1. ' This writ petition has been directed against the proceedings of compulsory acquisition of land under the provisions of the Ordinance known as the Azad Jammu & Kashmir (Housing & Development Schemes) Ordinance (hereinafter called the Ordinance).
2. ' The brief facts resulting in the present writ petition are that land comprising survey number 1631 'min' measuring 78 ka.Nals and 4 marlas situated in village Khambal, Tehsil and District Mirpur was acquired for establishing a timber market and consequently, a notice under section 4 of the Land Acquisition Act of 1894 was issued. But instead of proceeding under the'Land Acquisition Act, the Revenue Assistant Mirpur, acting as Collector Land Acquisition, issued a notification on 3-2-1981 under section 5 of the Ordinance calling upon the residents of village Khambal to put up their claims, if any, on 13-2-1981, which was a public holiday. In response to the said notification, petitioner Muhammad Bashir submitted an application on 18-3-1981 on behalf of the inhabitants of the village Khambal that as the date fixed for hearing the claims under section 5 of the Ordinance was a holiday, a new date may be fixed for putting up claims. But, no fresh date was fixed by the Collector for the purpose and subsequently, at the instance of the Estate Officer Mirpur Development Authority, the possession was handed over to Mirpur Depelopment Authority on 24- 3-1981, under section 10 of the Ordinance without giving 24 hours' notice to the petitioners, as visualized under the aforesaid provisions of the Ordinance. The proceedings taken by the Collector have been challenged on various grounds which will be dealt with in chronological order.
3. The learned counsel for the petitioners has argued that the Revenue Assistant who purported to act as Collector under the Ordinance, was not empowered by the Government to act as such, therefore, the proceedings taken by the Revenue Assistant, acting as Collector under the Ordinance, are void. In reply, it was contended that Collector was duly empowered and in alternative, it was contended that point has not been raised in the writ petition and as such, it cannot be raised for the first time, during the course of arguments, because this being a question of fact, the non-petitioners had no opportunity to rebut it. After considering the arguments advanced by the learned counsel for the parties, I am of the view that a question of fact, not raised in the writ petition or in written statement etc., filed by the opposite-party, cannot be permitted to be raised for the first time during the course of arguments. Because, this would take the opposite- party by surprise and moreover, there being no material in support or in rebuttal of such fact, no finding can be given on it. Therefore, the argument that Collector was not empowered to act as such under the Ordinance, is not tenable and is hereby repelled.
4. The next point raised by the learned counsel for the petitioners was that establishment of a timber market is not covered by the definition of `housing scheme' given in the Ordinance and as such, the proceedings could not be switched over, to one under the Ordinance. For convenience, th definition of the expression 'housing scheme' given in the Ordinance in section 2(g) is reproduced below: "(g) 'Housing Scheme' means which provides for residential sites, houses or apartments including ancillary land uses such as-
(i) building and other facilities for health, education, culture, transportation, communication & shopping;
(ii) environmental improvements; and
(iii) utility services, that is to say water supply, drainage, sewerage, sanitation, electricity and fuel."
5. It is clear from the above definition that expression 'housing scheme' includes! The facilities for shopping and establishment of timber market being a facility for shopping, clearly fails within the purview of the definition. Word 'shopping' occurring in the definition cannot be given restricted meanings and interpreted to mean only shopping of daily necessities such as eatables etc. Mirpur Town is in the process of development and new constructions in form of houses and other buildings are a continuous process. Therefore, it cannot be said that establishment of timber market is not a 'shopping' facility within the meaning of the aforesaid definition. It is correct that initially, the proceedings for the acquisition of land were commenced under the provisions of Land Acquisition Act and notification was also issued under section 4 of the said Act but under subsection (3) of section 16, any notification issued under any other law on the subject is to be deemed to have been issued under the Ordinance. Therefore. Issuance of notice under section 4 of the Land Acquisition Act shall be deemed to be the notification issued under the corresponding provisions which are contained in section 4 of the Ordinance.
6. Another point urged by the learned counsel for the petitioners was that the present case was not one of urgency within the meaning of section 10E of the Ordinance and as such, possession of the land could not be taken without establishing the factum of urgency. It was further urged that a notice, twenty-four hours prior to the taking of possession, was necessary and the same having not been served, the subsequent proceedings have been vitiated. The fact whether the case was one of urgency within the meaning of section 10 of the Ordinance was to be considered by the Deputy Commissioner and it was not necessary for the Deputy Commissioner to give F reasons for treating the case as one of urgency. The opinion of the Deputy Commissioner, with regard to the question of urgency is not open to scrutiny in writ jurisdiction. I am fortified in my view by a case reported as AIR 1954 Mad. 481, wherein it was held that the fact as to whether the case was one of urgency was to be determined by the Provincial Government and the matter was held not to be open to scrutiny in exercise of writ jurisdiction. So far as non-serving of the twenty-four hours' notice, prior to the taking of possession is concerned, the matter is only relevant under section 7(iii) of the Ordinance in respect of compensation and the G petitioners may claim compensation for any loss which they might have suffered due to the non-service of the notice. But, mere non-service of notice under section 10 of the Ordinance, twenty-four hours prior to taking the possession, would not render the subsequent proceedings void.
7. ' The next question pressed by the learned counsel for the non-petitioners was that the notice under section 5 of the Ordinance was defective because, the date for hearing the claims was fixed for 13-2-1981, which being Friday, was a public holiday. It was argued by the learned counsel for petitioners that the petitioner submitted an application on 18-3-1981 praying that any other date might be fixed for hearing the objections but that was not done. He has relied on a case reported as PLD 1970 Lah. 321 wherein it was held that as the notice under section 12 of the Land Acquisition Act was not properly served and it was merely affixed on the notice-board of the Union Council of the area, the award had been vitiated. The purpose of the notice under section 12 of the Land Acquisition Act is different from one, visualized under section 5 of the Ordinance, which is a corresponding provision to section 9 of the Land Acquisition Act. The object of the notice under section 12 of the Land Acquisition Act is to give sufficient time to concerned parties to seek remedy within the period of limitation, in case they are dissatisfied with the award, under section 18 of the Land Acquisition Act, while notice under section 5 of the Ordinance is in nature of a preliminary step for intimating the interested persons that Government intends to acquire land, so as to enable them to file claims, if any, with regard to compensation. It is common ground between the parties that no award has been made as yet. Therefore, the petitioners have ample opportunity to put forth their objections, before the Collector with regard to their interests in the land. The corresponding provisions relating to the service of notice are contained in section 9 of the Land Acquisition Act and there is ample authorities in support of the proposition that even non-issuance of notice under section 9 of the Land Acquisition Act would not invalidate the subsequent proceedings. In AIR 1938 Sind 6 it was held that failure to serve notice under section 9(3) lof the Land Acquisition Act, would not make subsequent proceedings void, if the non-issuance of notice was not wilful or perverse. In the instant case, the petitioners according to their own case, had the notice of the acquisition proceedings and they had even submitted an application for fixing another date. The petitioners, if they had so chosen, could have put up their claims even after 13-2- 1981, which happened to be a holiday. In AIR 1959 Pb. 535, wherein it was held that notice under section 9(1) is only a preliminary step for the acquisition proceedings. In X I R 1920 Mad. 417, it was held that non-service of notice under section 9(3) of the Land Acquisition Act, would not render the award and subsequent proceedings, void nor would it prevent the vesting of the property in the Government. In AIR 1923 Cal. 513, the non-service of the notice was held to be not fatal to the proceedings because the party complaining of the non-service of the notice, had the knowledge of the proceedings. It has been already pointed out that notice under section 5 of the Ordinance is a corresponding provision to one, contained in section 9 of the Land Acquisition Act. The petitioners had the knowledge of the acquisition proceedings, according to their own case. Therefore, applying the principle enunciated in the aforesaid authorities, I hold that mere defective notice under section 5 of the Ordinance would not prevent the property from vesting in the Government or render the subsequent proceedings invalid.
8. ' Lastly, it was contended on behalf of the petitioners that section 7 of the Ordinance which prescribes the principle of determining the compensation to be awarded, places a ceiling on the maximum amount of the compensation which can be awarded in cases enumerated therein and as such, is violative of section 4 of the Azad Jammu & Kashmir Interim Constitution Act of 1974. It has been contended that the provisions of section 7 of Ordinance are derogatory to the fundamental right guaranteed by the Constitution under paragraph 14 of section 4, whereby in case of compulsory acquisition, a person, having an interest in the property, cannot be deprived of the same without the payment of proper compensation. He has argued that compensation which should be paid to a person having interest in the property is to be assessed according to the market value of the property acquired, and if a law fixes the amount of compensation arbitrarily by fixing a maximum limit of compensation or it prescribes an improper mode for determining the same, such law is violative of the fundamental right guaranteed by the Azad Jammu & Kashmir Interim Constitution Act of 1974. He has cited a number of authorities to substantiate his contention.
9. In PLD 1955 Lah. 88, the provisions of Canal and Drainage (Amendment) Act XIV of 1952, and Punjab Minor Canals (Amendment) Act, XVII of 1952 were challenged as being violative of section 299 of the Government of India Act of 1935. The impugned provisions were held to be ultra vires to section 299 of the Government of India Act of 1935 because the provisions inserted by the amending Acts nullified the provisions relating to compensation contained in the original Acts. In PLD 1957 SC 9, it was held that word "compensation" appearing in Article 15 of the 1956 Constitution of Pakistan, is used in the sense that persons having an interest in immovable property, would be paid compensation according to market value of the property acquired. It was further held in the aforesaid case that had the East Bengal State Acquisition and Tenancy Act of 1950 been not in force before the promulgation of Constitution, it would have been violative of Article 15 of the 1956 Constitution of Pakistan. But as the impugned provisions of the said Act existed before the promulgation of the Constitution, those could not be held to be violative of the Constitution, as having been protected by the Constitution itself. Again, in case reported as PLD 1960 Lah. 450, it was held that clause 10 of the Schedule to the Punjab Improvement Trust Act of 1922 violated the principle of compensation enunciated in section 299, of the Government of India Act of 1935 and it would have been bad law, had it not been a "law in force at the date of" passing of the Government of India Act of 1935 and thus, had been protected by subsection (4) of section 299. It was further observed in that case that word 'compensation' appearing in section 299(2), would mean "equivalent in money" and that adjectives `just' adequate' and 'reasonable' were unnecessary before the said word. In PLD 1979 (A J K) SC 139, it was held that word `compensation' appearing in para. 14 of section 4 of the Interim Constitution of 1974, would mean to 'indemnify' the owner of the loss of the property as required under sub-paras. 1 and 2 of para. 14 of section 4 of the Constitution.
10. After going through the aforesaid authorities, and relevant Constitutional provisions under which the legal proposition with regard to compensation was resolved, I am of the view that these authorities have no relevancy to the facts of the instant case. So far as authorities given under the provisions of section 299 of the Government of India. Act of 1935 and the 1956 Constitution of Pakistan are concerned, those are distinguishable on the ground that exceptions enumerated in sub-para. 3 (e)(i)(ii) of para. 14 of section 4 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, were not contemplated, either in section 299 of the Government of India Act or Article 15 of the 1956 Constitution of Pakistan. The case reported as PLD 1979 (A J K) SC 139 is also distinguishable because in that case the exceptions visualized in the aforesaid provisions of law were not attracted because in that case, the provisions of Azad Jammu and Kashmir Timber Trade (Nationalization) Act of 1976 were challenged on the ground that those were violative of the relevant provisions of the Constitution; the Timber Trade in Azad Jammu and Kashmir was nationalized by the aforesaid statute without making any adequate provisions for the payment of compensation to the lessees who had already, under lease contract, extracted timber which was confiscated by the Government, in pursuance of some provisions of the said Act. It is evident that the notification of Timber Trade was not exempted from the operation of sub-para. 2 of para. 14 of section 4 of the Azad Jammu & Kashmir Interim Constitution Act of 1974 and as such, the view was correctly taken in the aforesaid case that the relevant provisions of the Azad Jammu and Kashmir Timber Trade (Nationalization) Act of 1976, were violative of the Constitution.
11. ' For convenience, the relevant provisions of para. 14 of section 4 of the Constitution Act are reproduced as under:-
14. Protection of property.-(l) 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 fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given.
(3) Nothing in this paragraph shall affect the validity of- {{TABLR}}
(e) any law providing for the acquisition of any class of property for the purpose of; {{TABLR}}
(f) providing education and medical aid to all or any specified class of State-Subjects; or
(ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of State-Subjects; or
(iii) . . .
12. Explanation. .
13. ' It is evident from the perusal of provisions contained in sub-para. 3(e)(i)(ii), that if the land is acquired for any of the purposes visualized in the said sub-paras., the provisions contained in sub- paragraph (2) of paragraph 14 will not affect the validity of any law. It has already been pointed out that in the instant case, the land was acquired for establishing the timber market for providing facility to public to buy timber, conveniently. Section 7 of the Ordinance cannot be held to be violative of sub-para. (2) of para. 14 of section 4, because, the land has been acquired for one of the purposes which stands exempted from the operation of principle of compensation visualized in sub-para. (2) of para. 14 of section 4. The learned counsel for the petitioners, when confronted with the situation, could not persuade me by any convincing argument that the present case does not fall within the purview of the aforesaid exception.
14. In the aforesaid view of the matter, I have no hesitation in holding that section 7 of the Ordinance has been protected by the Constitution, as such it cannot be held to be violative of Constitutional provisions relating to award of compensation, contained in para. 14 of section 4 of the Azad Jammu & Kashmir Interim Constitution Act of 1974.
15. ' In the light of what has been stated above, finding no force in this writ petition, it is hereby dismissed with costs.