SHAHID KARIM, J.---This constitutional petition challenges the order dated 10.02.2022 passed by the Deputy Commissioner/District Collector, Multan pursuant to a direction issues by this Court on constitutional petitions W.P. No.18609 of 2021, W.P. No.18687 of 2021, W.P. No.11376 of 2021 and W.P.
No.11242 of 2021 brought earlier by these petitioners seeking a direction to the District Collector to decide the issues of law raised by the petitioners in their applications ' filed on 7.12.2021. As a prefatory, it is stated that the petitioners seek the judicial review of the actions of respondents to acquire land of the petitioners under the Land Acquisition Act, 1894 ("the Act, 1894") and so these questions must be determined by this Court in its constitutional jurisdiction. It was otiose for a reference to be made to the District Collector to decide the legal issues raised by the petitioners seeking to challenge the acquisition proceedings. Suffice to say that the District Collector has not, in passing the impugned order, adverted his attention to the issues of law nor could he have set at naught the actions initiated by himself.
2. The facts are simple and in most part admitted between the parties. On 22.07.2020 a gazette notification under section 4 of the Act, 1894 (section 4 notification) was issued and a meeting of the District Price Assessm ent Committee was held on 22.09.2020 to assess the compensation to be awarded to the petitioners in lieu of the compulsory acquisition of their land. In the reply filed on behalf of the respondents, the purpose of acquisition has been delineated as follows: "1. That the brief facts of the case are that the Director Revenue AHQs, Islamabad, Base Commander, PAF' Base, Multan requested for issuance of Notification under section 4 of Land Acquisition Act, 1894 which was forwarded to Deputy Commissioner, Multan for the acquisition of 911-Kanal, 2-Marlas land in Moluza's Khor, Sajri Wahan, Tindni, Jameelabad, Langrial and Alumdi Sura Tehsil Multan City District Multan for extension of infrastructure at PAF Base, Multan."
3. This petition is not concerned with the purpose of acquisition but is related to the procedure adopted by the respondents for acquisition of the land under the Act, 1894. It is also admitted on all hands that various petitions were filed to this Court challenging the acquisition proceedings which were referred to the District' Collector to be decided as a representation. Only in one petition titled M. Farooq Khan Babar etc. v. Government of the Punjab (W.P. No.11242 of 2021) an interim order was passed on 19.07.2021 to the effect that: "In the meanwhile the respondents shall not take coercive measures against the petitioners".
Clearly, this Court did not stay the acquisition proceedings and so nothing turns on the contention of the learned D.A.G as well as the learned A.A.G that the acquisition proceedings were impeded by certain interim orders passed by this Court. This is far from the truth.
4. Two issues of law will engage this Court in this petition. According to the learned counsel for the petitioners, the notification under Section 4 of the Act, 1894. was issued on 22.7.2020 and the acquisition proceedings have not been completed till date. Pendente lite the Commissioner, Multan has issued a notification under sections 17(4) and 6 of the Act, 1894 ("the second Notification") on 28.02.2022. Interestingly, while passing the impugned order the District Collector had made, the following observations: "5. Keeping in view the above, the instant application of the petitioners is hereby filed accordingly.
However, the case regarding issuance of further notification under section 17(4) ibid should be processed immediately. The file be consigned to the record room after its due completion."
5. Thereafter on 28.02.2022 the second notification was issued by the Commissioner, Multan Division, Multan. The strange aspect is that the second notification under section 17(4) seems to have been issued on a direction issued by the District Collector, Multan in the impugned order. Prior to this, there seemed to be no urgency in issuing the said notification. Be that as it may, through CM No.2608 of 2022 the petitioners have chosen to challenge the second notification issued by the Commissioner, on separate grounds to which a reply has already been filed by the respondents Nos.1 and 2 justifying the issuance of the said notification. Learned counsel for the parties have been heard on the issues which arose during the pendency of this petition as also regarding the legality of the notification under sections 17(4) and 6 of the 'Act, 1894.
6. The learned counsel for the petitioners contends that section 4 notification must be deemed to have been revoked as acquisition proceedings have not been completed within the period of one year of the issuance of section 4 notification. This argument is premised on the second proviso which was inserted in subsection (2) of section 4 through Act XXIII of 2017 dated 07.06.2017. It provides that: "Provided further that entire process of land acquisition shall be completed within period of a one year failing which the notification made under subsection (1) shall stand revoked."
7. This ground should receive a short shrift. The amendment in section 4 was brought in by the Parliament and applies to such areas in the Federation as are not included in any Province. Simply put, the effect of the amendment shall have no application to acquisition by provincial authorities.
8. The next challenge is based on the requirements that must be met prior to issuance of section 4 notification. He relies upon a recent judgment of this Court to submit that section 4 notification is non est since the Collector failed to carry out his obligations cast upon him by the Act, 1894 and Rules, 1983 and thus breached the mandate of law. The following portions from W.P. No. 9429 of 2021 were relied upon: "180. We are concerned with subsection (1) more than the remainder of the provision. Subsection
(I) simply says that d notification shall be published in the official gazette by the Collector of the District whenever it appears to him that land in any locality is needed or is likely to be needed for any public purpose. This is indeed a vast and polycentric power vesting in the Collector. Section 4 does not spell out the periphery of the power nor does it specify the considerations which are required to be taken into account by the Collector to form such an opinion. Some insight in this regard can be had by reading the Punjab Land Acquisition Rules, 1983. In my opinion, Rules 3, 4, 5 and 6 ought to be read in conjunction with section 4 in order to lend some actuality to the powers vesting, in the Collector. Rules 3, 4, 5 and 6 are reproduced for facility: "3. The acquiring agency shall submit an application to the Collector of the District concerned in the prescribed form for the acquisition of land under the Act giving full justification of the public purpose involved and the minimum area required by it with full details of all other area owned by it in the same locality.
4. On receipt of the application under Rule (3) the Collector of the District shall examine its feasibility taking into consideration the genuineness of the public purpose involved, the minimum requirements of the acquiring agency and suitability of the area proposed for acquisition keeping in view its alternate uses, if any.
5. Where after the examination of feasibility, under Rule 4, the Collector of the District is of the view that the land be acquired for the acquiring agency, he shall issue a notification, under section 4 of the Act stating clearly the name of the revenue estate/village or locality Tehsil, broad details of the dimensions and boundaries of square or rectangles, field numbers and the approximate area to be acquired.
181. A holistic reading of the rules would show that the process is triggered by some 'acquiring agency' which shall submit an application to the Collector of the District concerned in the prescribed form for the acquisition of land under the Act giving full justification for the public purpose involved and the minimum area required by it with full details of all other area owned by' it in the same locality. This is a sine qua non and sets into motion the process of acquisition and is the first step towards that process. On receipt of the application, under rule 3, the Collector of the District shall- examine its feasibility taking into consideration the genuineness of the public purpose involved, the minimum requirements of the acquiring agency and the suitability of the area proposed for requisition keeping in view its alternate uses if any. The Collector shall examine the feasibility under rule 4 and if the Collector is of the view that the land be acquired for the acquiring agency he shall issue a notification under section 4 of the Act. The rules 3, 4 and 5 of the Rules, 1983 are an elaboration of the essential steps which must precede the issuance of the notification under section 4 of the Act. These rules have a purpose and that purpose must be kept in view by the Collector while making a notification under section 4 of the Act. It seems that the legislator felt a need for prescribing these essential steps in the rules as section 4 does not lay down any criteria to be followed by the Collector in making the notification under section 4. These considerations which are spelt out in the rules give a humane touch to the process of acquisition so that the fundamental rights conferred by Article 24 of the Constitution may not be infringed without due process of law.
182. With reference to the Act, 1894, the Collector of the District, exercising powers under section 4 is a core public authority'. "There are certain bodies that so obviously have the character of a public authority that it is not necessary to mention them." R. (on the application of Quark Fishing Ltd.) v. Secretary of State for foreign and Commonwealth affairs (No.2) [2005] UKHL 57 (Lord Hope of Craighead). Thus the powers of the Collector are circumscribed by the conditions laid down in the rules. In the first instance, the acquiring agency must give full justification of the public purpose involved and the minimum area required by it with full details of all other area owned by it in same locality. In short, the application shall be in the form of a feasibility which shall be examined by the Collector. He shall, for the purpose, take into consideration the genuineness of the public purpose involved, the minimum requirements of the acquiring agency and suitability of the area proposed for requisition, keeping in view its alternate uses if any. Thus, the duty of the Collector is an onerous one entailing certain relevant considerations to be taken into account prior to the issuance of section 4 notification. An important aspect of Administrative Law relating to decisions based on irrelevant considerations or failure to take account of relevant considerations, is thus engaged at this stage. This will, in turn, determine the justiceability of the action by the courts.
184. Thus it inevitably follows that discretion by the Collector must be used to promote the policy and the object of the Act. The policy of the Act, 1894 clearly has its provenance in the Constitution of Pakistan. Right to property is a fundamental right. Compulsory acquisition is a serious invasion on that right and must be scrupulously and jealously guarded against. Any acquisition must be grounded in public purpose and just compensation. Section 4 and its preconditions are a bulwark against' compulsory acquisition and the Collector must bring the full application of his mind to bear upon the feasibility submitted, its examination and formation of his view. It is a two--tier process.
185. As a first step, the acquiring agency shall put forth full justification for the public purpose involved. It must therefore conform to the concept of public purpose as understood as a term of art and as expounded by the courts. The public purpose must be such that it overrides and stumps the individual interest. It has to be based on objective criteria and must have the support and backing of an expert study and requisite facts. This is the essential first step to be complied scrupulously by the acquiring agency as the proposed taking affects a fundamental right. The words 'full justification for the public purpose' has to be given effect fully and purposefully. The justification must be such that it overrides the private interest and any competing public purpose, too.
186. Thereafter the Collector shall proceed to examine the feasibility. For the purpose he shall take into consideration the genuineness of the public purpose involved, the minimum requirement of the acquiring agency and 'suitability of the area proposed for requisition keeping in view its alternate uses if any'. Thus the power to be exercised by the Collector is not a mere painting to be looked at. It is an objective and robust exercise of power keeping in view varying factors which inhere in the compendious term 'suitability of the area proposed for acquisition keeping in view its alternate uses if any'. The term used in rule 4 is pregnant with the diverse nature of the scope of Collector's powers. There is a subtle yet important aspect which needs to be flagged here. The entire process with regard to `suitability' has to be conducted keeping in view the interest and rights of the persons who own the property liable to be acquired. That is at the heart of the process and examination by the Collector. He must objectively assess whether the area is at all suitable for acquisition and it must qualify the test of 'alternate use' of that land. For example, if the land is agriculture, then the Collector must carry out the examination from the standpoint of food security which is a looming threat on the horizon. He must ask the question: Will the food security be under threat if a big chunk of land is rendered useless and the people of the area are deprived of essential commodities which sustain them. This will have a spiral effect on the overall food situation; the inflation will rise as would prices of food items which will, in turn, impact the economic and culinary aspects of the public. This is an illustration of competing public interest which the Collector is required to consider in the section 4 determination. The number of illustrations can be myriad depending on the circumstances of each case. There could be human, dwellings or trade and businesses being run by people whose most prized possession likely to be affected is the goodwill attached to that vocation. Heritage and buildings of historical and cultural importance ought to occupy the Collector's consideration in the examination. The nature of the project sought to be carried out by the acquiring agency should also have an important bearing on the decision to be made. If the project entails the construction of a road or highway, it may have to be analysed differently from a mere campus block of a college.
189. Section 4 read with the Rules is an example of a provision in a statute which places on a public body a duty 'to have regard' to some desirable good.
209. Thus, the Collector of the District cannot act mechanically in issuing a notification under rule 4 and is under a bounden duty to comply with the provisions of rules 3, 4 and 5 of the Rules, 1983.
An application of mind has to be made by the Collector with regard to all these aspects while examining the feasibility of the application. The most crucial aspect in my opinion which the Collector is liable to undertake is the alternate uses to which the land can be put and this should be. an important plank of the feasibility undertaken 'by the Collector of the District. This will require the Collector of the District to hold meetings for the purpose and to sum up his findings in the form of a written statement which will lead to the issuance of the notification under section 4 of the Act, 1894."
9. As concluded above, the Collector of the District will also be obliged to consider the approval given by Environmental Protection Agency to EIA submitted by the acquiring agency. A holistic view will be taken by the Collector of the District and thereafter an informed decision shall be made and the entire procedure shall precede the issuance of the section 4 notification. None of these procedural formalities were complied with by the Collector of the District of Multan and therefore the notification which has been issued under Section 4 is held to be without lawful authority and void ab initio.
10. The section 4 notification is illegal for another reason too. It has been signed and issued by two other public bodies, absolutely alien to the scheme of section 4. One is a Group Captain, Director Revenue Record, Air Headquarters Islamabad, and the other is the Land Acquisition Collector, Multan. At the bottom, it was then endorsed by the District 'Collector. Thus, for all intents the section 4 notification was not signed by the District Collector and he merely endorsed the draft notification sent to him to be signed. This is an egregious abdication of powers by the Collector who allowed his discretion to be captured by extraneous persons.
11. The third ground of attack is made to the issuance of sections 17(4) and 6 notification subsequently by the Commissioner. Multan Division, Multan. That second notification is discrepant in may respects. Section 17 provides that: "17. Special power in cases of urgency.---(1) In cases of urgency, whenever the Commissioner so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from publication of the notice mentioned in subsection (1) of section 9, take possession of any land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government, free from all encumbrances: Provided that the Commissioner shall not issue any direction to the Collector under this subsection unless the Department of Government, the local authority, or Company, as the case may be, for which the land is being acquired, has first deposited the estimated cost of acquisition of such land as determined by the Collector of the district, keeping in view the provisions of sections 23 and 24.
(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for tie maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, or whenever owing to a similar emergency it becomes necessary for the Commissioner to acquire the immediate possession of any land for the purposes of maintaining traffic over a public road, the Collector may, immediately after the publication of the notice mentioned in subsection (1) and with the previous sanction of the Commissioner, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this subsection without giving to the occupier thereof at least forty-eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.
(3) In every case under either of the preceding subsections- the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
(4) In cases where in the opinion of the Commissioner, the provisions of subsection (1) or subsection (2) are applicable, the Commissioner may direct that the provisions of sections 5 and 5-A shall not apply, and, if he does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under subsection (1) of section 4."
12. Firstly, the second notification has been issued under dictated exercise of powers. This is culled out from two aspects. It can be gleaned from a letter dated 28.06.2020 written to the Assistant Commissioner/Land Acquisition Collector Multan City by the Military Estate Officer, Multan Circle and the following statement made in the letter: "In this regard, 05 sets of Draft Notification under section 17(4) and (6) of the Land Acquisition Act, 1894 (in original) along with relevant documents in respect of subject land are forwarded herewith signatures and further necessary action."
13. Thus, not only that information was laid with the Land Acquisition Collector regarding deposit of the cost of acquisition, it was accompanied by five sets of draft notification to be issued in respect of the land under acquisition. Clearly, the Commissioner Multan Division while acting on this letter proceeded to issue second notification under sections 17(4) and 6 of the Act,1894. In this manner the Commissioner abdicated his authority in this regard and shackled his statutory power thereby.
It was not the business of any other authority to have prepared the draft notification for issuance by the Commissioner Multan Division.
Another fact that arises out starkly is that the letter by the Military Estate Officer, Multan was issued even prior to section 4 notification which was published on 22.07.2020. It seems that the respondents did not care whether a section 4 notification had been published or not and the decision to proceed under section 17(4) was pre-meditated. Doubtless, the Commissioner did not apply his free mind and independent decision to the act of issuance of a notification under section 17(4) and so his act falls afoul of the provisions of the Act, 1894 and in particular section 17.
Secondly, a perusal of second notification shows that it is not only signed by the Commissioner Multan Division, Multan but also by four other officers including the Base Commander PAF Base and the Military Estate Officer, Multan Circle. Once again this could not have been done and on this basis second notification is ultra vires and without lawful authority. The only officer envisaged by section 17 for issuance of the declaration under section 6 is the Commissioner concerned and no other officer, how high so ever, is authorized by law to either form an opinion or to sign publication of the notification. This lends further credence to the arguments that the second notification was published under dictation and the Commissioner was swayed by extraneous circumstances.
14. 'Since second notification has been issued in the meantime while this petition was pending, the arguments in this Court centered on the validity of second notification. Apart from other aspects which afflict second notification and brought forth in the preceding paragraphs, it does not fulfill the prior conditions mentioned in section 17 which entirely relates to cases of urgency. If. section 4 notification had been issued on 22.7.2020, there seemed no urgency in the instant case for second notification under sections 17(4) and 6 to be issued more than one and half years after the section 4 notification. It is not in dispute that further steps such as the issuance of notification under sections 5 and 5A of the Act, 1894 have not been taken since by the respondents. The fact that second notification has been issued belatedly trumps the claim of the respondents regarding urgency in the matter. Apart from this aspect, a read of subsections (1) and (4) of section 17 would clearly bring forth certain prior steps to be taken by the Commissioner in, cases of urgency. Firstly, a direction has to be issued by the Commissioner that the provisions of sections 5 and 5A shall not apply. Thereafter a declaration has to be made under section 6 in respect of the land at any time after the publication of the notification under section 4. Section 6 of the Act, 1894 relates to and declares that land is required for public purpose and has to be issued by the Commissioner if he is satisfied on certain matters regarding acquisition. The declaration by subsection (2) of section 6 is to be published in the official gazette and shall state the district or the territorial division in which' the land is situated etc. No separate declaration under section 6 has been issued by the Commissioner nor has the Commissioner issued a separate direction regarding the fact that the provisions of sections 5 and 5A shall not apply to these proceedings. All of these steps have been collectively mentioned in the second notification which is a breach of the mandate of various provisions of the Act, 1894. These steps cannot be taken simultaneously and must be taken in the order in which they have been mentioned in section 17 and have to be preceded by formation of an opinion by the Commissioner on all of these aspects. Subsection (4) of section 17 begins with the words "in cases where in the opinion of the Commissioner the provisions of subsection (1) or subsection (2) are applicable". Thus, the legislature requires the Commissioner to form an opinion and that opinion must be expressed in writing and cannot be presumed to exist in the mind of the Commissioner without finding expression in a written order.
15. This petition raises a vexed question of law relating to "urgency" and the concept found in the provisions of the Act, 1894, It is a "Rolled-up" procedure which dispenses with sections 5 and 5-A. fights vested in a person facing deprivation of property.
16. As a prefatory, it may be stated that section 17 is not happily worded. It has its provenance in the amendment brought about in the Act, 1894 by Land Acquisition (West Pakistan Amendment)
Ordinance XLIX of 1969 whereby section 17 was substituted and subsection (1) of section 17 was made applicable to "any land". Prior to the substitution carried out in 1969, the acquisition in cases of urgency was confined to waste or arable land. The scope of acquisition under the urgency provision of section 17 was expanded to "any land" after the amendment in the year 1960.
17. A synoptical resumption of each sub-section of section 17 would be required in order to understand the scheme of section 17. Subsection (1) deals with the cases of urgency in the matters of acquisition. The provision merely says that in case of urgency, upon the direction of the Commissioner, the Collector may on the expiration of fifteen days from publication of the notice mentioned in subsection (1) of section 9 take possession of any land needed for public purpose or for a company. This can be done though no award has been made by the Collector. Ostensibly the provision seems to confer a wide power on the Commissioner and an unguided discretionary power, to so direct the Collector. As to what constitutes urgency has not been spelt out in subsection (1) and has been left to be decided by the Commissioner in each case. However, what is important to note in subsection (1) is that the provisions of sections 5 and 5A and all other provisions up till the publication of notice under section 9 will have been complied with and carried out to full effect. Section 5, it will be recalled pertains to the issuance of a notification that a land is needed for public purpose or a company and section 5A confers a right of hearing on any person interested in any land which has been notified under section 5 and to object to the acquisition of the land. Therefore, these rights as being fundamental to the process of acquisition have been preserved inviolate even in case of urgency contemplated by subsection (1). Possession can only be taken after publication of notice mentioned in subsection (1) of section 9. No such proceedings have admittedly taken place so far and therefore the requirements of subsection (1) of section 17 have gone abegging. If that is the case, then subsection (4) of section 17 does not come into play as that provision is subject to applicability of subsections (1) and (2). This power is further subject to another important rider which is contained in the proviso to subsection (1). This relates to the deposit by the department of Government, the local authority or company for which land is being acquired to first deposit the estimated cost of acquisition of such land as determined by the Collector of the District.
18. Subsection (2) is an emergency provision and confers a power on the Commissioner to acquire the immediate possession of any land in case of emergency which has been mentioned in subsection (2). This power under subsection (2) is circumscribed by the strict conditions laid down in subsection (2) and the circumstances under which the emergency powers can be exercised. We are not directly concerned with the interpretation of subsection (2) but its effect may have to be considered while interpreting the true import and tenor of subsection (4) at a later stage.
19. Subsection (4) is the provision that we are. directly concerned with in this petition. Therefore, what is the exact nature and policy of subsection (4) is the subject matter of this petition. We may refer to subsection (4) as a leapfrogging acquisition procedure which confers wide and broad powers on the Commissioner to direct that the provision of sections 5 and 5A shall not apply and therefore a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under subsection (1) of section 4. From a reading of subsection (4), it is evident that this provision is a drastic provision and entails, the taking away of the right to be heard and to raise objections by any person whose land is being taken. At first blush, the power conferred on the Commissioner seems to make blatant and gross inroads in the right to be treated with fairness and due process conferred upon a person by Article 10A of the Constitution. In the first instance, the Commissioner is required to form an opinion as to whether the provisions of subsection (1) or subsection (2) are applicable or not in a given situation. As adumbrated, subsection (2) relates to emergency provisions and from the very nature and the instances of emergency mentioned in subsection (2) the conferring of power on the Commissioner does not seem out of sync with the context. However, the conferring of power on the Commissioner with regard to the subsection (4) and the urgency envisaged thereby does seem odd and not in tune with the setting of the Act, 1894 and section 17 in particular. For one, subsection (4), does not specify any situation which may distinguish a case from the one under subsection (1) so as to provide justification to the Commissioner to dispense with the provisions of sections 5 and 5A.
20. As submitted above, in the first instance the Commissioner is required to form an opinion. As to what is meant by the term 'opinion', we need not travel far and there is rich body of case law with reference to Article 58(2)(b) of the Constitution (since deleted) which conferred on the President a power to form an opinion that a situation had arisen in which the government of the Federation could not be carried on in accordance with the provisions of the Constitution and an appeal to the electoral was necessary. 'Opinion', as held in Abul Ala Maudoodi's case (PLD 1964 SC 673) imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion may be found. The elaboration of the term 'opinion' and the concept underlying it was made in Federation of Pakistan v. Muhammad Saifullah (PLD 1989 SC 166) in the following words: "The discretion conferred by Article 58(2) (b) "cannot, therefore, be regarded to be an absolute one, but is to be deemed to be a qualified one, in the sense that it is circumscribed by the object of the law that confers it.
In the view of the learned Judge: "The Reading of the provisions of Articles 48(2) and 58(2) shows that the President has to first form his opinion, objectively and then, it is open to him to exercise his discretion one way or the other, i.e. either to dissolve the Assembly or to decline to dissolve it. Even if some immunity envisaged by Article 48(2) is available to the action taken under Article 58(2) that can, possibly be only in relation to the exercise of the 'discretion' but not in relation to his opinion', An obligation is cast on the President by the aforesaid Constitutional provision that before exercising his discretion he has to form his 'opinion' that a situation of the kind envisaged in Article 58(2) (b) has arisen which necessitates the grave step of dissolving the National Assembly."
Thus, "though the President can make his own assessment of the situation as to the course of action to be followed but his opinion must be founded on some material.... Thus, if it can be shown that no grounds existed on the basis of which an honest opinion could be formed, the exercise of the power would be unconstitutional and open to correction through judicial review."
21. The position was summed up in Benazir Bhutto's case (PLD 1998 SC 388) by Zia Mahmud Mirza, J. and is as follows: 1) "The President is empowered under clause (2) of Article 58 to dissolve the National Assembly in his discretion.
2) .....
3) Before ordering the dissolution of National Assembly in exercise of his discretion, the President is obliged to form an opinion, honestly and objectively, as to the existence of preconditions mentioned in sub-clause (b) of Article 58(2).
The formation of opinion must be founded on some material placed before and duly considered by the President at the time when he formed the opinion.
The grounds/circumstances forming the basis of the opinion must have direct and reasonable nexus with the preconditions prescribed in Article 58(2) (b).
6) If not the exercise of discretion, at least the formation of opinion by the President necessitating the exercise of power is open to judicial review."
22. Therefore, the opinion to be formed by the Commissioner in subsection (4) has to conform to the standard laid down for the formation of opinion in the dissolution of Assembly cases, referred to above. In a nub, the Commissioner must have before him some material on the basis of which he forms an opinion objectively and upon reasonable and rational grounds. The intention of the legislature to this effect can also be gathered when we make a reference to the rules which have been framed with regard to the exercise by the Commissioner under subsection (4). Therefore, we are in no manner of doubt that before the exercise of power under subsection (4) by the Commissioner, he has to form an opinion on the. basis of material placed before him and duly considered by the Commissioner at the time when he forms the opinion. The grounds and circumstances forming the basis of the opinion must have a direct nexus with the exercise of power conferred under subsection (4) and must not be based on irrelevant considerations.
23. The power relates to taking of possession. However, read with rule 10 of the Rules, 1983 the Collector must have kept in view the considerations mentioned in rule 10 and append certain certificates and documents/ information with the case while submitting a draft notification to the Commissioner. A glance at the rules makes an interesting reading. Rules 10, 11, 12 and 13 of the Rules, 1983 deal with matters relating to the notification under sections 5 and 17 of the Act. By rule 10, certain matters, which the Commissioner of the Division will bear in mind while issuing the, notification, have been spelt out This would include a full description of the village, Tehsil and District etc. A note at the bottom of the notification would exclude waqf, state and evacuee lands, toms, graveyards and places of religions character as also that the Collector of the District has calculated the price of land sought to be acquired. It is also required by rule 10 that the Collector of the District has placed funds equivalent to the estimated cost assessed by him at the disposal of the Land Acquisition Collector. Sub-rule (iii) of rule 10 has an important bearing in the entire setting of the acquisition ' proceedings. It lays down that no land lying near a town, meant for fodder cultivation or for orchards or otherwise cultivable shall be notified for acquisition for the establishment of any industries. For the location of industrial units all concerned Departments of Government including Health, Industries and Agriculture shall be consulted to ensure that no hazards to public health or agricultural economy would be involved, in case of such an acquisition.
This is a paradigm provision and is a bulwark against acquisition of lands which are hazards to ' public health and agricultural economy. This sub-rule has to be read with the portion of the judgment dealing with the issuance of a notification under section 4 of the Act, 1894. The ineluctable inference is that by the rules the intention of the legislature is that no acquisition should be permitted which would be hazardous to public health or agricultural economy.
24. Rule 11 prescribes the considerations to be mentioned in a draft notification which is forwarded by the Collector of the District to the Commissioner to be issued under section 5 or 17 of the Act.
Rule 11 obliges the Collector of the District to append certain certificates, documents/information with the draft notification for the consideration of the Commissioner. A holistic reading of rule 11 would ineluctably show that the Commissioner has indeed to form an opinion by taking into consideration objective criteria and essential considerations which have been elaborated in rule 11 of the Rules, 1983. Once again by rule 11 the Commissioner while forming an opinion has to return a finding as to whether it would be proper to acquire a certain piece of land so as to minimize loss to the agricultural economy. Special emphasis has been laid for preserving the agricultural economy and while acquiring land special care has to be taken with regard to the preservation of agricultural economy and public health. This seems to be the underlying theme of the rules 10 and 11 and corresponding obligation cast upon the Commissioner of the Division while forming an opinion.
25. No time is provided within which urgency powers have to be exercised. Obviously urgency in common parlance, connotes the taking of immediate steps. In subsection (1) the instance of urgency, can only be said to arise and implementation done 'on the expiration of fifteen days from publication of notice mentioned in subsection (1) of section 9'. Thus subsection (1) deals with cases that keep the provisions of sections 5 and 5A intact and applicable.
26. As stated above, section 17 makes an interesting reading. The rules do not make a distinction amongst the various subsections of section 17 and prescribes a uniform procedure to be followed by the Collector as also the items to be included in the draft notification to be prepared by the Collector.
27. Similarly, in the emergency provision of subsection (2), the Collector can only enter upon and take possession of land, 'after publication of the notice Mentioned in subsection (1) and with the previous sanction of the Commissioner'. The notice mentioned in subsection (1) of section 9 which is obviously after the compliance of sections 5 and 5A has already taken place. Thereafter these provisions will have. to be reconciled and read in harmony. The intention of these provisions can only be to dispense with the normal procedure in case of emergency and to proceed to take possession, immediately. The only thing left would then be the giving of compensation.
28. For all these reasons, the act of the Commissioner in issuing second notification under sections 17(4) and 6 of the Act, 1894 is null. The second notification is held without lawful authority.
29. In view of the above, this petition is allowed. The section 4 notification as well as second notification under sections 17(4) and 6 of the Act, 1894 are held to be void and are struck down.