After the decision of the Government to construct Wazirabad by-pass road measuring about five miles, necessary notification and notices were issued under sections 4, 17(4), 6 and 9 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act). During the first phase of this project land of different owners was permanently acquired. After completing the necessary formalities the Chief Land Acquisition Collector, Highway Department (hereinafter referred to as the Collector) announced the final award on 29-3-1974. There is no dispute so far this award and the permanent acquisition proceedings are concerned. The second phase started when the department decided to occupy and use further land temporarily for a period of one year to excavate the earth for the construction of the said road. Vide Office Memorandum No. LA/875/324, dated 10-1-1978, the Commissioner, Lahore Division, accorded the necessary sanction in this behalf under section 35 of the Act. The Collector accordingly issued notice under section 35 of the Act to various owners of the land to be temporarily occupied. After hearing the objections of the land owners and the department, the Collector announced the impugned award under section 35 of the Act, on 4-2- 1978. The dispute relates to a portion of land of joint Khewat No. 140 owned by the following three parties, each owning 1/3 share :-
(1) Sh. Inayat Ullah deceased 1/3 share.
(2) Manzoor Ahmad and Ms;. Khurshid Begum 1/3 share.
(3) Murad A.I son of Niaz A.I 1/3 share.
Sh. Inayat Ullah died and vide Mutation No. 1525 dated 7-11-1960, his 1/3 share in Khewat No. 140 was inherited by his following heirs :
(1) Mst. Ghulam Fatima (widow)= 1/8
(2) Snaullah Inamullah(sons) 6/ 11 of` 7/842/88 .
Muhammad YUSUf
(3) Mst. Iqbal Begum Mst. Razia Begum Mst. Nazir Begum(daughters) 5/11 of 7/8= 35/88 Mst. Jameela Begum Mst. Azra Begum Out of this Khewat No 140 land measuring 42 kanals 4 merlas was earlier permanently acquired while land measuring 120 kanals has been temporarily acquired under section 35 of the Act. As mentioned above, there is no dispute regarding permanent acquisition of the land including portion out of Khewat No. 140, but the present dispute is only regarding a portion of land out of said Khewat No. 140 for temporary occupation. Out of the heirs of Sh. Inayatullah (deceased) only two, namely, Mst. Ghulam Fatima (widow) and Mst. Jameela Begum (daughter) have started the present litigation regarding only temporary occupation of land out of the joint Khewat No. 140.
Since no other land owner has raised any objection regarding temporary occupation of land, there is no need of discussing the case of others. 1 will, therefore, confine myself to joint Khewat No. 140 which includes the share of Mst Gbulam Fatima and Mst. Jameela Begum petitioners.
2. It seems that even before receiving formal notice from the Collector, Mst. Ghulam Fatima on 10-1- 1978 first sent a telegram to the Land Acquisition Collector and then on the same day sent a registered application alongwith a copy of the said telegram requesting him to stop the proceedings under section 35 of the Act. This application was received by the Collector on the 14th January, 1978.
3. On 11-1-1978 the Collector issued a joint notice under section 35 of the Act to all 12 joint owners of Khewat No. 140, namely, Mst. Ghulam Fatima, Mst. Iqbal Begum, Mst. Razia Begum, Mst. Nazir Begum, Mst. Jameela Begum, Mst- Azra Begum, Sanaullah, Inamullah, Muhammad Yusuf, Manzoor Ahmad, Mst. Khursbid Begum and Murad A.I to appear before him on 28/29-1-1978 at Wazirabad Rest House in respect of their respective claims. One Hassan Muhammad, an employee of the office of the Chief Land Acquisition Collector, Highway Department, was deputed for the service of the said notice. He personally visited the house of the addressees and a copy of the notice was received by one Rashid Alain on behalf of the joint owners and he in token of receipt of it, also signed in English the office copy of the said notice. Accordingly said Hassan Muhammad returned the office copy of the said notice with the following report showing that the said notice was served at the residence of the land owners : (Sd.)
Chief L. A. C (Sd.) Masud Akhtar 29-1-1978 The above statement was recorded by the Collector, but underneath that statement and above his signatures, Sh. Masood Akhtar wrote the following in his own hand : (Sd.)Masud Akhtar 29-1-1978 On behalf of Mst. Khurshid Begum, another joint owner of the same Khewat, her husband Malik Abdur Rehman also appeared before the Collector on the same day and made a separate statement making different demands for compensation of his wife's share in that joint Khewat. On 1-2-1978, the Collector issued a joint notice to the various owners informing them that the award would be announced on 4-2-1978 at Wazirabad Rest House. This notice again was received by said $h. Masood Akhtar on behalf of the heirs of Sh. Inayatullah (deceased) and he put his signatures against their names in the following manner : Masud Akhtar On 2-2-1978 Mst. Ghulam Fatima, Inamullah, Muhammad Yusuf, Sanaullah, Mst. Nazir Begum, Mst.
Iqbal Begum and Mst. Jameela Begum submitted their following written objections duly signed by them : Registered (Sd.) Inamullah (1)
(Sd.) Sh. Muhammad Yousaf (2)
(Sd.) Sanaullah (3)
The Collector announced the impugned award on 4-2-1978. He again issued notice to the land owners to collect their respective compensation from him on 10-4-1978 at Wazirabad Rest House.
Mst. Ghulam Fatima petitioner, widow of Sh. Inayatutlab, has signed that notice but underneath her signatures wrote the word " INKARI ". Similarly against the names of Sanaullah, Inamullah and Muhammad Yusuf sons of Sh. Inayatullah only Sanaullah has put his signatures in Urdu and has written the word ` INKARI ". Against the names of Mst. Iqbal Begum, ATst. Razia Begum, Mst. Nazir Begum, Mst. Jarneela Begum and Mst. Azra Begum daughters of Sh. Inayatullah there are the signatures of only Mst. Jameela petitioner and thumb-impressions of Mst. Azra Begum and again the word ---INKARI--- has been written. It is an admitted fact that on 10-4-1978 nobody out of the heirs of Sh. Inayatullah deceased appeared before the Collector to receive the compensation.
4. On 1-3-1978 Mst. Ghulam Fatima petitioner submitted a reference under subsection (4) of section 35 of the Act to the Collector for, further transmission to the civil Court and inter alia praying that the estimate of the expecting crop and earth be enhanced. This reference has been signed by Sh.
Masood Akhtar as her attorney, and the same was received in the office of the Collector on 11-3- 19/8. Due to present litigation no further action has yet been taken on the said reference.
5. Out of the heirs of Sh. Inayatullah (deceased), his widow Mst. Gbulam Fatima petitioner, on 3-1- 1978 filed a civil suit for injunction in the Court of Mr. Sanaullah Khan, Civil Judge First Class, Gujranwala. Alongwith the main suit she also applied for interim injunction and the learned Civil Judge granted the same on 15-1-1978 which remained in force till 18-2-1978 when the same was vacated by the said Court. The main suit is still pending.
6. Mst. Ghulam Fatima petitioner filed the present writ petition before this Court which came up for preliminary hearing on 15-2-1978 when parawise comments were called for and meanwhile status quo was ordered to be maintained. Similarly, Mst. Jameela Begum, another heir of Sh Inayatullah (deceased) filed a separate Writ Petition No. 1445 of 1978, in which stay order was granted on 29-3- 1978, and it was ordered to be heard alongwith Writ Petition No. 782 of 1978 filed by Mst. Ghulam Fatima. Since both these writ petitions arise out of the same impugned award dated 4-2-1978 and relate to the same joint khewat No. 140, both will be disposed of together by a single judgment.
7. The main contention raised on behalf of Mst. Ghulam Fatima petitioner is that under subsection
(2) of section 35, as amended by the West Pakistan Ordinance XLIX of 1969, it was imperative on the part of the Collector to issue public notice of the substance of the direction to be given, its failure has vitiated all the subsequent proceedings. In other words, according to the learned counsel, public notice -under subsection (2) of section 35 was a mandatory requirement of law and its omission has rendered the subsequent proceedings including the award as illegal. Section 35 as amended by the Provincial Government reads as under :- S. 35.-(1) Subject to the provisions of Part VII of this Act, whenever it appears to the Commissioner that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a Company, the Commissioner may direct the Collector to procure the occupation and use of the same for such term as it shall think fit, not exceeding three years from the commencement of such occupation.
(2) The Collector shall cause public notice of the substance of the direction to be given at convenient places in the locality in which the land is situate, and thereupon it shall be lawful for any ofcer, either generally or specially authorised by the Collector in this behalf, and for the servants and workmen of such officer, to enter upon and survey and take levels of any land in such locality.
(3) On receipt of plans detailing the land acquired, the Collector shall give notice in writing to the persons interested in such land of the purpose for which the same is needed and shall, for the occupation and use thereof for such term as aforesaid, and for materials, if any to be taken therefrom, pay to them such compensation, either in a gross sum of money or by monthly or other periodical payments as shall be agreed upon in writing between him and such persons respectively.
(4) In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector shall refer such difference to the decision of the Court.
8. Section 35 deals with temporary occupation and use of waste or arable land for a short period not exceeding 3 years. This section, as originally framed, was divided into three subsections only and there was no provision for any public notice in it. However, in 1969 this section was amended by West Pakistan Ordinance XLIX of 1969. Subsection (2) has been substituted by new subsection while existing subsection (3) was renumbered as subsection (4) and new subsection (3) has been added. The amended section 35 has been reproduced above.
9. The Collector has admitted before me that acting, on the old practice based upon unamended section 35, no public notice has - been issued by him in this case. No doubt, the use of the word "shall" in subsection (2) of section 35 makes it obligatory on the Collector to issue public notice of the substance of the direction to be given and in normal circumstances he is required to comply with this provision of law but we have to see the effect of omission to issue such notice in each case. This subsection does not' confer any right upon the owners or persons interested in the land to be occupied, as on issuance of such notice the persons so interested are not required to do any particular act. Public notice is just a preliminary step to initiate proceedings under section 35 of the Act for temporary occupations and use of particular land. The first object of this subsection seems to be that the public in general including persons interested, may in advance know the substance of the direction of the Collector regarding the temporary occupation of the land. In other words, this is a sort of advance notice from the Collector regarding direction in this behalf. The second and the main object of the public notice apparently is that after issuance of this notice it shall be lawful for any officer either generally or specially authorised by the Collector in this behalf and for the servants and workmen of such officer to enter upon and survey and take levels of any land in such locality. In other words, after the issuance of public notice, no objection can be raised against the Collector and his staff including the servants and workmen for entering upon any land in such locality including land to be occupied. This notice thus is to legalise the entry of the Collector and his staff etc. Upon the land to be occupied or any land in that locality. It is after this entering upon such land that the staff of the Collector can take necessary measurements and steps to prepare the details of the land to be occupied. Once public notice is issued, no person including the land owners or occupier etc. Can raise any objection against such entry of the Government officials.
Another object of public notice seems to be that it provides information to all persons in general who may possibly be interested in the land to be so occupied but for any reason some of them may not subsequently get the individual notice under subsection (3) of section 35 or otherwise may not get opportunity to know about such proceedings. After the public notice the staff of the Collector enters upon the land and after necessary inquiry including the measurements etc, prepares a list of persons interested in such land. The inquiry of the Collector and his staff is generally based upon the revenue record made available to him and the spot inspection. It is possible that somebody may have acquired some right in a portion of such land but his name may not have been included or shown in the relevant revenue record or otherwise the Collector may not have the information or knowledge about that person being interested in such land and in such circumstances the Collector may not include the name of such person in the list of persons interested and consequently no notice would be issued to him under subsection (3) of section 35.
That person may not otherwise get any other opportunity or chance to know the proceedings. In such a situation public notice may provide such opportunity even to such person who otherwise may not be included in the list of persons interested to be prepared by the Collector.
10. As regards individual notice under subsection (3) of section 35 of the Act, the learned counsel for Mst. Ghulam Fatima petitioner has frankly admitted before me that she had received the said notice, and therefore, did not have any grievance in this behalf. However, the learned counsel for Mst. Jameela Begum petitioner has categorically denied the receipt of any such notice by her from the Collector. According to him in the absence of that notice all subsequent proceedings including the award are vitiated. Service of notice is a question of fact. We have to see whether any such notice was issued and received by her and if not what is its effect. As mentioned above, the department first started proceedings for permanent acquisition of land and then proceedings under section 35 for temporary occupation of land for one year only. The petitioners and others are joint owners of Khewat No. 140. A part of this Khewat was acquired earlier under permanent acquisition and a part has now been included in the present proceedings for temporary occupation and use. The Khewat being a joint one, joint notice was issued in the name of all the joint owners during permanent acquisition proceedings. As mentioned above, there was no objection against the said joint notice although it was not individually and separately served upon the petitioners and other joint owners. It can, therefore, reasonably be inferred that the joint owners of this Khewat including the present petitioners, namely, Mst. Ghulam Fatima and Mst. Jameela Begum had received that notice. During the present proceedings under section 35 a similar joint notice was issued on 11-1-1978 to the owners of Khewat No. 140 including the present petitioners.
Although the counsel for Mst. Jameela Begum petitioner is denying service of this notice yet documents on record belie her. As mentioned above, on 2-2-1978 the petitioner and others submitted their written objections before the Collector. It is clearly mentioned in this document that- It is not denied that notice referred to in this document, is the notice issued under subsection (3) of section 35 of the Act. This is a clear admission on the part of the signatories including the petitioners that they did receive the said notice. In the presence of such documentary and other circumstantial evidence, it can safely be held that the present petitioners and other signatories of that document had received the notice in question. The petitioners have offered no explanation whatever regarding this document. Even otherwise let us see the effect of the alleged non-service of the said notice.
This notice was received by one Rashid Alam. The counsel for Mst. Jameela Begum denies any relationship with said Rashid Alam, and therefore, does not accept service of that notice on her behalf. On the other hand, the counsel for the department contends that the said Rashid Alam is a member of the family of the husband of Mst. Jameela Begum. This joint notice was addressed to all 12 owners of this Khewat. Mst. Ghulam Fatima petitioner, one of the joint owners, admits service of this notice. Apart from other heirs of Sh. Inayatullah deceased, other joint owners of this Khewat, namely, Manzoor Ahmad, Mst. Khurshid Begum and Murad A.I have made no grievance of this notice. The position boils down to this that service of this joint notice received by Rashd Alam has been accepted by some of them like Mst. Ghulam Fatima petitioner and denied . By others like Mst.
Jameela Begum. In a situation like this, we have to see the effect of such joint notice accepted by some and denied by others. It is well settled principle that in the case of joint owners of ,a Khewat, service of notice upon one or some of them is prima facie evidence that the notice has reached even the other joint owners not personally and individually served. In other words, a notice addressed to all the joint owners of a Khewat but served upon one or some of them, should be regarded as good service as against other joint owners not personally served. Thus in the instant case even those individual joint owners like Afst. Jameela Begum petitioner, who allege that they are not personally served can be presumed to have been served.
11. Even if it be presumed that Mst. Jameela Begum petitioner was not personally served, then we have to see the effect of it. In certain cases either the Collector may have omitted to issue such notice or the process serving agency may not have effected the service of that notice. The omission on the part of the Collector or the process-server may be due to mere inadvertence, negligence or a mistake. Such omission can also be due to fraud, perversity or wilful negligence on 'the part of the Collector or the process-server with certain ulterior motive resulting in actual prejudice to a particular person or party. Keeping in view the main object and spirit of the Act and the general principle, I am of the opinion that mere inadvertence or mistake simpliciter on the part of the Collector to issue such notice or on the part of the process-serving agency to serve such notice, is not sufficient to vitiate the subsequent proceedings or the award. If, however, the Collector has failed to issue such notice and the process-server has not served such notice fraudulently, wilfully and perversely with mala fide intention resulting in actual prejudice then , the subsequent proceedings to the extent of the aggrieved party cannot be considered bona fide but colourable one. In other words, a party raising such objection has to prove two things, firstly, that there was an omission to issue or serve such notice and, secondly, such omission or non-service was wilful, perverse and fraudulent with mala fide design. In the instant case neither there .Is any material available on the record nor there is even any allegation or assertion by the petitioners that the Collector failed to issue said notice or the process-server omitted to serve the same under subsection (3) of section 35 of the Act upon the petitioners, fraudulently, perversely or with mala fide intention. In the absence of such material or allegation, mere failure to issue the said notice or non-service of it, is not sufficient to vitiate the subsequent proceedings.
12. Another question which directly arises in this connection is whether the petitioners had any knowledge or information regarding the present proceedings for temporary occupation and use of land and whether any prejudice has been caused to them or not. It is not denied by the learned counsel for the petitioners that they had the knowledge about the permanent acquisition proceedings of the land as part of joint Khewat No. 140 had already been acquired permanently under that award. The petitioners can be presumed to know that the Government would require further land for excavating earth to construct the required road otherwise this project could not be completed. The said road passes through the same joint Khewat No. 140 of the petitioners. As mentioned earlier, even before receiving the said notice Mst. Ghulam Fatima petitioner on 10-1-1978 first sent telegram to the Collector and then a registered application alongwith a copy of the said telegram requesting him to stop proceedings for temporary occupation and use of the land. In compliance with joint notice dated 11-1-1978, one Sh. Masood Akhtar appeared before the Collector on 29-1-1978 on behalf of his brothers Sanaullah, Inamullah, Muhammad Yusuf, his mother Mst.
Ghulam Fatima, his sisters Mst. Iqbal Begum, Mst. Nazir Begum and Mst. Jameela Begum and made a statement referred to above making certain demands on behalf of the petitioners and other heirs of Sh. Inayatullah. Malik Abdur Rehman, the husband of Mst. Khurshid Regum, another joint owner of the same Khewat No. 140 also appeared and made a statement before the Collector.
Again on 1-2-1978 when the Collector issued notice informing the owners that the award. Would be announced on 4-2-1978, the notice on behalf of Mst. Ghulam Fatima widow, Sanaullah, Inamullah.
Muhammad Yusuf sons, Mst. Tqbal Begum, Mst. Razia Begum, Mst. Nazir Begum, Mst. Jameela Begum. And Mst. Azra Begum daughters of Sh. Inayatullah deceased was received by the same Sh.
Masood Akhtar and signed the office copy of the notice against the names of heirs of Sh.
Inayatullah deceased. On 2-2-1978 Mst. Ghulam Fatima petitioner, Inamullah, Muhammad Yusuf, Sanaullah, Mst. Nazir Begum, Mst. Iqbal Begum and Mst. Jameela Begum submitted to the Collector their written objections. This application has already been reproduced above. After the announcement of award on 4-2-1978, the Collector again issued notice to the various owners including the petitioners to collect their respective compensation from him on 10-4-1978. As shown above, this notice has also been received by the present petitioners and others. Further, it is not denied that on 1-3-1978 Mst. Ghulam Fatima petitioner submitted a petition under subsection (4) of section 35 of the Act to the Collector to make a reference to the civil Court. She then filed a civil suit on 3-1-1978.
From a perusal of the above-mentioned facts and circumstances, it is crystal clear that Mst.
Ghulam Fatima and Mst. Jameela Begum petitioners had knowledge and information regarding proceedings for temporary occupation and use of their land in Khewat No. 140, and they took all necessary steps to safeguard their interest. If they had not received the notice or did not have the knowledge of these proceedings, they could not raise such objections and approach the executive authorities up to the highest level. This even if earlier the petitioners had not received the required notice under subsection (3) of section 35, their subsequent knowledge and conduct would cure the defect, if any, in such service as the object of notice has already been achieved by the petitioners.
In such circumstances, the alleged non service of notice under subsection (3) of section 35 of the Act would not render the subsequent proceedings and the award as illegal.
13. The learned counsel for the petitioners admits that Sh. Masood Akhtar has been appearing before the Collector and making certain statements on behalf of the petitioners and other heirs of Sh. Inayatullah deceased but it is contended that he had no legal authority to do so as there is no proper written power of attorney available on the record appointing said Sh. Masood Akhtar as attorney of the present petitioners or other heirs of Sh. Inayatullah deceased. Even before me it is this gentleman who has been prosecuting this case. It is not denied that he is the son of Mst.
Ghulam Fatima petitioner and brother of Mst. Jameela Begum petitioner. Further it is not alleged that he has any adverse interest against the petitioners. Even otherwise it is clear that he has been safeguarding the interest of the petitioners to the maximum. Earlier during the permanent acquisition proceedings it was this gentleman who has been representing the petitioners and others before the Collector and those proceedings and the award have not been challenged by any one. In such circumstances no importance can be attached to such technical objections. - Moreover, it is not Sh. Masood Akhtar alone but even the present petitioners Mst. Ghulam Fatima and Mst. Jameela Begum. Who have signed certain documents as shown above. It is not denied that if the objections and demands made by Sh. Masood Akhtar on behalf of the petitioners had been accepted by the Collector, the petitioners and other heirs of Sh. Inayatullah deceased could have no grievance in this behalf. In such a situation the above contention raised on behalf of the petitioners has no force.
14. It is further contended by the counsel for the petitioners that the land in question does not fall within the description of land which can be subject-matter of proceedings under section 35 of the Act i. e. It is not "arable land". He, however, has failed to substantiate this contention by pointing out any material on .The record. On the contrary, the grievance of the petitioners is that, at present, their land is very fertile where all sorts of crops are being sown but after removing earth up to 3 feet the land will loose its fertility. 1 he departmental file also shows that the entire land of the petitioners is cultivatable and at the relevant time wheat and barseem crops were standing on it. The expression "arable land" used in section 35 has not been defined in the Act but its ordinary meaning is land which is usually used for cultivation, ploughing and is fit for tillage. Since in the past the petitioners had been using the land in question for cultivation and admittedly, at present, crops were standing on it, the same is clearly covered by the expression "arable land".
15. It is well settled principle that writ jurisdiction should not be invoked where an alternate adequate remedy is available to a party. In the instant case, it is not only that such alternate remedy is available but, in fact, Mst. Ghulam Fatima petitioner has already availed that remedy by filing a civil suit which, at present, is pending before the Civil Judge Gujranwala, and the reference made by this petitioner under subsection (4) of section 35 of the Act will also be decided by the civil Court. Moreover, before the civil Court both the parties will have full opportunity to produce their evidence in support of their respective claims but .The same cannot be done under writ jurisdiction. On this ground alone Mst. Ghulam Fatima has disentitled herself to any relief from this Court in exercise of its extraordinary original constitutional jurisdiction under Article 199 of the Constitution.
16. I cannot lose sight of certain admitted facts and features of this case. The construction of Wazirabad by-pass road is undoubtedly a public purpose of national importance. Further, it is not denied that the Highway Department has already completed the construction of overhead bridge on railway track, other ordinary bridges and culverts on the proposed Wazirabad by-pass road by spending huge amount of money. A major portion of this road has also been completed and only a small portion over the land of the petitioners and others remains. The department is anxious to complete this project before the coming rainy season otherwise it will cause irreparable financial loss to the department apart from inconvenience to the general public. It is alleged by the Representative of the Department that the petitioners are deliberately creating hurdles in the completion of this by-pass road with some ulterior motive to have better terms of bargain with the department.
17. After hearing the learned counsel for the parties at considerable length and going through the relevant material available on the record, I find no substance in these writ petitions and dismiss the same with costs.