SARDAR MUHAMMAD IQBAL, J.-Petitioner Mst. Sardar Begum deceased filed this petition on the 5th of September 1967 challenging the improvement scheme sanctioned by the Government by its notification dated the 4th of September 1962. The petitioner also challenged the consequent acquisition proceedings in respect of her bungalow situate at 78-Upper Mall. Lahore for which the award was given by the Collector on the 30th of January 1965. She also questioned the sale made by the Lahore Improvement Trust (hereinafter to be called the Trust) in favour of the National Institute of Public Administration (hereinafter to be called the NIPA).
2. The Government of West Pakistan requisitioned the Bungalow of Mst. Sardar Begum and had housed the office of the Chief Conservator of Forests in It. On the enforcement of Constitution in June 1962 it became necessary to shift the NIPA from the Assembly Chamber which now was to be used for the Provincial Legislature, to some other building. The Government directed the Chief Conservator of Forests to shift from 78-Upper Mall, Lahore, and asked the NIPA to occupy the building with a direction that it should enter into a lease deed with the owner itself. The letter of the Additional Chief Secretary dated the 10th of February 1962 addressed to the Director, NIPA is R/3-A and a copy of it was endorsed to the owner Mr. Agha Muhammad Jafar care of Mian Mumtaz Muhammad Khan Daultana, 3-Durand Road, Lahore. The lease deed of the entire bungalow except a set of rooms on the garage was executed between Mst. Sardar Begum and the NIPA on the 26th of July 1962 and the rent for the premises was fixed at Rs. 2,700. The address of Mst. Sardar Begum given in the lease deed (Exh. R-3/B) is care of Ghulam Hussain, 78-Upper Mali, Lahore. The NIPA continued to pay the rent to Mst. Sardar Begum till the 31st of January 1967. She did not receive any rent from them for the months of February and March 1967 and, therefore, sent a notice (Annex B) dated the 4th of April 1967 to the Director, NIPA draw--ing his attention to the fact that she had not been paid the rent of two months and requested him to pay the same within 15 days. The Director by his letter dated the 18th of April 1967 (Annex C) informed the owner that the NIPA bad purchased the property from the Trust, become its owner and had also taken the posses--sion of the premises on the 1st of February 1967 in pursuance of the letter of the Trust dated the 31st of January 1967. It was also pointed out in the letter that Ghulam Hussain had been apprised of the position by the Director. The learned counsel for the petitioner controverted this fact and referred to the notice of the petitioner dated the 4th of April 1967 (Annex B) to show that till that date she was ignorant about the acquisition and sub-- sequent sale to NIPA.
3. The petitioner on receipt of the letter applied to the Chairman of the Trust on the 2nd of February 1967 (Annex H) that her building should be exempted from the operation of the Scheme under section 56 of the Town Improvement Act of 1922 and she further emphasised that the proceedings of acquisition had been taken in her absence and, therefore, could not adversely effect her rights.
The Chairman of the Trust by his letter dated the 27th of June 1967 (Annex H-1) informed the owner that the last date for claiming exemptions had been expired. On this the writ petition was filed. Mst.
Sardar Begum has died meanwhile, and her legal representatives have been impleaded on the record.
4. The Trust prepared a development scheme covering 220.26 acres bounded by the canal, the Mall and the Railway line the last two converging at Cantt. Railway Bridge. The scheme was approved by its resolution dated the 17th of June 1965. It provided for the acquisition under the Land Acquisition Act as modified by the Town Improvement Act of 1922 of any land or any interest in land necessary for or affected by the execution of the Scheme. The Trust prepared on the 20th of June 1955 notice under section 36(1) and it was published in the official Gazette. Notice was also published In the Pakistan Times dated the 24th of June 1955 (Annex R-1). It is required under subsection (1) of section 38 that during the thirty days next, following the first day on which a notice is published under section 36, the Trust shall serve a notice on every person whom the Trust has reason to believe after due enquiry to be the owner ref any immovable pro--perty whichit is proposed to acquire in executing the scheme a-d also on the occupier of such premises. It is further provided under subsection (2) of section 38 that if the owner or occupier has any objection to such acquisition he should state his reasons in writing within a period of sixty days from the service of the notice. Every such notice is required under subsection (3) to be signed by or by the order of the Chairman. It is manifest that whereas notice under section 36 is one to the general public notice under section 38 is for the owners or occupiers who may be direct--ly affected by the scheme. The notice issued under section 38 is, however, not on the file of the Trust. Every notice other than a notice to the general public, has as provided in section 79(1) to be served personally.
The Provincial Government sanctioned the scheme under section 4l on the 4th of September 1962 and it was notified under section 42 by a public notice in the official Gazette dated the 21st of September 1962 (Annex F). The Land Acquisi--tion Collector gave the award on the 30th of October 1965.
5. The property of the petitioner, Mst. Sardar Begum, was comprised in Khasra No. 2028 measuring 5 marlas 107 square feet Khasra No. 2029 measuring 5 kanals 2 marlas 106 square feet; Khasra No. 2036 measuring 7 kanals 8 rnarlas 195 square feet bringing the total to 12 kanals 16 marlas 408 square feet. The total built up area was 8336 square feet, with ground floor as 5189 square feet, first floor 1963 square feet and the servant quar--ters etc. 1184 square feet. The building is facing the Mall and is just opposite the Civil Services Academy. The Collector determin--ed Rs. 263.25 as a market price of one marla of land and the total amount awarded to the petitioner as tae price of the land was Rs. 1,17,923.15 and for the structure Rs. 28,460.96. The Chair --Man of the Trust by its letter (R. 3/C) dated the 31st of January 1967 directed his Town Planner to deliver the possession to the institute. The Trust had executed a deed dated the 31st of January 1967 in favour of NIPA for tae sale of three plots viz. Plot No. 194 (in dispute), Plot too. 189 and Plot No. 190 (both not in dispute) at the rate of Rs. 15,000 per kanal for a total sun of Rs. 4,30,387.33.
6. The case of the petitioner is that the scheme prepared by the Trust under section 24 read with section 28 of the Town Improvement Act had not been validly sanctioned. It is contended that the provisions of section 38 which are mandatory in charac--ter requiring a notice to be served on the owners of the proper--ty had not been complied with and consequently the sanction given by the Provincial Government under section 41 and notifi--cation under section 42 of the Act were ultra vices of the Act of 1922. It is further contended that even if it be assumed that the scheme had duly been sanctioned, then too the acquisition proceeding vitiate for the reason that the notice as required under, section 9 of the Land Acquisition Act was not given and in any case no attempt was made to serve it on the petitioner; and that that the Collector also failed to give notice of the award as was required under section 12 of the Land Acquisition Act and that being so the remedy available to the petitioner under section 18 of the Act for making reference to the Court was rendered futile.
7. Mr. Mahmood Ali, learned counsel for the petitioner, however, during rte course of arguments restricted his argument to the proceedings which were taken subsequent to issuance or notification by the Government on 21st of September 1962 under section 42. In other words, he has not challenged the scheme with the sanction which was given by the Government, but has restrict- -ed himself to challenge the acquisition proceedings only. His contention is that the provisions of sections 9, 10 and 12 of the Land Acquisition Act which were applicable by virtue of sec--tion 59 of the Act of 192.2 to the acquisition set the land for the purposes of the scheme had not been observed with the result that the entire proceedings vitiate.
8. Maulvi Ehsanul Haq, learned counsel for the Collector and the Provincial Government and Mr. Mahmood Zaman appear--ing on behalf of the Trust & Institute have contended that the Collector bad announced his award under section I1 of the Land Acquisition Act on the 30th of January 1965 and it was final and conclusive under section 12 of the Act. They further contended that in pursuance of the award the possession of the property was taken under section 16 and it vested absolutely in the Trust free from all encumbrances and that in view of the matter the writ petition by the petitioner was not competent. The position taken A up on behalf of the respondents would be formidable, if it is found that the Collector in giving the award had complied with all the requirements of law. If, however, it is found that he bad failed to observe the mandatory provisions of law which it was essential for him to comply with the award would be invalid and it would lose its legal existence. It is now well established that where the Legislature clothes an order with finality, it always assumes that the order which is declared to be final is valid and not void.
9. It was next contended by Maulvi Ehsanul Haq, learned counsel for respondents that the petitioner had an adequate remedy available to him under section 18 of the Land Acquisition Act against the award and she should have submitted a written application to the Collector requiring him to refer the matter to the Court for determination of the amount of compensation. He relied on Assistant Development Officer v. Tayaballi Allibhoy Bohori (AIR 1933 Bom. 361), where it was held: "The acquiring officer's award is, of course, strictly speaking not an award at all, but an offer. It is based on inquiry and inspection and the officer responsible for it is usually a man of experience and local knowledge. He may take evidence but he is not bound to do so, and his proceedings are administrative rather than judicial. But if his award is n; t accepted and the matter is taken into Court, the proceedings are thenceforward judicial in character. The party claiming enhanced compensation is more or less in the position of a plain--tiff and must produce evidence to show that the award is inade--quate. If he has no evidence the award must stand, and if he succeed in showing prima facie that the award is inadequate, then Government must support the award by producing evidence". The contention of the learned counsel proceeds on an assumption that the owner was interested only in the amount of compensation Mr. Mahmood Ali, learned counsel contended that the petitioners were interested in the exemption of the property as has without exception been done in the case of all owners who applied for it under section 56. He referred to the application of Mst. Sardar Begum dated the 2nd of May 1967 (Annex B) whereby she had, after she came to know of the acquisition, applied that her pro--perty should be exempted from the operation of the scheme. It is provided in section 56 of the Town Improvement Act "where in any locality comprised in any scheme under this Act the Provin--cial Government has sanctioned the acquisition of land which is subsequently discovered to be not necessary for the execution of the schema the owner of such land may make an application to the Trust requesting that the acquisition of such land be abandon--ed in consideration of the payment by him of his sum to be fixed by the Trust in that behalf. It is intended by the provisions of this law that if any property is not required for the execution of the scheme it may be retained by the owner in his discretion and it incorporates what is known in English Law as the principle of recoupment". The Trust can arrive at an arrangement with the owner who after the payment of improvement charges may retain his land. The process aims at satisfying both owners and the Trust. The owners are anxious to avoid acquisition and the Trust is anxious to avoid expenses and the risk of locking their money for a long time. Our attention has been drawn by the counsel for the respondents themselves that the Trust bad invited the owners, through press release published in Pakistan Times on the 28th of October 1962, is Kohistan and Nawa-i-Waqt both on the 21st and 28th of October 1962, to apply for exemption under section 56. The Trust again published a notice on the 18th of April 1966 (Annex R/8) inviting applications for exemption. The proceedings of the meeting of the Trust held on 26th of August 1968 showed that the, owners of land In the scheme were given exemptions even up to that date and that the Trust had expressed its willingness to grant exemption even in future. He maintains that the petitioners under there circumstances will be within their right to ask for exemption of the property in dispute under section 56 of the Act which cannot be ordered in proceedings under section 18 of the Land Acquisition Act. The owner, indeed, cannot as of right claim the exemption, but the right of the owner to apply for the exemption under section 56 is undisputed. In Hafiz Feroze Din v. Government of West Pakistan (PLD 1961 Lab. 304) it was held "that reference under section 18 of the Land Acquisition Act could only be with regard to the amount of compensation and not the legality of the proceedings". The remedy provided under section 18 of the Act is thus inadequate.
10. The remedy under section 18 of the Land Acquisition Act may not be an adequate remedy for another reason. It is provided in proviso (a) to subsection (2) of section 18 of the Land Acquisition Act that the period of Limitation for making applications to the Collector requiring him to make the reference under section 18 is six weeks from the date of the Collector's award if the owner was present or represented before the Collector; and six weeks of the receipt of the notice of the Collector under section 12, subsection (2) or within six months front the date of the Collector's award, whichever period shall first expire. The award was made on the 30th of January 1965. Mst.
Sardar Begum was admittedly not present or represented before the Collector; she could, therefore, snake an application within six weeks of the receipt of the notice under section 12(2) or within six months from the date of the Collector's award whichever period expired earlier. If an application is made nosy under section 18 to the Collector for making reference under section 18 It would be barred by time. Reliance was placed by Mr. Mahmood Zaman on Allahdino v. Fakir Muhammad (PLD 1969 SC 582) where it was held "in a case where a litigant is kept in dark about the -fate of his case, it is wrong to say that for a remedial action against it a provided by law, time would start to run against him from the date of the order and not from the date when he comes tee know about it". The respondents, however, do not admit that to petitioner was kept in dark about the award. It is maintained on their behalf that a notice under section 12(2) of the Land Acquisi--tion Act v! Is given by the Collector to her of his award. Thus if the petitioner shoves an application to the Collector under section 18, the petitioners are bound to ere confronted with the plea of limi--tation. Section 5 of the Limitation Act is not applicable to pro--ceedings under section 18 of the Land Acquisition Act.
11. We may now examine whether the Collector had observed the relevant provisions of law in acquiring the property of the petitioner resulting in the award dated the 30th of January 1965. It is provided in section 59 of the Town Improvement Act that the Trust shall acquire the land covered by its Scheme under the Land Acquisition Act subject to the modifications indicated In the Schedule to Act of 1922. Under para. 2 of the schedule the publi--cation of notice under section 36 is deemed to be a publication of a notification under subsection (1) of section 4 of the Land Acqui- -sition Act. Notification under section 42 is deemed to have the same effect as the declaration by the Provincial Government under section 6 of the said Act. The land after issuance of notification under section 42 is marked out, measured and planned under section 8 of the Land Acquisition Act.
The Collector under section 9 causes a public notice to be given at convenient places on or near the land to be taken, stating that the Govern--ment intends to take possession of the land, and that claims to compensation for all interests in such land may be made to hire. It is also provided in subsection (3) of section 9 that the Collector shall also serve notice on the occupier and on all such persons known or believed to be interested therein. The owner or the occupier or any person interested may raise objections. The Collector after hearing the objections makes the award under section 11, and gives notice of his award under subsection (2) of Section 12 to such persons interested as were not present personal--ly or by their representatives when the award was made.
12. Notice under subsection (3) of section 9 has to be served on the owner or occupier. The procedure for service of notices is given in section 79 of the Town improvement Act. It is requir--ed to be served:- "(a) by giving or tendering the notice, or sending it by post, to the owner or occupier, or if there be more owners or occupiers than one, to any one of them", or 2(b) if such owner or occupier cannot be found, then by giving or tendering the notice to an adult male member or servant of his family ordinarily residing with him or by causing the notice to be affixed on some conspicuous part of the building or lard to which it relates:'
Learned counsel for the petitioner contended that notice was not served on her at all, while the counsel for the respondents relied on notice dated the 26th of October 1962(R-3) purported to have been given under section 9. It was addressed to one Begum Agha Safdar whereas the deceased-petitioner was the widow of Agha Jafar. She was shown to be the resident of village Mian Mir. There is no endorsement of any person on the said notice to show that she had been served directly or indirectly.
13. Maulvi Ehsanul Haq contended that the Collector tried to serve the notice on the address which was given in the revenue record and that was all that the Collector could do when he did not know her real address. We are unable to accept this position. The property in dispute is conspicuously facing the Mall, it was in possession of the NIPA. The Collector is required under sub--section (3) of section 9 to serve the notice also on the occupier. No notice was, however given to the occupier.
Moreover, the Process-server if he had made an attempt to serve the notice (Exh. R. 3) on the deceased Sardar Begum he would have gone to bungalow No. 176-The Mall, Lahore and known the address of the deceased-petitioner. He would have easily found out the address of the owner from the Director or any other officer of the NIPA. The letter of the Additional Chief Secretary (Exh. R. 3/A) dated the 10th of May 1962 was addressed to the Director of NIPA and the address of the deceased Esc. Sardar Bugum was given in the letter as c/o Miaa Mumtaz Muhammad Khan Daultana. Durand Road, Lahore. Mrs. Ilmas Daultana is the real sister of the deceased. The address of the deceased was also given in the lease deed (Exh. R. 3/B) dated the 27th of June 1962 executed between her and the NIPA as c/o Ghulam Hussain, her nephew, residing in the same building. It would not have been difficult to serve the deceased-petitioner on either of the places.
The learned counsel for the respondent contended that notice (Exh. R. 3) under section 9 and one under section 10 (Exh. R. 4) were Issued together on the 26th of October 1962 and both the "notices must have been given to the same person for service. There is an endorsement on the back of notice R-4 of Taj Din, Process server that the addressee could not be found and on the strength of this endorsement it is argued that the same should be deemed to exist on notice under section 9 (R-3). It is difficult for us to make any such assumption. Be that as it may, even if this endorsement on R-4 be deemed to exist on R-3, the position is not changed. The report of the Process-server is that the addressee could not be found. Obviously in view of this report another attempt to serve the deceased-petitioner became necessary but no attempt was mad in that direction. Fifteenth of November 1962 was the date given in notice R-3 for hearing the objections. The case came up before the Collector ran that date and he recorded the presence of some of the persons who appeared before him The proceedings are, however, conspicuous by an absence of reference to other owners who were not present, It appears that the Collector did not even care to see notice R- 3 alleged to have been sent under sec--tion 9 to verify whether the service had been effected. If only he had seen the notice it would have been known to hi-n that no attempt had been made to serve the deceased Mst. Sardar Begum He would have also noticed that even if an attempt had been made it would have been futile in the absence of the address of the petitioner. It is thus manifest that the deceased Mst. Sardar Begum had not been served as required under section 9 either personally or through a registered letter or by the delivery of the copy of the notice directly or indirectly. The alleged notice is defective for another reason also.
14. In subsection (2) of section 9 the notice is required to "state the area of the land" of which the Government intends to take possession. The notice only mentioned Khasra No. 203 and made no reference to Khasra Nos. 2028 and 2029. The entire area of the land was 12 kanals 16 marlas 183 square feet, but the area mentioned in the said notice was only 10 kanals 8 marla 119 square feet.
This did not represent even the area of Khasra No. 2030 which was mentioned in the notice the same was only 7 kanals 8 marlas. It appears that the Collector had by giving the impugned notice P. 3 under section 9 only observed a formality without considering that it was an important step without which further proceedings to complete the acquisition could not be, validly taken.
15. Maulvi Ehsanul Haq relied on Ganga Ram Marwari v. Secretary of State for India (I L R 1930 Cal.
576) where it was held "Land acquired under the provisions of Act X of 1870 vests absolutely in the Government free from all encumbrances, after a bona fide award by the Collector has been made and possession taken, even when no special notice, as required by section 9 of the Act, has been served on persons known or believed to be interested therein." This decision was followed in Kasturl Pillai v. Municipal Council, Erode (I L R 43 Mad. 280) and Rahim bux Haji Karimbux v. Secretary of State (AIR 1938 Sind 6).
We have not been able to persuade ourselves to agree to the view taken in these judgments that failure to serve notice under section 9 did not render the subsequent proceedings invalid. If the law requires that a particular thing should be done in a particular manner, the provisions must be duly complied with ant failure to do so may render the proceedings invalid. In Nazi Ahmad v. King- Emperor (AIR 1936 P C 253) it was observed: "Whether a Magistrate records any confession is a matter of duty and discre--tion and not of obligation. The rule which applied is that where a power is given to do a certain thing in a certain way the thing must tie dons in that way or not at all'. In Ezra v. The Secretary of State (I L R 30 Cal. 36) on which the two other judgments are based, provisions of the Land Acquisition. Act had not been discussed to consider the implications of notice under section 9. It is the notice under this section which gives the information to an owner or occupier or any other person interested in the land that the Collector is to hear the objections on a particular date as to the measurements and also in respect of the amount of compen--sation. If notice is not served on him and the Collector gives an award it is bound to adversely affect his interest inasmuch as he has been denied an opportunity which had been provided to him under the law to agitate for his rights. In Mansab Ali v. Amir (PLD 1971 SC 124) the Commissioner In the exercise of his power under section 3 of Criminal Law (Amendment) Act, 1963 referred the question of guilt or innocence of the accused to a Tribunal. The order was declared as without lawful authority and of no legal effect on the ground that the accused was not heard before the reference wag made and it was observed by their Lordships of the Supreme Court: "It is an elementary principle that if a mandatory condition for the exercise of juris--diction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from illegality and are without jurisdiction". It was also held in Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Divi--sion, Lahore (PLD 1971 SC 61) "As a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, not-- withstanding the fact that the provisions thereof are expressed in merely affirmative language". In Jan Meah v. Deputy Secretary to Government of East Pakistan (PLD 1965 Dacca 36) the precise question arising In this case was considered and Sattar, J. (as he then was and subsequently Judge of the Supreme Court) observed: "No Award can be made under section 11 unless provisions of sections 7 to 11 complied with". In Collector, Quetta- Pishin v. Habibullah (PLD 1970 Quetta 35) it was held that an award made under section 11 of the Land Acquisition Act furnishes a final and conclusive evidence of the areas and the value of the land only if the provisions of section 9 have been duly com--plied with, and that it was further observed: "Section 12(I) of the Land Acquisition Act presupposes that the interested person was regularly served with a notice required under section 9 of the Act and one cannot interpret this section to mean that the Collector can take advantage of his own wrong by putting a really interested party out of Court for his own failure to serve the requisite notice on him."
Notice under section 9 of the Land Acquisition Act was not given to Mst. Sardar Begum petitioner at all and, therefore, the Award given on 30th of January 1965 is without lawful authority and of no legal effect.
16. Mr. Mahmood Zaman learned counsel contended that the Institute (NIPA) had purchased the property from the Trust and has invested a huge amount in raising construction on an area adjacent to the property 'in dispute; and that the effect caused in giving notice under section 9 should not affect the title of the Institute. Has the Institute acquired any title in the pro--perty? It could do so only if the property had vested in the Trust and it had thereby acquired the title in the property. The owner does not lose his title in the property on the announcement of the Award and it continues to remain vested in him till such time as the possession of the property is taken under section 16 which provides "When the Collector has made an award under section 11 he may take possession of the land which shall there--upon vest absolutely in the Government, free from all encumbrances". It is only after the property had vested in the Trust that it could transfer it to the NIPA. We have examined with the help of the learned counsel for the parties the record of the Collec--tor and have failed to find out anything which n- ay show that the Collector had taken the possession of the land from Mst. Sardar. M Begum its owner. The property was with the NIPA on lease and they were paying the rent to the owner at the rate of Rs. 2,700 per mensem. They admittedly paid the rent to the owner till the 31st of January 1967 (inclusive of that date). It is only from the 1st of February 1957 that they did not pay the rent. The NIPA claims to have taken possession from the Trust on the 1 of February 1967. How could the Trust deliver the possession when ft had not taken the possession itself from the owner, Mst. Sardar Begum. It appears to usst that the Institute has taken an undue advantage of its possession which it enjoyed as a tenant under Mst. Sardar Begum.
17. However, even if possession had been taken by the Trust, the property would not have vested into the Trust for the reason that the Award in pursuance of which the possession is alleged to have been taken was not valid and had no existence in the eye of law. It was held in Yousaf Ali v. Mohd.
Aslam Zia (PLD 1958 SC (Pak.) 104): "If on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognising as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded".
The petition is accepted with costs and the entire proceedings from the stage the notice under section 9 is alleged to have been issued are declared as without lawful authority and of no legal effect. There will be no bar for the respondent to take fresh proceedings for acquisition from the stage of a notice under sec--tion 9 of the Land Acquisition Act.