PLD 1996 LAHORE 349

Before Malik Muhammad Qayvum

and Raja Muhammad Sabir, JJ

W.Z. STUDIOS LTD., LAHORE

through Managing Director --- Appellant

versus

THE DEPUTY COMMISSIONER, LAHORE DISTRICT COURTS,

LAHORE and 4 others --- Respondents

Intra-Court Appeal No. 118 of 1978 in Writ Petition No.2076 of 1978, decided on
17th January, 1996.

(a) Land Acquisition Act (I of 1894)--

---- S.4 --- Punjab Acquisition of Land (Housing) Act (VIII of 1973), Ss.3 & 4--
"Eminent domain", principle of --- Applicability --- Principle of "Eminent domain"

was not applicable in Pakistan in the context of legal position obtaining in

Pakistan, where acquisition laws have been codified---Question as to whether
under principle of "Eminent domain" power could be exercised by statutory body
when same land had earlier been acquired by Government for the use of another
person (appellant), was of no consequence --- Acquisition was made under Punjab
Acquisition of Land (Housing) Act, 1973, and there was nothing in it which takes
away power of Competent Authority to acquire the land which had once been
acquired for a different public purpose.

Petition accepted

(b) Punjab Acquisition of Land (Housing) Act (VHI of 1973)--

---- Ss. 4, 5, 6 & 7 --- Law Reforms Ordinance (XII of 1972), S.3 --- Intra-Court
Appeal --- Acquisition of land --- In addition to public notice, special notice of 10
days was to be served to person interested in land proposed to be acquired---
Effect of non-service of notice --- Service of notice in terms of S.6, Punjab
Acquisition of Land (Housing) Act, 1973 was essential not only for purpose of
assessment of compensation but with a view to provide affected persons
opportunity to raise objections to acquisition --- Opportunity to file objections
was all the more essential on account of appellant's contention that land in
question (which had earlier been acquired for him for setting up film studio)
formed integral part of Film Studio and, thus, could not be acquired while
according to Authority such land was in excess of requirement of appellant---
Omission to serve notice would render proceedings of acquisition to be invalid,
moreso, in a case relating to compulsory acquisition of property --- Acquisition o
land in absence of notice to appellant was, thus, bad in law and stands vitiated---
Acquisition proceedings as also judgment of High Court whereby it had dismissed
petitioner's Constitutional petition against acquisition, was set aside i

circumstances.

Col. Bashir Hussain and others v. Land Acquisition Collector, Lahore and
others PLD 1970 Lah. 321; Mst. Sardar Begum v. Lahore Improvement Trust,
Lahore and others PLD 1972 Lah. 458 and Mst. Maryam Bibi v. The Lahore
Improvement Trust 1973 Law Notes 178 rel.

American Jurisprudence Vol. 26; Commentary on Indian Constitution Vol., D

by 13asu; Corpus Juris Secundum and Charanjit Lal Chowdhary v. The Union of
India and others AIR 1951 SC 41 ref.

Abid Hassan Minto for Appellant.

Ch. M. Ashraf, A.A. -G. for Respondents Nos. I and 3.

Dr. A. Basit and M. Arif Chaudhry for Respondent No.2.

Shaukat Mahmood Ramay for Respondent No.4.

Nemo for Respondent No.5.

Saleeni Sahgal (in C. M. Nos.3055 and 3056 of 1985).

Bakhtiar Mahmood Kasuri (in C.M. Nos-5012 and 5013 of 1995).

Date of hearing: 12th December, 1995.

JUDGMENT

MALIK MUHAMMAD QAYYUM, J.---This appeal under section 3 of the Law

Reforms Ordinance, 1972 arises out W.P. No.2076 of 1978 and calls in question
the order and judgment of a learned Single Judge of this Court dated 14-5-1978
whereby the aforesaid Constitutional petition was dismissed in limine.

2. The background in which this appeal has arisen is that at the request of the
appellant which is a Company incorporated under the Company Laws, the
Provincial Government while acting under the Land Acquisition Act, 1894
acquired an area of 40 Kanals 3 Marlas of land for the purpose of setting up a Film
Studio. An agreement in terms. of section 41 6f the Land Acquisition Act, 1894
was entered into between the Government of Punjab and the appellant on
11-10-1965 which was duly published. According to the case of the appellant, the
Film Studio has since been set up and is functioning.

1 3. By a notification issued on 18-7-1975 purportedly under section 4(l) of

the- Punjab Acquisition of Land (Housing) Act, 1973, a part of the aforementioned
land was acquired by the Lahore Development Authority for the purpose of a
Housing Scheme known as "Mustafabad Town Scheme". This acquisition was
challenged by the appellant by filing a Constitutional Petition, which as already
mentioned, was dismissed by the learned Single Judge.

Before us, in support of the appeal Mr. Abid Hasan Minto, learned for the
appellant has raised the following contentions:--

(i) That as the land in question is a part of the area which was acquired for the
purpose of setting up a Film Studio it, was not liable to be acquired again.
(ii) That in any case on the principle of "eminent domain" the power to ac .
quire the property vests in the sovereign i.e. the Government, once
Minto has referred to various textbooks as also certain judgments from foreign
jurisdiction including Volume 26 of the American Jurisprudence and Basu's
Commentary on Indian Constitution, Volume D, Corpus Juris Secundum and
Charanjit Lal Chowdhary v. The Union of India and others AIR 1951 SC 4 1.

In reply Dr. A. Basit, Advocate appearing on behalf of Lahore Development

Authority has stated that there is no bar in law for reacquiring the land which had
once been acquired for a different purpose by the Government and that the
Lahore Development Authority being a statutory body having been conferred
power to acquire the land it cannot be denied the right to do so on a doctrine of
English Law which has no applicability to Pakistan. According to the learned
counsel the land acquired is not an integral part of Film Studio but is in excess of
the need of the appellant and could, therefore, be valid if taken over for the
purpose of a Housing Scheme. As regards the contention that no notice has been
stated that all the formalities required by law have been duly complied with and
that in, any case, the non-service of a personal notice is of no consequence.

6. We agreed with Dr. -A. Basit, Advocate that any reference to the principle-of
"Eminent domain" is uncalled for in the context of the legal position obtaining in
Pakistan, where acquisition laws have been codified. The question, therefore, as
to whether under the principles of "Eminent domain", the power could be
exercised by the statutory body when the same land had earlier been acquired by
the Government for the use of the appellant, is of no consequence.

In the present case acquisition was made under the Punjab Acquisition of Land
(Housing) Act, 1973 (as then in force) and as there is nothing in it which takes
away the power of the competent authority to acquire the land which had once
been acquired for a different public purpose. On the other hand both the
provisions of the Punjab Acquisition of Land (Housing) Act, 1973 as also of the
Lahore Development Authority Act, 1975 have been given overriding effect as is
evident from section 3 of the Punjab Acquisition of Land (Housing) Act, 1973 and
section 25 of the Lahore Development Authority Act, 1975 which provide that
notwithstanding anything to the contrary contained in the Land Acquisition Act,
1894 or any other law for the time being in force, all lands within the Province are
liable to be acquired under the aforesaid two Acts. In these circumstances, we are
not called upon to give any final opinion on the question as to whether the land
which had once been acquired under the Land Acquisition Act, 1894 for one
public purpose can be re-acquired for another purpose under the same Act as in
the present case the second acquisition is not under the Land Acquisition Act,
1894 but under a different and later law which contains a "non abstante" clauses.
Prima facie, however, we are of the view that there is no bar in law for
re-acquiring the property which has since been acquired if the need to acquire
the property again has arisen subsequently and qualifies to, be a public purpose
higher in nature than the one for which the property was earlier acquired. In the
present case, the earlier acquisition was for the purpose of setting up a Film
Studio while the subsequent acquisition has been made for the purpose of
establishing a Housing Colony by an official Development Agency and hence no
possible exception can be taken to it.

7. This brings us to, the next question as to whether the proceedings for
acquisition have been taken in accordance with law i.e. Punjab Acquisition of Land
(Housing) Act, 1973. One of the principal objections raised in that behalf by the
appellant before the learned Single Judge was that no personal notice was served
upon the appellant before making the acquisition. This' contention was repelled
by the learned Single Judge by making reference to section 6 of the Punjab
Acquisition of 'Land (Housing) Act, 1973 and observing that the aforesaid
provision envisaged only a public notice and not a personal notice'. With great
deference to the learned Single Judge, we are, however, of the view that this
finding is based upon misreading . of section 6 which reads as under:--

"Notice to persons interested. --(I) The Collector shall then cause public notice to
be given at convenient places on or near the, land to be taken, stating that
Government intends to take possession of the land, and that claim to
compensation for all interests in such land may be made to him. He shall also
inform all owners and claimants of interests in such land by giving them .a special
notice of 10 days in accordance with rules.. (Underlining is ours).

(2) Such notice shall state the particulars of the land so needed and shall require
all persons interested in the land to appear personally or by agent before the
Collector at a, date, time and place therein mentioned (such period not being
earlier than 10 days after the date of publication of the notice), and to- state
the nature of their respective interests in the land and the amount and
particulars of their claims to compensation for such interests, and their
objections, if any, to the measurements made under section 5 and the
Collector may require any such statement to be made in writing and signed by
the party or his agent.

1(3)The Collector shall also serve notice to the same effect on the occupier, if any,
of such land and so all such persons known or believed to be interested therein or
to be entitled to act for persons so interested.

8. On a plain reading of subsection (5) of section 6, it is clear that in addition to

public notice, -a special notice of 10 days has to be served on all the owners. and
claimants interested in the land. It appears that unfortunately
underlined portion of section 6(t) of the Act escaped the notice of the learned
Single Judge.

9. 'In order to overcome this difficulty, Dr. A. Basit, learned counsel for the
respondent has made two-fold submissions; firstly, that non-service of notice
does not have the effect of invalidating the proceedings for acquisition as notice,
if any, is meant only for the purpose of assessing compensation which has
nothing to do with the validity. of proceedings ' of acquisition and, secondly; that
in any case personal notice was served upon the appellant.

. 10. We are not impressed with these contentions. On a conjunctive reading of

various provisions of the Punjab Acquisition of Land (Housing) Act, 1973
particularly sections 4, 5, 6 and 7 it becomes clear that service of notice is
essential not only for the purpose of assessment of compensation but its object is
also to provide affected persons an opportunity to raise objections to the
acquisition. This conclusion is fortified by section 7 of the Act which requires the
Collector not only to inquire into the objection, if any, made before him pursuant
to notice under section 6 of the Act but also to assess the value of the land. In the
present case, an opportunity. to file objections was all the more essential as it
was the case of the appellant that the land formed integral part of the Film Studio
and as such could not be acquired while according to the respondents the land is
in excess of requirement of the appellant.'

11. As regards the effect of non-service of the statutory notice, the law is well
settled that the omission to serve such a notice renders the proceedings as
invalid, moreso, in a case relating to compulsory acquisition of property. If any
authority is needed reference may be made to Col. Bashir Hussain and others v.
Land Acquisition Collector, Lahore etc. PLD 1970 Lah. 321; Mst. Sardar Begurn v.
Lahore Improvement Trust, Lahore and others PLD 1972 Lah. 458 and Mst.
Maryam Bibi v. The Lahore Improvement Trust 1973 Law Notes 178.
12. The learned counsel for the respondents then argued that notice which the
appellant himself has attached along "Lh the petition should be considered to be
sufficient compliance of section 6 of the Punjab Acquisition of Land (Housing) Act,
1973. This contention of the learned counsel cannot be accepted for various
reasons. Firstly, that in the para wise comments filed by the respondents they
have themselves taken up the position that no notice under section 6 was ever
issued. Furthermore, a reference to this notice would show that it was issued
much subsequent to, the notification for acquisition under section 4 and,
therefore, it cannot be considered to be a notice under section 6 so as to enable
the appellant to file objections. We are, therefore, clearly of the 1 view that in the
absence of any notice under section 6 of the Punjab Acquisition of Land (Housing)
Act, 1973 the acquisition of the land is bad in law and stands vitiated. In this view
of the matter, we are not called upon to decide other questions arising in this
appeal which may be raised by the appellant before the competent authority as
and when fresh proceedings for acquisition are taken in accordance with law.

in view of what has been stated above, we allow this appeal, set aside the
order and judgment dated 14-5-1978 and hold that in the absence of any notice
under section 6 of the Punjab Acquisition of Land (Housing) Act, 1973, the
subsequent proceedings of acquisition taken by the respondents are without
lawful authority and of no legal effect. No order as to costs.

A.A./W-3/L

Appeal accepted.