'RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.---Through this judgment I will dispose of Writ Petitions No,1060 of 2007, No,1485 of 2009, No,1486 of 2009, No,1487 of 2009 and No,3753 of 2009 as common questions of law and facts are involved in them. Following prayer has been made:--- "It is therefore, respectfully prayed that above titled writ petition may very kindly be accepted and the residential property of the petitioners may kindly be exempted by the acquisition proceedings conducted by the respondents for the Fatima Jinnah Scheme Phase-II. It is further prayed that impugned notifications and subsequent whole acquisition proceedings may very kindly be declared, illegal and void. It is also prayed that respondents may kindly be directed to act in accordance with the principle of natural justice and fundamental rights."
2. Through these writ petitions, the petitioners have assailed the notification under section 4(1) and subsequent notification issued under Land Acquisition Act, 1894 (1 of 1984) (hereinafter called Act) regarding acquisition of different pieces of land mentioned in the writ petitions.
3. Brief facts of the case are that Land Acquisition Collector, Multan Development Authority, Multan proposed to acquire private land measuring 548 Acres, 4 Kanals and 6 Marlas, situated in Mauza Pir Mehmood Habiba Sial, Arazi Ghulam Mustafa Khan, Bhani and Arazi Ghulam Yasin Khan, Tehsil Multan City for the construction of Housing Scheme Fatima Jinnah Town Phase-II. Therefore, Notification under section 4(1) of the Land Acquisition Act, 1884 was issued vide No,642-DO(R)/LAC, dated 26-4-2007 and got published in the Punjab Government Gazette on 27-4-2007. Petitioners being the owner of some portion of land have challenged the Land Acquisition Proceeding through these Constitutional Petitions. Respondent No,3-Land Acquisition Collector as well as EDO(R)/respondent No,2 and District Officer Revenue filed their replies in which they stated that housing scheme was got sanctioned through notification dated 26-12-2006 issued under section 12(3)(4) of the Punjab Development of Cities Act, 1976 whereafter notification under section 4(1) of the Act for the construction of the Housing Scheme read with Chapter 5 of Punjab Development of Cities Act, 1976 was issued on 23-10-2007 whereupon notification under sections 6, 17(4) of the Act was issued on 8-11-2007 and find area measuring 2880-Kanals 5-Marlas were taken at the back of the petitioners even the objections filed by the petitioners were not dealt or decided, which indicate mala fide of the respondents. That whole proceeding initiated by the respondents is mala fide, that Government owned land is available, which can be used for the said scheme. The respondents have not considered the market/potential value of the vicinity, that they are the lawful owner they cannot be dispossessed; status quo order has been granted by the Civil Court; that respondents have adopted pick and chose policy which is discriminative in nature; the notification under section 4 of the Act and subsequent proceedings is illegal, void ab initio and liable to be interfered and should be set aside by this Court; that inadequate compensation has been fixed. Reliance is placed on case of Federal Government Employee's Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079, Mahboob Sabir and others v. Member (Revenue), Board of Revenue, Punjab, Lahore and others 2002 YLR 2591, PLD Kan 128, Muhammad Saeed v. ,Collector Acquisition Land, Mansehra and 3 others PLD 1996 Pesh. 22, Commissioner (Revenue), Islamabad/ Deputy Commissioner District Collector ICT/Assistant Commissioner, Saddar, Islamabad and another 2000 YLR 1711 and Mst.
Sardar Begum v. Lahore Improvement Trust, Lahore and 3 others PLD 1972 Lah.
458.
5. Learned counsel for the respondent assisted by the learned Additional Advocate General contends that land is being acquired for the public purpose for the establishment of a housing scheme known as Fatima Jinnah Town, Phase-II; that instant writ petitions are not maintainable; that Government of Punjab allowed publication of preliminary notification under section 4 of the act for the Acquisition of land measuring 2124 Kanals and 10 Marlas for the establishment of housing scheme, that, after completing all the legal formalities award has been announced on 16- 3-2009; that Board of Revenue Punjab approved the market value of the land vide letter dated 19- 12-2008; that if petitioners are aggrieved from the award, they can avail alternate remedies available under the law in terms of section 18 of the Act.
6. Arguments heard and record perused with the assistance of the learned counsel for the parties.
7. The main contention of the learned counsel for the petitioners is that proposed acquisition is not for the public purpose. It will be appropriate that in order to understand the controversy involved in the matter to have a glance of section 3(t) section 4 and section 7 of the Land Acquisition Act, 1984 which are reproduce as under:- "Section 3(f) the expression "Public Purpose" includes the provision of village-sites in districts in which the Provincial Government shall have declared by notification in the official Gazette that it is customary for the Government to make such provisions.
Section 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.
'Section 7. After declaration, Collector to take order for acquisition. Whenever any land shall have been declared to be needed for a public purpose or for a company, the Provincial Government or some officer authorized by the Provincial Government in this behalf shall direct the Collector to take order for the acquisition of land."
'The expression "Public Purpose" has been discussed in case titled as Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457:--- "Public Purpose" Blackstone's view that "so great moreover is the regard of the law for private property, that it will not authorize the least violation of its, no not even for general good of whole community." The expression "Public Purpose" has no precise and rigid meaning except that it should have the criterion of benefit or advantage to the public as distinguished from the private interest of an individual. Conceptually the expression "public purpose" has also the same connotation and one fails to see why it should not be taken to be included within the concept of public welfare, which, is a broader expression and includes within it ambit both "public use" and "Public purpose". This wider interpretation is given because of the changing times, state of society and its needs. However, the basic requirement nonetheless remains, that is, the general interest of the community as distinguished from the private interest of an individual."
'The question whether land to be acquired for the construction of Housing Scheme falls under the category of public purpose or not came up for hearing in case Dr. Muhammad Nasim Javed v.
Lahore Cantonment Housing Society Ltd. Through the Secretary Fortress Stadium, Lahore Cantt.
And 2 others PLD 1983 Lah. 552, Raja Muhammad and others v. Province of Punjab and others PLD 1983 Lah. 365 and R. L. Arora v. The State of Uttar Pradesh and others AIR 1962 SC 764.
"In view of ratio laid down in the aforementioned cases, the position which emerges is that the acquisition for Cooperative House Building Society may serve a public purpose. It, however, depends upon circumstances of each whether or not such an acquisition is for a public purpose."
'In a case titled as Muhammad Ashiq v. WAPDA PLD 2005 Lah. 345 D.B. Of this Court affirmed the land acquisition proceedings. However, writ was partly allowed to the extent of re-determination of compensation of land owners/ occupants. It was held in Federation of Pakistan through G.M.
Telegraph & Telephone Department, Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/ Assistant Commissioner, Headquarter, Lahore and 2 others 1993 SCMR 1673 that there is no doubt the acquisition of the land for the Housing Scheme formulated by the Board of Revenue for its employees Housing Society is a public purpose. Apex Court in a case report as Pakistan through Ministry of Works Government of Pakistan, Karachi and another v. Muhammad Ali and others PLD 1950 SC 60 held that provisions 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 residence 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."
'In a case Sub. (Rtd.) Muhammad Ashraf v. District Collector, Jhelum and others PLD 2002 SC 706. It has been held that:--- "In the present case land in question had been acquired for public purpose as was indicative from notification issued under section 4 of the Act which made it abundantly clear that the land was acquired for the construction of Fruit and Vegetable Retailers Market. By no stretch of imagination can it be inferred that the land in question was not acquired for public purpose and that its main object was to give benefit to a few private retailers. A requisition can be for public purpose even though it is given to an individual or group of individuals. If the object of such person or persons is to have the land for the immediate benefit of public, it can be held to have been taken for a public purpose.
'If, however, the benefit to the public is only prospective, remote or incidental, the purpose is not public. Contrary if the object is the benefit of the public is directed and immediate and someone derives some benefit incidentally or remotely, the purpose is a public purpose. The provision of Fruit and Vegetable Retailers Market is in the ultimate interest of public at large. 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 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. There is no denying the fact that land in question has been acquired for public purpose as is indicative from notification dated 20-10-1994 issued under section 4 of the Act which makes it abundantly clear that the land was acquired for the construction of Fruit and Vegetable Retailers Market in village Maldev, Tehsil and District Jhelum. By no stretch of imagination can it be inferred that the land in question was not acquired for public purpose and that its main object was to given benefit to a few private retailers. It is well- entrenched legal position that "a requisition can be for public purpose even though it is given to an individual or group of individuals. If the object of such person or persons is to have the land for the immediate benefit of public, it can be held to have bene taken for a public purpose. If, however, the benefit to the public is only prospective, remote or incidental, the purpose is not public. Contrarily if the object is the benefit of the public is direct and immediate and some one derives some benefit incidentally or remotely the purpose is a public purpose". Razab Ali v. The province of East Pakistan PLD 1959 Dacca 115; Ramaswa mi v. Secretary of State AIR 1931 Madras 361. We have absolutely no doubt in our mind that the provision of Fruit and Vegetable Retailers Market is in the ultimate interest of public at large." Supreme Court of Pakistan on the news item took suo motu notice in case No,13 of 2007 (plight of the families of village Salkhairter who are the victim regarding forceful acquisition of their land by the Revenue Authorities by misuse of Land Acquisition Act, with object to the level of Bahria Town Scheme) PLD 2009 SC 217 where 20% land was required by the Government of Punjab for the private developer Messrs Bahria Town for the establishment of housing scheme on the Express Way, Murree. Due to the certain Irregularities in the Acquisition Proceedings and effect of the housing Scheme on the environment, objector/ owner took plea that proposed housing scheme will put environment in danger as source of Rawal Dam comes from this area, apex Court took suo motu notice of the matter and suspended the notifications issued under the Act but ultimately petitions were dismissed and acquisition proceedings initiated under the Act for the private developer i.e. Bahria Town, was affirmed. In this case it was held that:--- "Government is fully authorized to decided question as to whether land is acquired for public purpose or not declaration made by the Government is conclusive evidence of the fact that land is needed for the public purpose only exception to such rule is a case where land is being acquired under colourable exercise of power. "
8. Essence of Public Purpose is a matter, which is within exclusive domain A of acquiring agency.
Contention of the petitioners that they were not properly given notice is not tenable because notice to individual landowner is not the requirement in the strict sense under section 4 of the Land Revenue Act. If notifications under section 4 of the Act having been published in the gazette as well as in the newspaper same can be considered as sufficient notice to the petitioners of the purposed acquisition. Acquisition cannot be set at naught on the ground that other land on the area is available which is owned by the Government and same shall be utilized. It is the job of the acquiring agency to see the suitability of land for the purpose of the proposed scheme. Although certain lapses in the disposal of the objections of the petitioners have been pointed out by the petitioners counsel. I am not inclined to upset whole acquisition proceedings and the scheme. It is settled principle of law that it is the duty of the Court to explore every possible explanation for the validity of the notifications issued by the D competent authority. I am fortified by the law laid down in case Lahore Improvement Trust Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others and University of the Punjab, Lahore v. Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811, Raja Basharat Hussain and 3 others v.
Capital Development Authority, Islamabad through its Chairman and 3 others 2004 YLR 629, Mahmud Khan and another v. Government of the Punjab through District Collector, Lahore and 2 others 2005 YLR 1133, Shalimar Fabrics v. District Officer Revenue 2005 MLD 789, Manzoor Hussain and 19 others v. AJ&K Government through Chief Secretary, Muzaffarabad and 4 others 2005 YLR 1527, Makhdoom Ahmad Ghauns v. Chairman, Town/Municipal Committee and 3 others 1994 CLC 430 and Muhammad Khan v. Government of Punjab 2005 YLR 1133.
9. Contention of learned counsel for the petitioners qua mala fide of the respondents does not have much force as he has levelled general allegation of mala fide against the respondents. It is settled principle of law that general allegation of mala fide cannot sustained in the eyes of law unless and until specific allegation of mala fide is alleged. It is easy to allege mala fide but it is difficult to prove the same. Burden to proof heavily lies on the person who alleges the mala fide.
Reference can be made to the case of the Federation of Pakistan through the Secretary Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad and the Secretary, Department of Education, Government of Punjab v. M.R. Toosy, Ex-Principal, Government College, Sargodha and others PLD 1974 SC 151, Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092, Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 other 1997 SCMR 296.
10. Acquisition of land for a housing scheme for a limited and specified segment of society is a public purpose where the benefit would ensue to the entire community. Individual interest must give way to interest of the F community or general public or a part thereof. Judicial notice of acute shortage of accommodation and rehabilitation facilities of general public can be taken by this Court; as earlier observed suitability of the land or determination of question of "Public Purpose" is to be decided by the G acquiring agency/Government. Order passed by the public functionaries has to be given weight. In view of above, this Court has no hesitation in holding that establishment of a housing colony for the H benefit of a specified segment of citizens does not offend against the fundamental rights enshrined in the Constitution. In the present case the scheme was approved by the competent authorities and necessary I codal formalities were completed by the respondents. It is the prerogative of the Government to decide about the public purpose. Right to acquire a property is a sworn right. M.D.A has launched housing scheme for the General Public, Entire General Public or class of persons can purchase a house under that housing scheme. One will get benefit of scheme, subject to the fulfilling the criteria or policy laid down by the M.D.A. Land has been acquired after completing all the legal formalities required under the Act as such as issuance of notification under section 12(3)(4) of Development of Cities Act, notification under sections 4(1), 6, 17(4) of the Act, Notice under section 9(1)(5) and finally the award has been made. In these petitions, petitioners has raised disputed questions of fact, same cannot be resolved by this Court in exercise of Constitutional Jurisdiction under Article 199 of the Constitution. Petitioners have alternate efficacious remedy under section 18 of the Act, it has been provided that any person who has not accepted the award may filed application to the Collector asking to refer the matter to the Court for the determination of his objection with respect to the measurement of the land or amount of compensation within a prescribed time. Petitioners can raise their objections regarding the market/potential value of the property before the Civil Court, I am of the view that proceedings initiated by the respondents acquiring authorities are neither offensive under the law nor any infringement of any fundamental right has been pointed out by the petitioners. No legal or vested right of the petitioners have been violated.
11. Resultantly, these petitions are devoid of any force, same are liable to be dismissed. Parties will bear their own cost.
12. In case petitioners avail alternative remedy available under the law competent authority/Court shall decide the same in accordance with law without being influenced by any observation hereinabove.