' The validity of notification bearing No, 7074/DRA issued by the Deputy Commissioner, Sheikhupura under section 4 of Punjab Acquisition of Land (Housing) Act, 1973 for Low Income Housing Scheme at Sheikhupura No, II, is called in question in Writ Petitions Nos. 5192 and 5170 of 1988. Both these petitions are, therefore, being disposed of by single judgment.
2. The facts in the background of these petitions are not much in dispute. A few necessary uncontested facts are; that the petitioners in these petitions are owners of agricultural land situated in village Qila Ameer Singh, Tehsil and District Sheikhupura within the limit of municipal committee Sheikhupura. The administrative approval was accorded by Governor of the Punjab under section 3 of the Punjab Acquisition of Land (Housing) Act, 1973 (Act VIII of 1973) for Area Development Scheme No, II named as Low Income Housing Scheme at Sheikhupura. The scheme comprised of 50 Atreus with following surroundings/ boundaries:-{{TABLE}}
(1) North Agriculture land.
(2) South Lahore-Sheikhupura Highway.
(3) East Existing Scheme.
(4) West Aya Minor. {{TABLE}} ' The administrative approval was duly notified in the official Gazette of Punjab Government in the year 1973.
3. In pursuance of this order of Administrative Approval, the District Housing Committee, Sheikhupura held its meeting on 26-10-1985 under the chairmanship of Deputy Commissioner, Sheikhupura and unanimously decided that the site already selected for setting up of a Housing Scheme adjoining into existing scheme was proper.
4. In this decision the following boundaries/surroundings of the Area needed for scheme were described:-{{TABLE}}
(1) North Railway Line.
(2) South Existing Schemes.
(3) West Agricultural Land.
(4) East Agricultural Land. {{TABLE}}
5. The Director General Housing & Physical Planning Department, Lahore vide memo. No, AP- 1(519)-86 dated 24-4-1986 pointed out that description of land contained in Notification dated 14- 2-1984 and the decision of Housing Committee dated 26-10-1985 were different and proposed that corrigendum to the notification issued under section 3 of the Punjab Acquisition of Land (Housing)
Act,1973 (Act III of 1973) be kindly issued. In pursuance of this memo. Another notification was issued under section 3 of ibid on 21-8-1986. In the said notification the following surroundings/boundaries were given:-{{TABLE}}
(1) North Railway Line.
(2) South Existing Schemes.
(3) West Agricultural Land.
(4) East Agricultural Land. {{TABLE}} ' This notification was duly published in the Gazette of the Punjab Government on 21st August, 1986.
In pursuance of this notification under section 4 of Act VIII of 1973 was issued and published in the official Gazette of Punjab Government on 27-11-1986.
6. Through this notification the land owned by both the petitioners (completely detailed in the petitions) was acquired. Feeling aggrieved of this notification both the petitioners challenged the vires of acquisition proceedings and notification in these petitions.
7. Learned counsel for the petitioner in Writ Petition No, 5192 of 1988 opened the arguments and made the following submissions:-
(1) It was contended that notification under section 3 related to grant of approval by the Government or by the Development Agency for the purposes of making acquisition of land needed under the Act VIII of 1973. It was urged that in this case the administrative approval was granted but no step was taken to issue notification under section 4 of the Act. On the basis of this fact it was urged that Act VIII of 1973 was repealed by Punjab Acquisition of Land (Housing Repeal) Act, 1985 (Act XII of 1985). This Act was enforced from 13th November, 1985. It was stressed that since no acquisition proceedings were in offing on 13th November, 1985, therefore, the issuance of notification under section 4 on 27-11-1986 was totally without any legal authority.
(2) It was next argued that notification under section 4 was entirely different from notification issued in the year 1984. The property described in notification relating to the year 1984 was not included. On the basis of this argument it was submitted that notification under section 4 had no nexus with the acquisition proceedings and was, therefore, null and void.
(3) It was finally contended that the Act VIII of 1973 was an oppressive piece of legislation and was rightly repealed by Act XII of 1985. Learned counsel for the petitioner in Writ Petition No,5170 of 1988 adopted the arguments noted above.
8. On the contrary the learned Additional Advocate-General supported the notification/acquisition proceedings. In order to straighten the record, the learned Addl. Advocate-General brought on record the following documents relating to acquisitions proceedings at the time of arguments with the permission of the Court:--
(i) A copy of notification under section 3 dated 26-1-1984.
(ii) A copy of letter showing issuance of Rs, 4.50 lacs to the Land Acquisition Collector (dated 23-2- 1984).
(iii) A copy of Administrative approval (4-3-1984).
(iv) Letter of the Director to the Director General, Housing Physical & Planning Department, Punjab, Lahore (11-12-1985).
(v) Letter of Director General to the Secretary, HP&EP Department, Lahore (24-4-1986).
(vi) Notification under section 3 dated 21-8-1986.
(vii) Notification under section 4 dated 27-11-1986.
(viii) {{URDU TEXT}} (5-1-1987)
(ix) {{URDU TEXT}} (27-1-1987)
(x) Notification under section 13 dated 16-5-1987.
9. On the basis of facts emerging from the aforesaid documents, it was suggested that the initially notification under section 3 of the Act was issued in year 1973. In this notification the description of the property sought to be acquired was not given. Accordingly 'later on notification under section 3 was again issued on 26-1-1984. On the objection of the Director General again notification under section 3 was issued on 21-8-1986 and finally the impugned notification was issued. On the strength of this narrative it was contended that the acquisition proceedings commenced under unrepeated Act of 1973 and the acquisition proceedings were, therefore, pending at the time of promulgation of repealing Act, 1985. According to him these proceedings were saved under section 3 of the repealing Act. It was further contended that the Government was prepared to pay the compensation to the petitioners in accordance with the provisions of repealing Act.
10. I have heard the arguments of both the parties and have perused the record. After taking into consideration the submissions in respect of factual allegations I am of a view that there is no dispute with respect to broad outlines of the acquisition proceedings. The difference between the parties is with respect to the concept of commencement of the acquisition proceedings and the effect of repealing Act vis-a-vis on these proceedings.
11. Before I proceed to determine the respective contentions of the parties it will be appropriate to notice the relevant applicable law. The relevant provisions of unrepeated Act of 1973 are as follows:- ' Section 3. "Notwithstanding anything to the contrary contained in the Land Acquisition Act, 1894 or any other law for the time being in force, all land within the Province shall be liable to acquisition at any time under this Act for a housing scheme approved and notified by Government or Official Development Agency."
' Section 4. "When it appears to the Deputy Commissioner that land in any locality is needed or is likely to be needed for any housing scheme a notification to that effect shall be published in the official Gazette and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality;
(2) Thereupon it shall be lawful for any officer either generally or specially authorised by the Deputy Commissioner in this behalf and for his servants and workmen:-- ' to enter upon and survey and take levels of any land in such locality; to dig or bore into the subsoil; ' to do all other acts necessary to ascertain whether the land is adopted for such purpose; ' to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; ' to mark such levels boundaries and line by placing marks and cutting trenches; and ' where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle; ' Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least 7 days notice in writing of his intention to do so.
(3) Where any damage is caused to any land in consequence of anything done, in pursuance of the provisions of this section, there shall be paid compensation the amount of which shall be determined in the manner and in accordance with the provisions hereinafter set out, that is to say,- -
(a) where the amount of compensation can be fixed by agreement, it shall be fixed in accordance with such agreement; and
(b) where no agreement can be reached, it shall be fixed by the Collector.
' The aggrieved parties may file an appeal within ten days against the award of the Collector in the Court of the Commissioner with a view to get an increase or decrease in the compensation fixed in the said award.
Section 6. "(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken stating that Government intends to take possession of the land, and that claim to compensation for all interests in such land may be made to him. He shall also inform all owners and claimants of interests in such land by giving them a special notice of 10 days in accordance with rules.
(2) Such notice shall state the particulars of the land so needed and shall require all persons interested in the land to appear personally or by agent before the Collector at a date, time and place therein mentioned (such period not being earlier than 10 days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections, if any, to the measurements made under section 5 and the Collector may require any such statement to be made in writing and signed by the party or his agent.
(3) The Collector shall also serve notice to the same effect on the occupier, if any, of such land and on all such persons known or believed to be interested therein or to be entitled to act for persons so interested.
Section 10.--"In determining compensation as aforesaid the Collector shall not take into consideration:--
(i) the degree of urgency which has led to the acquisition;
(ii) any disinclination of the person interested to part with the land acquired;
(iii) any damage sustained by him which if by a private person would not render such person liable to a suit;
(iv) any damage which is likely to be caused after the date of the publication of the notification under section 4 by or in consequence of the use to which it will be put;
(v) any increase to the value of the land acquired likely to acerue from the use to which it will be put when acquired;
(vi) any increase likely to accrue to the value of the other land of the persons interested from the use to which the land acquired will be put; or
(vii) any outlay or improvements on, or disposal of the land acquired, commenced, made or affected, without the sanction of the Collector after the date of the publication of the notification under section 4, subsection (1), "Section 11. "The payment of compensation may be made in the form of cash, bonds, debentures, annuities over a period not exceeding 20 years or in the form of developed sites or in a combination of such forms in such manner as may be prescribed: ' Provided that--
(i) payment in cash to each land owner shall be--
(a) for the first four Kanals of the area acquired, hundred per cent, of the compensation awarded;
(b) for the next three kanals of the area acquired, seventy-five per cent, of the compensation;
(c) for the next five Kanals of the area acquired, sixty-five per cent of the compensation awarded;
(d) for the next ten Kanals of the area acquired, fifty per cent, of the compensation awarded;
(e) for the next ten Kanals of the area acquired, thirty per cent, of the compensation awarded;
(f) for the next ten Kanals of the area acquired, ten per cent of the compensation awarded; and
(g) for all additional area acquired, five per cent of the compensation awarded;
(ii) the maximum payment of compensation cash to any individual landowner shall not exceed rupees one lac, the balance being payable in other forms: ' Provided further that a land-owner whose total land acquired does not exceed eight Kanals shall have the option to select the form of payment of compensation."
12. The pertinent provision of Repealing Act XII of 1985 section 3 is as follows:- "Where in a case proceedings have commenced under the Punjab Acquisition of Land (Housing)
Act, 1973, or under its provisions as, incorporated or referred to in any other law, rule or instrument, for the time being in force, the same shall continue and shall be completed under the provisions of the said Act and the rules made thereunder: ' Provided that where in a case an award has not been made under section 7 of the said Act at the time of commencement of this Act, the compensation in such a case shall be assessed, awarded and paid under the provisions of the Land Acquisition Act, 1894 (I of 1894): ' Provided further that in a case in which an award has been made before the commencement of this Act under the Punjab Acquisition of Land (Housing) Act, 1973, but the payment of compensation or a part thereof is to be made through bonds, debentures or annuities, the said compensation shall become due for immediate payment in cash on the commencement of this Act unless the owner whose land has been acquired chooses to adjust the same towards the cost of any developed site which may have been given to him as part of compensation."
13. The contention of the respondents that the acquisition proceedings started with notification under section 3 issued in the year 1973 is to be noticed in the light of section 3 of the Repealing Act.
14. It is a settled principle of law that Act VIII of 1973 directly interfered with the inviolable right of the people regarding their disposal of property. It was founded upon the doctrine of "salus populi Suprema lex" that the interests of the public are supreme and that the private interests are subordinate to the interests of the State, therefore, it is a well-established canon of interpretation that in constructing the provisions of such Acts, the principle of narrow construction is to be adopted with an aim of giving benefit to subject.
15. Applying these principles to the facts of the case it is now appropriate to notice the object, and scheme of these two Acts in some detail.
16. Under section 3 of the Act VIII of 1973 the land within the province of Punjab was made liable to acquisition for Housing Scheme approved and notified by Government or Official Development Agency. Under section 4 ibid the Deputy Commissioner of the area was given power to issue the preliminary notification.
17. Under the scheme of the Act the Collector was empowered to take possession of the land and assess the compensation.
18. Conspicuous feature of Act VIII of 1973 is that it retained all the provisions relating to acquisition embodied in Land Acquisition Act, 1894 except that under section 11 of bid different considerations for determining the compensation were provided. This section prescribed totally different criteria for determining the compensation as well as a new method of payment of compensation to owners in form of bonds, debentures, annuities over a period not exceeding 20 years. This new criteria was apparently to the detriment of owners who were entitled to seek compensation on the basis of market value of land at the time of acquisition. In Land Acquisition Act 1894 the word market value has not been defined. Section 23 of the Land Acquisition Act provides in details the matters to be considered in determining the compensation.
19. The word market value has been considered by superior judiciary in a number of cases. The Privy Council in Fraser v. City of Fraserville (L.R. (1917) AC 194) defined the market value in following words:-- "It is the value to the seller of the property in its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, excluding any advantage due to the carrying out of the scheme for the purpose for which the property is compulsorily acquired."
20. The same principle was reaffirmed in R.B. Lala Narsingh Das v. Secretary of State of India (AIR 1925 Privy Council 91). This principle was again reaffirmed in Atmaram Bhagwant Ghudgay v.
Collector of Nagpur (AIR 1929 Privy Council 92) where it was laid down that: "Now, the proper principles applicable to the case were not in controversy before the Board. An owner of lands, in the position of the appellant is entitled, it was agreed, to the value to himself of the property in its actual condition at the time of expropriation with all its then existing advantages and with all its future possibilities, excluding only any advantage due to the carrying out of the scheme for the purposes for which the property was being acquired."
21. It is clear that the principles contained in section 23 of the Land Acquisition Act of 1894 and the decisions of superior judiciary were departed with in Act VIII of 1973.
22. Taking into consideration this harsh feature in Act VIII of 1973, the legislature passed the Repealing Act XII of 1985 in order to erase from the statute book the stringent provisions relating to payment of compensation in compulsory acquisition of land of citizens of State by the Province of Punjab.
23. There is yet another established principle of interpretation of statutes, "whenever there is a repeal of an enactment, the consequences laid in section 6, General Clauses Act will follow unless the section itself indicates different intention. This is a case of simple repeal but when the repeal is followed by fresh legislation on the same subject it is necessary not only to look into the provisions of the Repealed Act but also the provisions of Repealing Acts.
24. I will pause here to examine the submissions of both the parties in the light of the object and the spirit of Repealed and Repealing Acts.
25. The dispute is with respect to interpretation of the word "Proceedings" and "Commenced" embodied in section 3 of the Act XII of 1985. According to the learned Addl. Advocate-General the acquisition proceedings did commence under notification issued in the year 1973 notwithstanding the fact that it related to administrative approval of the scheme. According to him the land was vaguely described in it and so the Deputy Commissioner of the area was competent to issue the impugned notification while the claim of petitioner is that this notification cannot be treated as a commencement of acquisition proceedings. The effect of this petition turns upon the interpretation of the word "commencement" contained in section 3 of the Repealing Act.
26. The meaning of the word commence given in Black's Law Dictionary E (Fifth Edition) is "To initiate by performing the first act. To institute or start."
' The word commencement is not of wide sweep, it relates to beginning of the first step. Whether the administrative approval under section 3 of the Act No, VIII of 1973 can be termed as first step in acquisition proceedings or not.
27. A bare reference to section 3 and section 4 of un repealed Act indicates that in view of harsh nature of Act VIII of 1973, it was provided that the scheme for which the acquisition was to be made had to be approved by the Government or by the Development Agency and had to be notified in official Gazette. The task of initiating acquisition proceedings was exclusively left to the Deputy Commissioner of the area. He had to issue preliminary notification under section 4 of the Act. The Deputy Commissioner was also given the power to issue notification under section 6 and was further to take the possession of the land acquired. He was vested with the power to determine the compensation.
28. After taking into consideration the scheme of the Act, I am quite clear that first step in acquisition proceedings under Act VIII of 1973 is a preliminary notification under section 4. In the process of acquisition this notification is the first step. In order to save the citizens from arbitrary acquisition, the function of approving scheme was separated from acquisition proceedings and was totally vested in the Government of Punjab or Development Agency. I am, therefore, clear in my mind that the acquisition proceedings under Act VIII of 1973 commenced under notification issued under section 4 of the Act, and the administrative approval accorded by the Government or the Development Agency was mere sanction for developing scheme.
29. Applying this principle to the facts of the case there is no dispute that the Deputy Commissioner issued the impugned notification in 1986 under section 4 of the Act. He had no authority to start acquisition proceedings under section 3 of the Repealing Act as no acquisition proceedings were pending under Act VIII of H 1973. The impugned notification issued by him was, therefore, without any lawful authority and was totally null and void. The notification is declared as such.
30. In result these petitions succeed, I accept both the petitions. The impugned notification is hereby set aside and the petitions are accepted with requested relief. The respondents Nos.1 and 2 shall bear the costs of proceedings.