' WAJIHUDDIN AHMED, J.--These are two successive petitions brought under plea that, on 6-11-1994, the petitioners received a notice dated 23-10-1994, purporting to be under section 9 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act). Being put to inquiry, the petitioners discovered that on 20-2-1993, a notification, covering lands for which at the minimum, they qualified as "persons interested", was issued under section 4 of the Act. Such in turn had been followed by the requisite notification under section 6 of the Act only on 5-3-1994, i.e more than one year after the notification under section 4 above. Simultaneously, in the same notification under section 6, on ground of urgency, the powers covered by section 17(4) of the Act were also invoked and the procedure in contemplation of sections 5 and 5-A was dispensed with. Correspondingly the petitioners allege that illegal entry on the lands also stood made with resulting loss and detriment to them. This led to the petitioners filing Constitutional Petition No,D-782 of 1995 on 23-4- 1995, where apart from other objections, it was maintained that the notification under section 4(1) of the Act was not followed by due notice of the substance of such notification at convenient places of the locality in which the lands proposed to be acquired were situated. The acquisition being thus claimed to be aborted and a mandatory requirement of law regarding notice shown missing, the follow-up actions during the intervening period were also sought to be nullified.
' While the referred petition was pending, according to the petitioners' version fresh notices again purporting to be under section 9 of the Act, dated 2-11-1995 were served in such manner that two of the notices were served on 12-11-1995 whereas a third was received on 14-11-1995. Since such notices spoke of a fresh notification dated 22-10-1995, the petitioners were constrained to embark upon further enquiry and discovered that a fresh notification under section 4 of the Act, covering the same lands as above together with an added survey number was issued on 19-10-1995, being followed by a notification under section 6 of the same Act dated 22-10-1995. The notification under section 6, simultaneously also covered invocation of the special procedure of section 17(4) in the Act and consequent dispensation of resort to section 5 and 5-A much as was done in relation to the previous set of notifications. In so far as due information, regarding these developments in the above Constitutional petition itself to the petitioners is concerned, that was not communicated prior to an affidavit from the side of respondent-PSO submitted on 20-11-1995, which in itself was not supplied to the petitioners according to their learned counsel before 12-12-1995. With that affidavit were appended copies of a notification dated 8-10-1995, purporting to withdraw the earlier section 4 notification dated 20-2-1993 and of the said fresh notifications dated 19-10-1995 and 22-10-1995 under sections 4 and 6 of the Act, the last of which, as said also postulated invocation of the urgency clauses in section 17 in the process doing away with the applicability of sections 5 and 5-A in the same Act. This inter alia led the petitioners to file their second Constitutional petition namely, D-18 of 1996 on 4-1-1996 assailing the second set of notifications dated 19-10-1995 and 22-10-1995. Correspondingly the petitioners also filed a contempt application viz. Miscellaneous 5423 of 1995 (to be dealt with independently) in the earlier Constitutional petition questioning the second set of proceedings on the ground that such constituted disregard of the interim orders of stay operative in Constitutional Petition No, D-782 of 1995.
' When the said two petitions were placed before us, we in view of the urgency urged on the side of the respondents directed that both the petitions be heard together and in so far as the second petition was concerned, such would be heard if need be admitted and disposed of at the same time. We have accordingly heard these petitions.
' Recapitulated above is the case of the petitioners and we would now, shortly state the position adopted by the respondents. In the first place title of the petitioners is denied and it is claimed that they have no locus standi to file any of the petitions. Next, it is maintained that due requirements of law were satisfied and the acquisition proceedings did not suffer with any illegality. It may be mentioned here that the defence has two facets and while the respondents Nos.1 to 4, who are represented by the learned Additional Advocate-General, Sindh have put forth their point of view as the Acquisition Authorities Mr.Khalid M. Ishaque, for the respondent No,5 has canvassed the point of view of the company for which the acquisition has been taken in hand namely, the Pakistan State Oil Company Limited. It has been urged that due to the invocation of section 17 in the Act, the invocation occurring in the notification under section 6 itself the provisions of sections 5 and 5-A of the Act stand dispensed with and all that the petitioners can claim is compensation, in which behalf the company has not only deposited a sum of Rs,8,200,000 as relevant to the first set of acquisition proceedings but an additional amount following upon the second exercise and besides is further prepared to do whatever is requisite for the purpose. It is averred by the PSO that the acquisition is limited to a strip 40 feet in width and 80 kilometres in length the present dispute pertaining only to '1.3 kilometres where a pipeline from Pipri, at Zulfiquarabad, to the Hub River Power Complex (HUBCO) is to be laid to meet the fuel and oil requirements of the largest power complex in the private sector which is being funded by the World Bank and a consortium of international commercial banks. Such pipeline is claimed also to supply fuel/oil to the Fauji Power Plant proposed to be set up adjacent to HUBCO. PSO is stated to have entered into a fuel supply agreement with HUBCO, which is alleged to have been guaranteed by the Government of Pakistan and the pipeline project is to be commissioned by June, 1996, any delay in the cut-out date avowedly involving the Government of Pakistan in liquidated damages running into millions of dollars a day. It is further said that the pipeline route was duly surveyed and four feet markers were erected to indicate the surveyed route way-back in January, 1992 and, what is more the damaged markers were replaced somewhere in 1993-94, but let alone the petitioners none ever objected.
Besides, it is the common case of the respondents that under section 41 of the Act the Government of Sindh has entered into the necessary agreement with the PSO which has been duly published in the Sindh Government Gazette dated 23-9-1993 and pursuant thereto the acquisition proceedings have been taken in hand. As to the earlier acquisition proceedings covered by Constitutional Petition No,D-782 of 1995 it is urged that such came to be withdrawn because of a technical error having been duly and lawfully followed by the current notification. These allegations have been rebutted from the side of the petitioners who have maintained that the agreement between the PSO and HUBCO has not been filed and the element as to urgency as well as prospect of huge damage occurring on account of delay have not been substantiated. It is also maintained that the purported agreement under section 41 of the Act does not qualify as one contemplated by law.
' On the question of maintainability the respondents have urged that the names of the petitioners do no appear in the relevant record and, therefore, not being aggrieved persons, they have no locus standi to question the acquisition proceedings. In response the petitioners point out that admittedly the firm of Zaheeruddin Pathan & Co. Is shown as the title-holder and some material has been placed on record to indicate that the firm stands dissolved. The petitioners here claim either as partners or as next of kins of the deceased partners in the firm. Under the Land Acquisition Act any "interested person" as that term is defined in section 3(b) can act in relation to acquisition proceedings and the definition includes a person claiming interest in compensation to be made on account of acquisition of land under such Act etc. For obvious reasons the petitioners qualify as interested persons within the meaning of the definition clause. Besides, the concept of an aggrieved party in Article 199 of the Constitution signifies a very broad category. Thus on either score the petitioners qualify and the petitions are maintainable.
' Coming to merits, the first contention of Mr. Shabbir Ahmed Sheikh, the learned counsel for the petitioners is that the provisions in the Land Acquisition Act are to be construed strictly and if there be any significant deviation from the procedure prescribed, the entire proceedings would stand vitiated becoming liable to be struck down. Several authorities are cited in support of the proposition and we may note Yusuf Ali v. The Province of East Pakistan PLD 1959 SC (Pak.) 467, Province of Punjab v. Muhammad Ishaq PLD 1984 Lahore 261 and Muhammad Anwar v. Pakistan PLD 1989 Karachi 45. It is correct as a principle of general application that a law creating a clog on Fundamental Rights and particularly one touching life, liberty or property as guaranteed in the Constitution is to be strictly construed and inroads into any such rights must conform to the Constitutional freedoms enjoyed by all and sundry. For applying this test on the present acquisition proceedings, we shall have to conveniently recapitulate here the applicable provisions in the Land Acquisition Act. Such are detailed below:-- "THE LAND ACQUISITION ACT, 1894 (ADAPTED SINDH)
4. Publication of preliminary notification and powers of officers thereupon.--(1) Whenever it appears to the Collector of the District that land in any locality is needed or is like to be needed for any public purpose or for a Company, 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 authorized by such Government 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 adapted 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 make 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 seven days' notice in writing of his intention to do so.
(3) The officer so authorised shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and, in case of dispute to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other Chief Revenue Officer of the District, and such decision shall be final.
5. Notification that particular land is needed for a pubic purpose or for a Company.--(1) Where land is to be acquired for a public purpose, if the Commissioner, and where land is to be acquired for a company, the Provincial Government, is satisfied after considering the result of survey if any, made under subsection (2) of section 4 or if no survey is necessary, at any time, that any particular land included in a locality notified under subsection (1) of section 4 is needed for a public purpose or a Company, as the case may be, a notification to that effect shall be published in the official Gazette, stating the District or other territorial division in which the land is situated, the purpose for which it is needed, its approximate area and situation, and where a plan has been made of the land, the place where such plan may be inspected, and the Collector shall cause public notice to be given of the substance of the notification at convenient places on or near the land to be acquired. (Substituted for section 5 in Sindh).
' SINDH:
(2) The notification under subsection (1) shall be issued not later than one year from the date of publication of the notification under section 4: ' Provided that the time, if any, spent in the prosecution of a judicial remedy during which acquisition proceedings are stayed by Government before the issue of the notification under this section shall be computed to the said period of one year.
(3) If the notification under subsection (2) is not issued within the specified time, the acquisition proceedings shall be deemed to have come to an end.
5-A. Hearing of objections.--(1) Any person interested in any land which has been notified under section 5 as being needed for a public purpose or for a Company may within thirty days after the issue of the notification. Object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under subsection (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the Commissioner, together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the Commissioner on the objections shall be final.
(3) When land is needed for a Company, the Collector shall, after making such enquiries as he deems necessary, also make his recommendations to the Commissioner with regard to the area that in his opinion is reasonable for the purpose.
(3-A) The report under subsection (2) or recommendations under subsection (3), as the case may be shall be forwarded to the Commissioner within a period of 90 days from the date of publication under section 5 and the Commissioner shall within ninety days of the receipt of the report or the recommendations as the case may be, announce the decision and if the report of recommendations, as the case may be, is not forwarded or decision announced within the specified period, the objections shall be deemed to have been carried out and the acquisition proceedings shall come to an end.
(4) For the purpose of this section a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.
6. Declaration that land is required for a public purpose.--(1) Subject to the provisions of Part VII of this Act when the Commissioner is satisfied, after considering the report, if any, made under section 5-A, subsection (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Commissioner or some officer duly authorized to certify its order: ' Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
(1-A). The declaration shall be made within six months of the publication of the notification under section 5 and if the declaration is not issued within that period, the acquisition proceedings shall be deemed to have come to an end: ' Provided that the time, if any, spent in the prosecution of a judicial remedy during which acquisition proceedings are stayed after the issue of the notification under section 5 and before making the declaration under this section shall be computed to the said period of six months.
(2) The declaration shall be published in the official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be, and, after making such declaration, the Commissioner may acquire the land in manner hereinafter appearing.
(4) When the area in respect of which the said declaration is made is less than the area previously notified under subsection (1) of section 4, such previous notification, so far as it relates to the excess area, shall be deemed to have been superseded by the said declaration.
9. Notice to persons interested.--(1) The Collector shall then cause public notice to be given at convenient places in or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interest in such land may be made to him.
(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 time and place therein mentioned (such not being earlier than fifteen 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 claim to compensation for such interests, and their objections (if any) to the measurements made under section 8. The Collector may in any case require 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, or reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate.
(4) In case any person so interested resides elsewhere and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and registered under Part III of the Indian Post Office Act, 1865.
(5) The Collector shall also serve notice of the enquiry to be held under section 11 (such notice not being less than fifteen days prior to the date fixed under subsection (2) for determination of claims and objections) on the Department of Government, local Authority or Company, as the case may be, for which land is being acquired and require it to depute a duly authorized representative to attend the enquiry on its behalf for the purpose of making objections (if any) to the measurement of the land, claims to any interest in the land or the amount of any compensation. Such authorized representative shall be a party to the proceedings.
17. Special power in cases of urgency.--(1) In cases of urgency, whenever the Commissioner so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from publication of the notice mentioned in subsection (1) of section 9, take possession of any land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government free from all encumbrances: ' Provided that the Commissioner shall not issue any direction to the Collector under this subsection unless the Department of Government,the local authority, or Company, as the case may be, for which the land is being acquired, has first deposited the estimated cost of acquisition of such land as determined by the Collector of the District, keeping in view the provisions of sections 23 and 24.
(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river side of that station, or of providing convenient connection with or access to any such station, or whenever owing to a similar emergency it becomes necessary for the Commissioner to acquire the immediate possession of any land for the purpose of maintaining traffic over a public road, the Collector may, immediately after the publication of the notice mentioned in subsection (1) and with the previous sanction of the Commissioner, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this subsection without giving to the occupier thereof at least forty-eight hours 'notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.
(3) In every case under either of the preceding subsections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
(4) In cases where in the opinion of the Commissioner, the provisions of subsection (1) or subsection (2) are applicable, the Commissioner may direct that the provisions of sections 5 and 5-A shall not apply, and, if he does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under subsection (1) of section 4.
23. Matters to be considered in determining compensation.---(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-- ' firstly, the market-value of the land at the date of publication of the notification under section 4, subsection (1).
(1) Explanation.--For the purposes of determining the market-value, the Court shall take into account transfers of land similarly situated and in similar use. The potential value of the land acquired if put to a different use shall only be taken into consideration if it is proved that land similarly situated and previously in similar use has, before the date of the notification under subsection (1) of section 4, been transferred with a view to being put to the use relied upon as affecting the potential value of the land to be acquired: ' Provided that--
(i) if the market-value has been increased in consequence of the land being put to a use which is unlawful or contrary to public policy, that use shall be disregarded and the market-value shall be deemed to be the market value of the land if it were put to ordinary use; and
(ii) if the market-value of any building has been increased in consequence of the building being so over-crowded as to be dangerous to the health of the inmates, such over-crowding shall be disregarded and the market-value shall be deemed to be the market-value of the building if occupied by such number of persons only as can be accommodated in it without risk of danger to health from over-crowding; ' Secondly, the damage sustained by the person interested; by reason of the taking of any standing crops of trees which may be on the land at the time of the Collector's taking possession thereof; ' thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; ' fourthly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earning; ' fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and ' sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
(2) In addition to the market-value of the land as above provided, the Court shall award a sum of fifteen per centum on such market-value, in consideration of compulsory nature of the acquisition, if the acquisition has been made for a public purpose and a sum of twenty-five per centum has been made for a Company.
24. Matters to be neglected in determining compensation.- But the Court shall not take into consideration-- ' firstly, the degree of urgency which has led to the acquisition; ' secondly, any disinclination of the person interested to part with the land acquired; ' thirdly, any damage sustained by him, if caused by a private person, would not render such person liable to a suit; ' fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication, of the declaration under section 6, by or in consequence of the use to which it will be put; ' fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired; ' sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put; or ' seventhly, any outlay or improvement on or disposal of, the land acquired, commenced, made or effected without the sanction of the Collector after notification under section 4, subsection (1).
38. Company may be authorised to enter and survey.--(1) The Commissioner may authorize any officer of any company desiring to acquire land for its purpose to exercise the powers conferred by subsection (2) of section 4.
(2) In every such case section 4 shall be construed as if for the words 'for such purpose' the words ' for the purposes of the Company' were substituted; and subsection (3) of section 4, shall be construed as if after the words 'the officer' the words 'of the Company' were inserted.
39. Previous consent of Commissioner and execution of agreement necessary.--The provision 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 Commissioner, nor unless the Company shall have executed the agreement hereinafter mentioned.
41. Agreement with Commissioner.--If the Commissioner is satisfied after considering the report, if any, of the Collector made under section 5-A, subsection (2), or on the report of the officer making an enquiry under section 40 that the object of the proposed acquisition is to obtain land for one of the purposes referred to clause (aa) or clause (a) or clause (b) of subsection (1) of section 40 he shall require the Company to enter into an agreement with the Commissioner providing to the satisfaction of the Commissioner for the following matters, namely:--
(1) the payment to the Commissioner of the cost of the acquisition;
(2) the transfer, on such payment, of the land to the Company;
(3) the terms of which the land shall be held by the Company;
(4) where the acquisition is for the purpose of erecting, dwelling houses or the provision of amenities connected therewith, the time within which, the condition on which and the manner in which the dwelling houses or amenities shall be erected or provided, and
(5) where the acquisition is for a purpose falling under clause (b) of subsection (1) of section 40, the time within which and the conditions on which the work shall be constructed and maintained.
42. Publication of agreement.--Every such agreement shall, as soon as may be after its execution, be published in the official Gazette and the acquisition shall be deemed to have been made subject to the terms of such agreement.
43. Sections 39 to 42 shall not apply where Government bound by agreement to provide land for companies.--The provisions of sections 39 to 42, both inclusive, shall not apply, and the corresponding sections of the Land Acquisition Act, 1894, shall be deemed never to have applied to the acquisition of land for any Railway or the Company, for the purposes of which under any agreement with such Company, the Central Government or any Provincial Government was bound to provide land.
45 Service of notices.--(1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed, in the case of a notice under section 4, by the officer therein mentioned, and, in the case of any other notice by order of the Collector or the Judge.
(2) Whenever it may be practicable, the service of the notice shall be made on the person therein named.
(3) When such person cannot be found, the service may be made on any adult male member of his family residing with him, and if no such adult male member can he found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the Court house, and also in some conspicuous part of the land to be acquired: ' Provided that, if the Collector or Judge shall so direct, a notice may be sent by post in letter addressed to the person named therein at his last known residence, address or place of business and registered under Part III of the Indian Post Offices Act, 1866, and service of it may be proved by the production of the addressee's receipt." (Emphasis added).
' Now it has been urged from the side of the petitioners that in order to initiate acquisition proceedings wherever it appears to the Collector of the District that land in any locality is needed or is likely to be needed for any public purpose or for a company, a two-fold action becomes necessary, one, a notification to such effect published in the official Gazette and two, causation of a public notice of the substance of such notification to be given at convenient places in the said locality. It is only when both these requirements of subsection (1) of section 4 are met that it becomes lawful for any officer or his servants or workmen to enter upon the land involved and do the various things in contemplation of subsection (2) of section 4 of the Act. Contention is that whereas a notification under section 4, for whatever that be worth, was issued, no matching notice was issued or served. The argument, so far it goes, is correct but, on the factual plane, it is denied that notice of the substance of the notification was not given as prescribed. However, in that context, from the side of the respondents, the pleas are somewhat equivocal and the overall impression gathered is that the Acquisition Officer, who has submitted his personal affidavit, has been confusing the notice under section 9 with that under subsection (1) of section 4 of the Act. For the purpose of notice envisaged in the subsection (1) of section 4, section 45 of the Act is specific and that has to be served "by delivering or tendering a copy thereof signed... ... ...By the officer therein mentioned". Besides, other requirements of section 45, relevantly, have also to be met. The only conceivable mode of proving issuance and service of such notice, recapitulating the substance of the notification issued under section 4, would have been by placing on record a copy thereof together with necessary endorsement of service. The burden for so doing was on the respondents Nos.1 to 4 and that burden, one of fact, has not been discharged. In this background, it must be found that all the requirements of subsection (1) of section 4 were not satisfied in the instant case.
' Several decisions in support of the proposition have been cited by Mr. Shabbir Ahmed Sheikh, notably Khub Chand v. State of Rajasthan, AIR 1967 SC 1074, Narinderjit Singh v. State of U.P., AIR 1973 SC 552, State of Mysore v. Abdul Razak, AIR 1973 SC 2361, and Abdul Ghani v. Province of Balochistan PLD 1982 Quetta 47. Mr. Khalid Ishaque, however, for a contrary view, relies upon Barkya Thakur v.
State of Bombay, AIR 1960 SC 1203, Abdul Rahim v. Province of Sindh, 1983 CLC 1478, Muhammad Shafi v. Collector, Land Acquisition, 1994 MLD 920, and Makhdoom Ahmed Ghauns v. Chairman, Town/Municipal, 1994 CLC 430. Of these Barkya Thakur's case condones only minor defects in a section 4 notification. The other cases do postulate that a separate notice in addition to the notification under section 4 is not a requisite. But this view can only be per incuriam because the effect of section 45 in the Act and the way it interacts with section 4 does not appear to have been examined.
' Consensus of Authority in India and the prevailing view in Balochistan seems to be that if the requisites of subsection (1) of section 4 i,e, a notification and a notice of substance thereof, are not fully satisfied, the acquisition proceedings would stand vitiated, apparently, because in the face of disregard of section 4(1), there would be no foundation on which the edifice of acquisition can rest.
This view may be unexceptionable where acquisition proceedings have been allowed to follow the normal course prescribed by law in sections 5 and 5-A, in the absence of invocation of section 17(1) and (4) of the Act. In such cases, that is to say, in cases where sections 5 and 5-A remain applicable, the very requirement for the acquisition remains open to challenge and every step in the acquisition proceedings, accordingly, has to be found in place in order to carry the same to a successful conclusion. However, where subsection (1) or (2) of section 17 of the Act, having a nexus with urgency, are invoked or found applicable and acting upon subsection (4) of the same section, sections 5 and 5-A have been dispensed with, the fateful declaration pertaining to the relevant land being needed for a public purpose under section 6 of the Act can follow at any time after the publication of the notification under subsection (1) of section 4 of the Act and all that remains material for the land owner or other persons interested in the land is such cases can be compensated and no more.
Nonetheless, it must still be stated that the requirements of subsection (1) of section 4 in the Act are mandatory. They are mandatory because, inter alia, specific results are contemplated to follow in consequence of non-compliance, breach of mandate arguably being confined to the consequences.
' As said earlier, there are two requirements of that subsection, first, due notification bringing forth to the notice of all concerned that specific land in a named locality is needed or is likely to be needed for any public purpose or for a company, and second, causation of a public notice of the substance of such notification at convenient places in the locality in a manner commensurate with the postulates of section 45 of the Act. Of these requirements, the first is of a basic character, namely, that of the due notification and failure to issue such notification or issuance thereof otherwise than substantially answering the requirements of law, should, in our view, vitiate the entire acquisition proceedings because the acquisition proceedings, as the various provisions in the Act would reveal, must necessarily relate back to the notification under section 4(1) and that notification if absent or otherwise materially defective, there would, in effect, be no acquisition proceedings to be sustained. However, the notice incorporating the substance of such notification required to be served in terms of section 4(1) as read with section 45 of the Act appears to us speaking respectfully, not to be at par with the notification itself of which it is the substance. As said, bereft of sections 5 and 5-A in the Act, all that would emerge in the absence of such notice should be a disability to enter upon the notified land and to do the various acts and deeds contemplated in the remaining subsections of section 4. Entry thus. Made or other acts thus done, without the satisfaction of the second requirement of subsection (1) of section 4, would lack the sanction of law and could clearly be without lawful authority. Even so, mexe non-issuance of notice or issuance of inadequate notice of the substance of the notification under the second part of subsection (1) of section 4 in the Act would not render the acquisition itself invalid. This arises because the consequences of non-compliance are to be found in section 4(2) of the Act. They merely preclude entry etc. On the land without the duality of due notification and notice of its substance. The consequences should be confined to that . We are fortified in this view because situations can be visualised where no entry in terms of section 4(2) and (3) may be necessary as, indeed, is recognised by section 5(1) itself. Besides, the notice under section 4(1) appears to be of an enabling character together with the due notification under that provision and opens the way for an entry etc. Under section 4(2) of the Act, non-compliance thereof, as said, affecting only the invocation of subsections (2) and (3) of section 4 ibid and no more.
' To conclude this part of the discussion, we are not holding as seems to have been apprehended by the Indian Supreme Court in the case of Narindergit Singh (supra), an opinion almost anticipated in Abdul Azeez v. The State, AIR 1957 Mysore 12, Sheshagiri V. SPL. Tehsildar for Land Acquisition AIR 1965 Kerala 92, and Gurdit Singh v. State AIR 1972 Punjab & Haryana 12 that validation of acquisition proceedings in the absence of due notice of substance of the notification under section 4(1), only where section 17(4) of the Act is applied, would tantamount to finding section 4(1) as mandatory in one situation but not so in another. All that we have attempted to do is to show that the two requirements of section 4(1) in the Act may be mandatory and yet different consequences may ensue upon the disregard of each.
Having said as much, we are convinced that there was no notice satisfying the requirements of the later part of subsection (1) of section 4. And yet, admittedly, entries were made, markers were posted, measurements were taken and allegedly, though not uncontrovertedly, even possession was made over. Such transgressions, in the view we take, even though may not result in vitiation of proceedings, would, a mandatory provision having yet been disregarded, give rise to damages, a subject to which we would revert later.
' Finding the requirement of section 4(1) of a due notification under that provision duly met, we may now take up the argument which revolves around the question as to how far section 17(4) has been correctly invoked. That question, in turn, is also referred to in section 41 in the Act. It is contended from the side of the petitioners that the agreement dated 2-8-1993, which was published in the Sindh Government Gazette on 23-9-1993, is not one which satisfies the requirements of section 41, aforesaid. It is urged that such agreement had relevance only to the previous set of acquisition proceedings and lapsed with those proceedings. The argument is not sound because section 39 of the statute, elaborating upon the situation, postulates that the provisions of sections 6 to 37 (both inclusive) shall not be put into motion in order to acquire land for any company unless with the previous consent of the Commissioner nor unless the Company shall have executed an agreement in terms of section 41. This clearly implies that there is no uniform prescribed time limit for an agreement under section 41 of the Act to be executed and no more is required than that the needful in terms of sections 39 and 40 is done prior to the invocation of section 6 etc. In the said enactment, regarding which there is no dispute. Respondents also rely on State of Gujarat v. Hyder Bux Razvi (1976) 3 SCC 536, to contend that if a previous notification under section 4 may sustain fresh acquisition proceedings, a previous agreement may also have like potential. As to the ingredients of the agreement itself, we are also unable to find any substantial fault.
' However, what is a further urged from the side of the petitioners is that the gazetted agreement does not disclose any grounds of urgency and that being the case, neither subsection (1) nor subsection (4) of section 17, involving urgency, could have been resorted to. We regret to say that we are unable to see anything in section 17, which co-relates the element of urgency in that section with anything that is contemplated in sections 39 to 41 of the Act. The concept of urgency in section 17 may be quite independent of any such agreement with a company and may be based on quite different material. Indeed, as has been said in the above recitals, the urgency in the matter is related to another set of agreements between respondent-PSO and HUBCO as also perhaps with some international agencies, involving the Federal Government as well. These are questions of fact and it has been argued from the side of the respondents that controversial questions of fact may not be examined in the Constitutional jurisdiction of this Court. Reliance, inter alia, is placed on Government of Punjab v. Naila Begum PLD 1987 Lahore 336 and Muhammad Younus Khan v.
Government of N.-W.F.P. 1993 SCMR 618.
' It has also been pointed out that whether or not elements of urgency attracting section 17(1) and
(4) existed was a matter falling within the subjective consideration of the Commissioner and, therefore, not open to scrutiny in judicial review. Several judgments on the point have been referred to namely, Shri Navnitlal v. State of Bombay AIR 1961 Bombay 89, Iftikhar Ahmed v. State of Madhya Pradesh, AIR 1961 Madhya Pradesh 140, Zainul Abedin v. The Government of West Pakistan, Lahore 1969 SCMR 228, Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133, Muhammad Mushtaq Ahmed Khan v. Assistant Commissioner/Acquisition Collector PLD 1983 Lah. 178 and Rasheed Ahmed v. Province of Sindh, 1986 CLC 1841. There is also an unreported case on the point relied upon by the learned counsel for the petitioners viz. Afroz Ellahi and others v. The Commissioner, Karachi Division and others. Constitutional Petition No,D-1 of 1984, decided by a Division Bench of this Court on 5-9-1989 comprising Ajmal Mian C.J. And Mukhtar Ahmed Junejo, J.
The relevant observations occurring therein for ready reference may advantageously be reproduced here:-- "However, the question is, as to whether section 5-A has been rightly dispensed with in the instant case. The above section 5-A incorporates the golden principle of jurisprudence that before taking any adverse action, the person to be affected is to be given an opportunity to be heard. In other words, it caters for principle of natural justice. There is no doubt that under subsection (4) of section 17, it has been provided that in the case of any land to which, in the opinion of the Provincial Government, the provisions of subsection (1) or subsection (2) are applicable, the Provincial Government may direct that the provisions of section 5-A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4, subsection (1). Above subsection (4) is to be read with subsections (1) and (2) of above section 17.
"Even in the above-quoted observation of the Indian Supreme Court, it has been pointed out that the scheme of the Act is that normally provisions of section 5-A have to be complied with. In the instant case while dealing with the question, whether the Mayor was justified in not getting the proposed work of constructing park approved by the House, we have held that there was no urgency of the nature which warranted by passing of the normal procedure provided in the Ordinance and the rules framed thereunder for the approval of the House, it must follow that there was no urgency of the nature in the instant case which could bring the case within ambit of subsection (1) or subsection (2) of section 17 of the Act, in order to attract the application of subsection (4) of above section 17 declaring dispensation with the application of section 5-A of the Act. It is true that the right of hearing cannot tie claimed if the relevant law expressly excludes such a right as has been contended by Mr. Ghulam Hussain Abbasi, but where the exclusion of right of hearing is dependent on certain contingency and that contingency prima facie did not exist, the Court could hold that the exclusion of right of hearing was not warranted. It may be pertinent to observe that the compulsory acquisition of the property of a Muslim is against the tenets of Islam.
Even under Article 24 of the Constitution of the Islamic Republic of Pakistan, 1973, the right to hold property has been guaranteed to all citizens by providing that "No person shall be deprived of his property save in accordance with law and that no property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor..." In our view, though the above Constitutional guarantee is subject to acquisition of a property for a public purpose, but the same cannot be defeated by a public functionary through initiating an incompetent or mala fide acquisition proceedings. The spirit of the above Article of the Constitution seems to be to allow the freedom to hold/own property free from any unreasonable interference. We are inclined to hold that after the enforcement of above Fundamental Right a High Court is under Constitutional obligation to examine acquisition proceedings with more caution and care and to ascertain whether there has been any infraction of the aforesaid Fundamental Right."
' Examining the case-law on the point, we are constrained to point out that the question whether a matter can be categorized as within the subjective or objective consideration of a functionary largely depends on judicial analysis of the applicable provision in each individual case. As is only too manifest judicial treatment of such matters is never static and is always evolving. What, some decades ago, may have been treated as a foreclosed issue, falling within the subjective consideration of a functionary of the State, may, in course of time, be judicially found to be no longer so and consequently available for judicial review, in order to determine whether the conclusion reached could stand objective tests. Without going into details, there are several such cases where judicial opinion has moved forward in order to extend relief. Nonetheless, amongst the authorities cited, there may be some binding on us as contended by the respondents, which lay down that a determination in terms of section 17(1) and (4) involves subjective consideration and is, therefore, not open to judicial review. We do not wish to enter into that controversy as in our opinion-the matter can be differently resolved.
' Thus, even if it is assumed that resort to section 17(1) and (4) of the Act is not open to judicial review on the score of matters falling therein being within the subjective domain of the Commissioner, it cannot be argued that such consideration can be absolutely arbitrary and totally baseless. Drawing support from some of the above precedents, we are of the view that even where subjective considerations exclusively weigh in determining a particular outcome, there must still be some objective basis for the result ultimately achieved. In other words, even in such cases, where valuable interests are involved and Constitutional or Fundamental Rights are pressed into service, it must still be shown that there was some palpably concrete material, ex facie sufficient to sustain the subjective conclusion. Thus, there is a difference between the availability of such material and the determination founded thereon. In appropriate cases, Courts can insist to see such material before declining to interfere with the result based on that material. It is for this reason that the respondents may have found fit to aver the existence of other arrangements on the basis of which acquisition proceedings have been initiated on behalf of the respondent-company. Such averments, it must be acknowledged, have been repudiated but nothing more beyond repudiation has been done. If the petitioners were of the view that the averments, reproduced above, were false or fabricated, they could have insisted in seeking an order to have the relevant material laid before the Court. They could have even asked for cross-examination of the concerned deponent and if it was found to be in the interest of justice, to clear up the controversy raging in the petitioner, we would have allowed that request and the foundational material could be brought on the record. The petitioners did not choose to do so. Countering their view, it may be said that the respondents themselves failed to place the relevant material before the Court and an inference may be drawn that, had the ,same been brought out, it would have reflected against the respondents. We do not think that the rule last mentioned is applicable to this case. The matters involved may have had high prerogative ingredients, involving as the same did international agencies and, therefore, respondents may not have thought fit to place the same in Court on their own. Yet if the plea was raised such would have been examined and we may have declined the claim of privilege, if any, but that occasion did not arise. Lastly, on the question of urgency itself, we may also advert to the argument that on the respondents' own word the pipeline project is to be completed and handed over by June this year and if this was so, there was no need to adopt the short-circuiting procedure in section 17(1) and (4) of the Act way back at least as of October 19, 1995. This may all the more be so when the period covered by a Court stay can clearly be excluded upon the language of sections 5 and 5-A etc. Themselves. The argument is quite attractive but clearly inapplicable. Even after the application of the urgency provisions the matter has taken quite a few months and all the time Court stay has been operative. Such stay may not have impeded the course of acquisition proceedings as covered by sections 5 and 5-A of the Act but time and a good deal of time at that was spent with the result that we are already close to June, 1996 and the matter is yet to be decided. What is more, as underlined above the time scales in sections 5 and 5- A themselves are quite substantial and the period between October, 1995 and June, 1996 as it turns out, may not have been enough to cater to the requirements in the case. The invocation of the urgency clauses therefore cannot be satisfactorily questioned on such basis, at least in this case.
As to the validity of a second notification where the first is apprehended or found to be faulty, the latter can be withdrawn and acquisition proceedings may be commenced de novo subject to the applicable constraints principal amongst which would be determination of market value of the acquired land as on the date of the successor notification under section 4 of the Act and investments or other commitments preceding such notification would remain assessable in the computation of the compensation under section 23 of the Act. See inter alia, Shyam Behari v. State of Madhya Pradesh AIR 1965 SC 427; Girdharilal v. State of Gujarat AIR 1966 SC 1408; State of Gujarat v. Haider Bux Razvi (1976) 3 SCC 536 and State of Gujarat v. Bhogilal AIR 1980 SC 367.
' In the foregoing view of the matter, we see no reason to interfere with the acquisition proceedings covered by Constitutional Petition No,D-18 of 1996.
' However, we have already found that unlawful entry was made and illegal acts were done on the petitioners' lands. Much of this seems to have transpired earlier on in the context of the first set of acquisition proceedings. These incursions and violations of private property in the context of both petitions taken together cannot be countenanced. The petitioners obviously, deserve to be compensated but that usually should be done in a suit properly so brought. This, quite plainly, if insisted upon would take a good deal of time. In Constitutional jurisdiction to administer relief, we have no cogent yardstick for assessing actual damages. However, damages are of several different kinds and, quite arguably, it is only one which pertains to actual loss. One can have a fair idea of what a person would be, unwarrantedly, exposed to if his lands were unceremoniously invaded and even worked upon. Assessing such loss, in a generalised way, moderately we would assess the same at Rs,100,000 and direct the same to be made good by respondent No,5, PSO, at whose instance the acquisition proceedings have been initiated and for whose purposes the petitioners' lands have been subjected to unwarranted and unlawful incursions.
' The matter does not stop here. The petitioners were vigilant enough to file Constitutional Petition No,D-782 of 1995. The acquisition proceedings there manifestly crossed all bounds of time and space. As delineated above, there are various kinds of time frames contemplated by sections 5, 5- A and 6 of the Act, but none of them was observed. What is more, even though section 17(4) of the Act was applied, there was at the time no such urgency because, as has been brought out now, the pipeline is to be made over only by June, 1996 and thus there was little cause for urgency in relation to the first set of acquisition proceedings commenced on 20-2-1993. Yet section 17(4) was invoked not earlier than 5-3-1994, when, in terms of section '3), upon the expiry of one year from the date of the section 4 notification, the acquisition proceedings were deemed to have come to an end, There was thus much time available and all was wasted. Discretion under section 17(1) and (4), even if subjective in nature, cannot accordingly be upheld for lack of necessary material required to sustain it. Constitutional Petition No,D-782 of 1995, thus having to be dismissed as rendered infructuous because of lapse/withdrawal of the first set of acquisition, warrants special costs to be allowed. Now section 35-A of the Code of Civil Procedure restricts the special costs to Rs,25,000 and that may be in relation to each of the parties, assessed separately, bringing forth a larger amount than Rs,25,000 by way of costs in totality and adopting that rule, we may award suitable costs to the petitioners in their first Constitutional petition. However, such a course need not be adopted: firstly because in line with the land acquisition law, costs are to be borne by the company for whom land is to be acquired and secondly, because in the exercise of the Constitutional jurisdiction of this Court, the procedural powers of the Court cannot be controlled by a sub- Constitutional legislation such as the Code of Civil Procedure. Not being thus bound by the restrictions in section 35-A of the Code of Civil Procedure, we impose costs in the sum of Rs,50,000 on respondentPSO while, at the same, dismissing the Constitutional Petition No, D-782 of 1995, as having become infructuous.