NAZIM HUSSAIN SIDDIQUI, C.J.- This judgment will dispose of the above titled appeals in which common questions of facts and law are involved. They are directed against the judgment, dated 19-3-1998 of a learned Division Bench of Peshawar High Court at Abbottabad Circuit, whereby the Writ Petitions Nos. 294, 311, 312, 315, 316 and 317 of 1997 filed by the appellants were dismissed.
2. These are land acquisition matters. The land measuring 2623 Kanals, 5 Marlas situate in village Dingi of Hattar Area of Haripur District was acquired by the Government of N.W.F.P. For Sarhad Development Authority (SDA), respondent No,6, through Award No,6, dated 3-1-1990 and the same was allotted to nine different industrial units and necessary lease agreements were entered with SDA for a period of 99 years. These nine units included seven industries of Messrs Dewan Salman Fibre Ltd. While two are of Messrs Ishtiaq Fabrics and Altaf Textile. The latter two are not parties before neither this Court nor they were before High Court. Nine plots were demarcated as D-1 to D- 9 and were allotted accordingly.
3. It appears that the Government of N.W.F.P. Later on took the view that the plots so leased out were not put to the use for which they were acquired even after nine years of allotment/lease, hence an area measuring 1200 Kanals was cancelled by the Deputy Commissioner/Collector, Haripur (respondent No,4 in C.A. No, 1819 of 1998) vide order, No,921-25/Acq. DC (H), dated 13-11-1997 on the advice of the Board of Revenue, N.-W.F.P. Vide letter No, 22372/Rev. V/LA-324, dated 12-11- 1997 of Secretary, Board of Revenue.
4. The appellants took such de-notification/de-requisition as void, unlawful and without jurisdiction besides being in violation of the provisions of section 48 of the Land Acquisition Act, hereinafter referred to as "the Act", because possession was already delivered, therefore, said section could not be invoked. They urged that above order was passed by the Revenue Authorities without affording them an opportunity of being heard.
5. Section 48 of the Act and para. 66 of the Revenue Circular No,54, which was originally issued on 6-5-1912 under section 55 of the Act, read as under:-- "48. 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.
(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damages suffered by the owner in consequences of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provisions of Part HI of this Act shall apply, so far as may be, to the determination of the compensation payable under this section."
Para 66 of Circular No, 54
66. When agricultural or pastoral land has been permanently acquired for public, purposes by any department of Government, and is no longer required to such purposes, the disposal of it shall be guided by the following considerations:--
(1) Agricultural or pastoral land should ordinarily in the first instance be offered to the original owners, or their heirs, at the price of acquisition, less the 15 per cent allowed for compulsory acquisition, unless there has been any material alternation in the value of the land since acquisition. To justify the demand of any enhanced price at restoration there must have been an improvement in the quality of the land. The fact that land un-irrigated when acquired, can at restoration be watered from a canal is not an improvement of this nature.
(2) If surrender at the price of acquisition is refused by the original owners or their heirs of it is obviously inequitable either to them or in Government, the market value of land should be ascertained and the plot to be surrendered should be offered at the market price to:--
(a) the original owners or their heirs;
(b) the owners or occupiers of adjoining lands;
(c) to others.
(3) In the case of plots, which from their size or shape are practically of no value to anyone but the owners of the adjoining fields, the option of purchasing at the market value should be given to them. The mere fact that an outsider is prepared to bid them should not deter the Deputy Commissioner from accepting any fair offer, which he may make.
(4) If the heirs of original owners cannot be traced, or if they or the properties with a claim on the ground of vicinage decline to accept the terms offered to them by the Deputy Commissioner, the land may be put up to auction or dealt with as may appear advisable under the orders of the Revenue Commissioner.
(5) In negotiations for the disposal of land no longer required, the Deputy Commissioner must make it plain that any terms he proposes are not binding on Government till they have been sanctioned by the Revenue Commissioner. In ordinary cases, it is enough for him to make his proposal in the last column of the statement proposing the addition to the land revenue toll, which will follow on the reversion of the land to private ownership. But if the area relinquished is large, or if any doubtful questions arise in connection with its disposal, it is better to deal with the case in a separate report."
6. The appellants have claimed that allotment orders in respect of their industrial units were issued on 21-1-1990 and lease deeds were executed on 23-3-1990 against total payment of a sum of Rs,47,66,007.25. They have specifically asserted that though the allotment orders contained a condition of completing/setting up the industry within a specified period, but no such condition was incorporated in the lease deeds. According to them, 55 per cent of the total area now stands constructed and the entire area is bounded by 8-10 feet high wall and is in their exclusive possession. Further, they have asserted that possession was already taken by them long ago and this is reflected from relevant Jamabandi and it being so, no de-requisition could be ordered. It is also urged that aforesaid Circular No,54 has no force of law as it was not issued within the contemplation of section 55 of the Act. They have claimed that the industrial units in question are not located within Hatter Industrial Area, hence the SDA bylaws are not applicable.
7. As against above, the Government claims that the action taken against the appellants was strictly in accordance with law and no exception could be taken against it. It is urged that the appellants obtained land for said units with mala fide and dishonest intention in order to grab huge landed property in seven names though, in fact, they are one. It is alleged that the area taken by the Government has been re-transferred to the real owners after surrendering compensation amount minus 15 per cent compulsory requisition charges and that all such owners now are in possession and are necessary parties in these matters, who have not been jointed as parties except in Writ Petition No, 294 of 1997. It is urged that for taking possession, the appellants ought to have filed civil suits or availed of any other remedy available under the law, but not through the Constitutional petitions.
8. Vide order, dated 5-11-1998, leave to appeal was granted in these matters to consider the following questions:--
(i) Whether land once acquired by the Government for public purposes can be re-allotted by the same for any other purpose, not withstanding section 48 of the Land Acquisition Act? (See PLD 1993 SC 455).
(ii) Whether the impugned action which was unilaterally taken by the Government without serving show-cause notice on the petitioners?
Whether the said action was bona fide or it was a colorable exercise of powers?
9. It is contended on behalf of the appellants that under the circumstances, section 48 of the Act could not be invoked to de-notify the area acquired by them through legal process and that the power so exercised by the Government, in fact, amounted to rescission of lease agreements affecting their industrial units and spoiling the industry set up by them by spending huge amount in that regard. Further, it is contended that even bare perusal of section 48 of the Act unequivocally postulates that the power so exercised by the Government was illegal and mala fide and so was done under political pressure to accommodate owners of the land affording them an opportunity to dispose of said land again and earn huge profit. Also, it is urged that no factual controversy is involved and the view taken by the learned High Court is erroneous as it totally ignored the real issue involved in the matter, which is purely a question of law of interpretation of section 48 and para. 66 of the Revenue Circular No,54. It has been strenuously argued that the industrial units were completed within a short span of 19 months at the expense of billions of rupees in collaboration with Messrs Mitsubishi Corporation of Japan and Messrs Samyang Co. Ltd. Of Korea. Further, it is submitted that the work for the establishment of another unit of 'Acrylic Fibre' is going to start very soon. Learned counsel also argued that it was humanly impossible to construct whole of the area within a year or two and the view taken is contrary to the lease agreement arrived at between the parties. Learned counsel also stated that in any case there is no clause/condition or covenant authorizing respondent No,6 to rescind the agreement.
10. Section 48 of the Act empowers the Government to withdraw from the acquisition of any land.
This power is, however, not absolute, but subject to the condition that possession of the land has not been taken. It is significant to note that in these cases the possession of the land was taken by the Government and thereafter it was transferred to the appellants. In fact, the factum of possession of land in question being with the appellants is never disputed. On the contrary, the record reveals that the Deputy Commissioner/Land Acquisition Collector vide letter, dated 13-11- 1997, had directed the General Manager of the appellants to remove any implement, property, structure, etc., from the surplus area and assist the Revenue staff in demarcation and handing over the possession . To the original owners. Besides, during the course of arguments, it was never contended before us that possession in pursuance of the acquisition proceedings was not handed over to the appellants. This fact alone is sufficient to hold that section 48 of the Act, under the circumstances, was not attracted.
11. It is pertinent to note that withdrawal of Government from acquisition under section 48 entails automatic rescission of all previous notifications. It is not the case of the Government that all previous notifications in this regard have become ineffective. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court in support of his contentions cited Balwant Narayan Bhagde v. MD.
Bhagwat and others (AIR 1975 SC 1767), Ahbab Co-operative Housing Society Ltd. v. Commissioner, Lahore Division, Lahore and 61 others (PLD 1978 Lahore 273) and Mr. Sadiq Hussain Qureshi and others v. Ahbab Cooperative Housing Society Ltd. Lahore and others (NLR 1979 Revenue SC 210).
Ratio of above cases is that after possession of the land forming the subject-matter of acquisition has been taken in accordance with law, the land vests in the Government and the Government or any other authority is not at liberty to withdraw from acquisition of such land. In these particular cases, not only possession of land was taken by the Government, but thereafter the same was transferred/allotted to the appellants through lease deeds against total payment of a sum of Rs,47,66,007.25. Thus, the transactions were complete and the appellants not only raised boundary walls, but also constructed 55 per cent of the total area with further intention to utilize the remaining area according to their plan.
12. Para. 66 of the revenue Circular No,54 is also not attracted. It speaks about agricultural pastoral land, which has been permanently acquired for such purpose by any department of the Government and is no longer required for that purpose. In these cases, the land acquired for the purpose has been utilized as such.
13. Learned counsel for the appellants cited Chief Commissioner Karachi and another v. Mrs. DinaSohran Katrak (PLD 1959 SC (Pak. ) 45), the University of Dacca through its Vice Chancellor and another v. Zakir Ahmed (PLD 1965 SC 90), Raziuddin v. Chairman Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531), Makerwal Collieries Ltd. And 2 others v. Government of N.-W:F.P and 11 others (1993 SCMR 1140), Ghulam Mustafa Jatoi v. Additional District & Sessions Judge/Returning - Officer and others (1994 SCMR 1299) and Mrs. Anisa Rehman v. PIAC and another (1994 SCMR 2232) to contend that the principle of audit alteram partem is applicable in these matters as it is applicable to judicial as well as non-judicial proce-edi-gs and it is read in every statute as its part if right of hearing has not been specifically provided therein. Elaborating it, he submitted that the action against the appellants was abruptly taken by the Government and no opportunity was provided to them to explain and substantiate their point of view. The record supports this contention of the learned counsel. On this ground also, the action of the Government against the appellants was improper and unjustified.
14. With reference to leave granting order, ground No,1 it is noted that reliance was placed on the case reported as Province of Punjab through Collector, Lahore and another v. Saeed Ahmad and 4 others PLD 1993 SC 455. In this case, at para. 11, the following was observed:-- "Reverting to the third submission of the learned counsel, it may be stated that there is no doubt that the Government has the option either to put the land to auction or as a matter of grace, restore the same to the previous owner in terms of paragraph 100 of the Order. It, therefore, must follow that a previous owner cannot compel the Government to restore the unutilized land as a matter of right. However, we may observe that the discretion vested in the Government under the above paragraph is to be exercised fairly and reasonably, and not arbitrarily or capriciously. The present case stands entirely on different footing inasmuch as the competent authority decided to restore the unutilized land to the previous owners, so much so the survey was carried out; the amounts refundable by the previous owners were calculated and the notices were issued under above Paragraph 100 of the Order to the previous owners, though they were not served. The appellants failed to bring on record any material to indicate that the above decision of resorting the utilized land to the previous owners was rescinded by the competent authority."
' Suffice it to say that, under the circumstances, the principle laid down in above reported case is not attracted to the circumstances of the case.
15. Learned High Court in the impugned judgment held that numerous questions of facts were involved in these matters, which require recording of evidence and without doing so the matter could not be decided. According to High Court, the following issues are required to be resolved first before entering into legal discussion:--
(a) Whether the physical possession of disputed area (1200 Kanals) was at all delivered to the petitioners, if So, whether action under section 48 of Land Acquisition Act was justified; and if not to what effect?
(b) Whether 55% of the area stood constructed upon?
(c) (c) Whether the above 55% is that of 2623 Kanals, 5 Marlas or of 140 acres allotted to Dewan Salman petitioner of Writ Petition No, 294 of 1997?
(d) How much in the area in to the possession whereof is obtained by constructing a boundary wall?
(e) Whether any relief can be given against such original owners, if so to what effect and to what remedy?
(f) Whether any relief can be given against such original owners in the nature of a possessory decree, while invoking jurisdiction under Article 199 of the Constitution?
(g) Whether all the petitioners/companies divided into seven units are in fact one single Company, or whether six fake names were given to all, others than the single unit?
(h) Whether the companies being different or if different, were bound to complete their respective constructions in accordance with terms and conditions of lease and allotment orders, on each and every plot?
(i) Whether such construction by each unit was in fact completed on the spot?
(j) Whether the construction on the spot covers only the area of Dewan Salman of Writ Petition No,294 of 1997 and does mot extend to the remaining area?
(k) Whether construction was completed within three years of delivery of possession?
(1) Whether any boundary wall existed around 1200 Kanals of area in dispute?
(m) Whether construction, if at all, was in accordance with building. By-laws of SDA, if so to what effect; and if not whether the impugned action was justified?
(n) Whether the petitioner/industries are not located within the limits of Hattar Industrial Estate and hence not bound by any building By-laws?
16. It is significant to note that above proposed issues are not relevant for decision of these matters, inasmuch as it is clearly established from record that the area as mentioned in the lease deeds was leased out to the appellants and possession thereof was also delivered to them. It is an admitted position that they have raised construction as well as boundary walls. Nothing material has been brought on record that they would not raise further construction in accordance with their plan. The very fact that the Government has written letters to them to hand over possession conclusively establishes that they are in possession of the area leased out to them. It has not been brought to our notice that there is any clause in the lease agreement authorizing the Government to take back the possession of the unutilized portion. The transactions were completed when 99 years lease was granted to the appellants. The way the action was initiated against them provides ample proof that such action was mala fide. Action in such manner would never help in establishing industry. On the contrary, it would promote flight of capital from the country.
17. Mr. Abdul Rauf Rohaila, Advocate Supreme Court appearing for the Sarhad Development Authority cited Mir Rasool Bux Khan Sundrani & Co. v. People' s Municipality, Sukkur and 2 others (PLD 1975 Karachi 878), Malik Muhammad Aslam and 3 others v. Administrator, Market Committee, Burewala, District Vehari (2000 CLC 1249), Abid Hussain v. Board of Trustees, Abandoned Properties (2000 CLC 1497), Messrs Arshad U & Company v. Capital Development Authority, Islamabad through Chairman (2000 SCMR 1557) and Amir Nawaz Khan and 2 others v. Government of Pakistan through Secretary, Finance, Islamabad and 5 others (2001 CLC 185) to contend that under the circumstances writ jurisdiction under Article 199 of the Constitution could not be exercised in favour of the appellants and High Court was justified in dismissing their writ petitions. There is no force in this contention. Only issue in these matters was interpretation of section 48 ibid and the alleged factual controversies were not relevant for the purpose of deciding these matters. The issues of alleged factual controversy were raised only to camouflage the real issue.
18. Ch. Mushtaq Ahmed Khan, Advocate Supreme Court cited Government of Punjab v. Messrs Crescent Textile Mills Ltd. 2004 SCMR 164 = 2004 PLC (C.S) 130 to contend that disputed questions of fact are outside the purview of Constitutional jurisdiction and the proper course for the appellants was to have instituted suits for the reliefs claimed by them in the writ petitions. As noted earlier, factual controversies were not involved and the decision of these cases primarily rested upon the interpretation of section 48 ibid. There is no force in this contention.
19. In consequence, all these appeals are allowed, the impugned judgment of the High Court is set aside and the order of the Government cancelling the land of the appellants is struck down. The parties are left to bear their own costs.
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