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 Marla for commercial land of the petitioners whereas Rs.1,54,482 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 authority re-assessed 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Board of Revenue did not, approve the same and finally Notification under section 4(1) of the Land Acquisition Act was withdrawn by the Deputy Commissioner/Collector Rahim Yar Khan vide order, dated 15-10-1998 under section 48 of the said Act.
During the process of the acquisition proceedings the possession of the land 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 petitioner submits that action of respondents Nos. l to 4 is without lawful authority as the subordinate revenue staff of respondents Nos. l 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:-- Government of Sindh v. Ramzan and others 2000 CLC 99, A.I Akbar v. The Land Acquisition Collector 1999 CLC 29 and Land Acquisition Collector v.
Sardar Muhammad Safdar Khan 1998 SCMR 2142.
He further submits that respondents Nos. l to 4 have taken action against the petitioner with malice, therefore, same is not sustainable in the eyes of law. In support of his contention he relied upon the following judgments:-- Ahbab Cooperative Housing Society v. Commissioner Lahore Division PLD 1978 Lah. 273 and National Police Foundation Co--Operative Housing Society Ltd. v. Board of Revenue, Government of Punjab, Lahore PLD 1984 Lahore 191.
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 Additional Advocate-General submits that action of the respondents is in accordance with law as the price of the land in question was determined/assessed by the subordinates of respondents Nos. l 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 the price determined by them was very excessive which is not in accordance with the market price of the land in question. The petitioners themselves delivered the possession of land in question to the Acquiring Department without the intervention of the revenue authorities and without awaiting for the final approval of the Board of Revenue regarding the compensation, therefore, respondents were competent to withdraw the Notification under section 48(2) of Land Acquisition Act, 1894. He further submits that petitioners approached this Court with unclean hands, therefore, writ petition is liable to be dismissed. He further submits that this Court has no jurisdiction to decide the disputed question of fact in Constitutional jurisdiction.
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 respondents 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 petitioner 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 appropriate to reproduce the operative paragraphs of the writ petition, parawise comments of respondents to resolve the present controversy between the parties: Writ PetitionParawise Comments Respondent No.2 (M.B.R.)Parawise comments Respondent No. 3 (D.C.)
(6) That after the receipt of report from Tehsildar the D.C. Rahim Yar Khan prepared a summary and forwarded the a case to the Commissioner, Bahawalpur Division vide letter, dated 19-2-1997,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 saleIt is correct. But since theamount Rs.86,08,857.50 was assessed compensation of the land w connivance of the Revenue Fie the copy of summary and letter is attached herewith as Annexures "F" and "G" respectively.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-S-IV, dated 29-4-1997 addressed to Commissioner, Bahawalpur for providing rationale for proposing such exorbitant rates.Staff, as the assessed amountw excessive then the prevalentmar value and average price of sa transactions of land pertaining the periodfrom 2-11-1995to 9-11-19 therefore, Board of Revenue did n approve it and made observation videLetter. No.469-9 477-SIV, dated29-4-19 addressedto Commissioner,Bahawalpurfor providingrationale for proposi such exorbitant rate.
(14)That on the receipt ofreport from Tehsildar thelearned D. C. was pleased,to reply to the objectionof Board of Revenuewhere the DeputyCommissioner specificallymentioned that he afterdouble check of the valueof the acquired land,submitted the report.
Copy of the said letter,dated 27-8-1997 isattached 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 assssed compensation .was excessive than the prevalent market value and average price of sale transaction of land taken place during the period of 12 months preceeding the date of notification under section 4(l) of Land Acquisition Act.
Later on the aforesaid notification was withdrawn by the order of the D.C., Rahim Yar Khan vide No. LAC/260-61, dated 22-7- 1998 under the direction of the Commissioner, Bahawalpur contained in Letter No.ACO/RVK/2-938.1649, dated 15-6-1998.It is correct to the extent that t then D.C. submitted report to t Commissioner, Bahawalpur Divisio But later on it revealed that t Revenue Field Staff assessed t compensation of the la measuring 42 Kanals, 81 Marlas to acquired for 86,08,857 considering the same commercial land because there w shown a Gatta Factory in th vicinity with the mutual connivan of the affectees and Revenue Fie Staff. But no such factory existed that locality. In fa assessedcompensation w excessive than the prevalent mar value and average price of sa transaction of land taken pla during the period of 12 mont preceding the date of notificati under section 4(1) of Land Acquisition Act. Later on t aforesaid notification w withdrawn by the order of the D Rahimyar Khan vide No.LAC/260/ dated 22-7--1998 under t direction of the Commission Bahawalpur contained in Letter N Acq/RYK/2-938.1649, dated 15-6-1998.
(15) That it would be pertinent to mention herethat the possessionof the land was handed over to respondent No.5by the Governmentof Pakistanthrough proceedingsin writing on 8-6- 1994, the ,copy of letter from LandAcquisitionCollector,NationalHighwayAuthority isattachedherewith asAnnexure"R". The copy ofpossessionletter dulysigned by the ProjectDirector of NationalHighway Authority andother officers is attachedas Annexure "S".It relates to RespondentNo.5 (National Highway Authority). However, the Petitionerhimself deliveredthe possession of land to theacquiringdepartmentwithout the intervention ofthe Revenue authorities andwithout waiting for thefinal approval of the BoardofRevenue regarding thecompensation. Transfer of possession of land was purelyvoluntarywithmutual understanding andconsent of petitioners withthe NationalHighwayAuthority.Therefore,NationalHighwayAuthority may make thepayment ofsuitablecompensation tothepetitioners through privatenegotiations.It relates to responde No.5(National Highway Authorit However, the petitioner hims delivered the possession of land the acquiring department witho the intervention of the Reven Authorities and without waiting the final approval of the Board Revenue regarding t compensation. Transfer possession of land was pur voluntary with mutu understanding and consent petitioners with the Nation Highway Authority. Therefo National Highway Authority m make the payment of suitab compensation to the petitione through private negotiations.
(27)Compensation to thepetitioners through private negotiations. That if the respondents will not be directed to make the payment of acquired land at the earliest possible the petitioners will suffer irreparable loss and will also be deprived from their fundamental rights.Itis incorrect. Thepetitioners are not entitledfor the payment of the priceof land under LandAcquisition Act, 1894because notification undersection 4(1) issued by theundersigned for theacquisition of land has beenwithdrawn. The petitionersdelivered the possession ofland to the acquiringdepartment on their ownwithout the intervention ofthe Revenue Authoritiesand without waiting for thefinal approval of the Boardof Revenue, regarding thepayment ofIt is incorrect. The petitioners are n entitled for the payment of the pr of land under Land Acquisition A 1894 because notification und section 4(1) issued by t undersigned for the acquisition land has been withdrawn. T petitioners delivered the possessi compensation.Transfer of possession ofland was purely voluntarywith mutual understandingand consent of petitionerwith the National HighwayAuthorities. Therefore, thepetitioners may receive thepayment of compensationfrom respondentNo. 5(NationalHighway)through negotiation.of land to the acquiring departme on their own without the interventi of the Revenue Authorities a without waiting for the final approv of the Board of Revenue regardi thepayment of compensatio Transfer of possession of land w purely voluntary withmutu understandingand consent petitioner with t NationalHighwayauthorities.
Therefore,the petitioners mayrece the paymentofcompensation fro respondentNo.5 (NationalHighway Authority)throughprivatenegotiatio In case the aforesaid paragraphs are put in a juxtaposition then it brings the case in the area of disputed questions of fact to the extent whether the possession of the land in question was given by the petitioners themselves to respondent No.5 or with the intervention of respondents Nos.3 and 4. It is settled proposition of law that this Court has no jurisdiction to decide the disputed question of fact in a Constitutional jurisdiction as per principle laid down by the Honourable Supreme Court in Muhammad Yunus's case 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 withdrawal rests with the Government whoever the requiring authority as is held by the Bombay High Court in Fortpress Company Ltd. v. Municipal Corporation of the City of Bombay 21 Born. L.R. 1014. It is settled principle of law that the 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 Cooperative Housing Society PLD 1994 Lahore 191 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. l to 4. This case in fact supported the case of the respondents Nos. 1 to 3. Case of Ahbab Cooperative 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. l to 3 to withdraw the notification under section 48 of Land Acquisition Act.
It is settled proposition of law that general allegations of malice are not sustainable in the eyes of law as per principle laid down by the Honourable Supreme Court in Saeed Ahmad Khan's case PLD 1974 SC 151 and in Amanullah Khan's case PLD 1990 SC 1092. Respondent No.2 did not approve the price of the land in question being excessive as the price was determined by the subordinates 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 am not inclined to exercise my discretion in favour of the petitioners as per principle laid down by the Honourable Supreme Court in the following judgments:-- Nawabzada Ronaq A.I's case PLD 1973 SC 236 and Rana Arshad's case 1998 SCMR 1462.
Even otherwise as mentioned above, the writ petition is not maintainable as the petitioner has alternative remedy for resolution of the disputed questions 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 petitioners submits that case of the petitioners was forwarded through the Commissioner by respondent No.3 to respondent No.2 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 fair--play. 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. l to 2 did not take any action against their own subordinates 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/officers under E & D Rules. <p.m></p.m>