1. SARDAR ABDUL HAMEED KHAN, J.--- This is a writ petition filed under section 44 of the Interim Constitution Act, 1974. This petition was filed by one Muhammad Nazir Khan, who has died during the pendency of the writ and present petitioners have been incorporated by the order of the Court dated 24-6-2013. The petitioners have contended that the Evacuee property measuring 16 Kanals, 1 marla situated in village Trar Tehsil Rawalakot was acquired by the Azad Government vide Notification No.CMR/30/78 dated 5-12-1978, including some other lands of the owners of locality for Housing Scheme Rawlakot being a public purpose.
2. The learned counsel for the petitioners submitted an application for amendment of the writ petition for incorporation of alternate relief, which is on the file since 15-10-2004. The learned counsel for the respondents has no objections. So, the application was allowed and the writ was amended in the open Court today. From the prayer it reveals that the writ petition is for de-notification of the acquired land for the reasons that the property has been/is being used for another purpose which is not a public purpose and in alternate petitioners prayed for the allotment of 2 plots of 1 kanal each. It is contended in the writ petition that the property was originally acquired for the Housing Scheme Rawalakot, but later on some commercial Plazas are being raised on the land, which is against the spirit of award of the land. Hence, the petitioners are entitled to restoration of the property. The writ was admitted on 21-9-2001 and the written statement was filed on 14-6-2003, wherein, the contentions of the petitioner have been rebutted and contended that 80% land of the Housing Scheme has been used for residential houses which is a public purpose and purpose as notified. However, some Flats and Shops have also been constructed on the same land which was not suitable for residential houses and these all Shops and Flats are also part of the scheme to facilitate the allottees and inhabitants of the scheme. So, the petition is without any substance, which is liable to dismissal.
3. The replication was filed by the respondents on 20-9-2004.
4. Muhammad Idrees Khan Advocate, the learned counsel for the petitioners argued at length, narrated the facts forming the background of the instant case and reiterated the facts and grounds narrated in the petition and vehemently contended that no plot was allotted to the petitioner (deceased) Muhammad Nazir Khan. The plots to other members of the family of the petitioner cannot be a substitute to the right of petitioner. It is further contended that the petitioner could not be deprived of his rights. The learned counsel relied upon a case '1996 CLC 1504' and prayed for the acceptance of the writ petition and prayed that as alternate relief the respondents may be directed to allot 2 plots measuring 1 kanal each to the petitioner to meet the ends of justice.
5. Sardar M.R. Khan Additional Advocate-General and Sardar Suleman Khan Advocate, learned counsel for the Pearl Development Authority, controverted the arguments advanced on behalf of the petitioners and contended that the property has been used for public purposes and specifically the purpose for which the land was acquired and construction of some shops and flats is the part and parcel of the project/scheme hence, the petition is devoid of force.
6. The learned counsel also repudiated the alternate prayer of the petitioner and contended that as far as, the alternate relief claimed in the amended writ petition is concerned the petitioners have remedy before the respondents by an application under rules hence, the petition entails dismissal.
7. I have heard the learned counsel for the parties and gone through the record of the case with my utmost care and reached the conclusion that the petition does not merit acceptance for the reasons, more than 400 kanals land was acquired for the Housing Scheme Rawalakot out of which the petitioner land was measuring 16 kanals. The Scheme which is meant for the public purposes and Housing Schemes also includes the provisions of Flats, Shops and Plazas etc. to meet the needs of inhabitant of the Housing Scheme. Construction of some Flats, Shops for commercial purposes cannot take out the acquired land out of the purview of public purpose or purpose for which the land was acquired. The case-law referred by the learned counsel for the petitioners "1996 CLC 1504" is also reported in 1996 CLC 1502 wherein, the proposition in hand was discussed and the findings of the High Court, were set aside by the apex Court whereby, some land was partially de- notified.
8. The view of the court is fortified by the said case-law 1996 CLC 1502 and 2001 M LD 295, wherein it has been held that when the acquisition is perfectly valid, the possibility of some land being surplus or unnecessary for the original purpose for which it was acquired cannot operate retrospectively to invalidate. The surplus land has to be dealt with upon the consideration, which are consistent with the original acquisition. The manner in which the surplus land is dealt with cannot have any effect on the validity of the acquisition.
9. The careful perusal of the pleadings and record of the case, it is crystal clear, that after completing the original public purpose, there remained in surplus or unnecessary land which is not suitable for residential use, that can be utilized by the Government to its option. In such, eventuality the original title of the Government or for that matter, the award is not adversely affected.
10. Before parting with the case as far of alternate prayer of allotment of 2 plots each measuring 1 kanal is concerned, the petitioners have remedy before the competent authority under relevant law, hence not granted.
11. In the light of what has been stated above, the instant writ petition, is hereby, dismissed.