appears that after the judgment in the case of Messrs MEHRAJ FLOUR MILLS and others v. PROVINCIAL GOVERNMENT and others (2001 SCMR 1806), the legislature has ultimately awoken up from the deep slumber and introduced an amendment in Section 4 of the "Act, 1894" through Act No.XXIII of 2017 to the following effect:-
2. Amendment of section 4, Act I of 1894.--In the land Acquisition Act, 1894 (I of 1894) in section 4, in sub-section (2), in the proviso, for the full stop, occurring at the end, a colon shall be substituted and thereafter the following second proviso shall be inserted namely:- "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) shall stand revoked."
22. It is though stance of the respondents that the above amendment is restricted to the capital territory only but even assuming it as such, it can be observed safely that a period of one year provided in the amended provision for all intent and purposes is reasonable time. If we assume that there is no change in the "Act, 1894" to the extent of province of Punjab and the amended Act XXIII of 2017 is restricted only to the Islamabad Capital territory, even then on the touchstone of Article 143 of the "Constitution", latter shall prevail.
23. Needless to observe that none else can gage the quantum of misery and agony of a person, who shall be made to wait for the outcome of proceedings resulting into deprivation of property rights for an indefinite period by putting a clog on the enjoyment of such rights.
24. The nutshell of above discussion is that even in absence of any time frame in Section 4 of the "Act, 1894", the respondents were obliged to take further steps for the purpose of acquisition within reasonable time, which in no case should exceed one year from the date of issuance of notification under Section 4 of the Act ibid.
25. For the foregoing reasons, all these petitions are accepted. As a result, impugned notifications referred hereinabove are set aside.
26. Before parting, it is however observed that the respondents would be at liberty to acquire the land for the purpose in hand, if they so desire through a fresh notification under section 4 of the "Act, 1894".