' IKRAMULLAH KHAN, J.---Through the instant constitutional petition, petitioners have challenged the notification issued under section 4 of the Land Acquisition Act, 1894 dated 15-7-2013, issued by respondent in regard to the land fully described thereunder, the aforesaid Notification, have asked for the issuance of an appropriate writ directing the respondents to withdraw the impugned notification and to prohibit them to acquire the land of the petitioners.
2. The grievance of the petitioners is that respondents intend to acquire the land of inhabitant of Moza Issa measuring 16135 kanals and 11 marlas required to the Housing Department of Khyber Pakhtunkhwa (thereafter PHA) for "Housing Scheme for Government Servants and General Public" and as such, as first step in this regard, the required Notification under section 4 of the Land Acquisition Act, 1894, has been issued, and as the aforestated land was previously selected, notified for acquisition, but later on it was de-notified vide Notification dated 23-5-2013, then the respondents could not once again, within a spawn of 2 months acquired the land. The land under acquisition is an agriculture land, while adjacent to the land under acquisition, a large piece of barren land is situated, which may be acquired, to save the petitioners of their agonies in this regard as petitioners are wholly solely dependent, on this agriculture land for their livelihood and in case of acquisition, they would be suffered a lot and would cause a direct effect an unemployment, hardship, to the whole inhabitant of the locality. The petitioners counsel also referred judgment of this Court passed therein Writ Petition No,280-P/2012, decided on 10-10-2012 and Contempt Petition No, 394-P/2012 in Writ Petition No, 280-P/2012 decided on 24-4-2013, also took reliance of the judgment of this Court dated 30-6-2011, delivered therein Writ Petition No, 1822/ 2011 in regard to the same property under consideration in this writ petition. Petitioners main grievance is that as various departments of Government and other Authorities had already acquired in the same Moza/Estate a land more than 14000 kanals for various public purposes, and due to the instant acquisition, petitioners would be left with no option but to migrate to other places, as they will become idle therein their home town, without any agriculture land to work for their livelihood as the only source of their income is the land under acquisition and termed the acquisition of the land based on mala fide and the proposed acquisition shall not be termed as for the public purpose.
3. We attended the arguments of learned counsel with attentive consideration and scrupulously gone through record.
4. The respondent department previously vide notification dated 30-5-2011, proposed to acquire some land including the one under consideration, which was challenged by landowners of the respective village/Moza including the petitioner through Writ Petition No, 1822/2011 filed thereunder the provision of Order I, Rule 8, C.P.C., 1908 in a representative capacity on behalf of all the affected land owners, with the same prayer as one in the instant petition, which was dismissed by this Court vide its order dated 30.6-2011.
5. Another Writ Petition No, 280-P of 2012 was filed by petitioners before this Court with the same prayer as the one in the instant petition, which was disposed of by this Court on 10-10-2012 as:-- "We while disposing of this writ petition, direct the concerned authorities to decide the objections petition of the petitioner as early as possible but not later than one month, however, the petitioner would be at liberty to approach this Court through a fresh petition, if his grievance is not redressed".
6. Thereafter petitioner No: 1, filed C.O.C. No, 394-P/2012, against the respondent for violation and non compliance of the direction given thereto, the respondent while disposing of the previously instituted Writ Petition No,280/ 2012 which was disposed of, on the basis of the commitment made by respondents that their objection would be decided in accordance with law within 15-days, and on this commitment the afore-stated COC was disposed of by this Court on 24-4-2013.
7. As this fact is not brought on record that whether the objections preferred therein, were decided by the respondents to honour their commitment made before this Court; however, the respondents de notified the already proposed acquisition of the land, subject matter of earlier instituted writ petitions, including the present one vide their order dated 23-5-2013 on the ground of as:-- "Whereas under section 11-B of the Land Acquisition Act, 1894, the whole process of land acquisition should be completed within a period of six months from the date of Notification under section 4 and, whereas the people of the locality have gone in writ petition to Peshawar High Court on the plea of that their agriculture land is being acquired for the housing scheme and they are being deprived of their livelihood. Now, therefore, in view of non- pursuance/disinterest of Provincial Housing Department (Acquiring Department), we have satisfied our-self that land is not required by Housing Department for such housing scheme, as the acquisition proceeding arc pending for more than a year for no reasons".
8. Thereafter the acquiring agency/the Collector on 15-7-2013, once again issued a fresh Notification under section 4 of the Land Acquisition Act, 1894, on the desire of the acquiring Department for public purposes, to construct a housing scheme thereon the proposed land under acquisition; hence, petitioner on their 3rd attempt approach this Court with the prayer that the impugned Notification be withdrawn, on the grounds stated hereinabove.
9. The provisions of the Constitution 1973, contained thereunder Article 24 empower any Government to acquire any suitable land for public purpose subject to law in this regard and whereas the Land Acquisition Act, 1894, conferred jurisdiction on Revenue Officer/respondents to acquire any land for public purposes and for companies subject to payment of compensation, to be determined under the provision of section 23 of the Land Acquisition Act, 1894, with compulsory acquisition charges in addition to various kind of interest in this regard, no any Notification, issued thereunder the provision of section 4 of the Land Acquisition Act, 1894, may be declared void or to be directed to be withdrawn at such initial stage, and that too without any such ground, which prima facie, made such proceeding against the Land Acquisition Act, 1894 or the constitution or any other law in force for the time being.
10. The publication of Notification under section 4 of the Land Acquisition Act, 1894, is a preliminary step to acquire a land for any public purposes, proposed by the concerned government department, but all further steps in this regard has to be taken strictly in accordance with the various provision of the Land Acquisition Act, 1894.
11. The acquiring agency has to prepare, a full survey report, wherein, bound to describe and determine all kinds of damages or likely to cause damages to any person in the process of acquisition in this regard and thereafter has to fully inquire the market price etc. And on the conclusion of the mandatory requirement has to pass an Award thereunder the provisions of section 11 of the Land Acquisition Act, 1894. Every interested person, who would be affected or those whose land has to be acquired, would be at liberty to file all available objections whatever may he before the acquiring agency and the acquiring agency is legally bound to redress their grievances in accordance with the provisions of the Land Acquisition Act, 1894. The provision of section 5-A of the Act envisage as:-- "[Section 5-A. Hearing of objections.---(1) Any person interested in any land which has been notified under section 5 as being needed for a public purpose or for a Company, may within thirty days after the issue of the Notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under subsection (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the Commissioner, together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the Commissioner on the objections shall be final.
(3) When land is needed for a Company, the Collector shall, after making such enquiries as he deems necessary, also make his recommendations to the Commissioner with regard to the area that in his opinion is reasonable for the purpose.
(4) For the purpose of this section a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.]
12. The concerned Government Department, interested in acquisition of the proposed land, after the written report, with full description of the kind mentioned hereinabove, thereafter has to decide, whether the proposed land be acquired and if satisfied in this regard, then a declaration thereunder the provision of section 6 of the Act would be made.
13. On such declaration the required Notification under section 6 of the Act would be published in the official gazette and thereafter the acquiring official in this regard has to take order to acquisition from the concerned Government and thereafter the required notices in this regard would be served on affected persons, at that stage too, the effected persons, have their legal right to raise all kind of available objection and after detail inquiry in this regard, the acquiring agency has to pass an Award thereunder the provision of section 11 of the Act.
14. Any person, not satisfied from the compensation, determined thereunder the Award, may prefer objection thereunder section 18 of the Act, which would be referred to Court as a reference.
15. All interested persons, have bestowed with the right of appeal under the provision of section 54 of the Act against the judgment of Referee Court before the High Court and may also approach the Apex Court if not remained satisfied.
16. Under the provision of the Act, contained thereunder section 48, the Government may withdraw from the acquisition of any land of which possession has not been taken; however, in such state of affairs, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequences of the notice or of any proceeding thereunder, and shall pay such amount to the person interested, together with all cost reasonably incurred by him in the prosecution of the proceeding under this Act reaching to the said land.
17. The petitioners, if considered them selves to have suffered any loss or damages by the withdrawal of subsequent Notification issued thereunder section 4 of the Act, may seek their relief thereunder the provision of section 48 of the Act, but withdrawal of earlier notification under section 4 of the Act, does not entitle the petitioners to challenge the impugned Notification on the ground that previously such another notification of the same kind was withdrawn, however no restriction could be placed on the power of the Collector in regard to issuance of a notification under section 4 of the Act, being conferred on such official under the provision of Land Acquisition Act, 1894.
18. As the respondents have issued a fresh notification thereunder the provision of section 4 of the Act, the petitioners shall have right to file objection under the relevant provision of section 5 or 5(A) of the Act, which has to be decided by the competent authority in due course of the proceeding and as it has not been declared so far by the respondents to take possession of the land and pass an award as many orders/notifications have to be passed before the passing of the final award in this respect, this Court is not in the position to intervene at this preliminary stage of the proceeding under the Act, and moreso, when petitioners have appropriate, adequate other remedy available to them to be availed before the competent forum in this regard.
19. The ground agitated by the petitioners, that the land is not required for _ the public purposes, and is against the interest of a large number of people, ' permanent resident of the village, whereof the proposed acquisition has to be completed.
20. The expression public purpose defined there under section 3(F) of the Act envisage as;- "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 provision, the Government of Khyber Pakhtunkhwa has added the following after the word provision occurring hereinabove for the last time, but does not include a purpose which is against the tenets of Islam."
21. The definition of the public purpose as reproduced hereinabove, given there under section 3(F) of the Act, in unequivocal terms, as any land required for any purpose, which the government considers it a public purpose except a purpose which is against the tenets of Islam, meaning thereby that construction of houses for general public, including civil servant is a public purposes; however, the petitioner are at liberty to prove before the competent authority that the purpose for which the land is proposed to be acquired is against the tenets of Islam.
22. In case of Zafar Gul v. N.W.P.-F. Province as 2001 CLC 1853, this Court has held as:-- "Expression public interest is an object in which the general interest of community as apposed to a particular interest of individual is directly and vitally concerned such is a purpose which is in furtherance of general interest of the community at large as apposed to the particular interest of an individual".
23. In the same judgment it was held that land acquired by WAPDA Cooperative Housing Society for construction of residential colony would fall under the definition of public interest.
24. In the case of Administrative Municipal Committee Kotli and another v. Muhammad Abdullah and 3 others reported as 2001 YLR 3367, the Hon'ble Supreme Court of (AJ&K) held as:-- "Question of public purpose, could not be determined by the High Court in exercise of its writ jurisdiction as it was always the Collector Land Acquisition, who could determine section 4 of the Land Acquisition Act, 1894, as to whether a purpose was a public purpose or not public purpose would mean any purpose aiming at protection of general welfare".
25. The question raised by the petitioners, that petitioners would be deprived of their livelihood, and the interest of petitioners shall be given preference over the construction of the housing scheme for general public, would be decided by the concerned Collector Land Acquisition, as he is the person well-acquainted with the ground realities and the proposed purpose of the Government and has the jurisdiction to decide that whether monitory compensation in lieu of the land to be acquired is not an appropriate redressal of the petitioners grievance.
26. All the questions arising thereunder, in consequence of the proposed acquisition process, to be carried on by the Collector concerned, would be in better footing to be dealt with by him, being an authorized person in this behalf. Keeping in view the reasons given hereinabove, this writ petition is devoid of any merit, accordingly dismissed in LIMINE.