' This Constitutional petition calls in question the notification dated 9-7-1986 published in the Punjab Gazette dated 21-7-1986 regarding acquisition of land.
2. The facts giving rise to this Constitutional petition shortly stated are that through notification dated 9-7-1986 issued under section 4 of the Land Acquisition Act published in the official Gazette dated 21-7-1986 land comprising khasra numbers 1047, 1024, LDA Plot No, 20-C was acquired.
Through subsequent notification published in the Punjab Gazette dated 31-10-1988 in the form of corrigendum with reference to the aforementioned notification, the land intended to be acquired was described as land comprising khasra numbers 1023, 1024, 1028, 1047. The present dispute relates to land measuring 2 Kanals 5 Marlas mentioned as Plot No, 20-C being a part of Khasra Number 2024 belonging to the petitioner. It is the case of the petitioner that after publication of notification for acquisition of this land on 21-7-1986 in the official Gazette no steps were taken by respondent No, 1 to have the area surveyed for submission of requisite report to Commissioner within sixty days under Rule 6 of the Punjab Land Acquisition Rules, 1983. The petitioner also alleged that no notification under section 5 of the Land Acquisition Act was either issued within one year from the date of publication of notification under section 4 of the Act therefore, the notification issued under section 4 of the Land Acquisition Act for acquisition of land by operation of rule 7 of the said rules lapsed and the acquisition proceedings have come to an end therefore, the said land was no more subject matter of the acquisition.
3. Report and parawise comments have been submitted by respondent No, 1 i,e, the Collector in which it was admitted that L.DA. Confirmed the ownership of plot No, 20-C to the petitioner. It has also been admitted in this report that notification under section 5 of the Act, 1984 has not been issued within one year of the date of publication of preliminary notification under section 4 of the said Act. It has been stated in the report that Commissioner Lahore Division, Lahore was requested to move the Board of Revenue, Punjab, Lahore to extend time for 60 days for issuance of Notification under section 5 of the Act and was also requested to allow the Collector to submit draft notification under section 17(4) of the Act for his approval and publication in due course after the deposit of the estimated costs by the acquiring Department. Though the Commissioner allowed the Collector to submit to him draft notification under section 17(4) after the deposit of the estimated costs of land, the said draft notification was not submitted to the Commissioner because the acquiring department did not deposit the estimated costs. It is also admitted in the report that until now the Acquiring Department has not so far deposited the estimated cost.
4. In this factual background the question which arise for determination is as to whether the preliminary Notification issued under section 4 as modified through corrigendum still holds the field or the same has lapsed and the acquisition proceedings have come to an end. The case of the petitioner centres around the Rules 6 and 7 of Punjab Land Acquisition Rules, 1983 which are reproduced for facility of ready reference: "Rule 6. After the issue of a notification under section 4, the Collector shall take immediate necessary steps to have the area surveyed and submit his report to the Commissioner not later than sixty days from the date of the publication of the notification under section 4.
"Rule 7. Where the land is to be acquired for a public purpose, the Commissioner shall issue a notification under section 5 of the Act not 'later than one year from the date of the publication of the notification under section 4. If no notification is issued under section 5 within the period specified in this rule, the Commissioner shall immediately report the matter to the Board of Revenue for extension in time and the Board of Revenue, may, in its discretion, extend the time for the issue of a notification under section 5, which shall not be more than sixty days. If the Board of Revenue declines to grant the extension applied for or if the Commissioner fails to issue a notification under section 5 within the extended period, the acquisition proceedings shall be deemed to have come to an end. However, any time spent in the prosecution of a judicial remedy shall stand excluded from the period of litigation."
It is manifest from a bare reading of rule 6 that after the issuance of notification under section 4 of the Act the Collector is required to take immediate necessary steps to have the area surveyed and submit his report to the Commissioner not A later than 60 days from the date of publication of the said notification. Under Rule 7 of the said Rules where the land was acquired for public purposes which is the case here, the Commissioner is required to issue a notification under section 5 of the Act not later than one year from the date of publication of notification under section 4 and if such a notification was not issued as envisaged by section 5 within the said period of one year, the Commissioner is required to immediately report the matter to the Board of Revenue for extension in time and the Board of Revenue has been vested with the powers to extend the time not for more than sixty days. The consequence of refusal of Board of Revenue to extend the time or the Commissioner's failure to issue notification under section 5 within the extended time is that the acquisition proceedings by operation of this rule are to be deemed to have come to an end.
Admittedly no notification under section 5 of the Act was issued within one year of the publication of notification under section 4 on 21-7-1986 and the case was not referred to Board of Revenue for extension of time which was not extended as such by operation of rule 7 of the said rules the acquisition proceedings have come to an end.
5. Learned Advocate-General appearing for respondents attempted to argue that the said rules prescribing a period of one year for issuance of notification under section 5 of the Act are ultra vires of the provisions of the Act inasmuch as under section 5, no time limit is fixed by the Act itself for issuance of notification after publication of notification under section 4 of the Act whereas section 5 empowers the authorities to issue notification thereunder at any time after notification under section 4 was issued.
6.The argument is certainly ingenious but not tenable on close analysis. Punjab Land Acquisition Rules, 1983 have been framed under section 55 of the Act for guidance of officers in all matters connected with its enforcement. Rule 7 is intended for the guidance of the Acquiring Authority.
Upon its plain meaning the acquisition proceedings are to be deemed to have come to an end on the ground that no follow-up action was taken within one year after issuance of notification under section 4, thus following the guidance directed by this rule the Government is obliged to treat the acquisition proceedings as closed on the expiration of one year from the date of notification under section 4. In view of the matter there can be no question of taking further proceedings in the matter of acquisition by virtue of the operation of rule 7. It is indeed dear that action under section 5 presupposes the existence in force of notification under section 4. After the later notification ceases to be operative by lapse of time there can be no occasion for applying section 5 and issue of notification thereunder. In the result, the question of application of section 5 stands fore-closed.
7. Another mode of looking at the matter is that undoubtedly under section 20 of West Pakistan General Clauses Act, 1956 power vests to rescind the notification which power is exercisable in the like manner as power to issue notification. Section 48 of the Act indeed empowers the Government to withdraw from acquisition of any land of which possession has not been taken and the case is not covered by section 36 of the Act. The effect of rule 7 which provides that the acquisition proceedings shall come to an end can legitimately be construed as rescission of notification issued under section 4 or withdrawal from the acquisition proceedings. It may be mentioned here that power to rescind the notification or to withdraw from acquisition proceedings are not controlled by any consideration or there is no time limit within which the same can be exercised.
Considering the case from this point of view, the Punjab Land Acquisition Rules, 1983 cannot be held to be ultra vires of the Act, the argument of learned Advocate-General is repelled. It is apart from the firmly settled law that it is not open to the Government who is framer of the rules to question their vires.
8. Learned Advocate-General then maintained that under section 17 of the Act, it is permissible to do away with requirements of issuance of notification under sections 5 and 5-A of the Act as such in exercise of that power the operation of rule 7 could be avoided therefore, rule 7 is not mandatory which can be construed to be directory. I am not impressed by this argument. As I have already held that operation of rule 7 has the effect to rescission of notification or withdrawal from acquisition proceedings as such when there is no existence of notification under section 4, there is no question of exercise of powers under section 17 which also presupposes existence in force of notification under section 4 of the Act. Rule 7 provides consequence of bringing into end the acquisition proceedings in case, no action was taken under section 5, therefore the said rule is mandatory and is not directory as has been argued.
9. Learned Advocate-General faced with this situation, argued that one year has not elapsed from the date of issuance of corrigendum. This argument cannot be accepted unless it could be shown that corrigendum itself was an independent notification under section 4 giving fresh start of period of one year. The said corrigendum was issued not in supersession of the previous notification but appears to have been issued in continuation thereof as reference to the previous notification has been specifically made therein. It has been held in judgment reported as Government of Pakistan v. Sikandar Khan and others PLD 1987 Pesh. 68 that corrigendum is not an independent and fresh notification. The argument is therefore found to be without any substance.
10, For the foregoing reasons, this writ petition is accepted. Notification dated 9-7-1986 published in Punjab Official Gazette dated 21-7-1986 as amended through corrigendum published in the official gazette dated 31-10-1988 is hereby declared to have lapsed and the acquisition proceedings qua the property in dispute i,e, Plot No, 20-C are hereby declared to have come to an end. There will be no order as to costs.