1. ' SAJJAD ALI SHAH, J.---By this single judgment it is proposed to decide three Constitutional Petitions bearing Nos.1260, 1279 and 1275 of 2003 filed under Article 199 of the Constitution of Islamic Republic of Pakistan as they involve common question of law and similar facts. The petitioners in all these three petitions have prayed that the Notifications/ Notice issued by the respondent under sections 4, 5, 6 and 9 of the Land Acquisition Act, 1894 dated 19-6-2003 3-7-2003, 7-8-2003, and 2- 9-2003 be declared as unlawful mala fide and violative of Articles 4, 24 and 25 of the Constitution and a further declaration that the property subject-matter of petitions, is not required for public purpose.
2. ' The common facts giving rise to the present petitions are that the petitioners claim to be the owners of different pieces of land situated in Trans Layari Quarters, adjacent to old Sabzi Mandi, main University Road, Karachi leased out in their favour by Karachi Metropolitan Corporation. It is claimed by the petitioners that after the shifting of old Sabzi Mandi it was decided to construct/develop a park on the said site the petitioners, consequently were issued a letter dated 6-7-2002 by the respondent No,5 intimating that the District Co-ordination Officer desires to have a meeting with the petitioners on 7-7-2002. The petitioners went to attend the meeting where it was disclosed that the respondents have decided to resume the private land around the old Sabzi Mandi to develop park which included he properties/Land of the petitioners. Thereafter, on 17-7- 2002 the petitioners received a notice under section 142 read with section 6 Item No,64-1, 2 and 3 of Sindh Local Government Ordinance 2001 alleging violation of certain terms and conditions of lease including non-payment of lease rent. It was further threatened that non-reply of notice within seven days shall result in resumption of land. The petitioners immediately replied the said letter, but the respondents found the reply unsatisfactory and consequently cancelled the lease and after dispossessing the petitioners sealed the property.
3. ' The petitioners challenged the unilateral and illegal act of the respondents by filing constitutional petition in this Court and this Court after hearing the respective parties directed the respondent to issue challans for payment of ground rent and further to vacate the plots and to restore the possession to the petitioners forthwith. The respondent in utter disregard to and in gross violation of the said judgment neither issued the challans for payment of ground rent nor vacated the said plot. On the contrary, the respondents served upon the petitioners a notice dated 2-9-2003 under section 9 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) from which notice it transpired that the respondent had already issued notification under sections 4 and 6 of 'the Act' duly published in the Sindh Government Gazette dated 19-6-2003 and 25-8-2003. It is further claimed that the petitioners were never given any notice under sections 4, 5 and 6 of 'the Act' nor any objections were invited under section 5-A of 'the Act' and no proceedings under sections 7 and 8 of `the Act' were undertaken. It is further alleged that the notice under section 9 of `the Act' dated 2-9-2003 discloses that the land was being acquired for the construction of inter-change of Northern Bye-Pass at Super Highway and the said stated public purpose was contrary to what was stated in the Notification issued under sections 4 and 6 of the Act. It was claimed that the land is not required for the public purpose as 18 acres of land is already available with respondent No,5 for the development of said park.
4. ' On the other hand, respondent No,4 has filed comments disclosing that City District Government Karachi has decided the development of modern park on the land of old Sabzi Mandi and the adjoining area, the purpose of establishing the park is to provide entertainment facilities to common men and beautification of the area. Consequently, the lands involved in the present petitions were required for public purpose i.e,, establishment of modern park known as Askari Park.
5. The District Officer (Rev.) CDGK upon receiving a request CDGK for acquisition of properties/lands subject-matter of these petitions in exercise of power vested in him under section 4 of 'the Act' issued a Notification giving full details of the properties so required for the information of all concerned and for filing of objections to the acquisition of land within a period of 30 days. The respondent, thereafter, issued a Notification under section 5 of the Act, specifying the details of the properties. However, none of the persons interested including the petitioners filed any objection in response to the said notifications, therefore, the respondent issued notification under section 6 of 'the Act' whereby Deputy District Officer (Revenue) was appointed as Land Acquisition Officer for the purposes aforesaid. The Deputy District Officer (Rev.) after his appointment as Land Acquisition Officer issued a notice under section 4 of the Act, which was published in daily 'DAWN' and "JANG" dated 2-9-2003 and 6-9-2003 respectively and affixed the first date of hearing on 19-9-2003 but no one appeared to file claims in response to the notices/published in the Newspapers. Beside published notices in the Newspapers the respondents also issued/served individual notices upon the petitioners who in response to the personal notice appeared and participated in the proceedings and filed the claim for compensation/objections, it was also pointed out in the claim/objections that the purpose mentioned in notice under section 9 of the Act was different that the one mentioned in notice under sections 4 and 6 of the said 'Act' for which the respondents had submitted a clarification that it was a bona fide clerical mistake as the Land Acquisition Officer for acquiring the land for the Askari Park was also acting as Land Acquisition Officer for the land acquired for the constitution of Interchange at Super Highway for Karachi Northern Bye-Pass Project. It was stated that the land was acquired strictly in accordance with law and the petitioners after filing their claim for compensation have regularly attended the enquiry and Award proceedings except on final date of passing Award i.e, 11-10-2003. It was further stated that the petitioners in C.Ps.Nos.1260 and 1279 of 2003 have even filed an application under section 18 of the Land Acquisition Act for making Reference to the concerned competent Court.
6. ' We have heard Mr. Mushtaq Ahmed Memon, learned counsel appearing for the petitioner in C.P.
7. No,1275 of 2003 and Mr. Abrar Hassan learned counsel appearing for the petitioner C.Ps.Nos.D-1260 and 1279 of 2003 and Mr. Chaudhry Muhammad Jamil and Mr. Manzoor Ahmed for the respondent.
8. ' Mr. Mushtaq Ahmed Memon mainly argued that the acquisition of land in present case is mala fide and in violation of Article 24 of the Constitution of Islamic Republic of Pakistan 1973 and in support of his argument and to demonstrate mala fide has raised the following points:--
(1) Eighteen acres of land is already available with the respondents for development of park which comprises the old Sabzi Mandi on which proposed "Askari Park" was to be constructed as such no further land is required for the park.
(ii) Land which is now required is for the construction of food Court which is not a public purpose.
(iii) No change in the original lay out scheme has been notified and notified scheme cannot be changed without public notice and since no public notice for change has been issued therefore, the land is not required for the park.
(iv) The purpose given in the notice issued under section 9 of the Act. For the acquisition of land is totally different than the one mentioned in the Notification published by the respondents under sections 4 and 6 of the Land Acquisition Act.
(v) The purpose behind the acquisition is to defeat the judgment of this Court whereby the respondents were directed to issue payment challan and restore possession.
(vi) The acquisition is discriminatory as the respondents have adopted pick and choose method, ' Mr. Abrar Hassan besides adopting arguments of Mr. Memon has argued that the provision of Land Acquisition Act are confiscatory in nature and are to be interpreted liberally in the context of Article 24 of the Constitution of Islamic Republic of Pakistan 1973. In support of his arguments he has relied upon the case of Farooq Khan Laghari v. Pakistan (PLD 1997 SC 57).
9. The first plea raised on behalf of the petitioners that sufficient land is available for the park appears to be without substance as the respondents in their parawise comments have explained in detail that besides the land of old Sabzi Mandi available for park, adjacent lands are also required for the development of said park for the use of general public and for the beautification of the area. Even otherwise it is for the concerned Government to decide the extent of old land required for a public purpose and not for the person whose land is under acquisition. The petitioner have further failed to place anything before us to demonstrate any other purpose or motive of acquisition than the one pleaded by the respondent. On the contrary the petitioners have themselves admitted that the land is required for the construction of Food Court. The argument further does not find favour with us as the provision of section 6 of the Land Acquisition Act makes it abundantly clear that declaration by the concerned Government under section 6 of the Land Acquisition Act shall be the conclusive evidence of the fact that the land is needed for a public purpose. The only exception to this rule could be in a case where the land is being acquired under colourable exercise of power, which is neither the case of the petitioners nor any other purpose of acquisition than the one for which the land is acquired is pleaded the argument therefore, is rejected.
10. ' As to the second contention raised on behalf of the petitioners that the land in question is required for the construction of Food Court which accordingly to them is not a public purpose does not find support from the document placed before us, there is nothing on record to show that the land under acquisition is acquired for the construction of "Food Court". The Notification under sections 4, 5 and 6 of the Act clearly specify the purpose of acquisition as "Construction of Askari Park".
11. Notwithstanding acquisition of land for the construction of 'Food Court' which is present time is the need of every modern park in order to provide complete entertaimnent and refreshment to public at large cannot be excluded from the ambit of term "land required for public purposes". This is -so for the simple reason that the term "public purpose" as defined in section 3(f) of the Land Acquisition Act does not conclusively defined or limit the scope of public purpose. The term 'public purpose' has to be used in an elastic sense so that its true importance is appreciated and fulfilled.
12. The inclusive definition of public purpose in section 3(1) not being conclusive or useful in ascertaining the ambit of that expression, which may vary from one particular set of facts and circumstances to another such set. Broadly speaking the expression public purpose would however, include any purpose in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned. It has been reiterated time and again that public purpose is bound to vary with the times and the prevailing conditions in a given locality and therefore, it would not be a practical proposition even_ to attempt comprehensive definition of it. It is because of this that legislature has left it to the concerned Government to say what is public purpose and also to declare the need of a given land for public purpose. Public purpose necessarily implies a purpose which will benefit the public in general and not any individuals. In the circumstances, even if the Government has decided to construct a 'Food Court' beside the Askari Park for the use and benefit of public in general it cannot by any stretch of imagination be ousted from the ambit of term 'public purpose'. The argument therefore, is without any substance and is consequently turned down.
13. ' No arguments whatsoever were advanced by the learned counsel for the petitioner in support of his third contention. The learned counsel has failed to point out any provision in the Land Acquisition Act or any other law on statute book which makes it obligatory on the part of the concerned government to first notify a changed in the notified scheme, and thereafter to acquire the land for a public purpose. The argument is without substance and appears to be not pressed and is, therefore rejected.
14. ' While examining the fourth contention raised on behalf of the petitioners, we have gone through the record, produced before us. It is the case of the petitioner that even before issuance of Notification under section 4 of the Land Acquisition Act they were informed by the respondents vide their Letter No,SDDO/ REV/LAND/205/2002, dated 18-3-2002 that the plots (factories, cold storage etc.,) adjacent to the plot of Old Sabzi Mandi are required to be included in the park to make it more spacious and beautiful and thereafter respondents vide their letter dated 6-7-2002 captioned as Development/ construction of park on the plot of Sabzi Mandi, main University Road, Karachi invited the petitioners to attend a meeting which was duly attended by the petitioners.
15. Thereafter a notification under section 4 of `the Act' was duly published in the Sindh Government Gazette staing therein that the property in question and other are required for public purpose i.e, for construction of Askari Park CDGK at Old Sabzi Mandi, main University Road Karachi. The said notice also invited objections within 30 days. Thereafter notification dated 3-7-2003, under .Section 5 of the 'the Act' was issued which clearly specified the plot numbers area of each plot and the area required for acquisition. However, none of the petitioners filed any objection to either of the notification and consequently on 7th August 2003, Notification under section 6 of 'the Act' was issued duly notifying that the Land is needed for the public purposes i.e, for the construction of the Askari Park CDGK at Old Sabzi Mandi, mian University Road Karachi. It was further notified that the Deputy District Officer Revenue Malir Town Karachi was appointed to perform the functions of District Officer Revenue for all the proceedings to be initiated for the acquisition of land. Thereafter the respondents issued notification under section 9 of 'the Act' which was duly published in the daily Newspaper like "JANG" and "DAWN" dated 2-9-2003 and 6-9-2003 respectively. Personal notices were also issued to the petitioners and in response they filed their claims on 27-9-2003 and raised an objection that the purpose given in earlier notifications being construction of Askari Park whereas the notice issued under section 9 specifies the purpose of acquisition as construction of interchange of Karachi Northern Bye-pass Project at Super Highway. In response to this objection an explanation was given by the respondent that it was due to bona tide clerical/typing mistake for the reason that the Land Acquisition Officer for the purpose of acquiring land for the construction of Askari Park is also functioning as Land Acquisition Officer for the Land required for the construction of interchange at Super Highway in Karachi Northern Bypass Project. We have found that the purpose given for acquisition of land in all the aforesaid notification is construction of Askari Park whereas in notice under section 9 of the Land Acquisition Act purpose of acquisition has been mentioned as construction of interchange a Super Highway in Karachi Northern Bypass project. The respondents have pleaded that it was due to bona fide mistake and have furnished a plausible explanation for such mistake which we are inclined to accept for the reason that land at Old Sabzi Mandi cannot be acquired for the construction of interchange at Super Highway and further it is not the case of the petitioners that due to such mistake any prejudice was caused to them or they have suffered any loss. In fact as evident from the record in response to such notice the petitioners had filed their claims before the respondents, consequently we hold that the omission being bona fide has not caused any prejudice to the petitioners and does not effect the acquisition proceedings.
16. ' As to the fifth contention raised on behalf of the petitioners it appears to be an admitted position that the petitioners had earlier filed different Constitutional Petitions challenging the action of the City District Government Karachi whereby the leases in favour of the petitioners were cancelled on account of non-payment of land rent. This Court after hearing the matter at length vide its judgment dated 21-11-2002 had decided such action on the part of CDGK as illegal and directed the CDGK to restore the possession of their respective properties to the petitioners and provide them an opportunity for payment of land rent. However, by no stretch of imagination the action of the respondents of acquiring the respective lands of the petitioners by adopting procedure as prescribed under the Land Acquisition Act be termed as mala fide or to defeat the aforesaid judgment of this Court. The possibility of this fact cannot be ruled out that since the petitioners had failed to pay the land rent, therefore, the respondent might have thought it appropriate to assume the land after cancellation of their respective leases to avoid payment of compensation. However, after the intervention of this Court by directing restoration of respective properties to the petitioners and directions to the respondents for issuance of payment challan in respect of land rent, the respondents have adopted the proper course for acquiring the land under the provisions of the Land Acquisition Act upon payment of compensation which neither can be termed as mala fide nor it can be termed as step to defeat the judgment of this Court.
17. ' Taking up the last contention as raised on behalf of the petitioner terming the acquisition as discriminatory and by adopting pick and choose method. The respondent in their parawise comments have submitted that City District Government Karachi has selected a compact piece of Land which includes- the area of the Old Sabzi Mandi for the public park and no plot falling with proposed planning of the park has been left or excluded from acquisition we have also examined copy of the layout plan placed by the petitioners in CP No,D-1275 of 2003 on record along with his additional affidavit and do not find any reason for not accepting the reply of the respondent as the under acquisition if joined with the land of Old Sabzi Mandi does make a compact piece of land.
18. ' Coining to the plea raised by Mr. Abrar Hassan that the provisions of Land Acquisition Act being confiscatory in nature are to be interpreted liberally in the context of Article 24 of the Constitution of Islamic Republic of Pakistan 1973, we would like to reproduce one paragraph from the judgment delivered by the Supreme Court in the case of Sub (Retd.) Muhammad Ashraf v. District Collector Jhelum and others (PLD 2002 SC 706). Wherein the Hon'ble Supreme Court while examining the provisions of Article 24 of the Constitution of the Islamic Republic of Pakistan 1973 in the context of acquisition proceedings had observed as follows:-- ' "We have minutely perused the provisions as contained in Article 24 of the Constitution. There is no cavil with the proposition that the sanctity of private property has been acknowledged in a crystal clear manner but it must not be lost sight of that where a person is deprived of his property under the authority of law and according to the provisions of law, he has no ground for complaint under the Constitution and the only embargo which has been imposed under Article 24 of the Constitution is that no private property can be acquisitioned save in accordance with law and that too for a public purpose and on payment of compensation Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457). It can thus be concluded that a land can be acquired for public purpose subject to payment of compensation to the determined by the competent forums provided under the Act."
19. ' We have minutely examined the entire record place. Before us which reveals that the land subject-matter of the present petitions has been acquired after the completion of all pre- requisites as envisaged under the Land Acquisition Act. The petitioners have filed their claims before the Land Acquisition Officer and have regularly attended the proceedings before him which is evident from the attendance sheet placed on record by the respondents and have filed the present petitioners just a day before the passing of Award. The record further reflects that Mr. Anwar Mansoor Khan Advocate General Sindh on 5th April, 2005 made a statement before this Court that the petitioners in C.Ps. Nos.D-1206 of 2003 and 1279 of 2003 have already filed application under section 18 of the Act before the D.O. (Rev.) CDGK who has referred the matter to the concerned Court. The petitioners, consequently, have failed to point out any illegality committed by the respondents during the land Acquisition proceedings on the basis whereof the acquisition of land in question could be declared as unlawful.
20. ' In view of what has been discussed hereinabove the petitions being devoid of merits are hereby dismissed along with all the listed applications.