' These are five writ petitions having common features and involving akin questions of law and facts and are, therefore, being disposed of together by the present order.
2. The matter relates to an area of land measuring 447 Acres, 23 Kanals, and 10 Marlas, located in Mauza Sher Shah, Tehsil Sadar Multan. This was acquired at the public expense for public purposes.
A notification under section 4 of the Land Acquisition Act (1 of 1894) vide No,80-LAC/ G.A. (R) dated 3-5-1994, was issued and was published as in the Government Gazette on 8-6-1994. The notification is attached as Annexure ' A' with the writ petitions.
3. Fourteen petitioners were owners of different areas of land against the total land acquired. The thirteen petitioners and the ten legal heirs of Muhammad Shafi petitioner were owners of different areas of land in these acquisition proceedings.
4. It is their grievance that the Land Acquisition Collector in violation of the legal procedure initiated acquisition proceedings and on 19-1-1998 announced an award under Section 11 of the Land Acquisition Act while assessing the land at Rs, 45,256 per acre. Copy of the award is Annexure 'C'.
That the proceedings were mala fide and these had taken place in absence of the petitioners, were illegal, without jurisdiction and without notice to the petitioners, and therefore, non-operative. They asked for setting aside of the proceedings as well as the award in question being of no legal consequence.
5. Incidently, the writ petitions also make mention of a previous notification under section 4 of the Land Acquisition Act which was published in 1991 for the same scheme. But later the notification was de-notified. It was the case of the petitioners that they had suffered in view of that notification for several years. As a clog had been created against their proprietary rights in view of the notification.
6. A perusal of the copy of the award dated 19-1-1998 reflects that the property was to the acquired for Army Authorities for training purposes. A notification under section 4 was published on 8-4- 1994. While notification under section 17(4) and 6 of the Land Acquisition Act was published on 27- 9-1974. The price of the land was assessed by the Collector and was approved by the Board of Revenue, Punjab. It was further said that the landowners were summoned under section 9 of the Land Acquisition Act, 1894, for the purposes of recording their objections regarding measurement, demarcation and price of the land under the acquisition proceedings. That in response to the notices, most of the owners filed their objections against assessment of compensation and proceedings. The following excerpt with respect to the assessment of the price by the Collector from the award itself is being re-produced below in extenso:-- "As the price of the land has been approved by the Board of Revenue under Punjab Land Acquisition Rules, the undersigned is not agreed to enhance it. The compensation was assessed considering all factors.
' AREA TO BE ACQUIRED.
' DISTRICT TEHSIL VILLAGE AREA.
' Multan Sardar, Sher Shah A K M Multan 447-5-6 (According to Annexures ' A and B'
' Notification under section 17 (4) and corrigendum) COMPENSATION.
' In acquisition cases, the average sale price of that particular land or nearby to it or of the village, preceding one year to publication of notification under section 4 of the Land Acquisition Act, 1894, is taken into the consideration. In this case, therefore, the estimated cost of the land appears to have been worked out mathematically. The land under acquisition is agricultural in character, and in view of the location, classification of the land, it was recommended that the landowners may be granted compensation at the rate of Rs, 45,256 per acre, which has been approved by the Board of Revenue, Punjab, Lahore. The compensation assessed at the abovementioned rate plus 15% of the compulsory land acquisition charges had been deposited by the Acquiring Department. The price of trees, fruits, trees and structure is fair one, and need not to be enhanced."
7. Whereas it is the case of the petitioners that they were not served with a notice under section 9 of the Land Acquisition Act and was, therefore, not allowed participation in the proceedings before the Collector and this was violation of section 9 of the Land Acquisition Act.
8 It was further stated that as the matter was urgent in nature, Government invoked the provisions of section 17 and took over possession.
9. Section 9 of the Land Acquisition Act reads as follows:- '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 the Government intends to take possession of the land, and that claims to compensation for all interests is 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 time not being earlier then 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 claims to compensation for such interests, and their objections (if any) to the measurements made under section 8."
"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 time 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 claims to compensation for such interests, and their objections (if any) to the measurements made under section 8. The notice shall furthermore contain a direction to the effect that any person interested may, if he so chooses, while preferring his claim to compensation for his interest in the land, intimate to the Collector in writing his option that compensation be paid to him.
' The Collector may in any case require such statement to be made in writing and signed by the party or his agent:--
(a) on the basis of the average price derived from the sale transactions in respect of which mutations have been attested during the five years immediately preceding the 30th June, 1939, and which relate to the same class of land in the same revenue estate in which the land to be acquired is situated; or
(b) if no mutations of sale transactions of land in that revenue estate were attested during the five years preceding the 30th June, 1939, then on the basis of the average price derived from the sale transactions relating to the same class of land about which mutations have been attracted during the staid period, in all the contiguous revenue estates in the same assessment circle.'
"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, as reside or have agents authorised to receive service on their behalf, within the revenue-district in which the land is situate.
' 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 Officer Act, 1866."
10. It was also the case of the petitioners that they were no more residents of the Mauza and as such a notice had to be sent to them as required under section 9 (4) (ibid) through a letter at their last known address. The Commissioner, Multan Division, Multan, while submitting his parawise comments in the Writ Petition No,8679 of 1999 regarding the case of Mst. Sajida Saghir v. The Province of Punjab, with respect to the objections that a procedure in accordance with law was not adopted by the Collector, replied that it was for the Collector to make a reply to such allegations.
11. The Land Acquisition Collector and the Deputy Commissioner, Multan, also submitted their parwarise reply. Regarding the service of notice, it was said that the majority of the affected persons had been informed through notices under section 9 of the Land Acquisition Act. In the writ petition under reference, an answer to the contention of the petitioners that she was not informed, the learned Deputy Commissioner, Multan, and the Land Acquisition Collector, Multan, made the following reply to Ground 6-A of the Petition: - "It is not admitted. The majority of the interested persons were informed through notices under subsection (i) during 1 of 1997 but the petitioner could not be informed as she was not residing in the village. According to the Register Haqdaran Zamin 1994-95, the petition is one of the co-sharers in the joint Khewat. The land according to the share has been acquired. If one or more persons out of joint Khewat are informed of the acquisition proceedings, then it will be presumed that the petitioner was also stand informed."
12. For rest of the objections, such-like parawise comments have not been filed but obviously this appears to be the general reply of the Land Acquisition Collector with respect to the objection about not following the procedure and on the aspect of notice.
13. Even at the time of arguments, the position taken was that as service has been effected on some of the co-sharers, this is to be taken as service on the rest of the petitioner they being co- sharer.
14. The department as a matter of fact had admitted that petitioner Mst. Sajida Saghir was not the resident of the village. The question, therefore, is as to why the provisions of section 9 (4) of the Land Acquisition Act were not followed despite this awareness. The answer to this has come and which states that since other co-sharers were informed, there was no need of informing the rest of them i,e, present petitioners. But this is not the policy of law.
15. Section 9 of the Land Acquisition Act prescribes a procedure for notice of the general nature to all the interested persons who may be living near the land. It has also provided a procedure for notice to interested persons who were living elsewhere and had no such agent available near the land.
16. Reference has also been made to section 45 of the Land Acquisition Act, 1894, which describes a method with respect to service of notice and which reads as follows:-- "Services 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 or 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 be 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 a letter addressed to the persons named therein at his last known residence, address of place of business and registered under Part III of the Indian Post Office Act, 1866, and service of it may be proved by the production of the addresse's receipt."
17. A relevant portion from the case of Sardar Begum v. The Lahore Improvement Trust, Lahore and 3 others, PLD 1972 Lahore 458, is reproduced below in extenso:-- "Maulvi Ehsanul Haq, learned counsel for the Collector and the Provincial Government and Mr. Mahmood Zaman appearing on behalf of the Trust and Institute have contended that the Collector had announced his award under section 11 of the Land Acquisition Act on the 30th of January, 1965 and it was final and conclusive under section 12 of the Act. They further contended that in pursuance of the award the possession of the property was taken under section 16 and it vested absolutely in the Trust free from all encumbrances and that in view of the matter the writ petition by the petitioner was not competent. The position taken up on behalf of the respondents would be formidable, if it is found that the Collector in giving the award had complied with all the requirements of law. If, however, it is found that he had failed to observe the mandatory provisions of law which it was essential for him to comply with the award would be invalid and it would lose its legal existence. It is now well-established that where the Legislature clothes an order with finality, it always assumes that the order which is declared to be final is valid and not void."
'Maulvi Ehsanul Haq relied on Gana Ram Marwari v. Secretary of State for India (ILR 1930 Cal. 576) where it was held 'Land acquired under the provisions of Act X of 1870 vests absolutely in the Government free from all encumbrances, after a bona fide award by the Collector has been made and possession taken, even when no specifial notice, as required by section 9 of the Act, has been served on persons known of believed to be interested therein'. This decision was followed in Kasturi Pillai v. Municipal Council Erode (ILR 43 Mad. 280) and Rahimbux Haji Karimbux v. Secretary of State (AIR 1938 Sind 6).
' We have not been able to persuade ourselves to agree to the view taken in these judgments that failure to serve notice under section 9 did not render the subsequent proceedings invalid. If the law requires that a particular thing should be done in a particular manner, the provisions must be duly complied with and failure to do so may render the proceedings invalid. In Nazir Ahmad v. King- Emperor (AIR 1936 PC 253) it was observed: 'Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applied is that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all'. In Ezra v. The Secretary of State (ILR 30 Cal. 36) on which the two other judgments are based, provisions of the Land Acquisition Act had not been discussed to consider the implications of notice under section 9. It is the notice under this section which gives the information to an owner or occupier or any other person interested in the land that the Collector is to hear the objections on a particular date as to the measurements and also in respect of the amount of compensation. If notice is not served on him and the Collector gives an award it is bound to adversely affect his interest inasmuch as he has been denied an opportunity which had been proved to him under the law to agitate for his rights. In Mansab Ali v. Amir (PLD 1971 SC 124) the Commissioner in the exercise of his power under section 3 of Criminal Law (Amendment) Act, 1963, referred the question of guilt or innocence of the accused to a Tribunal. The order was declared as without lawful authority and of no legal effect on the ground that the accused was not heard before the reference was made and it was observed by their Lordships of the Supreme Court. 'It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from illegality and are without jurisdiction'. It was also held in Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore (PLD 1971 SC 61) 'As a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language'. In Jan Meah v. Deputy Secretary to Government of East Pakistan (PLD 1965 Dacca 36) the precise question arising in this case was considered and Sattar, J. (as he then was, and subsequently Judge of the Supreme Court) observe. 'No Award can be made under section 11 unless provisions of sections 7 to 11 complied with'. In Collector, Quetta Pishin v. Habibullah (PLD 1970 Quetta 35) it was held that an award made under section 11 of the Land Acquisition Act furnishes a final and conclusive evidence of the areas and the value of the land only if the provisions of section 9 have been duly complied with, and that it was further observed: 'Section 12 (1) of the Land Acquisition Act presupposes that the interested person was regularly served with a notice required under section 9 of the Act and one cannot interpret this section to mean that the Collector can take advantage of his own wrong by putting a really interested party out of Court for his own failure to serve the requisite notice on him.
' Notice under section 9 of the Land Acquisition Act was not given to Mst. Sardar Begum petitioner at all and, therefore, the Award given on 30th of January, 1965, is without lawful authority and of no legal effect.
' However, even if possession had been taken by the Trust, the property would not have vested into the Trust for the reason that the . Award in pursuance of which the possession is alleged to have been taken was not valid and had no existence in the eye of law. It was held in Yousaf Ali v.
Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104), 'If on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded.'
' The petition is accepted with costs and the entire proceedings from the stage the notice under section 9 is alleged to have been issued are declared as without lawful authority and of no legal effect. There will be no bar for the respondent to take fresh proceedings for acquisition from the stage of a notice under section 9 of the Land Acquisition Act."
18. In the case of Nitai Dutt v. Secretary of State, 1924 Patna 608, which was also a case under the Land Acquisition Act, it was held that acceptance of notice under section 9 by one of the many brothers, did not imply authority to accept. It was further observed that:- "Under section 9 of the Act it is provided in terms that in addition to a general notice the Collector shall also serve notice on the occupier, if any, and on all such persons known or believed to be interested therein or to be entitled to act for persons so interested. By section 3 of the Act, clause (b), the expression 'person interested' includes all persons claiming an interest in compensation to be made on account of the acquisition of the land under the Act. It was, therefore, incumbent upon the Collector to serve a notice upon each of the persons interested as defined in that section and it was not sufficient for him to serve a notice merely upon one of three brothers each of whom was equally interested under the Act."
19. In the case of Deputy Commissioner v. Abdul Karim Moosa and others, 1982 CLC 1562, the following observations were given:-- "Mr. Fani the learned counsel for the defendants has, contended that as there was a general notice issued and the plaintiffs had the knowledge of the acquisition of the property it was not necessary that a specific notice should have been served upon them and, therefore, the claimants are not entitled to claim enhancement of the compensation amount. As observed earlier the provision of section 9(3) is mandatory and casts duty upon the Collector to serve a notice on the claimants or owners or persons interested in the compensation. In acquisition proceedings where the rights of the persons are adversely affected it is the duty of the acquiring authority to comply with all the mandatory provisions. If service of notice under section 9 has been effected and no objection is filed then claimant is debarred from claiming higher amount of compensation than fixed by the award. The owner or claimant is, thus, deprived of a valuable right vested in him as except Reference he has no other remedy for challenging the compensation awarded by the Collector.
The non-service of notice under section 9(3) cannot be substituted by a general notice or the knowledge acquired by the owners from any different source."
20. As a matter of fact, when we speak of a notice, it means a proper notice with proper endorsement and having copies available on record. The Acquisitioning Authority cannot do away with these mandatory provisions and by simply stating that there being a general notice to some of the interested persons, the presumption would be notice to all. The valuable and vested rights of citizens are too scared to be taken away through circumvention of a prescribed procedure in this connection.
21. Questions were put to the representative of the Land Acquisition Collector, present in the Court, and who was assisting the learned Assistant Advocate-General on Court's call on the aspect of notice and who was unable to answer convincingly on this fact.
22. One of the objections raised by the learned Assistant Advocate-General was that as there were many affected persons who have accepted the award and have taken away the price, the case of the petitioners would upset the whole proceedings.
23. In case the whole proceedings were to get upset because of the violation of the mandatory provisions of law with respect to the petitioners by the concerned authorities, it was for the authorities to have taken notice of this at the relevant time. This is no argument against a patent illegality committed in respect of the petitioners. The other affectees may have felt satisfied, but nothing can be said about them here in their absence when they are not the parties.
24. While going through the award, this Court has further discovered that the Collector in this case was supposed to be independent in arriving at a conclusion with respect to the assessment of the price. But he perfunctorily accepted the price which was determined by the Board of Revenue and had proudly mentioned this fact while absolving himself of his own responsibility and function.
25. Under the Land Acquisition .Act the Collector is a persona designate for making an award. He is to make the award and no one else. As he does not act as a judicial officer in making it he is at liberty for the purpose of forming a true estimate of what in his opinion was the correct and just compensation to be awarded while taking into account all the available information requiring price already at his disposal. Although there can be no objection to the authorities to whom the preliminary estimate has been reported of laying before the Collector any further information in their possession regarding the proper value of the property, it is improper and ultra vires to issue instructions to the Collector as to the matters he should take into account in assessing the compensation or that he should re-examine the case in the light of the instructions received. The award has to be of such a sum as in the opinion of the Collector and no other person, would be fair and proper compensation that should be allowed for the land. Where, therefore, the award made by the Collector is based on "instructions", it cannot be sustained.
26. The upshot of the above discussion is that this writ petition succeeds and the award in question, as far as the petitioners are concerned, is of no consequence. The proceedings too before the notice under section 9 of the Land Acquisition Act are declared of no legal effect. The Land Acquisition Collector has now to proceed afresh and the proceedings shall be deemed to be pending before him before the stage of notice under section 9 of the Land Acquisition Act. The writ petitions are, therefore, accepted. The petitioners are directed to appear before the Land Acquisition Collector on 10th of December, 1999.