' MIAN SHAKIRULLAH JAN, J.---Land measuring 37 Kanals, 13 Marlas out of Khasra No,4695 situated in Tehsil and District Mansehra was acquired by the Land Acquisition Collector for the extension of Ghazi-Kot Township vide Award, dated 4-7-1992 under the Provincial Urban Planning Ordinance, 1978. The petitioners have challenged the said award along with vires of the N.-W.F.P. Urban Planning Ordinance, 1978 through a writ petition filed on 5-8-1996, after the lapse of about 4 years, and which writ petition was subsequently withdrawn with permission of the Court to file a fresh one whereby they would impugn the specific sections of the Provincial Urban Planning Ordinance on the ground of being discriminatory and un-Constitutional and now the present writ petition.
2. The petitioners challenged the provisions of sections 49 to 68 contained in Chapter 6 of the N.- W.F.P. Urban Planning Ordinance on the grounds being discriminatory, inconsistent with the Federal Law, violate of the Constitutional provisions ensuring equality of all the citizens, equal protection of law and separation of judiciary and the acquisition of the property made thereunder as illegal, un- Constitutional and void a initio.
3. According to the writ petition the petitioners are owners of the property comprised in Khasra No,4696 situated in Tehsil and District Mansehra and out of the said property an area of 17 Kanals 13 Marlas was acquired by the Government under the Ordinance and all the proceedings were initiated/taken on the back of the petitioners without giving them any notice or opportunity of hearing. The petitioners expressed their ignorance about all the proceedings relating to the acquisition of the property till the time when the representatives of respondent-department entered the property for the purpose of demarcation and measurement and thus they could not file any objection or appeal.
4. The comments of respondents 1 to 4 were called for who submitted their comments. A preliminary objection was taken about the competency of the writ petition by submitting that the petitioners have not availed the remedy of filing appeal as provided under the law and the statutory remedy has not been exhausted. The writ petition is not competent. On facts, the respondents have submitted that Khasra No,4696, as mentioned in para. 2 of the writ petition, has not been acquired by them and that it is Khasra No,4695, as evident from the award, which has been acquired and the writ petition does not relate to the property which has been acquired and therefore, cannot proceed any further. The non-service of any notice upon the petitioners about the acquisition proceedings was also controverted by contending that the notice as contemplated by the Ordinance have been issued to the landowners some of whom attended the office, raised their objection and which were dealt with. After the issuance of preliminary notification the officers/agents of the respondent-department entered the land for taking measurement etc. Without which the exact area cannot be acquired followed by a notice under section 52 of the N.- W.F.P. Urban Planning Ordinance, 1978. The averments in the writ petition with regard to the vires of the Ordinance were also controverted by submitting that the Ordinance a validly promulgated law has the protection of the (Continuance in Force) Order, 1977 and Article 270(A) of the Constitution. It was averred in the comments that the Ordinance is not a discriminatory one and proper opportunities have been afforded under the Ordinance to the claimants/objectors to raise the objection with a right of appeal before the Commissioner.
4. The learned counsel for the petitioners' while advancing his case has argued that during the entire proceedings the petitioners were having no inkling of the acquisition of the land and they came to know about the acquisition at the time of demarcation of the property and all the proceedings have been taken in their absence and no opportunity of hearing has been afforded to them. About the vires of the provisions of the Ordinance he has contended that the provisions of the Ordinance are harsh, unfair, unjust and violate of the Constitutional provisions ensuring equality of all the citizens, equal protection of law and separation of Judiciary with a special reference to sections 49 to 68 of the Ordinance. While elaborating his point of view he has submitted that there was no need of the promulgation of the Ordinance for the acquisition of the land as the one i,e, the Land Acquisition Act, 1894 is already in field and the property could have been acquired under the provisions of the said Ordinance which deals elaborately every aspect of the matter giving an opportunity to the landowner to file objection and its (objection's) adjudication by the Civil Court and with a right of appeal to the High Court while in the instant Ordinance the provisions have been curtailed and a different criteria for the determination of the market value has been prescribed. Reliance was placed on Nagpur Improvement Trust and another v. Vithal Rao and others AIR 1973 SC 689, P. Vajravelu Mudaliar v. The Special Deputy Collector for Land Acquisition West, Madras and another AIR 1965 SC 1017, The State of West Bengal v. Anwar Ali Sarkar and another AIR 1952 SC 75 and Mst. Sardar Begum v. Lahore Improvement Trust, Lahore and others PLD 1972 Lah.
458.
5. The learned Assistant Advocate-General and the learned counsel for the respondents have reiterated the averments of their comments filed by them and have also canvassed that the Ordinance being validly promulgated law and has been enforced with a purpose for speedy acquisition of land needed for the development of the area covering all necessary aspects to avoid any injustice or unfair play to any affected without incurring the lengthy procedure of the Land Acquisition Act.
6. None of the judgments referred to on behalf of the petitioners are applicable to the facts of the present writ petition which are distinguishable from that of the aforesaid cases: In the former case the owners whose land was acquired under the Improvement Act were paid compensation not according to the market value of the land but the market value according to the use to which the land was put on the date. In other words if the property was being used for agriculture purpose even though it has potential value as a building site, the potential value was to be ignored and similarly the owners were also deprived of 15% compulsory acquisition charges as envisaged under the Land Acquisition Act. Similarly in the second cited case under the Land Acquisition (Madras Amendment) Act the owners were getting lesser value than the one if the property had been acquired for public purpose. In the third case the matter pertains to the trial of criminal case in different Courts. In the last judgment the question of competency of the writ petition, in case the objection was not filed in time, was involved.
7. It is the claim of the petitioners that their lands have been acquired by the respondents through the award, dated 4-7-1992 and the property which they have mentioned in the second para. Of the writ petition is Khasra No,4696 while in the award the property in Khasra No,4695 measuring 37 Kanalas, 13 Marlas has been acquired and not in Khasra No,4696 and thus the petitioners are left with no grievances. The award was announced on 4-7-1992 and the first Writ Petition (197/96), which was withdrawn with permission to file a fresh one, was filed on 5-8-1996 after the lapse of more than 4 years. However, the petitioners have pleaded ignorance about the acquisition proceedings, the announcement of the award but their this plea has not been substantiated and consequently in view of the stand taken by the respondents that the notices, as envisaged under the Ordinance, have been given to the landowners and some of whom have attended the office of the respondents and more so that after the issuance of preliminary notification the officers of the department entered the land for taking measurement without which the exact area could not have been acquired, this plea of ignorance does not stand to reasons.
8. After going through the relevant provisions of the Ordinance with regard to the acquisition of the land we found nothing unjust or unfair rather the care has been taken to attend to every aspect of the acquisition process starting from the notification, issuance of the notices, and right of appeal before the Commissioner, the procedure somewhat identical to that of the Land Acquisition Act, 1894 though not in detail as in the said Act but also not different in any aspect which can be complained of. Though the appeal is to be heard by the Commissioner who is not a judicial officer but still he is supposed to act in accordance with the provisions of the Ordinance and in case of non-adherence to the provisions of law the same is amenable to judicial review of this Court under its Constitutional jurisdiction.
9. As a sequel of our above discussion we see no force in the writ petition and the same is dismissed.