' ABDUL HAMEED DOGAR, C J.---Through this judgment we intend to dispose of Suo Motu Case No,13 of 2007, Human Rights Cases Nos.1718 of 2006, 2722, 3181 and 3774 of 2007 involving common question of law and facts.
2. Briefly stated facts leading to the matters are that respondent M/s. Bahria Town made a request to the Deputy District Officer (Revenue) on 12-2-2006 for acquiring 20% land in Mouza Salkhaiter, Tehsil Murree after having purchased 80% land in the village under Rule 3 of the Punjab Private Site Development Schemes (Regulation) Rules, 2005 (hereinafter referred to as 'the Rules'). The request was forwarded to District Officer (Revenue) on 16-2-2006 for further proceedings as per Acquisition Law which was further forwarded to Board of Revenue for necessary vetting and scrutiny on 21-2- 2006. The Board of Revenue after scrutiny allowed publication of notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') on 2-6-2006 but asked the Company to first obtain no objection certificate from Tehsil Municipal Administration, Murree under Rule 8(1) of the Rules. Tehsil Administration, Murree through public notice published in the daily "Nawa-e- Waqt" dated 6-1-2007 whereby public at large was called upon to file their objections in respect of land intended to be acquired by the company. After publication of the said notice, objections were filed and sufficient opportunity of hearing was provided to the land owners. Whereafter, Deputy District Officer (Revenue), Rawalpindi recommended for issuance of NOC. In the meanwhile, notification under section 4 of the Act was published on 15-6-2006. The DDO(R), Murree estimated the cost of land to be Rs,41,467 per kanal for the land under acquisition i,e, 659 Kanals 13 marlas, as average price based on the past mutations. He also estimated the cost of land to be Rs,90,000 per kanal to be the market rate. The District Officer (Revenue) convened the meeting of District Price Assessm ent Committee on 12-12-2006 to evaluate the cost of land which was assessed as Rs,90,000 per kanal which according to them was a fair market price. The minutes of the said meeting were forwarded to Board of Revenue, Punjab for approval which was objected. On such objection of Board of Revenue, Punjab the District Price Assessment Committee convened it's another meeting and enhanced the amount of compensation to Rs,105,000 per kanal. The Board on receipt of revised recommendations approved the above market price vide letter No,198- 2007/287-S.IV dated 16-3-2007. After approval, the DDO(R) forwarded the draft notification under section 17(4) (6) of the Act along with the copy of challan amounting to Rs,86,579,062, in total to the office of DO(R) for further process. Subsequently, DDO(R) announced the award under section 11 of the Act on 21-7-2007.
3. It would be appropriate to mention here that one Hassan Akhtar Abbasi resident of Village Gohara, P.O. Pharphril, Tehsil Murree addressed an application to the then Chief Justice wherein he requested for taking suo motu action for safeguarding the beauty of Murree Hills. It is mentioned in the application that housing society, namely, Bahria Foundation has recently acquired rights of Shamalat land measuring 10,000 Kanals from the people of village Salkhaiter, Angori and Mangal and have started bulldozing the hills and cutting green trees. However, suo motu action was taken by this Court on the press clipping published in the daily "Dawn" "The Nation" on 1-8-2007 and notices were issued to Bahria Town and DCO, Rawalpindi. This Court vide order dated 21-8-2007 suspended the operation of notification dated 15-6-2006 and 3-5-2007 issued under sections 4 and 17 of the Act and stayed further proceeding during the pendency of the matter.
4. However, the matter came for hearing on 23-1-2008 when after hearing counsel appearing on behalf of parties and going through the concise statement determined following points for adjudication:--
(i) Whether the questions raised in these petitions are not of public importance and do not relate to the enforcement of Fundamental Rights to invoke the jurisdictions of this Court under Article 184(3) of the Constitution?
(ii). Whether the rules on the subject framed by the Government of Punjab under Punjab Local Government Ordinance, 2001, are ultra vires to the Constitution as well as Land Acquisition Act, 1894?
(iii) Whether the acquisition of land for a private company is not a public purpose in terms of Article 24(2) of the Constitution read with land Acquisition Act, 1894?
5. These cases were fixed on several occasions but could not proceed for one reason or the other.
Ultimately, the cases came up for hearing on 18-9-2008 when Khawaja Muhammad Farooq, learned Senior Advocate Supreme Court appearing on behalf of applicants, namely, Muhammad Irfan Abbasi and Shaukat Hussain Abbasi in HRC No,3774 of 2007 started his arguments. He contended that applicants purchased land measuring 786 kanals situated in Khewet Nos.133-134, Muaza Salkhaiter, Tehsil Murree which was mutated in their names vide mutation Nos.389 to 399, 405, 407 to 414, 422 and 435. He submitted that according to Register Haqdaraan-e-Zameen for the years 1987-88 and 1991-92, the applicants were shown as owners. The Girdaweri for the year 1989 dated 26-10-1989 was entered in the name of applicants but later on, the Revenue authorities with mala fide intention did not make correct entries in Jama Bandi of the year 1995-96. Feeling aggrieved, the applicants filed civil suits for correction of entries in the revenue record. The suit was decreed in favour of applicants vide judgment and decree dated 5-3-1999 with direction to the concerned authorities to incorporate the names of the applicants in respect of the suit property for Jamabandi for the year 1995-96. He submitted that applicants moved several petitions to the concerned Revenue Authorities but could not succeed. Learned counsel submitted that though initially applicant was shown to be owner of 699 kanals of land, however, in a later jamabandi prepared in the year 1999-2000 he was shown to be owner of only 517 Kanals constraining the applicants to file F.I.R. No,14/5 at Police Station ACE, Rawalpindi against Shaukat Hayat, Patwari, Girdawar Khurshid and Tehsildar on which an inquiry was conducted. On the conclusion of inquiry, the Inquiry Officer vide his report dated 30-5-2005 suggested that criminal case may be registered against Shaukat Hayat, Patwari and role of Khalid Satti, Tehsildar and Khurshid Ahmed, Girdawar was to be observed during investigation of the case. According to him, the abovementioned land was acquired under the Act by revenue authorities for Bahria Golf City a private housing project of M/s. Bahria Town and thus allegedly grabed the land by manoeuvring record without payment of any compensation or value. He stated that notification under section 4 of the Act was issued on 2- 6-2006 whereas award was announced by Collector on 21-7-2007. He contended that alleged purchase of 3333 Kanals and 16 Marlas by the M/s. Bahria Town is incorrect as no one has sold land to it. Even houses were bulldozed before announcement of award and possession was also taken over without notice.... The matter is still pending before Member Board of Revenue, Punjab, Lahore while the said award has been stayed by this Court on 21-8-2007. He contended that M/s Bahria Town is not a company within the meaning of Companies Ordinance, 1984 as such the land acquired by it is not for public purpose as the project was not for the benefit of workers of the company as required under section 40 of the Act, thus the entire exercise was illegal. In support he placed reliance on the cases reported as Pakistan through Ministry of Works & another v.
Muhammad Ali and others (PLD 1960 SC 60), Muhammad Nasim Javed v. Lahore Cantonment Housing Society and others (PLD 1983 Lahore 552), Zafeer Gul and others v. N.-W.F.P. And others (2001 CLC 1853), Somawanti v. State of Punjab (AIR 1963 SC 151), Musamiyan Imam Haidarbux Razvi and others v. The State of Gujarat and others (AIR 1971 Gujarat 158), Arora v. Uttarpardesh (AIR 1962 SC 764), R.K. Agarwalla and others v. State of West Bangal and others (AIR 1965 SC 995) and Babu Barkya Thakur v. State of Bombay (AIR 1960 SC 1203). He contended that only in the cases of urgency under section 17 of the Act, special powers have been conferred upon the Collector to take possession of any waste or arable land needed for public purpose or for a company. On the contention that no notice was served upon applicants as such entire process was illegal. He placed reliance on the cases reported as Mst. Sardar Begum v. Lahore Improvement Trust (PLD 1972 Lahore 458), Mumtaz Begum v. Wazir Begum (PLD 1997 Lahore 99), The Collector of Karachi v. Fida Hussain Muhammad Ali Lotia & others (PLD 1965 Karachi 573) and Collector, Quetta-Pishin, Quetta v. Habibullah and others (PLD 1970 Quetta 35).
6. Raja Muhammad Shafqat Abbasi, learned Advocate Supreme Court appearing on behalf of villagers of the village Salkhaiter contended that whole acquisition proceedings have been initiated illegally just to facilitate M/s. Bahria Town to establish a private housing scheme (Bahria Golf City) for the commercial purpose, behind the back and without knowledge of land owners.
According to him, local owners were neither associated with the proceedings nor any factual inquiry was conducted by the Revenue Authorities. The acquisition process was initiated and reliance was placed upon absolutely tampered, bogus, fake and incorrect record. M/s. Bahria Town is not the owner of 80% of the land of the village as such whole acquisition proceedings regarding remaining 20% of the land are illegal. The claim that M/s. Bahria Town have purchased 3112 kanals land through mutations No,821 (1270 Kanals), 822 (1446 Kanals) and 823 (396 Kanals) from Mehmood, Muhammad Hanif and Shaheen Akhtar is incorrect, as they were owners to the extent of 1821 Kanals as per revenue record only. He further submitted that in fact one Muhammad Aziz sold 13 Kanals land in favour of Mehmood through mutation No,526 but by tampering revenue record the same was converted to 213 Kanals. Similarly, Muhammad Jan and others sold 34 Kanals in favour of Mehmood through Mutation No,588 but it was shown to be 340 Kanals. According to him, NOC granted by Tehsil Municipal Administration, Murree under the Rules in favour of M/s. Bahria Town is illegal and without compliance of necessary conditions. Village Salkhaiter being main source of supplying drinking water to the residents of Rawalpindi/Islamabad would adversely affect the residents whereof, in case of establishment of a housing society even the sewerage system would be infected as such acquisition would not be in the public interest but also serious threat to the environment protection and public health. He contended that the officials of the Revenue Department are badly involved in preparing false and bogus revenue record, in collusion with the M/s. Bahria Town. He lastly contended that in the above circumstances it would be appropriate, if some independent environmental expert may be directed to survey the area and submit report keeping in view the impact of the alleged project on the environment and Rawal Dam.
7. On the other side M/s. S.M. Zafar, learned Senior Advocate Supreme Court and Ashtar Ausaf Ali, learned Advocate Supreme Court appearing on behalf of M/s. Bahria Town contended that instant applications/petitions are not maintainable and do not fall within the ambit of Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the 'Constitution') as no question of public importance has been involved with reference to enforcement of any of the fundamental rights conferred by Chapter I and Part II of the Constitution. The jurisdiction of this Court under Article 184(3) of the Constitution can only be invoked as mentioned above otherwise the matter squarely falls within the jurisdiction of learned High Court under Article 199 of the Constitution. He contended that so far as the acquisition process is concerned, 20% land has been acquired in accordance with the provisions of the Rules and no illegality has been committed.
According to him, M/s. Bahria Town after purchasing land measuring 3333 Kanals and 16 marlas through private purchase being 80% of the project on 12-2-2006 applied for acquisition of remaining 20% land situated in village Salkhaiter for completion of its project namely "Bahria Golf City" quite in accordance with provisions of the Act and the Rules. On 2-6-2006 Government of Punjab allowed publication of preliminary notification under section 4 of the Act for acquisition of land measuring 659 kanals and 13 marlas situated in Mouza Salkhaiter, Tehsil, Murree District Rawalpindi in favour of M/s. Bahria Town (Pvt.) Ltd., Rawalpindi but asked the company to obtain no objection certificate from Tehsil Municipal Administration under Rule 8(1) of the Rules. According to him, the application of company along with relevant documents was published in the daily "Nawa- e-Waqt" dated 6-1-2007, wherein public at large was called upon to file their objections in respect of the land being acquired by the company. After publication of notice, objections were filed and ample opportunity of hearing was afforded to the land owners, which were rejected on DDO(R) on 26-2-2007 in accordance with law.
8. According to Mr. S.M. Zafar learned Senior Advocate Supreme Court Board of Revenue, Punjab approved market price as Rs,105,000 per Kanal along with compulsory acquisition charges on the recommendations of District Price Assessment Committee on 16-3-2007. Accordingly, notification was published under section 17(4) and (6) of the Act in the Punjab Gazette on 30-5-2007 and award was announced on 21-7-2007. He further stated that even certificate under Environmental Protection Act was issued by the Environment Protection Department on 18-7-2007.
9. He lastly contended that acquisition of land for housing scheme is for the well-being of public at large and the right to acquire property is sovereign right, independent of any constitutional provisions. In support he placed reliance on the cases reported as State of Bihar v. Kameshwar Singh AIR 1952 SC 252, Somawanti v. State of Punjab AIR 1963 SC 151, Musamiyan Imam Haiderbux Razvi and others v. The State of Gujarat and others AIR 1971 Gujarat 158, Constitution of India (Article 300-A), Jilubhani Nanbhai Khacher and others v. State of Gujarat and another AIR 1995 SC 142; Federation of Pakistan v. Province of Punjab 1993 SCMR 1673, Muhammad Nasim Javed v. Lahore Cantonments Housing Society PLD 1983 Lah. 552 and Ratilal Shankarabhai and others v. State of Gujarat and others AIR 1970 SC 984.
10. Khawaja Haris Ahmed, learned Advocate General Punjab has produced map and site plan of the acquired land. He submitted that acquisition of land for development of private housing scheme is governed by the Rules and the Act. He referred to the letter from Board of Revenue dated 2-6-2006 which was issued as per the mandatory requirement after having scrutinized the case as to whether the present case falls within the provisions laid down in the Rules or not, allowed the revenue department, Rawalpindi to proceed further in the case. According to him since the matter involves factual controversy which can only be resolved after adducing evidence as such, it would be appropriate that the aggrieved party may avail appropriate remedy available to them in accordance with law.
11. In rebuttal Mr. Muhammad Masood Chishti, learned Advocate Supreme Court contended that in the acquired land there are small graveyards owned by individuals which cannot be acquired for the purpose of housing scheme. According to him, in the revenue record the land purchased by M/s. Bahria Town is not properly shown as in Khasra No,430 Khewat No,133, land measuring 2329 Kanals is said to have been purchased is not correct but in fact land comprising 1694 kanals have been purchased.
12. Similarly Khawaja Muhammad Farooq, learned Senior Advocate Supreme Court rebutted the arguments of Mr. S.M. Zafar, learned Senior Advocate Supreme Court and contended that the applicants in H.R.C. No,3774 of 2007 were owner of land measuring 786 Kanals who never sold their land to M/s. Bahria Town but same has been fraudulently shown as purchased land as no Khasra numbers have been shown and only Khewat Nos.133-134 have been mentioned.
13. During course of hearing one Muhammad Naseer son of Muhammad Ashraf villager of village Salkhaiter voluntarily came to roaster and disclosed that he and his family members are owners of 1694 Kanals of land out of which they have sold 109 Kanals to M/s. Bahria Town for a total consideration of Rs,2,77,50,000 out of which only Rs,70,00,000 have been paid whereas the remaining amount is still outstanding. According to him, one Muhammad Sharif son of Misri Khan sold land measuring 50 kanals to M/s. Bahria Town for a total consideration of Rs,1,42,00,000 out of which he received Rs,30,00,000 whereas the rest is unpaid. He informed that the mutation No,966 dated 11-6-2007 has been challenged in a Civil Suit titled "Muhammad Rafique and others v.
Muhammad Riaz and others" which is still pending before learned Civil Judge, Murree wherein status quo order was passed on 16-8-2008. He also informed that irrespective of above, the acquisition proceedings have already been challenged before learned Lahore High Court, Rawalpindi Bench through Writ Petition No,1610 of 2007 titled Muhammad Razzaq and others v.
Bahria Town and others' which is still pending adjudication.
14. We have considered the arguments of learned counsel for the parties at length and have gone through the record and proceedings of the case in minute particulars.
15. It would be appropriate to first deal with the question of maintainability of instant applications/petitions under Article 184(3) of the Constitution. For proper appreciation, it would be appropriate to reproduce Articles 184(3) and 199(1)(c) of the Constitution as under:-- "Article 184(3).--Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
"Article 199(1).-- Subject to the Constitution , a High Court may, if it is satisfied that no other adequate remedy is provided by law,
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court, as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II."
16. Above both Articles regulate the jurisdiction of the Superior Courts and do not oust it. Article 184(3) of the Constitution prescribes that when grievance relates to violation of fundamental rights as mentioned in Chapter 1 of Part II of the Constitution, only in that case A this Court has powers to make an order of the nature mentioned in this Article. Irrespective of above, this Court can interfere in case where violation of fundamental right is of nature of public importance such as any invasion of individual freedom, including effectiveness and safeguard for their implementation.
17. As regards to Article 199 of the Constitution the jurisdiction of High Court can be invoked on the application of any aggrieved person, which can make an order giving such directions to any person or authority including any government exercising any power or performing any function in or in relation to any territory within the jurisdiction of that Court. The constitutional jurisdiction of the superior Courts cannot be invoked and exercised in aid of injustice or to restrain a person from doing the lawful business of his choice in accordance with law and the Constitution.
18. It is by now well-settled principle of law that jurisdiction of this Court under Article 184(3) of the Constitution can be invoked even by an individual if the matter involves a question of public importance with reference to the enforcement of any of his fundamental rights. Reference in this context can be made to cases of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263), Malik Asad Ali v.
Federation of Pakistan (PLD 1998 SC 161) as well as Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) wherein the following observations were made:-- "The plain language of Article 184(3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of "a group or a class of persons whose rights are violated."
19. The expression "public importance" has been interpreted in a number of cases including Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66), General Secretary, West Pakistan Salt Miners Labour Union (CBA), Khewra, Jhelum v. Director Industries and Mineral Development, Punjab (1994 SCMR 2061) and Mrs. Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632). It is quite clear that the question as to whether a particular case involves the element of 'public importance' is to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly, it cannot be said that a case brought by a large number of people should always be considered as a case of 'public importance' because a large body of persons is interested in the case. The public importance of a case is determined as observed by this Court in Manzoor Ellahi's case (supra) on question affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Benazir Bhutto's case (supra), that public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner, which raises a serious question regarding their enforcement, irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals. On this aspect we are fortified by the dictum laid down by this Court in the case reported as National Steel Rolling Mills v.
Province of West Pakistan (1968 SCMR 317) wherein it was held that the Court would not entertain a petition which had it's basis on a premature act. Similarly in the cases of Mian Muhammad Shahbaz Sharif v. Federation of Pakistan and others (PLD 2004 SC 583) and All Pakistan Newspapers Society and others v. Federation of Pakistan and others (PLD 2004 SC 600), this Court for invoking original jurisdiction under Article 184(3) of the Constitution has observed that such jurisdiction would be exercised subject to establishing by petitioner, through furnishing convincing evidence, as to non-availability of any other adequate remedy and that question of public importance with reference to enforcement of fundamental rights had been made out without establishing such essential conditions. It was also held in case of All Pakistan Newspapers Society (supra) that petition was not maintainable as challenge to the validity of the awards depends on investigation into disputed questions of fact, claims and counter claims of the parties involving appreciation of voluminous evidence on record. Such investigation under Article 184(3) may not be permissible particularly when the questions raised are not of public importance.
20. On examining the case of petitioners/applicants on the touchstone and principle laid down in cases referred above, we are of the considered opinion that provisions of Article 184(3) of the Constitution are not attracted as only individual grievance has been raised therein and breach of fundamental rights shown therein is not of such a nature that it raises question of public importance. The petitioners/applicants have failed to show that violation of any legal or constitutional right has taken place.
21. The second objection raised by learned counsel for the petitioners while challenging the notification under section 4 of the Act, was that the acquisition of the land for the construction of "Bharia Golf City" is for public purpose but it is for the benefit of a limited group of people, hence, the notification is not only ultra vires the Act but is also violative of the fundamental rights of the petitioners as embodied in Articles 23 and 24 of the Constitution. It would be appropriate to reproduce section 4 of the Act, which reads as under:- "4. Publication of preliminary notification and powers of officers thereupon.--(1) Whenever it appears to the [Provincial Government] that land in any locality [is needed or] is likely to be needed for any public purpose, a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality."
' The Act provides a systematic scheme for taking measurements of the property, assessment of its value and payment of compensation to the person interested, besides remedy for adjudication of rights of aggrieved persons in accordance with well-known norms of administration of justice. In the case involving any dispute of measurement of property or determination of its market value, the Act provides a remedy through a reference by the Collector to the Civil Court for settlement of these disputes where parties have the opportunity to adduce evidence in support of their stance.
Similarly, disputed factual questions regarding non-fulfillment of conditions precedent for issuance of notification under the Act and the question as to whether acquisition is for public purpose or not, can be determined by the Civil Court. In the instant case, prima facie laying of Housing Scheme for the utility/use of public-at-large, as compared to some individuals, is a public purpose within the meaning of section 4 of the said Act which was published in official gazette and copies thereof were affixed at conspicuous places at the land under acquisition, thus, the requirements of law were sufficiently met.
22. The pivotal question requiring adjudication by this Court is whether a housing scheme for the benefit of a specified segment of the society is for a public purpose and in the public interest, in terms of the Act and the Rules. The aforesaid question has repeatedly came up for discussion before the superior Courts and it has been consistently held that the acquisition of land for establishing a housing society is a public purpose. In this behalf reference can be made to the case reported as Zafeer GuI and others v. N.W.F.P. Through Secretary and others (2001 CLC 1853) wherein the learned High Court while relying upon the cases reported as:--
(1) R.L. Arora v. The State of Uttar Pradesh and others AIR 1962 SC 764; (2) Anand Kumar and another v. State of M.P. And others AIR 1963 Madh. Pra. 256; (3) Veeraraghavachariar and others v. The Secretary of State for India AIR 1925 Mad. 837; (4) Pakistan through Ministry of Works Government of Pakistan, Karachi and another v. Muhammad Ali and others PLD 1960 SC 60 has held that the land acquired for establishing residential Colony for the WAPDA employees falls in the category of public purpose. Similarly, learned Lahore High Court in the case of Dr. Muhammad Nasim Javed v.
Lahore Cantonment Housing Society Ltd. And others (PLD 1983 Lah. 552) and Bostan v. Land Acquisition Collector, Rawalpindi and others (PLD 2004 Lah. 47) while maintaining the acquisition proceedings for the establishment of housing society is public purpose thus dismissed the constitutional petitions.
23. Similarly, this Court in case reported as Pakistan through Ministry of Works Government of Pakistan, Karachi and another v. Muhammad Ali and others (PLD 1960 SC 60) has held that the provision of residence for a particular class of persons is not excluded from the meaning of expression public purpose. The relevant portion is reproduced herein below:-- "These two decisions, in my opinion, furnish ample authority for holding that the provision of residences is not by itself a matter falling outside the concept of a "public purpose" provided that it is part of a scheme for making general provision of that character. Secondly, the provision of residences for a particular class of persons, even though it may operate so as to provide a particular residence for a particular member of that class is also not excluded from the meaning of the expression "public purpose", nor does it make any difference whether the residences are for completely unprivileged persons like coolies or for those enjoying the patronage of Government in the capacity of officers. And the further conclusion which emerges from these decisions is that the provision of such residences may be included within the meaning of the expression "public purpose."
' A perusal of the aforesaid judgments reveals that acquisition of land for a housing scheme for a limited and specified segment of the society is a public purpose though where the benefit would ensure to the entire community the same would be a higher public purpose. In short the individual interest must give way to interest of the community or a part thereof and a part of the community must give way to the interest of the entire community or public-at-large. In view of above, this Court has no hesitation in holding that establishment of a housing colony for the benefit of a specified segment of citizens does not offend against the fundamental rights enshrined in the Constitution and is also a public purpose and in the public interest in terms of the Act as well as the Rules.
24. Now adverting to the contention of the learned counsel for the petitioners that the acquisition under the Act is not in accordance with the provision of Rule 3(2) (g) of the Rules. The said rule is reproduced as under:-- "3. Submission of application---
(1) A Developer shall submit an application for sanction of Scheme to (a) the Lahore Development Authority in case Scheme falls in the area of City District, Lahore , (b) concerned Development Authority in case Scheme falls in its controlled area as defined under the Development of Cities Act, 1976 and
(c) the concerned Tehsil Municipal Administration (TMA) in all other cases.
(2) No such application shall be entertained unless it is accompanied by:
(a) scrutiny fee @ Rs,100 per kanal of the proposed scheme area:
(b) Developer's ownership/title documents in respect of land proposed for the Scheme along with Khasra plan (Aks-e-Shajra) duly verified by the concerned District Officer (Revenue);
(c) non-encumbrance certificate pertaining to the land proposed for the scheme duly issued by the competent authority;
(d) location plan and layout plan of the scheme including the division of the scheme into plots, provision for streets, drains and open spaces, reservation of land for public utility services to be transferred to the Development Authority or Tehsil Municipal Administration, as the case may be, prepared by a Town Planner keeping in view planning standards as per rule 6;
(e) topographic/site survey of the area;
(f) copy of the national identity card of the Developer or its authorized representative;
(g) details of land proposed to be acquired, if any, provided that land proposed to be acquired shall not exceed 20% of the total area of the housing scheme;
(h) statement of the works that shall be executed at the cost of the Developers; and
(i) statement of the period during which the area shall be developed.
' The perusal of the above rule framed under section 191 of the Punjab Local Government Ordinance, 2001 reveals that any Developer must submit an application seeking sanction of a private housing scheme under the Rules. Rule 3 spells out the details of material which must accompany such application. Rule 3(2)(d) requires that a location plan and lay out of the scheme must be provided.
Sub-rule (2)(g) provides that the details of the land forming part of the scheme which does not vest in the Developer must also be identified and such land should not be more than 20% of the total scheme. The only logical interpretation of the aforesaid sub-rule is that while applying for sanction of a scheme a detailed lay out and location of the scheme identifying the land forming part thereof must be made available and for purposes of sanction 80% of land forming part of Scheme must already vest in the Developer with only 20% to be purchased or acquired subsequently.
25. It is pertinent to mention here that it is abundantly clear from the perusal of the section 6 of the Act that the Government is fully authorized to decide the question as to whether the land is required for public purpose or not and the declaration made by the concerned Government 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 II power.
26. Now coming to the plea that the provisions of the Act being confiscatory in nature are to be interpreted liberally in the context of Article 24 of the Constitution. This Court while examining the provisions of Article 24 of the Constitution in the context of acquisition proceedings, in the case of Sub. (Retd.) Muhammad Ashraf v. District Collector Jhelum and others PLD 2002 SC 706 has held that no individual property can be acquired except in accordance with law for public purpose subject to payment of compensation. The relevant portion of the above said judgment is reproduced as under:-- "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 acquisition ed 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 be determined by the competent forums provided under the Act."
27. As regards the contention raised that no land can be acquired for a Company except in accordance with the provisions of section 40 of the Act. It would be appropriate to reproduce section 40 of the Act as under:-- "40. Previous enquiry.-(1) Such consent shall not be given unless the (Provincial Government) be satisfied, (either on the report of the Collector under section 5-A, subsection (2), or) by an enquiry held as hereinafter provided,-
(a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses or workmen employed by the Company or for the provisions of amenities directly connected therewith, or
(aa) that such acquisition is needed for the construction of some building or workman for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose.
(b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public, Or
(c) that the area proposed to be acquired is reasonable for purpose.
(2) Such enquiry shall be held by such officer and at such time and place as the (Provincial Government) shall appoint.
(3) Such officer may summon and enforce the attendance of witnesses and compel the production of documents by the same means and, as far as possible, in the same manner as is provided by the Code of Civil Procedure in the case of a Civil Court."
28. The scrutiny of this section in isolation would not be complete unless sections 38, 38-A and 39 of the Act are also read in conjunction as they relate to acquisition of land for Companies. While considering all the sections, it can safely be held that whenever a Company makes a request for acquisition of the land for a particular purpose, the Provincial Government is to be satisfied that the same fell within the ambit of purposes mentioned in section 40. In the presence of these express J provisions, it could not be argued that the acquisition of the land for a "Company" could not be made for a purpose other than a public purpose. Clauses (b) and (c) of this section appear to be more relevant for resolving the controversy in this case.
29. The respondent-company made request for acquisition of land which was needed for the purpose of development of a housing scheme to provide developed plots to the general public for construction of the houses. According to clause (b) of this section the only requirement was that the said purpose was likely to prove useful to the public and that the expression "useful" to the public does not have the same meaning as area proposed to be acquired was reasonable for the said purpose. The could, be assigned to the expression "public purpose". The expression "useful" to the public in our considered view would mean "beneficial" for the public. Learned counsel for the petitioners contended that the housing scheme had been prepared for the purpose of providing plots only to its members, thus the purpose for acquisition was limited and was not for the general public.
30. The submission seems to be untenable as the respondent-company, after development of the land into residential plots, the public at large will be offered to purchase the plots on payment and every person purchasing the plot would automatically become the member of the Society. The membership of the Society cannot be acquired without acquisition of a plot, therefore, membership of the Society is coextensive with the holding of a plot in the Scheme . Since there is no restriction or limitation on sale of the plot to any class of persons rather it is open to all, therefore, the purpose of acquisition can safely be construed to be useful to public at large.
31. As referred above during the hearing of the matter one Muhammad Naseer son of Muhammad Ashraf came forward and frankly conceded that that he and his family members are owners of 1694 kanals of land out of which they had sold 109 kanals to M/s. Bahria. Town for a total consideration of R.2,77,50,000 out of which only Rs,70,00,000 have been paid whereas remaining amount is still outstanding. Similarly, one Muhammad Sharif son of Misri Khan sold land measuring 50 kanals to M/s. Bahria Town for a total consideration of Rs,1,42,00,000 out of which he had received Rs,30,00,000 whereas the rest is unpaid. It is also informed that Mutation No,966 dated 11- 6-2007 has been challenged in a Civil Suit titled "Muhammad Rafique and others v. Muhammad Riaz and others" which is still pending before learned Civil Judge, Murree wherein status quo order was passed on 16-8-2008. Irrespective of above, the acquisition proceedings have already been challenged before learned Lahore High Court, Rawalpindi Bench through Writ Petition No,1610 of 2007 titled "Muhammad Razzaq and others v. Bahria Town and others" which is still pending adjudication.
32. From above resume, it is abundantly clear that some of the applicants/petitioners have sold land to M/s. Bahria Town and have received sufficient amount towards sale price and have also handed over possession. In many cases mutations have been effected in the name of M/s. Bahria Town in lieu of sale made by villagers./applicants, which according to learned counsel for the petitioners/applicants are fake and fabricated which raises factual controversy and cannot be resolved without recording of evidence.
33. These are the reasons of our short order of even date whereby Suo Motu Case No,13 of 2007, Human Rights Cases No,2716 of 2006, 2722, 3181 and 3774 of 2007 were dismissed and the applicants/aggrieved party were directed to seek remedy before appropriate forum as the entire controversy raised in these matters is factual in nature which cannot be resolved under Article 184(3) of the Constitution of Islamic "Republic of Pakistan, 1973.