' NAZIM HUSSAIN SIDDIQUI, J.---This judgment will dispose of Civil Appeals Nos. 545 and 546 of 1998, as common questions of fact and law are involved in these matters.
2. Vide order dated 10-2-1998, leave to appeal was granted in 3 petitions C.P.S.L.A. No, 559-L of 1997 (C.A. No, 544 of 1998), C.P.S.L.A. No, 614-L of 1997 (C.A. No, 545 of 1998) and C.P.S.L.A. No,658-L of 1997 (C.A. No, 546 of 1998) to consider the following:--
(1) Whether. Rules 7 and 8 of the Land Acquisition Rules, 1983 ultra vires to section 55 of the Land Acquisition Act, 1894.
(2) If Rules 7 and 8 of the Land Acquisition Rules, 1983 are inconsistent with the provisions contained in section 55 of the Land Acquisition Act, 1894, then what is the legal effect of inconsistency.
3. The Civil Appeal No, 544 of 1998 was dismissed, as withdrawn, as per order dated 26-1-2001.
4. The facts, in brief, of Appeal No, 545 of 1998 are that on 30-9-1978 the appellants, Messrs Mehraj Flour Mills through their partner namely Mian Muhammad Shabbir purchased 18 Kanals, 10 Marlas of land situated at Mouza Aamer Sindhu, Tehsil and District, Lahore for installation of a Flour Mill, which, as claimed by them, was established. It is alleged that entire said land was purchased for industrial purpose. On 13-12-1998, Punjab Government issued a Notification in the Gazette under section 4 of the Land Acquisition Act, 1894, hereinafter referred to "the Act", in relation to 5 Kanals out of said land, which was published in Punjab Gazette on 22-12-1998. By means of said Notification, it was conveyed that disputed land was required for construction of a residential colony by a Cooperative Society known as Lahore Cantonment Cooperative Housing Society Ltd.
(LCCHS). It is alleged that on 22-12-1989, a year had elapsed without any Notification under section 5 of the Act, pursuant to the earlier Notification issued under section 4 (ibid). The Commissioner, Lahore also did not make any reference to the Board of Revenue for extension in time nor it was extended by said Board.
5. On 7-2-1990, a Notification under section 5 was published in relation to the disputed land, inviting objections, if any. It is claimed that publication was delayed by more than two months from the time permitted by rules. Further, it is said that the amount required to be deposited by the beneficiary Cooperative Society was also not deposited within the prescribed period of one year.
Instead, it was deposited on 21-12-1989. On 4-8-1990, a Notification under section 6 of the Act was issued by virtue of which the disputed land was detached from the industrial concern of the appellants and was acquired for residential scheme. On 4-12-1991 a Writ Petition No,12231 of 1991 was filed in the Lahore High Court, which was decided by a Full Bench, vide impugned judgment dated 2-2-1997.
6. It appears that Writ Petition No, 2694 of 1990 was disposed of by the High Court on aforesaid date alongwith 38 other petitions. The Writ Petitions Nos. 12231 of 1991 and 7045 of 1990 were also disposed of in terms of Petition No, 2694 of 1990 by two separate orders, both dated 2-2-1997.
7. The land in dispute in Civil Appeal No, 546 of 1998, is one Kanal, 17 Marlas, comprising Khasra No,296, situated at Mbuza Charar Tehsil Cantt. District Lahore. It is alleged that the appellant of this appeal was in possession of 3 Kanals and 10 Marlas, but owned only 1 Kanal and 17 Marlas and the rest belonged to Federal Government. Above land was also acquired through Notification referred to earlier.
8. Section 5 of the Act and Rules 7 and 8 of the Punjab Land Acquisition Rules, 1983 read as under:- ' S.5. Notification that particular land is needed for a public purpose for a company. Where land is to be acquired for a public purpose, if the Commissioner, and where land is to be acquired, for a Company, the Provincial Government, is satisfied, after considering the result of the survey,. If any, made under subsection (2) of section 4, or if no survey is necessary, at any time, that any particular land included in a locality notified under subsection (1) of section 4 is needed for a public purpose or a Company, as the case may be, a notification to that effect shall be published in the Official Gazette, stating the District, or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area and situation, and where plan has been made of the land, the place where such plan may be inspected, and the Collector shall cause public notice to be given of the substance of the notification at convenient places on or near the land to be acquired.
' R.7. Where the land is to be acquired for a public purpose the Commissioner shall issue a Notification under section 5 of the Act not later than one year from the date of the publication of the Notification under section 4. If no Notification is issued under section 5 within the period specified in this rule, the Commissioner shall immediately report the matter to the Board of Revenue for extension in time and the Board of Revenue may, in its discretion, extend the time for the issue of a Notification under section 5, which shall not be more than sixty days. If the Board of Revenue declines to grant the extension applied for or if the Commissioner fails to issue a Notification under section 5 within the extended period, the acquisition proceedings shall be deemed to have come to an end. However, any time spent in the prosecution of a judicial remedy shall stand excluded from the period of litigation.
' R.
8. Where the land is to be acquired for Company the Commissioner immediately on receipt of the survey report of the Collector under rule 4, forward the same to the Board of Revenue with his comments, if any. If no Notification is issued by the Board of Revenue under section 5 within a period of one year from the date of the Notification under section 4, the acquisition proceedings shall be deemed to have come to an end.
(Underlining/highlighting is for emphasis)
9. In para.26 of the impugned judgment learned High Court formualted the following points for consideration:- ' "Is rule 7 of the rules alongwith rule 8 consistent with the Act within the meaning of section 55 of the Act?
' The next question, which necessarily follows the first question, is as follows:-- ' If rule 7 as also rule 8 of the Rules is not consistent with the Act, then what is the legal effect?
' The 3rd and last question is that:-- ' "If rule 7 as also rule 8 of the Rules is inconsistent with the Act, is it intra vires or ultra vires the Act?
10. In para.49 of the impugned judgment learned High Court held that aforesaid Rules are only directory in nature and not mandatory. Having taken into consideration the various pleas raised on behalf of the parties and the case-law cited at bar. In para.52 of the impugned judgment, the High Court finally observed as follows:-- ' "We, therefore, hold that both rules 7 and 8 of the Rules are ultra vires the Act and declare them to be bad in law and strike them down as being of no legal effect leaving the competent legislature to make equitable amendments by fresh legislation."
11. It is contended on behalf of the appellants that above rules and 7 and 8 are not ultra vires of section 55 of the Act and undue importance has been attached to the expression "at any time" appearing in section 5. Learned counsel also argued that said rules cannot be declared ultra vires simply because a time frame has been fixed therein for completion of acquisition proceedings.
12. There is no cavil with the proposition that the rule shall always be consistent with the Act and no rule shall militate or render the provisions of the Act ineffective. The test of consistency is whether the provisions of the Act and that of rules can stand together. Main object of rules is to implement the provisions of the Act and in case of conflict between them the rule must give way to the provisions of the Act. In any case, the rules shall not be repugnant to the enactment under which they are made.
13. In support of above, reference can be made to the case reported as Maj. Matloob Ali Khan v.
Additional District Judge, East, Karachi and another (1988 SCM R 747). In this case, the provisions of West Pakistan Family Courts Act, 1964 and Family Court Rules, 1965 were examined. The provisions of above Act do not provide any limitation for making an application for setting aside an ex parte decree, but rule 13 of said Court Rules prescribed Limitation period of 30 days. Said rule 13 was found ultra vires and following was held:-- ' "The plain reading of the aforesaid provisions makes it clear that the statute provided no time limitation for making application for setting aside an ex parte decree passed by a Family Court.
The point to be noted is that this is not a case where the statute is silent with regard to the period of limitation for making an application of this nature, but a positive provision has been made permitting the making of such application 'within reasonable time of the passing' of the ex parte decree. The question is whether in the face of such statutory provisions, the rule making authority could frame a rule in any way limiting the period of limitation to a fixed period. The rule making power has been vested in the Government under section 26 of the Family Courts Act for making rules to carry into effect the provisions of the Act. When the Act itself provides for making the application within reasonable time, apparently fixing a period of limitation for general application to all cases, cannot be in consonance with the provisions of the Act and cannot be said to carry into effect the provisions of the Act. See Ch. Altaf Hussain v. The Chief Settlement Commissioner and others PLD 1965 SC 68."
14. Learned counsel appearing for appellants cited Government of Pakistan, Secretaries, Works, Communications and Physical Planning v. Tauqir Ahmed Khan and others (1996 SCM R 968)
Supreme Court to contend that acquisition proceedings shall be deemed to have come to an end when no notification under section 5 is issued within one year of publication of Notification under section 4. Further argued that after expiry of period of one year said proceedings are void and without jurisdiction.
' In above cited case, the respondents whose land stood acquire challenged the acquisition proceedings on the ground that, in accordance with the abovequoted rule 7, the acquisition proceedings were to be deemed to have come to an end, as no notification under section 5 was issued within one year from the date of the publication of the notification under section 4. The High Court upheld above contention and declared the proceedings taken after the expiry of one year to be void and without jurisdiction. This Court declined to interfere in above findings recorded by High Court.
15. It is significant to note that no case-law of this Court has been cited before us in which the scope of expression "at any time", as appearing in section 5, was examined. Above expression has its own significance and cannot be ignored altogether. It is noted that no time has been fixed in between preliminary notification under section 4 and second notification under section 5, therefore, this expression assumes pivotal role for interpretation of section 5 which leaves the limitation period to be determined in each case on its own merits. Although the expression "at any time" cannot be taken to mean a year or otherwise, but certainly can be interpreted to mean within a reasonable time, which of course would be determined in each case looking to its own circumstances.
16. Under section 55 of the Act the Government has powers to make rules, which shall be consistent with the Act. The rules 7 and 8, ex facie, militate the provisions of section 5. These rules being inconsistent with the provisions of the Act were rightly declared by High Court, as ultra vires of the Act, leaving the competent Legislature to make equitable amendments therein.
17. Inconsequence, both these appeals are dismissed and the parties are left to bear their own costs.