1. ZAFFAR HUSSAIH MIRZA, J.-The legal question raised in this appeal to consider which leave was granted was whether in an enquiry under section 40 of the Land Acquisition Act, 1894, it was a legal requirement to give an opportunity of hearing to the interested party whose land is propsosed to be acquired for a company.
2. ' The facts briefly are that the Commissioner, Multan Division, Multan, issued a Notification published in the Gazette of West Pakistan, dated 20-12-1963, under section 4 of the Land Acquisition Act declaring "that land is likely to be required to be taken by the Co-operative Zenith Industries Ltd., Dera Ghazi Khan (appellant), at the expense of the company for the purpose of the Company, namely, for establishment of Engineering Workshop at Dera Ghazi Khan". The same notification also made the urgency provisions of section 17 (1) of the Land Acquisition Act, applicable and a direction was given that provisions of sections 5 and 5-A of the same Act shall not apply in the case. The schedule attached to this notification described the land in dispute comprising 19 Kanals 12 Marlas, situate in Choratta Sind Janubi, Tehsil and District Dera Ghazi Khan. Simultaneously another notifications under section 6 of the Act was published declaring that the aforesaid land was required for the aforesaid purpose.
3. ' Respondents Nos. 1 and 2, being the owners in possession of the land, filed a suit against the appellants in the civil Court at Dera Ghazi Khan, challenging the vires of the acquisition proceedings. It appears that on 13-8-1964, the Commissioner, Multan Division, Multan, withdrew the notification under section 6 of the Act and thereupon the said respondents withdrew their suit from the civil Court with permission to bring a fresh one on the same cause of action, if necessary.
4. ' However, a fresh notification under section 6 was issued on 11-6-1964, which was published in the official Gazette on 22-9-1964. The first two respondents then brought a fresh suit on 17-12-1964, from which the present appeal has arisen, challenging the legality of the acquisition proceedings once again. One of the grounds on which the respondent challenged the validity of the acquisition proceedings was that the consent of the Government, which was a prerequisite for acquisition of land for the purpose of the company had not been obtained and similarly no agreement as required by section 41 of the Land Acquisition Act was entered into by the appellant with Provincial Government prior to putting into force the relevant provisions of the Act for acquiring the land. The recourse to the provisions of section 17 of the Land Acquisition Act and the exclusion of the provisions of section 5-A was also challenged as ultra vires.
5. ' The suit was contested by the appellant alone. The rest of the defendants, namely, the Collector, Commissioner, Multan Division, Multan, and the Provincial Government, after filing written statement made a statement in Court saying that they did not wish to contest the suit. The appellant raised a number of legal pleas in his defence, including the plea that the provisions of section 41 of the Act had been complied with and an agreement between himself and the Government had been executed, as well as notified prior to the notification under section 6 of the Act. The Trial Court framed several issues on the pleadings of the parties including issue No, 4 which reads as follows :- "Whether the impugned Notification under sections 4 and 17 and the declaration under section 6 of the Land Acquisition Act are without jurisdiction, illegal, mala fide and void ?"
6. On 19-5-1966, the Administrative Civil Judge, Dera Ghazi Khan, decreed the suit. On issue No, 4 the learned Judge held that the application of the urgency clause is a matter within the exclusive competence of the Provincial Government to decide and was accordingly not open to challenge.
7. However, the trial Court came to the conclusion that the provisions of sections 6 and 17 were invoked before the execution of the agreement between the appellant and the Government. In this connection it will be advantageous to reproduce the remarks of the trial Court which are as follows :-- "It was because of this realization that the declaration under section 6 was cancelled on 31-7-1964 vide notification published in the Gazette of 13-8-1964. To regularise the acquisition the agreement was then executed on 30-8-1964 and thereafter a fresh declaration was issued on 22-9-1964. It is obvious that in rectifying the mistake it escaped the attention of the authorities that even the notification under section 4 was illegal because it contained a notification under section 1-7 also which should have also been cancelled. The fact that the notification under section 4 (Exh. P. 1) included notification under section. 17, made this notification illegal because of the provisions of the section 39 which says that sections 6 to 37 (both inclusive) shall not be put in force without previous consent of the Government and execution of an agreement with the company."
8. ' Being aggrieved by the judgment of the trial Court the appellant filed an appeal which was allowed by the learned District Judge, Dera Ghazi Khan, and the suit of the first two respondents was dismissed vide judgment, dated 15-11-1966. As regards the invalidity of the first notification, dated 20-12-1963, whereby the urgency provisions of section 17 were applied and the provisions of section 5-A were made an applicable to the proposed acquisition of land, the learned District Judge took the view that by issuing notification under section 6, the Government must be taken to have acted under section 17 (4) of the Act meaning thereby that the Government had 'formed the opinion that the provisions of section 5-A shall not apply".
9. ' The first two respondents then filed a second appeal before the Lahore High Court which was allowed by the impugned judgment in this appeal dated 20-12-1966 on the ground that the objection raised by the first two respondents before the provisions of section 39 were complied with and application of section 5-A was dispensed with, not having been heard and decided the acquisition proceedings were invalid and ineffective.
10. ' On a petition by the appellant this Court was referred to two judgments of the Lahore High Court reported as Faqir Muhammad and 10 others v. Government of West Pakistan (1) and Ghulam Phik v.
11. Government of West Pakistan (2) on the interpretation of sections 39 and 40 of the Land Acquisition Act and granted leave to examine the view taken by the High Court and to consider whether it was incumbent on the Collector to have afforded an opportunity of hearing to the said respondents before submitting his report to the Commissioner along with the record of his inquiry under the provisions of section 39 of the Land Acquisition Act.
12. ' On behalf of the appellants it was mainly urged that the owners of the land proposed to be acquired had no locus standi to raise any objection and were not accordingly entitled to hearing in respect of an inquiry contemplated by section 40 of the Land Acquisition Act, which inter alia provides that the consent of the Government, as required by section 39, shall not be given unless the Provincial Government is satisfied, either on the report of the Collector under section 5-A, subsection (2), or by an inquiry held by an Officer appointed by the Government, that the purpose of Acquisition is as laid down in clauses (a) and (b) of subsection (1) of that section. It was submitted that the Government was not under any legal obligation to act in this behalf only on the report of the Collector under section 5-A, but it was open to the Government to accord the necessary sanction on the basis of an inquiry conducted through its own officer, which was conducted in the present case. Thus, according to the learned counsel for the appellant, it was not necessary to hear the objections of the interested party under section 5-A before the consent was given by the Government. Support was sought by the learned counsel from the judgment already noticed in the leave granting order and some other cases.
13. ' After hearing the learned counsel, we, however, feel that it is not necessary to go into the question as to whether an affected party is entitled to a hearing by the Government in an inquiry contemplated by section 40 of the Land Acquisition Act, as on admitted facts the Land Acquisition proceedings whereby the land of the first two respondents was purported to be acquired were vitiated and rendered null and void, on the other ground on which the trial Court held them to be invalid. The admitted position is that the Commissioner had published the initial notification under section alongwith. The notification under section 17 (1) of the Land Acquisition Act on 18-11-1963, whereby the provisions of section 5-A were also ex- {{FOOT NOTE}}
(1) PLD 1973 Lah. 665 (2) PLD 1973 Lah. 613 {{FOOT NOTE}} ' eluded in their application to the proposed acquisition, The final notification under section 6, however, having been found defective for want of compliance with sections 39 and 40 of the Act, it was withdrawn on 13-8-1964. The important thing to note is that the first notification, dated 18-11- 1963, so far as it related to exclusion of the provisions of section 5-A was not withdrawn and continued to remain in force, and during its currency the fresh notification under section 6 of the Act was issued on 11-9-1964 after the alleged compliance with the requirement of sections 40 and 41 of the Act. Now section 39 of the Land Acquisition Act stipulates as under :- "The provisions of sections 6 to 37 (both inclusive) shall not be put in force in order to acquire land for any Company, unless with the previous consent of the (Provincial Government), nor unless the Company shall have executed the agreement hereinafter mentioned."
14. It seems clear, therefore, that the power vesting in the Commissioner by virtue of section 17 could not be invoked before the previous consent of the Government was obtained and agreement with the company was concluded. Admittedly these two events took place after 18-11-1963 when the notification B under section 17 of the Act was published. Therefore the latter notification was palpably ineffective in law and did not have the effect of suspending the operation of section 5-A which gave the right to the affected party to object to the acquisition of the land and to be given an opportunity of being heard. Such objections, in terms of sections 5-A, could be filed within 30 days after the issue of notification under section 4. Ordinarily the notification under section 6 can be issued after considering the report made c under subsection (2) of section 5-A when the Commissioner is satisfied that the land is needed for a company. It is only when a proper direction under subsection (4) of section 17 is issued that the provisions of section 5-A shall not apply, that the report of the Collector under the last-mentioned section can be dispensed with. But in the present case since the land was required for the purpose of a company, the provisions of section 17 of the Act could be brought into force only after compliance with sections 40 and 41 as discussed above. On the date of the notification under section 17, there having been no compliance with the requirement of law, the only alternative for the Government was to issue notification under section 6 after the report of the Collector under section 5-A, in which case the first two respondents had to be given an opportunity of hearing.
15. ' Looking at the facts of the case from another angle it would appear that there was no question of the affected party filing objections until the notification under section 6, dated 18-11-1963 was in the field, which was withdrawn on 13-8-1964. Even if under section 17 the notification was regarded as invalid by the affected party, they did not have the required 30 days time to file objections under section 5-A, since the fresh notification under section 6 was issued before the expiry of the 30 days time on 11-9-1964. The conclusion, therefore, is that the notification, issued under section 17, dated 18-11-1963 and the notification issued under section 6 on 13-8-1964 were both contrary to law and, therefore, the entire proceedings for the acquisition of the land in this case were vitiated.
16. ' In the result this appeal is dismissed with costs.