Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ
C.A. No. 538 of 2022
GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi
and another---Appellants
Versus
AKHTAR ULLAH KHAN KHATTAK and others---Respondents
(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P No. 5567-P of 2019).
C. M.A. No. 9963 of 2021 in C.A. No. 538 of 2022 (Stay Application)
GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants
Versus
AKHTAR ULLAH KHAN KHATTAK and others---Respondents
C.A. No. 539 of 2022
GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants
Versus
ASHFAQ AHMAD and others---Respondents
(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No. 5680- P/2019).
C.A. No. 540 of 2022
GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants
Versus
MUHAMMAD SAEED BUTT and others---Respondents
(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No.5885- P of 2019).
C.A. No. 541 of 2022
GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi
and another---Appellants
Versus
KHURSHID ANWAR and others---Respondents
(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No. 141-P of 2020).
C.A. No. 542 of 2022
GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi
and another---Appellants
Versus
MUHAMMAD YASIR KHATTAK and others---Respondents
(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P No.1867-P of 2020).
C.A. No. 799 of 2022
GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants
Versus
Mst. DILSHAD BEGUM and others---Respondents
(Against the order dated 22.01.2019 passed by the Peshawar High Court, Peshawar in W.P. No.191-P of 2017).
C. M.A. No. 3083 of 2019 in C.A. No. 799 of 2022 (Stay Application)
GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants
Versus
Mst. DILSHAD BEGUM and others---Respondents
C.A. No. 2025 of 2022
GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants
Versus
MUHAMMAD YASIR KHATTAK and others---Respondents
(Against the order dated 22.01.2019 passed by the Peshawar High Court, Peshawar in W.P. No. 869-P of 2019).
C.P. No. 396-P of 2021
DEPUTY COMMISSIONER, NOWSHERA and others---Appellants
Versus
AKHTAR ULLAH KHAN KHATTAK and others---Respondents
(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P No.5567-P of 2019).
C.M.A. No. 667-P of 2021 in C.P. No. 396-P of 2021
(Stay Application)
DEPUTY COMMISSIONER, NOWSHERA and others---Appellants
Versus
AKHTAR ULLAH KHAN KHATTAK and others---Respondents
C.P. No. 397-P of 2021
DEPUTY COMMISSIONER, NOWSHERA and others---Appellants
Versus
ASHFAQ AHMAD and others---Respondents
(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No.5680-P of 2019).
C.M.A. No. 668-P of 2021 in C.P. No. 397-P of 2021
(Stay Application)
DEPUTY COMMISSIONER, NOWSHERA and others---Appellants
Versus
ASHFAQ AHMAD and others---Respondents
C.P. No. 398-P of 2021
DEPUTY COMMISSIONER, NOWSHERA and others---Appellants
Versus
MUHAMMAD SAEED BUTT and others---Respondents
(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No. 5885-P of 2019).
C.M.A. No. 669-P of 2021 in C.P. No. 398-P of 2021
(Stay Application)
DEPUTY COMMISSIONER, NOWSHERA and others---Appellants
Versus
MUHAMMAD SAEED BUTT and others---Respondents
C.P. No. 399-P of 2021
DEPUTY COMMISSIONER, NOWSHERA and others---Appellants
Versus
KHURSHID ANWAR and others---Respondents
(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No. 141-P of 2020).
C.M.A. No. 670-P of 2021 in C.P. No. 399-P of 2021
(Stay Application)
DEPUTY COMMISSIONER, NOWSHERA and others---Appellants
Versus
KHURSHID ANWAR and others---Respondents
C.P. No. 400-P of 2021
DEPUTY COMMISSIONER, NOWSHERA and others---Appellants
Versus
MUHAMMAD YASIR KHATTAK (ADVOCATE) and others---Respondents
(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No. 1867-P of 2020).
C. M.A.671-P of 2021 in C.P. No. 400-P of 2021
(Stay Application)
DEPUTY COMMISSIONER, NOWSHERA and others---Appellants
Versus
MUHAMMAD YASIR KHATTAK (ADVOCATE) and others---Respondents
C.P. No. 4517 of 2019
GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Islamabad and another---Appellants
Versus
SHAH SAUD and others---Respondents
(Against the order dated 24.09.2019 passed by the Peshawar High Court, Peshawar in W.P. No. 1163-P of 2019).
C.A. No. 538 of 2022, C.M.A. No. 9963 of 2021 in C.A. No. 538 of 2022, C.A. No. 539 of 2022, C.A. No. 540 of 2022, C.A. No. 541 of 2022, C.A. No. 542 of 2022, C.A. No. 799 of 2022, C.M.A. No. 3083 of 2019 in C.A. No. 799 of 2022, C.A. No. 2025 of 2022, C.P. No. 396-P of 2021, C.M.A. No. 667-P of 2021 in C.P. No. 396-P of 2021, C.P. No. 397-P of 2021, C.M.A. No. 668-P of 2021 in C.P. No. 397-P of 2021, C.P. No. 398-P of 2021, C.M.A. No. 669-P of 2021 in C.P. No. 398-P of 2021, C.P. No. 399-P of 2021, C.M.A. No. 670-P/ 2021 in C.P. No. 399-P of 2021, C.P. No. 400-P of 2021, C.M.A. No. 671-P of 2021 in C.P. No. 400-P of 2021 and C.P. No. 4517 of 2019, decided on 14th December, 2023.
(a) Land Acquisition Act (I of 1894)---
----Ss. 4, 16, 17& 48---General Clauses Act (X of 1897), S. 21---Acquisition of land, withdrawal from---Power of the Commissioner to withdraw from acquisition of any land---Scope---Power of the Commissioner to withdraw from the acquisition of any land is unfettered till possession has been taken---As such, the Land Acquisition Act, 1894, contemplates that once possession has been taken, acquisition is complete, and the Commissioner can no longer exercise the power to withdraw---Possession must be actual possession of the land, as all interests in the land are sought to be acquired; there can be no question of taking "notional" or "symbolical" possession, nor would possession merely on paper be enough---Possession ought to be either under Section 16 or 17 of the Land Acquisition Act, 1897---It is implicit that after possession has been taken, the land is vested in the Government, and the notifications issued prior to it cannot be cancelled under Section 21 of the General Clauses Act, 1897.
Messrs Dewan Salman Fiber Ltd. and others v. Government of NWFP through Secretary Revenue Department Peshawar and others PLD 2004 SC 441; Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and another v. Farzand Begum and others 2022 SCMR 1383; Lt. Governor of Himachal Pradesh and another v. Sri Avinash Sharma AIR 1970 SC 1576 and B.N Bhagde v. M.D. Bhagwat AIR 1975 SC 1767 ref.
(b) Land Acquisition Act (I of 1894)---
----Ss. 4, 11 & 48---Acquisition of land, withdrawal from---Acquiring department after taking possession seeking to withdraw from the acquisition on the ground that the department did not have the funds to make payment---Legality---As a result of the award, the possession of the land was obtained from the landowners, which was confirmed by the record of rights for the year 1999, which reflected the acquiring department as the owner of the land---Land had been absolutely vested with the acquiring department of the Government since 1999---Since the appellants/petitioners had taken possession of the land in pursuance of the award under Section 11 of the Land Acquisition Act, 1894, the acquisition had become past and closed, denuding the Commissioner of the right to withdraw, rescind, recall or amend any notification regarding the acquisition---Therefore, he could not rely on Section 48 merely because the acquiring department had no funds to pay for the compensation---Land Acquisition Act, 1894, did not allow such grounds of withdrawal from the acquisition of land once possession was obtained---Landowners could not be left in a quandary; they could not be expected to wait indefinitely, as the Government had acquired their valuable right to the immovable property---If the Government or its acquiring department did not have the funds, it should have made up its mind quickly and that too before taking possession and told the landowners where they stood---Land acquisition process started in 1977 and was delayed due to ineptitude and negligence of the appellants/petitioners---Since then, the landowners had been struggling to get their legitimate rights---Impugned notification under Section 48(1) of the Act by which the acquisition was withdrawn could not be held to be bona fide; rather, it was invalid, illegal and without jurisdiction and would be construed as a clever ploy on the part of the appellants/petitioners to deceive the landowners---High Court had rightly set-aside the impugned notification - Matters were disposed of accordingly.
For the Appellant(s)/
Applicant(s)/Petitioner(s)
Malik Javed Iqbal Wains, Addl. A.G.P., Saad Rasool, Advocate (in C.M.A. No. 9420 of 2023).
Ms. Ammara Ammar, MEO.
Arif Mehmood, Survey Officer, MEO.
For the Respondent(s)
Muhammad Yasir Khattak, Advocate Supreme Court.
Sh. Mahmood Ahmad, Advocate-on-Record.
Muhammad Saad Butt, Advocate in person.
Ashfaq Ahmad, in person.
For Government of KPK
Zahid Yousaf Qureshi, Advocate-on-Record.
