CH. IJAZ AHMAD, J.--- The brief facts out of which the present writ petition arises are that the petitioners are owners of land in question measuring 42 kanals, 18 marlas situated in Chak No. 32- NP Tehsil Sadiqabad District Rahim Yar Khan. The District Collector Rahim Yar Khan acquired the land of' the petitioners under Section 4(1) of the Land Acquisition Act for construction of Additional Carriage Way by respondent No. 5. The Revenue Authorities determined the value of the property in question as Rs.25,000/- per maria for commercial land of the petitioners whereas Rs.154482 was fixed per acre of the agricultural land of the petitioners. The Deputy Commissioner sent the case of the petitioner for confirmation of the price through Commissioner to the Member, Board of Revenue who referred the case back to the Deputy Commissioner/Collector Rahim Yar Khan for verification that the price determined by the revenue staff is excessive. The subordinate staff of revenue of authority reassessed the value twice thereafter and confirmed and approved the earlier assessm ent but the Member Board of Revenue did not approve the same and finally 'Notification under Section 4(1) of the Land Acquisition Act was withdrawn by the Deputy Commissioner/Collector Rahim Yar Khan vide order dated 15.10.1998, u/S. 48 of the said Act. During the process of the acquisition proceedings the possession of the lend in question was taken by the respondent No. 5. The road was also constructed over the land in question.
2. The learned counsel of the petitioners submits that action of respondents Nos. 1 to 4 is without lawful authority as the subordinate revenue staff ,of respondents Nos.. 1 to 4 assessed and determined the price of the petitioners' land in accordance with the law laid down by the Superior Courts. In support of his contention he relied upon the following judgments:- 2000 CLC 99 (Government of Sindh Vs. Rehman and others).
1999 CLC 29 = KLR 199 (Lah) 179 (A.I Akbar Vs. The Land Acquisition Collector).
1998 SCMR 2142 (Land Acquisition Collector Vs. Sardar Muhammad Safdar Khan).
He further submits that respondents Nos. 1 to 4 have taken action against the petitioners with malice, therefore, same is not sustainable in the eyes of law. In support of his contention he relied upon the following judgments:- PLD 1978 Lahore 273 (Ahbab Co-operative Housing Society Vs. Commissioner Lahore Division).
PLD 1984 Lahore 191 (National Police Foundation Cooperative Housing Society Ltd. VS. Board of Revenue, Government of Punjab, Lahore).
3. The learned counsel of respondent No. 5 supported the case of the petitioner and further submits that action of the respondents is not in public interest as the road has already been constructed over the disputed property.
4. The learned Addl. A.G. Submits that action of the respondents is in accordance with law as the price of the land in question was determined/assessed by the subordinate of respondents Nos. 1 to 4 excessively with the connivance of the petitioners. The Member Board of Revenue was justified to refuse to accept the price determined by the subordinates of respondents Nos. 3 and 4 on the ground that he
5. The learned counsel of the petitioner in rebuttal submits that respondent No.. 5 has already deposited Rs. One crore to the respondent No. 4 and respondent withheld the same without any justification. This fact alone is sufficient that action of the respondents is without lawful authority.
He further submits that respondents have no authority whatsoever to withdraw the notification under Section 48 of the Land Acquisition Act as the possession of the land has already been taken from the petitioner. He further submits 'that respondent No 3 sent the case of petitioners-for approval of the price determined by the revenue staff to the Member, Board of Revenue, through Commissioner but he did not pass any order therefore, action of respondent No. 3 is without lawful authority.
6. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and better and appropriate to reproduce the operative paragraphs of the writ petition, parawise comments of respondents to resolve the present controversy between the parties: #TBS on --J #TBE
(6) That after the receipt of report from Tehsildar the D.C. Rahim Yar Khan prepared a summary and forwarded the case to the Commissioner Bahawalpur Division vide letter dated 19 2.97, the copy of summary and letter ' is attached herewith as Annexures-F and G. Respective!y. It is correct. But since the amount of Rs.86,08,857.50 was assessed as compensation of the land with connivance of the Revenue Field Staff, as the assessed amount was excessive than the prevalent market value and average price of sale transactions of land pertaining to the period from 2.11.95 to 19.11.96, therefore,, Board of Revenue did not approve it and made an observation vide letter No. 469- 97/477- S-IV, dated 29.4.97 addressed to Commissioner Bahawalpur for providing rational for proposing such exorbitant rates.
It is correct. But since the amount of Rs.8608857.50 was assessed as compensation of the land with connivance of the Revenue Field Staff, as the assessed amount was excessive then the prevalent market value and average price of sale transactions of land pertaining to the period from 2.11.1995 , to 19.11.1996, therefore, Board of Revenue did not approve it and made an observation vide letter No. 469-97-477-SIV, dated 29.4.1997 addressed to Commissioner Bahawalpur for providing rational for proposing such exorbitant rate. (14) That on the receipt of .Report from Tehsildar the learned D.C.
Was pleased to reply to the objection of Board of Revenue where - the Deputy Commissioner specifically mentioned that he after double check of the value of the acquired land, submitting the report. Copy of the said letter .Dated 27.8.97 is attached herewith as Annexure-Q.
It is correct to the extent that. The then Deputy Commissioner submitted report to the Commissioner, Bahawalpur Division, Bahawalpur. But later on it revealed that the Revenue Field Staff assessed the compensation of the land measuring 42 Kanals and 18 Marlas, to be acquired for Rs.86,08,857.05 considering the same as commercial land, because there was shown a Gatta Factory in that vicinity with the mutual connivance of the affectees and Revenue Field Staff. But no such factory existed in the locality . In fact the assessed compensation was excessive then the prevalent market value and average price of sale transaction of land taken place during the period of 12 months proceeding the date of Notification u/S. 4(1) of Land Acquisition Act. Later on the aforesaid notification was withdrawn by the order of the D.C. Rahim Yar Khan vide No. LCA/260-61", dated 22.7.1998 under the direction of the Commissioner.
Bahawalpur contained in letter No. ACO/RVK/2-938- 1649, dated 15.6.98.
It is correct to the extent that the then D.C. Submitted report to the Commissioner, Bahawalpur Division. But later on it resealed that the revenue Field Staff assessed the compensation of the land measuring 42 kanals, 81 marlas to be acquired for 8608857.05 considering the same as Commercial land, because there was shown a Gatta Factory in that vicinity with the mutual connivance of the affettees and Revenue Field Staff. But no such factory existed in that locality . In fact the assessed compensation was excessive then the prevalent market value and average price of sale transaction of land taken place during the period of 12 months preceding the date of Notification u/S. 4(1) of Land Acquisition Act. Later on the aforesaid notification was withdrawn by the order of the D.C. Rah.Imyarkhan vide No. LAC/260-61, dated 22.7.98 under the direction of the 5) That it would be pertinent to mention here that the possession of the land was handed over to respondent No. 5 by the Govt of Pakistan through proceedings in writing on 8.6.94, the copy of letter, from Land Acq. Collector National Highway Authority is attached herewith as Annexure R. The copy of possession letter duly signed by the It relates to respondent No. 5 (National Highway Authority). However the petitioner himself delivered the possession of land to the acquiring department without the intervention of the Revenue Authorities and without waiting for the final approval of the Board of Revenue regarding the compensation. Transfer of possession of land was purely voluntary with Commissioner, Needs no comments Bahawalpur contained in letter No. Acq/RYK/2-938. 1649, dated 15.6.98. #TBS Does not relate to respondent No 4 #TBE It relates to respondent No. ,5 (National Highway Authority). However, the ,petitioner himself delivered the possession of land to the acquiring department without the intervention of the Revenue Authorities and without waiting for the final approval of the Board of Revenue regarding the compensation. Transfer of possessions of land was purely voluntary with #TBS Project Director of mutual under Standing and mutual understanding and National Highway consent of petitioners with consent of petitioners with Authority and other the National Highway the National Highway officers is r attached as Authority. Therefore, Authority. Therefore, #TBE #TBS Annexure-S. #TBE #TBS private negotiations. #TBE National Highway Authority National Highway Authority may make the payment of suitable compensation to the petitioners through may make the payment of suitable compensation to the petitioners through private negotiation..
7) That if the respondents will not be directed to make the payment of acquired land at earliest possible the petitioners will suffer irreparable loss and will also be deprived from their fundamental rights.
It is incorrect. The petitioners are not entitled for the payment of the price of land under Land Acquisition Act, 1894 because Notification ,u/S. 4(1) issued by the undersigned for the acquisition of and has been- withdrawn. The petitioners delivered the possession of land to the acquiring deptt: on their own without the intervention of the Revenue Authorities and without waiting for the final approval of the Board of Revenue, regarding the payment of compensation. Transfer of possession of land was purely voluntary with mutual understanding and consent of petitioner with the National Highway Authorities. Therefore the petitioners may receive the payment of compensation from respondent No. '5 (National Highway negotiation).
It is incorrect. The Needs no comments petitioners are not entitled for the - payment of the price of land under Land Acquisition Act, 1894 because notification u/S. 4(1) issued by the undersigned for the acquisition of land has been withdrawn. The petitioners delivered the possession of land to the acquiring department on their own without the intervention of the Revenue regarding the payment of compensation. Transfer of possession of land Was purely voluntary with mutual understanding and consent of petitioner with the National Highway Authorities Therefore the petitioners may receive the payment of compensation from respondent No. 5 (National Highway Authority) through private negotiation.
1993 SCMR 618). Subsection (1) of Section 48 of Land Acquisition Act is reproduced hereunder for the purpose of just decision in the present case: "Completion of acquisition not - compulsory, but compensation to be awarded when not completed.
(1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken."
The plain reading of the aforesaid section shows that Section 48 is quite comprehensive and confers almost unlimited power on the Provincial Government to withdraw from the acquisition provided that power is exercised in cases to which Section 36 does not refer and possession of the land proposed to be acquired has not been taken. Section 48 makes no distinction between an acquisition made for-public purpose and an acquisition for a company. Meaning thereby the power of withdrawn rests with the Government whoever the requiring authority as is held by the Bombay High Court in Fortpress Company Ltd. Vs. Municipal Corporation of the'City of Bombay (21 Bombay L.R. 1014). It is settled principle of law that he authority to withdraw notification by the Government lapses when the possession has passed on to the Government. In the present case as mentioned above the respondents Nos. 2 and 3 have taken definite stand that the possession of the land in question was,not taken by respondent No. 5 with the intervention of respondents Nos. 3 to 4. This fact as mentioned above brings the case of either party in the area to record evidence which is not permissible in the eyes of law. The aforesaid case of National Police Foundation Co- operative Housing Society (PLD 1994 Lahore 101) relied by the learned counsel for the petitioner does not support the case of the petitioner as the petitioner failed to disclose specific allegations of mala fide against respondents Nos. 1 to 4. This case in fact supported the case of the respondents Nos. 1 to 3. Case of Ahbab Co-operative Housing Society (PLD 1978 Lahore 273) relied by the learned counsel for the petitioner does not support the cause of the petitioners as petitioners failed to bring on record any specific allegations of mala fide against the respondents Nos. 1 to 3 to withdraw the notification u/S. 48 of Land Acquisition Act. It is settled proposition of law that general allegations of malice is not sustainable in the eyes of law as per principle laid down by the Hon'ble Supreme Court in Saeed Ahmad Khan's case (PLD 1974 S.C. 151) and in Amanullah Khan's case (PLD 1990 S.C.
1092). Respondent No. 2 did not approve the price of the land in question being excessive as the price was determined by the subordinate of respondent No. 3 with the connivance of the petitioners. Therefore, petitioners do not approach this Court with clean hands. It is settled proposition of law that he who seeks equity must come with clean hands. In this view of the matter I am not inclined to exercise my discretion in favour of the petitioners as per principle laid down by the Hon'ble Supreme Court in. The following judgments: PLD 1973 S.C. 236 (Nawabzada Ronaq Ah's case). 1998 SCMR 1462 (Rana Arshad's case).
Even otherwise as mentioned above, the writ petition is not maintainable as the petitioner has alternative remedy for resolution of the disputed question's of fact by filing the civil suit before the competent Court. The other citations by the learned counsel for the petitioners are distinguished on law and' facts and have no relevancy qua this present case. Learned counsel for the petitioner submits that case of the petitioners was forwarded through the Commissioner by respondent No. 3 to respondent No. 2 on but he did not take any action on the recommendations of the respondent No. 3. In case the Member Board of Revenue has not passed any order on the recommendations of the respondent No. 3, in this view of the matter and fair play respondent No. 2 is directed to pass an appropriate order strictly in accordance with law within reasonable time with reasons-in the interest of justice and fairplay. It is pertinent to mention here that respondent No. '3 has taken action against the petitioners by withdrawing the notification through, impugned letter dated 18.9.1998 but the respondents Nos. 1 to 2 did not take any action against their own subordinate who excessed the price over and above the market, price of the land in question. In this view of the matter, the Member Board of Revenue is directed to constitute a high powered committee to find out who is responsible for determining the price of the land in question over and above the market price. In case the committee finds any person guilty then action be taken against the responsible officer/officer under E&D Rules.