' SYED ZAHID HUSSAIN J.---This Intra-Court Appeal and two connected appeals i,e, I.-C.A. No,565 of 2003 and I.-C.A. No,579 of 2003 are directed against the judgment of the learned Single Judge dated 15-10-2003 whereby W.P. No,512 of 1987 and W.P. No,419 of 1987 were partly allowed observing "For what has been stated above, both these writ petitions are partly allowed only to the extent of redetermination of compensation payable to the petitioner by the concerned Land Acquisition Collector while the proceedings for acquisition of the land in dispute are upheld. The petitioners will be associated by the learned Land Acquisition Collector in the process of re-determination of the compensation and they will be entitled to produce evidence in support of their claim. No order as to costs."
2. The case sought to be setup by the appellants/writ petitioners in essence was that the whole acquisition process commenced with the issuance of Notification dated 8-1-1986 was mala fide; it was not for a public purpose; and the acquisition was meant for Water and Power Development Authority Employees Cooperative Housing Society Limited, which had been selling the plots and indulging in commercial activity. A case of discrimination was sought to be made that land situated within the vicinity of the land acquired, which was owned by `Roti Plant Corporation' and one Saith Abid had not been subjected to acquisition.
3. M/s Sajjad Hussain and Faisal Islam, Advocates have been heard on behalf of the appellants, who have reiterated the contentions raised before the learned Single Bench with the addition of a plea centering around section 39 of the Land Acquisition Act, 1894 and judgment of the Hon'ble Supreme Court in Federation of Pakistan through G.M. Telegraph & Telephone Department, Lahore Telephone Region. Lahore v. Province of Punjab through Land Acquisition Collector/Assistant Commissioner, Headquarters, Lahore and 2 others (1993 SCM R 1673).
4. Mr. Munir Ahmed Bhatti Advocate the learned counsel for the respondents has with reference to the report and parawise comments (filed in the writ petition and the material on the record) endeavoured to support the judgment of the learned Single Judge, that all material aspects of the matter had been adverted to in the judgment and the view taken by the learned Single Judge is borne out by the record and is consistent with the law on the subject. It is contended by him that no new plea can be allowed to be raised in appeal.
5. The respective contentions of the learned counsel have been considered.
6. The land in dispute is situated in village Khamba Tehsil and District Lahore. Notification under section 4 of The Land Acquisition Act, 1894 was made on 8-1-1986 reciting that the land was required by the Government "at the public expense for a public purpose namely for the construction of Wapda offices and official residential colony". Notification under section 17 (4) was, thereafter, issued on 1-10-1986 and award was announced on 17-1-1987. This factual background of the matter, which gave rise to writ petitions, have been taken note of and elaborately dealt with by the learned Single Judge. The contentions, which were raised before the learned Single Judge on behalf of the appellants were:--
(i) As per the disputed notifications, the land in dispute is acquired for WAPDA and not for the Government and WAPDA being a Corporation, the disputed acquisition is not for public purpose.
(ii) The land in dispute falls within the area development scheme of the Wapda Co-operative Housing Society, respondent No,5 (herein-after referred to as the Society) and the Society is going to be the ultimate beneficiary, the Society had proposed to acquire the land including the land of the petitioners but they abandoned the acquisition proceedings and purchased land through private negotiations from other land owners. It was further contended that Col. (Retd.) Ikhlaq Gillani, Secretary of the Society, has been representing WAPDA and had submitted a reply to the objections of the petitioners before the Land Acquisition Collector. According to him representation of WAPDA through Secretary of the Society in the disputed acquisition proceedings affirms that the land was, in fact, acquired for the Society.
(iii) That the proceedings of acquisition were mala fide. The submission in support of this plea is that according to the site plan, which was filed on the record of this writ petition, the acquired land was situated in scattered pieces, it was not in a compact block and therefore, ostensibly it was not meant for the purpose for which it was acquired. The other submission in support of this plea is that land of one Seth Abid and the Roti Corporation also falls within the WAPDA Town Scheme, which was not touched.
(iv) It was also contended that the WAPDA had initially asked the Society to hand over an area measuring 400 kanals for the purpose but the Society refused on which acquisition proceedings were initiated. According to him the Society has already purchased land in excess of their requirement and the land required for the purposes of construction of WAPDA offices and the residential colony could be conveniently spared by the Society.
(v) That except for the construction of the Material Testing Laboratories, on a small area, the acquired land has not been utilized.
(vi) The objections of the petitioners were not duly considered by the learned Land Acquisition Collector and personal notices under section 9 of the Land Acquisition were not even served on the - petitioners.
(vii) Up to 17-12-1986 Mr. Sardar Mahmood (Assistant Commissioner, Headquarter, Lahore) had been the duly notified Land Acquisition Collector who was replaced by Mr. Farooq Ahmed Khan. He was appointed as Assistant Commissioner on 17-12-1986 and only by virtue of order dated 11-1-1987, of the learned Commissioner powers of Collector under Act I of 1894 were conferred upon him. His submission precisely is that the proceedings taken on 4-1-1987 and 5-1-1987, which included recording of the statement of the Patwari, the basis of the award, were wholly without jurisdiction and. The award, were wholly without jurisdiction and the award rendered by him stands vitiated.
(viii)Notification under section 17(4) was also challenged on the ground that there was no urgency.
He referred to the comments of the learned Commissioner, to contend that he had not even adverted to the contention of the petitioner in his report and parawise comments.
7. Suffice it to observe that all aspects of the matter have been duly adverted to by the learned Single Judge. It has been held that "requirement of the land for WAPDA and the residential colony for the staff serves a public purpose because the entire scheme is to be executed through public funds. Even acquisition for a Co-operative Housing Society has been held to be valid in Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. And 2 others (PLD 1983 Lahore 552)." The above view also finds support from Muhammad Ishaq and others v. Government of Punjab and others (2002 SCM R 1652) wherein it has been held that "we have examined the relevant provision of the Land Acquisition Act with the assistance of learned counsel for the petitioners and find that acquisition of any land for a Company may not necessarily be for "public purpose" as defined and contemplated by law with the same strictness as the said expression was made applicable in the other cases." Reference at this juncture may also be made to Manubhai Jethalal Patel and another v. State of Gujarat and others (AIR 1984 SC 120) wherein acquisition made for Gujarat State Road Transport Corporation, a company within the meaning of Companies Law had been in controversy and it was held that "Even where land is acquired for a company, the State Government has the power to acquire land for a public purpose from the revenue of the State. In other words, this is an acquisition for public purpose with contribution from the State revenue. The State is acquiring land to carry out public purpose with the instrumentality of the Gujarat State Road Transport Corporation. It is not an acquisition for a company with the funds exclusively provided by the Company which would attract part VII of the Land Acquisition Act. In our opinion, the High Court is right in reaching the conclusion that neither Part VII of the Land Acquisition Act nor the Company Acquisition Rules would be attracted. Therefore, we are in agreement with the conclusions reached by the High Court." It was remarked that even a contribution of Re.1 from the State revenue could be held adequate that the acquisition was for public purpose with State fund. In Girija Dubey and others v. State of Bihar and others (AIR 1985 Patna 15) also a similar view was taken wherein the acquisition of land for construction of residential houses for the purpose of company namely M/s Hyderabad Asbestos and Cement Product Ltd., was made. The acquisition was upheld that the same was for public purpose and that it was not necessary to go through the procedure laid down under part VII of the Act. Reference made by the learned counsel for the appellants to Federation of Pakistan through G.M. Telegraph & Telephone Department, Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/Assistant Commissioner. Headquarters, Lahore and 2 others (1993 SCM R 1673) is inapt inasmuch as in that case the acquisition was made for construction of residential colony for the Punjab Board of Revenue Employees Society, Lahore whereas the said land had already been purchased by the Pakistan Telephone & Telegraph Department from the Settlement Department for a public purpose. In that context section 39 of The Land Acquisition Act, 1894 came to be considered by the Hon'ble Supreme Court and it was observed that "There is no doubt the acquisition of the land for a Housing Scheme formulated by the Board of Revenue employees Housing Society Limited is a public purpose. By public purpose is meant an object or aim in which the general interest of the community as compared with the interest of an individual is involved, but it can hardly be denied that the object for which the land has been purchased by the Telegraph and Telephone Department from the Settlement Authorities is also a public purpose. The learned counsel for the appellant has drawn our attention to the transfer order under which the land in question together with other area was purchased by the department from the Settlement Department and submitted that the land so purchased has to be utilized for construction of a housing colony for the employees of the department, but so far as the appellant's land acquired at the instance of the Housing Society is concerned, it is essentially earmarked for construction of Tele-communication Building, Office and for allied objects mentioned in letter dated 9-4-1985." It was in that context i,e, public purpose of two competing departments that the acquisition made for Board of Revenue Employees Housing Society was set aside. In the present case it has rightly been held by the learned Single Judge, that the land was validly acquired for public purpose.
8. The setting up of Central Testing Laboratories in consultation and collaboration of UNDP and Wapda Thermal Institute could well justify and be made basis for invoking emergency provisions of section 17(4) of the Act and making provisions of section 5-A of The Land Acquisition Act, 1894 as inapplicable. The learned Single Judge has placed reliance upon Rasheed Ahmed and 64 others v.
Province of Sindh and others (1986 CLC 1841) and Sardar and 149 others v. Government of N.-W.F.P.
(1997 CLC 812) in support of such view. The perusal of report/comments would lead to the justification not only for acquisition but also for invoking emergency provisions. The position stated is "As UNDP was pressing for early construction of laboratories, we in turn had to request the Collector and the Commissioner to expedite the process. The Notification under section 17 (Annex.
'G') was Gazetted on 4-10-1986 under order of Commissioner Lahore Division. By now the requirement of land for the Central Laboratories had been more or less firmed up, with a little margin for any later adjustment, in section 17 the land requirement had been finalized at 478 Kanals 18 marlas. It has been further stated that "The main strain of objections and arguments put up by the petitioners is that the land acquired is not for Government nor it is for public purposes. If WAPDA, a Federal Government Organization, is not entitled to compulsory acquisition of land, no Grid Stations, Buildings, Power Houses and Transmission Lines could be built in the Country. WAPDA has paid for the land in question. The Central Material Testing Laboratories, an important component of WAPDA complex in Village Khamba has already been sanctioned by the Federal Government, funds have been allocated and construction of building is awaiting demarcation and handing over of land to the Dam Monitoring Organization a subordinate. Department of WAPDA. If the land acquired is not put to the use for which acquired, there is adequate provision in the Land Acquisition Act to deal with such a situation. As such no mala fides are involved." We have been informed by the learned counsel that Central Material Testing Laboratories and Wapda Thermal Institution have already been setup and functional. We, therefore, do not find any valid justification to differ with the view of the learned Single Judge as to the invocation of emergency powers envisaged by section 17 of the Act. It fell within the domain of subjective assessment and satisfaction of the authority.
9. The contention as to the effect of the land being scattered in parcels and that therefore, the acquisition be held to be a mala fide did not find favour with the learned Single Judge. It has not even impressed us, as acquisition cannot be rendered illegal on such a ground. Likewise the contention that some other land owned by few others was not acquired does not ipso facto lead to any conclusion of mala fide on the part of the Collector or the Commissioner.
10. It has rightly been remarked by the learned Single Judge that "In fact that proceedings taken by the learned Assistant Commissioner on 4-1-1987 and 5-1-1987, were the, basis of determination of the compensation awarded to the petitioners. On the said dates, Mr. Farooq Ahmed Khan, the learned Assistant Commissioner, was not empowered to act as Collector for the purpose of Act I of 1894. Therefore, the award rendered on the basis of the said proceedings cannot be sustained." It was thus that petitions were partly allowed to that extent. That part of the judgment has not indeed been assailed by the respondents, which declaration thus binds the respondents.
Suffice it to observe that no new case can be set up in appeal nor the judgment of the learned Single Bench can be assailed on any such plea, which was not taken before him.
' As a result we see no valid justification to interfere with the impugned judgment. The appeals are dismissed accordingly. No order as to costs.