P L D 2023 Lahore 1

Before Shahid Karim, J

KAREEM NAWAZ and 4 others---Petitioners
Versus
DISTRICT COLLECTOR/DEPUTY COMMISSIONER MULTAN and 14
others---Respondents
W.P. No. 2576 of 2022, heard on 12th May, 2022.
(a) Land Acquisition Act (I of 1894)---
----Ss. 17(1)(2) & 17(4)---Acquisition of land---Special powers in cases of
urgency---Pre-condition---Words "in cases where in the opinion of the
Commissioner the provisions of subsection (1) or subsection (2) are
applicable"---Scope---Legislature requires Commissioner to form an
opinion---Opinion must be expressed in writing and cannot be
presumed to exist in the mind of Commissioner without finding
expression in a written order.
(b) Land Acquisition Act (I of 1894)---
----Ss. 4, 5, 5-A, 9(1), 17(1)(2) & 17(4)---Acquisition of land---Case of
urgency--- Fundamental rights, violation of--- Petitioners assailed
notifications whereby land in question was acquired treating the
matter as case of urgency, without compliance of mandatory
provisions of law---Validity---Provisions of Ss. 5 & 5-A of Land
Acquisition Act, 1894, and all other provisions up till publication of
notice under S. 9 of Land Acquisition Act, 1894, were to be complied
with and carried out to full effect---Notification was to be issued under
S. 5 of Land Acquisition Act, 1894, that land was needed for public
purpose or company---Right of hearing under S. 5-A of Land
Acquisition Act, 1894, was conferred on any person interested in any
land which was notified under S. 5 of Land Acquisition Act, 1894 and
to object to acquisition of land---Such right was fundamental to the
process of acquisition and was inviolate even in case of urgency
contemplated by S. 17(1) of Land Acquisition Act, 1894---Possession
could only be taken after publication of notice mentioned in S. 9(1) of
Land Acquisition Act, 1894---No such proceedings took place in the
present case and requirements of S. 17(1) of Land Acquisition Act,
1894, had gone abegging---If such was the situation, then S. 17(4) of
Land Acquisition Act, 1894 could not have come into play as the
provision was subject to applicability of S. 17(1) & (2) of Land
Acquisition Act, 1894---Such power was further subject to another
important rider which was contained in proviso to S. 17(1) of Land
Acquisition Act, 1894, which related to deposit by department of
Government, the local authority or company for which land was being
acquired to first deposit estimated cost of acquisition of such land as
determined by Collector of the District---Notice mentioned in S. 9(1) of
Land Acquisition Act, 1894 which was to be issued after compliance of
Ss. 5 & 5-A of Land Acquisition Act, 1894 had already taken place---
Such provisions were to be reconciled and read in harmony---Intention
of such provisions was only be to dispense with normal procedure in
case of emergency and to proceed to take possession, immediately---
Only thing left then was giving of compensation---Act of Commissioner
in the present case of issuing second notification under Ss. 17(4) & 6 of
Land Acquisition Act, 1894, was null and without lawful authority---
High Court struck down notifications under Ss. 4, 17(4) & 6 of Land
Acquisition Act, 1894--- Constitutional petition was allowed, in
circumstances.

Abul Ala Maudoodi's case PLD 1964 SC 673; Federation of Pakistan v.

Muhammad Saifullah PLD 1989 SC 166 and Benazir Bhutto's case PLD
1998 SC 388 rel.
(c) Land Acquisition Act (I of 1894)---
----S. 17(4)---Punjab Land Acquisition Rules, 1983, Rr. 10 & 11---
Acquisition of land---Forming of opinion by Commissioner---Preserving
agriculture economy---Scope---Before exercise of power under S. 17(4)
of Land Acquisition Act, 1894, by Commissioner, he has to form
opinion on the basis of material placed before him and duly
considered by Commissioner at the time when he forms the opinion---
Grounds and circumstances forming basis of opinion must have a
direct nexus with exercise of power conferred under S. 17(4) of Land
Acquisition Act, 1894 and must not be based on irrelevant
considerations---Reading of R. 11 of Punjab Land Acquisition Rules,
1983, shows that Commissioner while forming opinion has to return a
finding as to whether it would be proper to acquire a certain piece of
land so as to minimize loss to agricultural economy---Special emphasis
has been laid for preserving agricultural economy and while acquiring
land special care has to be taken with regard to preservation of
agricultural economy and public health---Such is the underlying theme
of Rr. 10 & 11 of Punjab Land Acquisition Rules, 1983, and
corresponding obligation is cast upon Commissioner of the Division
while forming an opinion.
(d) Words and phrases---
----Urgency---Meaning---Urgency in common parlance, connotes taking
of immediate steps.
Muhammad Sohail Iqbal Bhatti for Petitioners.
Mehar Zameer Hussain Sandhal, D.A.G. and Aziz ur Rehman Khan,
Assistant Advocate General with Rana Riaz Ahmad, Naib Tehsildar for
Respondents.
Date of hearing: 12th May, 2022.
JUDGMENT
SHAHID KARIM, J.---This constitutional petition challenges the
order dated 10.02.2022 passed by the Deputy Commissioner/District
Collector, Multan pursuant to a direction issues by this Court on
constitutional petitions W.P. No.18609 of 2021, W.P. No.18687 of 2021,
W.P. No.11376 of 2021 and W.P. No.11242 of 2021 brought earlier by
these petitioners seeking a direction to the District Collector to decide
the issues of law raised by the petitioners in their applications filed on
7.12.2021. As a prefatory, it is stated that the petitioners seek the
judicial review of the actions of respondents to acquire land of the
petitioners under the Land Acquisition Act, 1894 ("the Act, 1894") and
so these questions must be determined by this Court in its
constitutional jurisdiction. It was otiose for a reference to be made to
the District Collector to decide the legal issues raised by the petitioners
seeking to challenge the acquisition proceedings. Suffice to say that the
District Collector has not, in passing the impugned order, adverted his
attention to the issues of law nor could he have set at naught the
actions initiated by himself.
2. The facts are simple and in most part admitted between the
parties. On 22.07.2020 a gazette notification under section 4 of the Act,
1894 (section 4 notification) was issued and a meeting of the District
Price Assessment Committee was held on 22.09.2020 to assess the
compensation to be awarded to the petitioners in lieu of the
compulsory acquisition of their land. In the reply filed on behalf of the
respondents, the purpose of acquisition has been delineated as
follows:
"1. That the brief facts of the case are that the Director Revenue
AHQs, Islamabad, Base Commander, PAF Base, Multan requested
for issuance of Notification under section 4 of Land Acquisition
Act, 1894 which was forwarded to Deputy Commissioner, Multan
 for the acquisition of 911-Kanal, 2-Marlas land in Moluza's Khor,
Sajri Wahan, Tindni, Jameelabad, Langrial and Alumdi Sura
Tehsil Multan City District Multan for extension of infrastructure
at PAF Base, Multan."
3. This petition is not concerned with the purpose of acquisition but
is related to the procedure adopted by the respondents for acquisition
of the land under the Act, 1894. It is also admitted on all hands that
various petitions were filed to this Court challenging the acquisition
proceedings which were referred to the District Collector to be decided
as a representation. Only in one petition titled M. Farooq Khan Babar
etc. v. Government of the Punjab (W.P. No.11242 of 2021) an interim
order was passed on 19.07.2021 to the effect that:
"In the meanwhile the respondents shall not take coercive measures
against the petitioners".
Clearly, this Court did not stay the acquisition proceedings and so
nothing turns on the contention of the learned D.A.G as well as the
learned A.A.G that the acquisition proceedings were impeded by
certain interim orders passed by this Court. This is far from the truth.
4. Two issues of law will engage this Court in this petition. According
to the learned counsel for the petitioners, the notification under
Section 4 of the Act, 1894 was issued on 22.7.2020 and the acquisition
proceedings have not been completed till date. Pendente lite the
Commissioner, Multan has issued a notification under sections 17(4)
and 6 of the Act, 1894 ("the second Notification") on 28.02.2022.
Interestingly, while passing the impugned order the District Collector
had made the following observations:
"5. Keeping in view the above, the instant application of the
petitioners is hereby filed accordingly. However, the case
regarding issuance of further notification under section 17(4)
ibid should be processed immediately. The file be consigned to
the record room after its due completion."
5. Thereafter on 28.02.2022 the second notification was issued by the
Commissioner, Multan Division, Multan. The strange aspect is that the
second notification under section 17(4) seems to have been issued on a
direction issued by the District Collector, Multan in the impugned
order. Prior to this, there seemed to be no urgency in issuing the said
notification. Be that as it may, through C.M No.2608 of 2022 the
petitioners have chosen to challenge the second notification issued by
the Commissioner on separate grounds to which a reply has already
been filed by the respondents Nos.1 and 2 justifying the issuance of the
said notification. Learned counsel for the parties have been heard on
the issues which arose during the pendency of this petition as also
regarding the legality of the notification under sections 17(4) and 6 of
the Act, 1894.
6. The learned counsel for the petitioners contends that section 4
notification must be deemed to have been revoked as acquisition
proceedings have not been completed within the period of one year of
the issuance of section 4 notification. This argument is premised on
the second proviso which was inserted in subsection (2) of section 4
through Act XXIII of 2017 dated 07.06.2017. It provides that:
"Provided further that entire process of land acquisition shall be
completed within period of a one year failing which the
notification made under subsection (1) shall stand revoked."
7. This ground should receive a short shrift. The amendment in
section 4 was brought in by the Parliament and applies to such areas
in the Federation as are not included in any Province. Simply put, the
effect of the amendment shall have no application to acquisition by
provincial authorities.
8. The next challenge is based on the requirements that must be met
prior to issuance of section 4 notification. He relies upon a recent
judgment of this Court to submit that section 4 notification is non est
since the Collector failed to carry out his obligations cast upon him by
the Act, 1894 and Rules, 1983 and thus breached the mandate of law.
The following portions from W.P. No. 9429 of 2021 were relied upon:
"180. We are concerned with subsection (1) more than the
remainder of the provision. Subsection (1) simply says that a
notification shall be published in the official gazette by the
Collector of the District whenever it appears to him that land in
any locality is needed or is likely to be needed for any public
purpose. This is indeed a vast and polycentric power vesting in
the Collector. Section 4 does not spell out the periphery of the
power nor does it specify the considerations which are required
to be taken into account by the Collector to form such an
opinion. Some insight in this regard can be had by reading the
Punjab Land Acquisition Rules, 1983. In my opinion, Rules 3, 4, 5
and 6 ought to be read in conjunction with section 4 in order to
lend some actuality to the powers vesting in the Collector. Rules
3, 4, 5 and 6 are reproduced for facility:
"3. The acquiring agency shall submit an application to the Collector
of the District concerned in the prescribed form for the
acquisition of land under the Act giving full justification of the
 public purpose involved and the minimum area required by it
with full details of all other area owned by it in the same locality.
4. On receipt of the application under Rule (3) the Collector of the
District shall examine its feasibility taking into consideration the
genuineness of the public purpose involved, the minimum
requirements of the acquiring agency and suitability of the area
proposed for acquisition keeping in view its alternate uses, if
any.
5. Where after the examination of feasibility under Rule 4, the
Collector of the District is of the view that the land be acquired
for the acquiring agency, he shall issue a notification, under
section 4 of the Act stating clearly the name of the revenue
estate/village or locality Tehsil, broad details of the dimensions
and boundaries of square or rectangles, field numbers and the
approximate area to be acquired.
181. A holistic reading of the rules would show that the process is
triggered by some 'acquiring agency' which shall submit an
application to the Collector of the District concerned in the
prescribed form for the acquisition of land under the Act giving
full justification for the public purpose involved and the
minimum area required by it with full details of all other area
owned by it in the same locality. This is a sine qua non and sets
into motion the process of acquisition and is the first step
towards that process. On receipt of the application, under rule 3,
the Collector of the District shall examine its feasibility taking
into consideration the genuineness of the public purpose
involved, the minimum requirements of the acquiring agency
and the suitability of the area proposed for requisition keeping
in view its alternate uses if any. The Collector shall examine the
feasibility under rule 4 and if the Collector is of the view that the
land be acquired for the acquiring agency he shall issue a
notification under section 4 of the Act. The rules 3, 4 and 5 of the
Rules, 1983 are an elaboration of the essential steps which must
precede the issuance of the notification under section 4 of the
Act. These rules have a purpose and that purpose must be kept
in view by the Collector while making a notification under
section 4 of the Act. It seems that the legislator felt a need for
prescribing these essential steps in the rules as section 4 does
not lay down any criteria to be followed by the Collector in
making the notification under section 4. These considerations
which are spelt out in the rules give a humane touch to the
process of acquisition so that the fundamental rights conferred
 by Article 24 of the Constitution may not be infringed without
due process of law.
182. With reference to the Act, 1894, the Collector of the District,
exercising powers under section 4 is a 'core public authority'.
"There are certain bodies that so obviously have the character of
a public authority that it is not necessary to mention them." R.
(on the application of Quark Fishing Ltd.) v. Secretary of State
for foreign and Commonwealth affairs (No.2) [2005] UKHL 57
(Lord Hope of Craighead). Thus the powers of the Collector are
circumscribed by the conditions laid down in the rules. In the
first instance, the acquiring agency must give full justification of
the public purpose involved and the minimum area required by
it with full details of all other area owned by it in same locality.
In short, the application shall be in the form of a feasibility
which shall be examined by the Collector. He shall, for the
purpose, take into consideration the genuineness of the public
purpose involved, the minimum requirements of the acquiring
agency and suitability of the area proposed for requisition,
keeping in view its alternate uses if any. Thus, the duty of the
Collector is an onerous one entailing certain relevant
considerations to be taken into account prior to the issuance of
section 4 notification. An important aspect of Administrative
Law relating to decisions based on irrelevant considerations or
failure to take account of relevant considerations, is thus
engaged at this stage. This will, in turn, determine the
justiceability of the action by the courts.
184. Thus it inevitably follows that discretion by the Collector must
be used to promote the policy and the object of the Act. The
policy of the Act, 1894 clearly has its provenance in the
Constitution of Pakistan. Right to property is a fundamental
right. Compulsory acquisition is a serious invasion on that right
and must be scrupulously and jealously guarded against. Any
acquisition must be grounded in public purpose and just
compensation. Section 4 and its preconditions are a bulwark
against compulsory acquisition and the Collector must bring the
full application of his mind to bear upon the feasibility
submitted, its examination and formation of his view. It is a two-
tier process.
185. As a first step, the acquiring agency shall put forth full
justification for the public purpose involved. It must therefore
conform to the concept of public purpose as understood as a
term of art and as expounded by the courts. The public purpose
must be such that it overrides and stumps the individual
 interest. It has to be based on objective criteria and must have
the support and backing of an expert study and requisite facts.
This is the essential first step to be complied scrupulously by the
acquiring agency as the proposed taking affects a fundamental
right. The words 'full justification for the public purpose' has to
be given effect fully and purposefully. The justification must be
such that it overrides the private interest and any competing
public purpose, too.
186. Thereafter the Collector shall proceed to examine the
feasibility. For the purpose he shall take into consideration the
genuineness of the public purpose involved, the minimum
requirement of the acquiring agency and 'suitability of the area
proposed for requisition keeping in view its alternate uses if
any'. Thus the power to be exercised by the Collector is not a
mere painting to be looked at. It is an objective and robust
exercise of power keeping in view varying factors which inhere
in the compendious term 'suitability of the area proposed for
acquisition keeping in view its alternate uses if any'. The term
used in rule 4 is pregnant with the diverse nature of the scope of
Collector's powers. There is a subtle yet important aspect which
needs to be flagged here. The entire process with regard to
'suitability' has to be conducted keeping in view the interest and
rights of the persons who own the property liable to be
acquired. That is at the heart of the process and examination by
the Collector. He must objectively assess whether the area is at
all suitable for acquisition and it must qualify the test of
'alternate use' of that land. For example, if the land is
agriculture, then the Collector must carry out the examination
from the standpoint of food security which is a looming threat
on the horizon. He must ask the question: Will the food security
be under threat if a big chunk of land is rendered useless and
the people of the area are deprived of essential commodities
which sustain them. This will have a spiral effect on the overall
food situation; the inflation will rise as would prices of food
items which will, in turn, impact the economic and culinary
aspects of the public. This is an illustration of competing public
interest which the Collector is required to consider in the section
4 determination. The number of illustrations can be myriad
depending on the circumstances of each case. There could be
human dwellings or trade and businesses being run by people
whose most prized possession likely to be affected is the
goodwill attached to that vocation. Heritage and buildings of
historical and cultural importance ought to occupy the
Collector's consideration in the examination. The nature of the
 project sought to be carried out by the acquiring agency should
also have an important bearing on the decision to be made. If
the project entails the construction of a road or highway, it may
have to be analysed differently from a mere campus block of a
college.
189. Section 4 read with the Rules is an example of a provision in a
statute which places on a public body a duty 'to have regard' to
some desirable good.
209. Thus, the Collector of the District cannot act mechanically in
issuing a notification under rule 4 and is under a bounden duty
to comply with the provisions of rules 3, 4 and 5 of the Rules,
1983. An application of mind has to be made by the Collector
with regard to all these aspects while examining the feasibility
of the application. The most crucial aspect in my opinion which
the Collector is liable to undertake is the alternate uses to which
the land can be put and this should be an important plank of the
feasibility undertaken by the Collector of the District. This will
require the Collector of the District to hold meetings for the
purpose and to sum up his findings in the form of a written
statement which will lead to the issuance of the notification
under section 4 of the Act, 1894."
9. As concluded above, the Collector of the District will also be
obliged to consider the approval given by Environmental Protection
Agency to EIA submitted by the acquiring agency. A holistic view will
be taken by the Collector of the District and thereafter an informed
decision shall be made and the entire procedure shall precede the
issuance of the section 4 notification. None of these procedural
formalities were complied with by the Collector of the District of
Multan and therefore the notification which has been issued under
Section 4 is held to be without lawful authority and void ab initio.
10. The section 4 notification is illegal for another reason too. It has
been signed and issued by two other public bodies, absolutely alien to
the scheme of section 4. One is a Group Captain, Director Revenue
Record, Air Headquarters Islamabad, and the other is the Land
Acquisition Collector, Multan. At the bottom, it was then endorsed by
the District Collector. Thus, for all intents the section 4 notification was
not signed by the District Collector and he merely endorsed the draft
notification sent to him to be signed. This is an egregious abdication of
powers by the Collector who allowed his discretion to be captured by
extraneous persons.
11. The third ground of attack is made to the issuance of sections
17(4) and 6 notification subsequently by the Commissioner Multan
Division, Multan. That second notification is discrepant in may
respects. Section 17 provides that:
"17. Special power in cases of urgency.---(1) In cases of urgency,
whenever the Commissioner so directs, the Collector, though no
such award has been made, may, on the expiration of fifteen
days from publication of the notice mentioned in subsection (1)
of section 9, take possession of any land needed for public
purposes or for a Company. Such land shall thereupon vest
absolutely in the Government, free from all encumbrances:
Provided that the Commissioner shall not issue any direction to the
Collector under this subsection unless the Department of
Government, the local authority, or Company, as the case may
be, for which the land is being acquired, has first deposited the
estimated cost of acquisition of such land as determined by the
Collector of the district, keeping in view the provisions of
sections 23 and 24.
(2) Whenever, owing to any sudden change in the channel of any
navigable river or other unforeseen emergency, it becomes
necessary for any Railway Administration to acquire the
immediate possession of any land for the maintenance of their
traffic or for the purpose of making thereon a river-side or ghat
station, or of providing convenient connection with or access to
any such station, or whenever owing to a similar emergency it
becomes necessary for the Commissioner to acquire the
immediate possession of any land for the purposes of
maintaining traffic over a public road, the Collector may,
immediately after the publication of the notice mentioned in
subsection (1) and with the previous sanction of the
Commissioner, enter upon and take possession of such land,
which shall thereupon vest absolutely in the Government free
from all encumbrances:
Provided that the Collector shall not take possession of any building
or part of a building under this subsection without giving to the
occupier thereof at least forty-eight hours' notice of his intention
so to do, or such longer notice as may be reasonably sufficient to
enable such occupier to remove his movable property from such
building without unnecessary inconvenience.
(3) In every case under either of the preceding subsections the
Collector shall at the time of taking possession offer to the
persons interested compensation for the standing crops and
trees (if any) on such land and for any other damage sustained
by them caused by such sudden dispossession and not excepted
 in section 24; and, in case such offer is not accepted, the value of
such crops and trees and the amount of such other damage shall
be allowed for in awarding compensation for the land under the
provisions herein contained.
(4) In cases where in the opinion of the Commissioner, the
provisions of subsection (1) or subsection (2) are applicable, the
Commissioner may direct that the provisions of sections 5 and 5-
A shall not apply, and, if he does so direct, a declaration may be
made under section 6 in respect of the land at any time after the
publication of the notification under subsection (1) of section 4."
12. Firstly, the second notification has been issued under dictated
exercise of powers. This is culled out from two aspects. It can be
gleaned from a letter dated 28.06.2020 written to the Assistant
Commissioner/Land Acquisition Collector Multan City by the Military
Estate Officer, Multan Circle and the following statement made in the
letter:
"In this regard, 05 sets of Draft Notification under section 17(4) and
(6) of the Land Acquisition Act, 1894 (in original) along with
relevant documents in respect of subject land are forwarded
herewith signatures and further necessary action."
13. Thus, not only that information was laid with the Land
Acquisition Collector regarding deposit of the cost of acquisition, it
was accompanied by five sets of draft notification to be issued in
respect of the land under acquisition. Clearly, the Commissioner
Multan Division while acting on this letter proceeded to issue second
notification under sections 17(4) and 6 of the Act, 1894. In this manner
the Commissioner abdicated his authority in this regard and shackled
his statutory power thereby. It was not the business of any other
authority to have prepared the draft notification for issuance by the
Commissioner Multan Division. Another fact that arises out starkly is
that the letter by the Military Estate Officer, Multan was issued even
prior to section 4 notification which was published on 22.07.2020. It
seems that the respondents did not care whether a section 4
notification had been published or not and the decision to proceed
under section 17(4) was pre-meditated. Doubtless, the Commissioner
did not apply his free mind and independent decision to the act of
issuance of a notification under section 17(4) and so his act falls afoul
of the provisions of the Act, 1894 and in particular section 17.
Secondly, a perusal of second notification shows that it is not only
signed by the Commissioner Multan Division, Multan but also by four
other officers including the Base Commander PAF Base and the
Military Estate Officer, Multan Circle. Once again this could not have
been done and on this basis second notification is ultra vires and
without lawful authority. The only officer envisaged by section 17 for
issuance of the declaration under section 6 is the Commissioner
concerned and no other officer, how high so ever, is authorized by law
to either form an opinion or to sign publication of the notification.
This lends further credence to the arguments that the second
notification was published under dictation and the Commissioner was
swayed by extraneous circumstances.
14. Since second notification has been issued in the meantime while
this petition was pending, the arguments in this Court centered on the
validity of second notification. Apart from other aspects which afflict
second notification and brought forth in the preceding paragraphs, it
does not fulfill the prior conditions mentioned in section 17 which
entirely relates to cases of urgency. If section 4 notification had been
issued on 22.7.2020, there seemed no urgency in the instant case for
second notification under sections 17(4) and 6 to be issued more than
one and half years after the section 4 notification. It is not in dispute
that further steps such as the issuance of notification under sections 5
and 5A of the Act, 1894 have not been taken since by the respondents.
The fact that second notification has been issued belatedly trumps the
claim of the respondents regarding urgency in the matter. Apart from
this aspect, a read of subsections (1) and (4) of section 17 would clearly
bring forth certain prior steps to be taken by the Commissioner in
cases of urgency. Firstly, a direction has to be issued by the
Commissioner that the provisions of sections 5 and 5A shall not apply.
Thereafter a declaration has to be made under section 6 in respect of
the land at any time after the publication of the notification under
section 4. Section 6 of the Act, 1894 relates to and declares that land is
required for public purpose and has to be issued by the Commissioner
if he is satisfied on certain matters regarding acquisition. The
declaration by subsection (2) of section 6 is to be published in the
official gazette and shall state the district or the territorial division in
which the land is situated etc. No separate declaration under section 6
has been issued by the Commissioner nor has the Commissioner issued
a separate direction regarding the fact that the provisions of sections 5
and 5A shall not apply to these proceedings. All of these steps have
been collectively mentioned in the second notification which is a
breach of the mandate of various provisions of the Act, 1894. These
steps cannot be taken simultaneously and must be taken in the order
in which they have been mentioned in section 17 and have to be
preceded by formation of an opinion by the Commissioner on all of
these aspects. Subsection (4) of section 17 begins with the words "in
cases where in the opinion of the Commissioner the provisions of
subsection (1) or subsection (2) are applicable". Thus, the legislature
requires the Commissioner to form an opinion and that opinion must
be expressed in writing and cannot be presumed to exist in the mind
of the Commissioner without finding expression in a written order.
15. This petition raises a vexed question of law relating to "urgency"
and the concept found in the provisions of the Act, 1894. It is a "Rolled-
up" procedure which dispenses with sections 5 and 5-A rights vested in
a person facing deprivation of property.
16. As a prefatory, it may be stated that section 17 is not happily
worded. It has its provenance in the amendment brought about in the
Act, 1894 by Land Acquisition (West Pakistan Amendment) Ordinance
XLIX of 1969 whereby section 17 was substituted and subsection (1) of
section 17 was made applicable to "any land". Prior to the substitution
carried out in 1969, the acquisition in cases of urgency was confined to
waste or arable land. The scope of acquisition under the urgency
provision of section 17 was expanded to "any land" after the
amendment in the year 1960.
17. A synoptical resumption of each sub-section of section 17 would
be required in order to understand the scheme of section 17.
Subsection (1) deals with the cases of urgency in the matters of
acquisition. The provision merely says that in case of urgency, upon
the direction of the Commissioner, the Collector may on the expiration
of fifteen days from publication of the notice mentioned in subsection
(1) of section 9 take possession of any land needed for public purpose
or for a company. This can be done though no award has been made
by the Collector. Ostensibly the provision seems to confer a wide
power on the Commissioner and an unguided discretionary power to
so direct the Collector. As to what constitutes urgency has not been
spelt out in subsection (1) and has been left to be decided by the
Commissioner in each case. However, what is important to note in
subsection (1) is that the provisions of sections 5 and 5A and all other
provisions up till the publication of notice under section 9 will have
been complied with and carried out to full effect. Section 5, it will be
recalled pertains to the issuance of a notification that a land is needed
for public purpose or a company and section 5A confers a right of
hearing on any person interested in any land which has been notified
under section 5 and to object to the acquisition of the land. Therefore,
these rights as being fundamental to the process of acquisition have
been preserved inviolate even in case of urgency contemplated by
subsection (1). Possession can only be taken after publication of notice
mentioned in subsection (1) of section 9. No such proceedings have
admittedly taken place so far and therefore the requirements of
subsection (1) of section 17 have gone abegging. If that is the case, then
subsection (4) of section 17 does not come into play as that provision is
subject to applicability of subsections (1) and (2). This power is further
subject to another important rider which is contained in the proviso to
subsection (1). This relates to the deposit by the department of
Government, the local authority or company for which land is being
acquired to first deposit the estimated cost of acquisition of such land
as determined by the Collector of the District.
18. Subsection (2) is an emergency provision and confers a power on
the Commissioner to acquire the immediate possession of any land in
case of emergency which has been mentioned in subsection (2). This
power under subsection (2) is circumscribed by the strict conditions
laid down in subsection (2) and the circumstances under which the
emergency powers can be exercised. We are not directly concerned
with the interpretation of subsection (2) but its effect may have to be
considered while interpreting the true import and tenor of subsection
(4) at a later stage.
19. Subsection (4) is the provision that we are directly concerned
with in this petition. Therefore, what is the exact nature and policy of
subsection (4) is the subject matter of this petition. We may refer to
subsection (4) as a leapfrogging acquisition procedure which confers
wide and broad powers on the Commissioner to direct that the
provision of sections 5 and 5A shall not apply and therefore a
declaration may be made under section 6 in respect of the land at any
time after the publication of the notification under subsection (1) of
section 4. From a reading of subsection (4), it is evident that this
provision is a drastic provision and entails the taking away of the right
to be heard and to raise objections by any person whose land is being
taken. At first blush, the power conferred on the Commissioner seems
to make blatant and gross inroads in the right to be treated with
fairness and due process conferred upon a person by Article 10A of the
Constitution. In the first instance, the Commissioner is required to
form an opinion as to whether the provisions of subsection (1) or
subsection (2) are applicable or not in a given situation. As
adumbrated, subsection (2) relates to emergency provisions and from
the very nature and the instances of emergency mentioned in
subsection (2) the conferring of power on the Commissioner does not
seem out of sync with the context. However, the conferring of power
on the Commissioner with regard to the subsection (4) and the urgency
envisaged thereby does seem odd and not in tune with the setting of
the Act, 1894 and section 17 in particular. For one, subsection (4) does
not specify any situation which may distinguish a case from the one
under subsection (1) so as to provide justification to the Commissioner
to dispense with the provisions of sections 5 and 5A.
20. As submitted above, in the first instance the Commissioner is
required to form an opinion. As to what is meant by the term 'opinion',
we need not travel far and there is rich body of case law with
reference to Article 58(2)(b) of the Constitution (since deleted) which
conferred on the President a power to form an opinion that a situation
had arisen in which the government of the Federation could not be
carried on in accordance with the provisions of the Constitution and
an appeal to the electoral was necessary. 'Opinion', as held in Abul Ala
Maudoodi's case (PLD 1964 SC 673) imports the exercise of an honest
judgment as to the existence of conditions in which alone the opinion
may be found. The elaboration of the term 'opinion' and the concept
underlying it was made in Federation of Pakistan v. Muhammad
Saifullah (PLD 1989 SC 166) in the following words:
"The discretion conferred by Article 58(2)(b) "cannot, therefore, be
regarded to be an absolute one, but is to be deemed to be a
qualified one, in the sense that it is circumscribed by the object
of the law that confers it.
In the view of the learned Judge:
"The Reading of the provisions of Articles 48(2) and 58(2) shows that
the President has to first form his opinion, objectively and then,
it is open to him to exercise his discretion one way or the other,
i.e. either to dissolve the Assembly or to decline to dissolve it.
Even if some immunity envisaged by Article 48(2) is available to
the action taken under Article 58(2) that can, possibly be only in
relation to the exercise of the 'discretion' but not in relation to
his opinion', An obligation is cast on the President by the
aforesaid Constitutional provision that before exercising his
discretion he has to form his 'opinion' that a situation of the kind
envisaged in Article 58(2)(b) has arisen which necessitates the
grave step of dissolving the National Assembly."
Thus, "though the President can make his own assessment of the
situation as to the course of action to be followed but his opinion
must be founded on some material .Thus, if it can be shown that
no grounds existed on the basis of which an honest opinion
could be formed, the exercise of the power would be
 unconstitutional and open to correction through judicial
review."
21. The position was summed up in Benazir Bhutto's case (PLD 1998
SC 388) by Zia Mahmud Mirza, J. and is as follows:

1) "The President is empowered under clause (2) of Article 58 to

dissolve the National Assembly in his discretion.
2)
3) Before ordering the dissolution of National Assembly in exercise
of his discretion, the President is obliged to form an opinion,
honestly and objectively, as to the existence of preconditions
mentioned in sub-clause (b) of Article 58(2).

4) The formation of opinion must be founded on some material

placed before and duly considered by the President at the time
when he formed the opinion.
5) The grounds/circumstances forming the basis of the opinion must
have direct and reasonable nexus with the preconditions
prescribed in Article 58(2)(b).
6) If not the exercise of discretion, at least the formation of opinion
by the President necessitating the exercise of power is open to
judicial review."

22. Therefore, the opinion to be formed by the Commissioner in

subsection (4) has to conform to the standard laid down for the
formation of opinion in the dissolution of Assembly cases, referred to
above. In a nub, the Commissioner must have before him some
material on the basis of which he forms an opinion objectively and
upon reasonable and rational grounds. The intention of the legislature
to this effect can also be gathered when we make a reference to the
rules which have been framed with regard to the exercise by the
Commissioner under subsection (4). Therefore, we are in no manner of
doubt that before the exercise of power under subsection (4) by the
Commissioner, he has to form an opinion on the basis of material
placed before him and duly considered by the Commissioner at the
time when he forms the opinion. The grounds and circumstances
forming the basis of the opinion must have a direct nexus with the
exercise of power conferred under subsection (4) and must not be
based on irrelevant considerations.
23. The power relates to taking of possession. However, read with
rule 10 of the Rules, 1983 the Collector must have kept in view the
considerations mentioned in rule 10 and append certain certificates
and documents/ information with the case while submitting a draft
notification to the Commissioner. A glance at the rules makes an
interesting reading. Rules 10, 11, 12 and 13 of the Rules, 1983 deal with
matters relating to the notification under sections 5 and 17 of the Act.
By rule 10, certain matters, which the Commissioner of the Division
will bear in mind while issuing the notification, have been spelt out.
This would include a full description of the village, Tehsil and District
etc. A note at the bottom of the notification would exclude waqf, state
and evacuee lands, toms, graveyards and places of religions character
as also that the Collector of the District has calculated the price of land
sought to be acquired. It is also required by rule 10 that the Collector
of the District has placed funds equivalent to the estimated cost
assessed by him at the disposal of the Land Acquisition Collector. Sub-
rule (iii) of rule 10 has an important bearing in the entire setting of the
acquisition proceedings. It lays down that no land lying near a town,
meant for fodder cultivation or for orchards or otherwise cultivable
shall be notified for acquisition for the establishment of any
industries. For the location of industrial units all concerned
Departments of Government including Health, Industries and
Agriculture shall be consulted to ensure that no hazards to public
health or agricultural economy would be involved, in case of such an
acquisition. This is a paradigm provision and is a bulwark against
acquisition of lands which are hazards to public health and
agricultural economy. This sub-rule has to be read with the portion of
the judgment dealing with the issuance of a notification under section
4 of the Act, 1894. The ineluctable inference is that by the rules the
intention of the legislature is that no acquisition should be permitted
which would be hazardous to public health or agricultural economy.
24. Rule 11 prescribes the considerations to be mentioned in a draft
notification which is forwarded by the Collector of the District to the
Commissioner to be issued under section 5 or 17 of the Act. Rule 11
obliges the Collector of the District to append certain certificates,
documents/information with the draft notification for the
consideration of the Commissioner. A holistic reading of rule 11 would
ineluctably show that the Commissioner has indeed to form an opinion
by taking into consideration objective criteria and essential
considerations which have been elaborated in rule 11 of the Rules,
1983. Once again by rule 11 the Commissioner while forming an
opinion has to return a finding as to whether it would be proper to
acquire a certain piece of land so as to minimize loss to the
agricultural economy. Special emphasis has been laid for preserving
the agricultural economy and while acquiring land special care has to
be taken with regard to the preservation of agricultural economy and
public health. This seems to be the underlying theme of the rules 10
and 11 and corresponding obligation cast upon the Commissioner of
the Division while forming an opinion.

25. No time is provided within which urgency powers have to be

exercised. Obviously urgency in common parlance, connotes the
taking of immediate steps. In subsection (1) the instance of urgency,
can only be said to arise and implementation done 'on the expiration
of fifteen days from publication of notice mentioned in subsection (1)
of section 9'. Thus subsection (1) deals with cases that keep the
provisions of sections 5 and 5A intact and applicable.

26. As stated above, section 17 makes an interesting reading. The

rules do not make a distinction amongst the various subsections of
section 17 and prescribes a uniform procedure to be followed by the
Collector as also the items to be included in the draft notification to be
prepared by the Collector.
27. Similarly, in the emergency provision of subsection (2), the
Collector can only enter upon and take possession of land, 'after
publication of the notice mentioned in subsection (1) and with the
previous sanction of the Commissioner'. The notice mentioned in
subsection (1) of section 9 which is obviously after the compliance of
sections 5 and 5A has already taken place. Thereafter these provisions
will have to be reconciled and read in harmony. The intention of these
provisions can only be to dispense with the normal procedure in case
of emergency and to proceed to take possession, immediately. The only
thing left would then be the giving of compensation.
28. For all these reasons, the act of the Commissioner in issuing
second notification under sections 17(4) and 6 of the Act, 1894 is null.
The second notification is held without lawful authority.

29. In view of the above, this petition is allowed. The section 4

notification as well as second notification under sections 17(4) and 6 of
the Act, 1894 are held to be void and are struck down.
MH/K-21/L Petition allowe
;