' MALIK MUHAMMAD QAYYUM, J.---This appeal under section 3 of the Law Reforms Ordinance, 1972 arises out W.P. No,2076 of 1978 and calls in question the order and judgment of a learned Single Judge of this Court dated 14-5-1978 whereby the aforesaid Constitutional petition was dismissed in limine.
2. The background in which this appeal has arisen is that at the request of the appellant which is a Company incorporated under the Company Laws, the Provincial Government while acting under the Land Acquisition Act, 1894 acquired an area of 40 Kanals 3 Marlas of land for the purpose of setting up a Film Studio. An agreement in terms of section 41 Of the Land Acquisition Act, 1894 was entered into between the Government of Punjab and the appellant on 11-10-1965 which was duly published. According to the case of the appellant, the Film Studio has since been set up and is functioning.
3. By a notification issued on 18-7-1975 purportedly under section 4(1) of the Punjab Acquisition of Land (Housing) Act, 1973, a part of the aforementioned land was acquired by the Lahore Development Authority for the purpose of a Housing Scheme known as "Mustafabad Town Scheme". This acquisition was challenged by the appellant by filing a Constitutional Petition, which as already mentioned, was dismissed by the learned Single Judge.
4. Before us, in support of the appeal Mr. Abid Hasan Minto, learned counsel for the appellant has raised the following contentions:-
(i) That as the land in question is a part of the area which was acquired for the purpose of setting up a Film Studio it was not liable to be acquired again.
(ii) That in any case on the principle of "eminent domain" the power to acquire the property vests in the sovereign i,e, the Government, once that power had been exercised by it, no part of that property could be taken over by any other authority like, L.D.A. In support of this contention Mr. Abid Hasan Minto has referred to various textbooks as also certain judgments from foreign jurisdiction including Volume 26 of the American Jurisprudence and Basu's Commentary on Indian Constitution, Volume D, Corpus Juris Secundum and Charanjit Lal Chowdhary v. The Union of India and others AIR 1951 SC 41.
5. In reply Dr, A. Basit, Advocate appearing on behalf of Lahore Development Authority has stated that there is no bar in law for re-acquiring the land which had once been acquired for a different purpose by the Government and that the Lahore Development Authority being a statutory body having been conferred power to acquire the land it cannot be denied the right to do so on a doctrine of English Law which has no applicability to Pakistan. According to the learned counsel the land acquired is not an integral part of Film Studio but is in excess of the need of the appellant and could, therefore, be valid if taken over for the purpose of a Housing Scheme. As regards the contention that no notice has been stated that all the formalities required by law have been duly complied with and that in any case, the non-service of a personal notice is of no consequence.
6. We agreed with Dr. ,A. Basit, Advocate that any reference to the principle of "Eminent domain" is uncalled for in the context of the legal position obtaining in Pakistan, where acquisition laws have been codified. The question, therefore, as to whether under the principles of "Eminent domain", the power could be exercised by the statutory body when the same land had earlier been acquired by the Government for the use of the appellant, is of no consequence. In the present case acquisition was made under the Punjab Acquisition of Land (Housing) Act, 1973 (as then in force) and as there is nothing in it which takes away the power of the competent authority to acquire the land which had once been acquired for a different public purpose. On the other hand both the provisions of the Punjab Acquisition of Land (Housing) Act, 1973 as also of the Lahore Development Authority Act, 1975 have been given overriding effect as is evident from section 3 of the Punjab Acquisition of Land (Housing) Act, 1973 and section 25 of the Lahore Development Authority Act, 1975 which provide that notwithstanding anything to the contrary contained in the Land Acquisition Act, 1894 or any other law for the time being in force, all lands within the Province are liable to be acquired under the aforesaid two Acts. In these circumstances, we are not called upon to give any final opinion on the question as to whether the land which had once been acquired under the Land Acquisition Act, 1894 for one public purpose can be re-acquired for another purpose under the same Act as in the present case the second acquisition is not under the Land Acquisition Act, 1894 but under a different and later law which contains a "non abstante" clauses. Prima facie, however, we, are of the view that there is no bar in law for re-acquiring the property which has since been acquired if the need to acquire the property again has arisen subsequently and qualifies to be a public purpose higher in nature than the one for which the property was earlier acquired. In the present case, the earlier acquisition was for the purpose of setting up a Film Studio while the subsequent acquisition has been made for the purpose of establishing a Housing Colony by an official Development Agency and hence no possible exception can be taken to it.
7. This brings us to the next question as to whether the proceedings for acquisition have been taken in accordance with law i,e, Punjab Acquisition of Land (Housing) Act, 1973. One of the principal objections raised in that behalf by the appellant before the learned Single Judge was that no personal notice was served upon the appellant before making the acquisition. This contention was repelled by the learned Single Judge by making reference to section 6 of the Punjab Acquisition of Land (Housing) Act, 1973 and observing that the aforesaid provision envisaged only a public notice and not a personal notice. With great deference to the learned Single Judge, we are, however, of the view that this finding is based upon misreading of section 6 which reads as under:-- "Notice to persons interested.--(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. (Underlining is ours).
(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 so all such persons known or believed to be interested therein or to be entitled to act for persons so interested.
8. On a plain reading of subsection (5) of section 6, it is clear that in addition to public notice, a special notice of 10 days has to be served on all the owners and claimants interested in the land. It appears that unfortunately underlined portion of section 6(1) of the Act escaped the notice of the learned Single Judge.
9. In order to overcome this difficulty, Dr. A. Basit, learned counsel for the respondent has made two-fold submissions; firstly, that non-service of notice does not have the effect of invalidating the proceedings for acquisition as notice, if any, is meant only for the purpose of assessing compensation which has nothing to do with the validity; of proceedings of acquisition and, secondly; that in any case personal notice was served upon the appellant.
10. We are not impressed with these contentions. On a conjunctive reading of various provisions of the Punjab Acquisition of Land (Housing) Act, 1973 particularly sections 4, 5, 6 and 7 it becomes clear that service of notice is essential not only for the purpose of assessment of compensation but its object is also to provide affected persons an opportunity to raise objections to the acquisition.
This conclusion is fortified by section 7 of the Act which requires the Collector not only to inquire into the objection, if any, made before him pursuant to notice under section 6 of the Act but also to assess the value of the land. In the present case, an opportunity to file objections was all the more essential as it was the case of the appellant that the land formed integral part of the Film Studio and as such could not be acquired while according to, the respondents the land is in excess of requirement of the appellant.
11. As regards the effect of non-service of the statutory notice, the law is well settled that the omission to serve such a notice renders the proceedings as invalid, moreso, in a case relating to compulsory acquisition of property. If any authority is needed reference may be made to Col. Bashir Hussain and others v. Land Acquisition Collector, Lahore etc. PLD 1970 Lah. 321; Mst. Sardar Begum v. Lahore Improvement Trust, Lahore and others PLD 1972 Lah. 458 and Mst. Maryam Bibi v.
The Lahore Improvement Trust 1973 Law Notes 178.
12.
13. #TBS
14. PLD
15. #TBE
16. The learned counsel for the respondents then argued that notice which the appellant himself has attached along th the petition should be considered to be sufficient compliance of section 6 of the Punjab Acquisition of Land (Housing) Act, 1973. This contention of the learned counsel cannot be accepted for various reasons. Firstly, that in the parawise comments filed by the respondents they have themselves taken up the position that no notice under section 6 was ever issued.
Furthermore, a reference to this notice would show that it was issued much subsequent to the notification for acquisition under section 4 and, therefore, it cannot be considered to be a notice under section 6 so as to enable the appellant to file objections. We are, therefore, clearly of the view that in the absence of any notice under section 6 of the Punjab Acquisition of Land (Housing) Act, 1973 the acquisition of the land is bad in law and stands vitiated. In this view of the matter, we are not called upon to decide other questions arising in this appeal which may be raised by the appellant before the competent authority as and when fresh proceedings for acquisition are taken in accordance with law.
' In view of what has been stated above, we allow this appeal, set aside the order and judgment dated 14-5-1978 and hold that in the absence of any notice under section 6 of the Punjab Acquisition of Land (Housing) Act, 1973, the subsequent proceedings of acquisition taken by the respondents are without lawful authority and of no legal effect. No order as to costs.