NASIR-UL-MULK, J.---For the purpose of installing Cement Factory, Tharmal Power Plant and Cement Bags in Tehsil and District Haripur, Best Way Cement Ltd., a company having its head office at Islamabad, approached the Collector Land Acquisition, Haripur for the compulsory acquisition of land for the setting up of the project. Accordingly the Collector on 26-10-1994 issued a notification under section 4 of the Land Acquisition Act for the acquisition of 1015 Kanals of land in village Shadi and 551 Kanals 6 Marlas- in village Raniwah. A corrigendum was issued on 6-11-1994 by which the land to be acquired in village Raniwah was deleted from the notification whereas the land in village Shadi was enhanced to 1882 Kanals 17 1vlarlas and 197 Kanals of land in village Kamalpur was included in the notification. Yet another corrigendum was issued on 21-11-1994 and the land in village Shadi was reduced to 1627 Kanals, whereas 197 Kanals land in village Kamalpur remained unchanged. On 28-11-1994 an agreement, as envisaged under section 41 of the Land Acquisition Act, regarding the terms and conditions of the acquisition was entered into between the Government of N.-W.F.P. And the company. The Commissioner Hazara Division, considering the urgency of the acquisition, issued a notification under section 17 of the Act on 1-12-1994, dispensing with the requirement of the provision of sections 5* and 5-A of the Act in the process of the acquisition. The same notification also included a declaration by the Commissioner under section 6 of the Act of his satisfaction that the land was required for the company. Thereafter notices under sections 9 and 10 of the Act were issued to the interested persons to file their demands and objections. A number of owners filed .Their objections before the Collector Land Acquisition. After considering the objection the Collector drew his award under section 11 of the Act on 18-12-1994, fixing compensation of the land according to its nature on the basis of the average of the sale prices of one year. On the objections of land owners as to the amount of compensation fixed references under section 18 were made to the Court. At the same time 150 owners, whose lands have been acquired, filed the present Constitutional petition questioning the very acquisition of the land.
2. The case of the petitioners as revealed from the grounds taken up in the petition and from the arguments advanced on their behalf at the Bar is that firstly, the corrigendum to the notification under section 4 are to be considered as fresh notification and therefore the entire procedure regarding publicity is to be followed after each corrigendum; secondly, that since the land was acquired for Commercial enterprises there was no urgency to invoke the provision of section 17 of the Act and thirdly, no inquiry was conducted under section 40 of the Act let alone notice of it to the petitioners. For his first contention the learned counsel relied upon Central Government of Pakistan v. Sardar Fakhr-e--Alam and others (1986 SCM R 188), Naeem Engineering Corporation and others v. Government of Punjab (1986 SCM R 316), Rao Maqsood A.I Khan and others v. Collector, Sheikhupura District and others (PLD 1988 Lahore 272). For the second proposition reliance was placed on Murari Lal Gupta v. State of Punjab and others (AIR 1964 Punjab 477) that section 17 can be invoked-in exceptional cases. For the last contention the learned counsel referred to Ch. Khushi Muhammad v. The Commissioner Multan etc. (PLD 1965 W.P.) Lahore 250), Ghulam Bhik v.
Government of West Pakistan through Secretary, Revenue Department Lahore etc. (PLD 1973 Lahore 617), Faqir Muhammad and others v. Government of West Pakistan through Secretary, Revenue Department, Lahore and others (PLD 1973 Lahore 665) to argue that though in those cases the Lahore High Court had held that notice of an inquiry under section 40 of the Act was not necessary to the affected party, the rule laid down there was inapplicable to the present case as there lands were acquired before the amendment in section 40 of the Act by West Pakistan Ordinance No.XLIX of 1969, whereby clause (c) was added to subsection (1) of section 40. It was argued that since clause (c) provided that the Commissioner should also during the inquiry as to the acquisition of land for Company see the reasonableness of the Proposed area for the purpose for which it was being acquired the affected persons ought to be associated with the inquiry to enable them to put their view point regarding reasonableness. Reliance was placed on the case of Federation of Pakistan v. Province of Punjab (1993 SCMR 673) for the proposition that the interested parties have a right to a hearing during the inquiry by the Commissioner under section 40 of the Act.
3. In their written statement, Best Way Cement Ltd., respondent No.4, took a preliminary objection that the writ petition suffers from laches as the respondent was delivered possession of the land and had taken irrevocable steps for the completion of the Project by spending huge amount on construction and -had mobilized advances and opened irrevocable letters of credit in the amount of US $ 40 million for the import of machinery. It was pleaded that urgency of the situation for the purpose of issuing notification under section 17 was to be determined subjectively by the Commissioner and was thus unquestionable. The learned counsel representing respondent No.4, during his arguments, submitted that there was urgency in the present case as the Directors of the Company are British Nationals of Pakistani Origin, who had decided to invest in Pakistan, and any delay in the acquisition of the land might have changed their minds. Further, that according to the Government report there was a dire need for the installation of Cement Factories in the North of the country. In view of the judgments of the Lahore High Court relied upon by the learned counsel for the petitioner it was contended that the participation of the affectees in an inquiry conducted under section 40 of the Act was not necessary. The learned counsel referring to the two corrigendums however, pointed out that the changes in the area had occurred as a result of inquiry under section 40.
4. In the comments filed by the Collector Land Acquisition it was averred that due publicity of the notification under section 4 was made. It was further pleaded that since compliance of the provisions of section 5-A we dispensed by the notification under section 17(4) no notice to the objectors was required during the inquiry under section 40.
5. The learned Assistant Advocate-General, who appeared for the Collector, pointed out that the petitioner had acquiesced in the acquisition proceedings and had not only withdrawn the compensation deposited by the company but had also participated in the proceedings for fixing the compensation before the Collector and had now preferred objection under section 18 of the Act for enhancement of the compensation. It was argued that it was too late to return the land to the petitioners.
6. The case-law cited regarding the status and effect of corrigendum to a notification under section 4 of the Land Acquisition Act does enunciate the rule that each corrigendum notification under section 4 is to be considered a separate notification and the entire procedure that follows the issuance of the notification under the section shall be observed. Section 4 provides for the publicity of notification issued under it at convenient places in the locality where the land is to be acquired., Further the persons interested in the land to be acquired may under section 5-A of the Act, within 30 days of the issuance of notification under section 4 file objections to the Collector.
The failure by the Collector to give notice of the successive notifications under section 4 has been alleged in para. 2(iv) of the writ petition which has been denied by the Collector in the corresponding paragraph in his comments. As for the publicity of the notification nowhere in the writ petition has it been averred that the petitioners were not aware of the notifications or for that matter of the acquisition proceedings. In fact their participation in the proceedings for the drawing of the award by the Collector bears ample testimony of their awareness of the notifications.
Moreover the purpose behind the publicity of the notification under section 4 is to enable the affected persons to file objections under section 5-A, the provisions of which in the present case have been excluded by the notification issued under section 17(4) of the Act. Thus no illegality was committed by the Collector in the publicity of notification under section 4 nor any prejudice was caused to the petitioners who had fully participated in the acquisition proceedings.
7. Where land is being acquired for a company the consent of the Commissioner is required under section 39 of the Act which is accorded after his satisfaction on the report of the Collector under section 5-A or through an inquiry carried out under section 40. Such inquiry is held to see inter alia the usefulness of the acquisition to the public, and after insertion of clause (c) in subsection (1) of section 40 by the West Pakistan Ordinance XLIX of 1994, the reasonableness of the area proposed for the purpose for which it was being acquired. Since the provisions of section 5-A has been made inapplicable by the notification under section 17(4) thus no objection could be filed by the affected persons under that section. According to the comments of the Collector Land Acquisition the inquiry under section 40 was undertaken. The respondents have also pleaded that the two corrigendums which brought about changes in the area to be acquired was the result of such an inquiry. The main grievance of the petitioners is that they were not associated with such an inquiry.
The question of issuance of notice to the persons interested in the land to be acquired during an inquiry under section 40 came up before the Lahore High Court in the case of Chaudhry Khushi Muhammad ibid and Mr. Justice Yaqoob A.I J, as he then was, held that a comparison pf provisions of sections 4, 5, 5-A and 9 with the provisions of section 40 of the Land Acquisition Act, 1894 will show that wherever it was intended by the Legislature that the person affected will have a right to show cause a distinct provision to that effect is made. The omission in section 40 with regard to notice to persons interested in the land to be acquired for the benefit of a company is, thus deliberate. It was thus found that non---issuance of notice to the petitioner in an inquiry under section 40 had no effect on the validity of the consent given by the Commissioner to the acquisition in question. His Lordship declared that the role of natural justice is not of universal application. The rule was followed by the Lahore High Court in cases of Ghulam Bhik and Faqir Muhammad, referred to above. The argument of the learned counsel for the petitioners that since these judgments dealt with acquisition proceedings commenced prior to the insertion of clause
(b) under subsection (1) of section 40 of the Act has no force. If the argument that determination of the reasonableness of the area under clause (c) would require participation of the interested parties in the inquiry is accepted the same argument would be available while determining, under clause (b), the usefulness of the land to the petitioners. But despite the existence of clause (b) at the time of the acquisition in the above-cited cases the Lahore High Court did not consider the issuance of notice to the interested parties necessary under section 40. Even otherwise the reasonableness of the area essentially is to be determined between the company, which requires the land, and the acquiring authority. Moreover no allegation has been made that the area acquired is unreasonable as regards its location or area. Though an argument was advanced at the trial that the area was enormous yet the learned counsel for the petitioner failed to state as to what would be the area requisite for the project. On the other hand the learned counsel for the company produced a copy of a study titled "Investment opportunities in Pakistan", with a Sub-title "Portland Cement," prepared by the Prime Minister Secretariat, Board of Investment, wherein it has been stated in parapraphs 3. 4. 1 that 300 acres of land is required for the installation of a project to manufacture ordinary Portland Cement. In view of this aspect the acquisition of just over 1800 Kanals of land is not beyond the estimated area.
8. The case of the Federation of Pakistan v. Province of Punjab ibid, cited for the proposition that notices to the affected persons are necessary in an inquiry under section 40 is distinguishable. In that case the question of notice was not involved as it was given to the owner, which was the Pakistan Telephone and Telegraph Department, whose land was being acquired for the construction of residential colony for the Punjab Board of Revenue Employees Housing Society Lahore Limited. The august Supreme Court held that since the Telephone Department had also earlier purchased the land for a public purpose from the Settlement Department the Commissioner ought to have assessed as to whether the public purpose of the acquiring company was superior that of the owner. The Supreme Court found for a fact that the purpose for which the owner had purchased the land was superior than the construction of residential colony of the acquiring company. No such situation exists in the instant case nor the usefulness to the public of the land acquired for the company has been disputed.
9. As regards the objection to the use of the emergency powers under section 17 of the Act is concerned, though there is some case-law in support of the proposition that the power be used in exceptional circumstances, it is by now well-settled that the assessment of the situation for the purpose exercising power is subjective and lies with the Commissioner. Even the facts support the exercise of the power. The land was being acquired for the installation of big project that was to be installed on foreign capital. Delay in the acquisition proceedings may have had the effect of discouraging the investors, thereby causing loss to the national economy.
10. We are also not unmindful of the fact that significant progress has been made towards the completion of the Project. The construction has been raised on the site and L.Cs have been opened for the import of the machinery. Further--more the petitioners instead of approaching this Court straightaway after issuance of notification under section 17 of the Act, participated in the award drawing proceedings of the Collector and had also filed objection petitions under section 18 of the Act. It was claimed by the Assistant Advocate-General, and not controverted by the learned counsel for the petitioners, that 248 owners, including the 150 petitioners, have also withdrawn the compensation awarded to them. In such circumstances the petitioners by their conduct have disentitled themselves to the equitable relief of the issuance of writ.; Above are the reasons for which the writ petition was dismissed by a short order dated 8-12-1996.
The parties are left to bear their own costs.,