2021 S C M R 369
[Supreme Court of Pakistan]
Present: Umar Ata Bandial, Sajjad Ali Shah and Sayyed Mazahar Ali Akbar
Naqvi, JJ
GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and
others---Petitioners
Versus
MUHAMMAD KHURSHID---Respondent
Civil Petition No. 279-P of 2015, decided on 14th
December, 2020.
(On
appeal against the judgment dated 31.03.2015 passed by the Peshawar High Court,
Peshawar in Writ Petition No. 615-P of 2015)
(a) Land Acquisition Act (I of 1894)---
----S. 4 & Preamble---Land acquisition for
construction of a police station---Acquiring authority, powers
of---Scope---Property owned by respondents was acquired vide a notification but
only two days later for unknown reasons the same was de-notified---Subsequently
acquiring authority issued another notification to acquire land belonging to
the petitioner---Petitioner filed a constitutional petition before the High
Court, which was allowed with the finding that due to influence of an
ex-Parliamentarian the acquiring authority de-notified the land belong to
respondents and with mala fides issued the notification with respect to
petitioner's land---Held, that record did not reflect any element of alleged
mala fide on part of the acquiring authority---Joint reading of S. 4 and Preamble
to the Land Acquisition Act, 1894 showed that the acquiring authority was fully
competent to issue the notification if the land was being acquired for public
purpose---However, it was true that if mere selection of land was based on
extraneous considerations or undue influence then it may be objected to by the
affected owner---In such respect, the impugned judgment of High Court was
inadequate in providing/disclosing aspect of alleged mala fide against the
acquiring department---Petition for leave to appeal was converted into appeal
and allowed, impugned judgment of High Court was set aside and case was
remanded to the High Court for a decision afresh after affording opportunity of
hearing to all concerned in accordance with law.
(b) Administration of justice---
----'Audi alteram partem' and 'due
process'---Scope---Any proceeding arising out of equity could not be decided
without providing opportunity of hearing---Court ought to follow the principle
of 'audi alteram partem' and 'due process' which were basis of administration
of justice, especially when any order, if passed, might affect the rights of
the entity not party to the proceedings.
Qasim
Wadood, Additional A.G. and Khial Roze, Inspector for Petitioners.
Imtiaz
Ahmed, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for
Respondent No. 1.
Nemo
for Respondents Nos. 2 - 4.
Date
of hearing: 14th December, 2020.
JUDGMENT
SAYYED
MAZAHAR ALI AKBAR NAQVI, J.---Through
this petition, the petitioner called in question the vires of the impugned
order dated 31.03.2015 passed by the Peshawar High Court, Peshawar, whereby the
Writ Petition filed by the respondent No.1 was allowed.
2. Briefly
stated the facts of the matter are that for the construction of Police Station
Saro Shah, Tehsil Takht Bai, District Mardan, in the first instance land
belonging to Agricultural and Livestock Department was acquired vide
notification dated 06.04.2010. However, an objection was raised by the
Agricultural and Livestock Department that the land is being used for public
purpose, hence, on the basis of said consideration, the notification dated
06.04.2014 was withdrawn on 06.06.2014. Thereafter, another property owned by
respondents Nos. 2 to 4 was acquired vide notification dated 09.09.2014 but
subsequently, the same was also de-notified on 10.11.2014 for the reasons best
known to the petitioner. Ultimately, the land belonging to respondent No. 1
measuring 23 kanal 5 marla bearing Nhasra No. 492 situated at Mouza Narri,
Tehsil Takht Bai, District Mardan was notified under section 4 of the Land
Acquisition Act, 1894. The respondent No. 1 being aggrieved by the notification
issued by the Collector filed constitution petition before the Peshawar High
Court, Peshawar. The learned High Court vide judgment dated 31.03.2015 allowed
the constitution petition and the notification for acquiring the land of the
respondent along with de-notification dated 10.11.2014 were set aside and the
earlier notification dated 09.09.2014, whereby the land of respondents Nos. 2
to 4 was acquired, was restored. Hence, this petition seeking leave to appeal.
3. Learned
Additional Advocate General inter alia contended that the impugned judgment
suffers from material illegality and the same is factually incorrect; that the
learned High Court has not properly exercised its jurisdiction under Article
199 of the Constitution; that the land was acquired for public purpose and the
same cannot be declared as tainted with mala fide that the High Court has
passed observations against the persons, who were not even party to the
proceedings and that the impugned judgment is liable to set aside.
4. Learned
counsel for the respondent No. 1, on the other hand, defended the impugned
judgment. He contended that the notification of acquisition of land of the
respondent is mala fide/arbitrary; that no reason was given for de-notifying
the earlier notification for acquisition of land and the same was declared that
it was issued due to the influence of an ex-Parliamentarian; that the
respondent's livelihood exclusively depends upon the proceeds from the land,
which was acquired vide notification dated 10.11.2014; that one Saeed Wahab had
himself offered his land but his request was not considered.
5. We
have heard learned counsel for the petitioner and respondent No. 1 at some
length and have gone through the case file.
6. The
learned High Court while allowing the writ petition filed by the respondent has
mainly relied upon the element of mala fides on the part of the acquiring
department. The main stay of the learned High Court was that due to the
influence of a ex-Parliamentarian, the earlier notification dated 09.09.2014
was de-notified on 10.11.2014 and the land belonging to respondent No. 1 was
notified. We have minutely perused the entire record. The aspect of mala fide
as made basis for accepting the constitution petition is squarely missing in
the proceedings prior to filing of the constitution petition before the High
Court. We could not find any material to substantiate the said aspect, which
was made basis being the solitary consideration by the learned High Court while
allowing the constitution petition. We are afraid to note that the element of
alleged mala fide on the part of acquiring authority is also without any legal
foundation. According to Preamble of the Land Acquisition Act, 1894; was
enacted "to amend the law for the acquisition of land for public purposes
and for Companies." Section 4 of the said Act, reads as follows:-
"4.
(1) Whenever it appears to the Collector of the District that land in any
locality is needed or is likely to be needed for any public purpose or for a
Company, a notification to that effect shall be published in the official
Gazette, and the Collector shall cause public notice of the substance of such
notification to be given at convenient places in the said locality.
(2)
Thereupon it shall be lawful for any officer, either generally or specially
authorized by [the Collector of the District in this behalf and for his
servants and workmen ........"
. The
plain reading of the Preamble and the aforesaid. Section clearly shows that the
acquiring authority is fully competent to issue notification if the land is
being acquired for public, purpose. However, it is true that if mere said
selection of land is based on extraneous considerations or undue influence then
it may be objected by the affected owner. In this respect, the impugned
judgment is inadequate in providing/disclosing, this aspect of alleged mala fide
against the petitioner department. The learned High Court restored the
notification dated 09.09.2014 whereby land of the respondents Nos. 2 to 4 was
ordered to be acquired without issuing any notice to them. Any proceeding
arising out of the equity cannot be decided without providing opportunity of
hearing. The learned High Court ought to have followed the principle of audi
alteram partem and due process, which are basis of administration of justice,
specially when any order, if passed, might affect the rights of the entity not
party to the proceedings. The respondents Nos. 2 to 4 have already moved an
application under section 12(2), C.P.C. before the Peshawar High Court, which
according to respondent's counsel is still pending adjudication.
7(sic.) For what has been discussed
above, we convert this petition into appeal, allow it, set aside the impugned
judgment and remand the case back to the learned High Court for a decision
afresh after affording opportunity of hearing to all concerned strictly in accordance
with law.
MWA/G-2/SC Petition allowed.