' SH. HAKIM ALI, J.---Attempt to seek leave to appeal against the judgment of the learned Division Bench of the Lahore High Court dated 2-3-2005 delivered in I-C.A. No,575 of 2003, has been made through the instant Civil Petition by the petitioners, who had lost the battle of litigation to get their land released from the clutches of compulsory acquisition acquired by the respondents.
2. A Notification under section 4 of the Land Acquisition Act, 1894, was got published in the Extraordinary Gazette of the Punjab dated 8-1-1986 by WAPDA for the construction of WAPDA Offices and Official Residential Colony in Village Khamba, Tehsil and District Lahore, through Collector of District Lahore. Land measuring 521 'kanals 4 marlas initially was notified in the aforementioned notification to be acquired. But afterwards, a corrigendum notification was also issued on 7-8-1986, which was got published in the issue of the Punjab Gazette dated. 9-8-1986.
The area proposed to be acquired was reduced to the extent of 478 kanals, 18 marlas. Notification of declaration as required under section 6 of the Land Acquisition Act, 1894 had also flowed thereafter while notification dated 1-10-1986 under section 17(4) of the above aforementioned Act, was gotten out by the Commissioner Lahore Division Lahore, which had appeared in the Punjab Gazette on 4-1-1986.
3. Two Writ Petitions bearing No,419 of 1978 and Writ Petition No,512 of 1987 were filed before the Lahore High Court Lahore, challenging the vires of the aforementioned notification and the ensuing proceedings of acquisition on the ground that the land being acquired for WAPDA could not be held to have been acquired for public purpose because the WAPDA Corporative Housing Society was the ultimate beneficiary of these proceedings. Therefore, the acquisition was prayed to be declared as proceedings based on mala fides. It was further pleaded that land of one Seth Abid and the Roti Corporation, which had fallen within the WAPDA Town Scheme was not included in and were left out from the acquisition proceedings, which was the proof and manifestation of mala fides on the part of WAPDA, therefore, the acquisition proceedings might be declared invalid. Many other objections were also raised but the main and pivotal issue pleaded, was that the land was not being acquired for public purpose and that proceedings were based on mala fides. The learned Judge in Chamber of the Lahore High Court, through a detailed judgment after discussing every aspect of the case partly allowed the writ petition through its judgment dated 15-10-2003 in the following terms:-- "For what has been stated above, both these writ petitions are partly allowed only to the extent of re-determination of compensation payable to the petitioner by the concerned Land Acquisition Collector while the proceedings for acquisition of the land in dispute are upheld."
4. Aggrieved from the aforementioned judgment of the learned Judge in Chamber passed on 15- 10-2003, I.-C.As. Nos. 565/03 and 579/03 were filed in the same High Court, by the petitioners but the order/judgment of the learned Single Judge in Chamber was upheld by the learned Division Bench of the High Court by dismissing the appeals on 2-3-2005, hence this Civil Petition.
5. The main thrust of arguments, of the learned counsel for the petitioners that the land was not acquired for public purpose and the acquisition proceedings were based on mala fides. To prove as to how the acquisition proceedings were based on mala fides, stress was laid upon the fact that the land of Seth Abid was left over from the acquisition process, although it was situated amidst the lands, surrounded by the lands of the petitioners, which were being acquired, therefore, it was a clear mala fides on the part of WAPDA. The award was incomplete, and land initially noted in section 4 Notification under Land Acquisition Act, 1894 could not be changed under section 7 of the Land Acquisition Act, 1894. As per learned counsel the detail of the land was changed under the proceedings which were taken under section 7 of the Land Acquisition Act. Even order was passed for the change of land and emergent taking of possession was done under section 17(4) of the Land Acquisition Act 1894, therefore, the acquisition proceedings of the land in dispute were to be declared null and void. The learned counsel for the petitioners has also referred to the case of (The Muree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others) PLD 1972 SC 279.
6. Conversely, the learned counsel for the respondents submits that the land was acquired for public purpose as the land was required for the construction of offices and official residential colony for the employees of the WAPDA. There was urgency for the invocation and application of the Provision of section 17(4) of the Land Acquisition Act, 1894. Enough material was produced before the learned Commissioner for this purpose of obtaining an immediate order for the delivery of possession, which discretion was exercised by the learned Commissioner after considering it, which could not be assailed before the learned High Court in writ jurisdiction, as it was founded upon subjective satisfaction of the Competent Authority. The counsel has referred to many judgments also. Some of it are noted below:-- "(NLR 1997 Revenue 8 (SC), 1997 CLC 812, AIR 1995 Punjab and Haryana 62, AIR 1991 Allahabad 330, AIR 1977 SC 183, AIR 1986 Madras 309, 1986 CLC 1841)."
' Learned counsel for the respondents submits that the learned High Court has correctly dismissed the I.-C.As Nos.565/03 and 579/03 through the impugned order/judgment.
7. We have considered the said arguments of the learned Courts for the parties and have examined the record. All the points agitated through this Civil Petition in this Court have already been dealt with exhaustively by the learned Single and Division Benches of the Lahore High Court, Lahore in the judgments dated 15-10-2003 and 2-3-2005 respectively. Further .We have also given our anxious thought to the question of acquisition of the land for the public purpose or not as raised by the learned counsel for the petitioners. Presence of two witnesses, namely, Abdul Rashid P.W.2 and Muhammad Hussain P.W.3. This evidence has been discarded on the erroneous reasoning that a written notice, was required to be served."In the Punjab Gazette of extraordinary issue dated 8-1-1986, the notification under section 4 issued under the Land Acquisition Act 1894, the wordings which were noted in the preamble of this notification are reproduced as under:-- "Whereas it appears to the Collector, Lahore District, Lahore that the land is likely to be required to be taken by the Government at the Public Expenses for public purpose namely for the construction of WAPDA Offices and Official Residential Colony in the Village Khamba Tehsil and District Lahore, it is hereby notified that land in the locality described below is likely to be required for the above purpose."
8. We have found from the above noted para. That the land was being acquired by the Government at the public expenses. Secondly, the land was being required for public purpose, namely, for the construction of WAPDA offices and official residential colony. This aim and purpose was again reiterated and declaration to that effect was also got published by the Provincial Government under section 6 of the Land Acquisition Act 1894. According to subsection (3) of section 6 of Land Acquisition Act, 1894, the said declaration has got the presumption of conclusive evidence of the fact that the land was acquired for the public purpose. After the publication of this declaration, the presumption was to be rebutted by the present petitioners through sound material and cogent evidence. Mere plea that the land of Seth Abid and his relative was not acquired, although it was situated within the area surrounded by the area to be acquired, could not lead to this conclusion that the land was not being acquired for the public purpose or the acquisition was based on mala fides. The explicit words of acquisition of land in dispute, by the Government at the public expense in the Notification under section 4 of the Land Acquisition Act, 1894 are sufficient to hold that the land was being acquired by the Government for the purpose of construction of WAPDA offices and residential colony. The Government was to decide as to which land was suitable for its purpose. Therefore, no mala fides could be attributed to the Government merely on this plea. The plethora of judgments have found place in the judgments of the learned Division Bench as well as the learned Single Judge in Chamber of the Lahore High Court, Lahore, which need not be repeated in this judgment.
9. As regard the contention of the learned counsel that emergency provision of section 17(4) of the Land Acquisition Act, 1894 was invoked for securing the possession of land to be acquired, although there was no urgency to proceed in such a manner was not an objectionable act because it was the subjective satisfaction of the competent authority to apply those provision or not according to given circumstance, which was not to be allowed to be made available for scrutiny by this Court through the instant jurisdiction. The learned Division Bench of the Lahore High Court has dealt with this subject also in para-8 of its judgment. It was noted that Central Testing Laboratories were to be established urgently as the project was being implemented with the consultative assistance of U.N.D.P. In WAPDA Thermal Scheme. Therefore, this being an urgent requirement of aforementioned organization/department, the notification issued under section 17(4) of the Land Acquisition Act cannot be considered to be invalid proceedings.
10. The contention of the learned counsel for the petitioner that the details of land have been varied and amended under section 7 and section 17(4) of the Land. Acquisition Act cannot be believed to be correct assertion as the learned counsel has failed to point out the amendments and the variations, which had occurred. Moreover the petitioners have failed to produce copy of document i,e, Notification issued under section 6 of Land Acquisition Act, 1894 and the corrigendum issued by the Land Acquisition Collector. It may be explained here that notification issued under section 4 of the Land Acquisition Act, in fact, empowers the Provincial Government and its officers specially or generally to enter upon the lands, to take its survey and to perform other acts as contained in the above noted section. In other words, the notification issued and published under this section 4 of Land Acquisition Act, 1894 is a preliminary step which facilitates the Government and its officers not only to perform survey of the land but to decide and determine as to which piece of land was finally required to be acquired and the land to be left ultimately for the purpose of acquisition, keeping in view the aim and purpose for which the land was being acquired. Therefore, the notification which was got published under section 4 of the Land Acquisition Act, could not be termed as'an ultimate and final decision of the Government to acquire the land notified in the aforementioned Notification.
11. For the reasons discussed above, we have found no merit in this Civil Petition, which is dismissed accordingly and .