Muhammad Azam Khan, C.J.--The captioned appeal with the leave of the Court is addressed against the judgment of the High Court dated 30th November, 2012, whereby Writ Petitions No, 591/10 and 2137/12, have been dismissed.
2. The necessary facts forming the background of the appeal are that the appellant filed Writ Petition No, 591/10 before the High Court, alleging therein that in the year 1973, the respondents acquired 26 kanal land owned by her father but the compensation was not received regarding the land comprising Survey Nos, 273, 274 and 274/1, measuring 3 kanal 15 marla, situated at village Narrul, Tehsil & District Muzaffarabad. It is further alleged that on the application of the father of appellant, the Government-respondents de-notified the land comprising Survey No, 273 measuring 10 marla, upon which a residential house was constructed by the father of the appellant. The father of the appellant was assured time and again by the higher authorities that the remaining land measuring 3 kanal and 5 marla will also be de-notified. In the year 1988, the de-notified land was again proposed for acquisition, however, the same was objected to by the appellant. The authority made over the matter to the Additional Chief Secretary (Development) for probe and inquiry who reported that once the land is de-notified, the same cannot be acquired under the provisions of Land Acquisition Act, 1894. On this ' report, the Prime Minister of time dropped the acquisition proceedings. The matter for de-notifying the other land comprising Survey Nos, 274 and 27471, measuring 3 Kanal and 05 marla is still sub-judice before the Court of law for implementation of the orders of higher authorities regarding de-notifying the same.
3. Through Writ Petition No, 591/2010, the petitioner, appellant herein, also challenged the notification dated 7.5.2010 through which the land in dispute, already de-notified, was proposed for the third time for acquisition. .
4. Through the other Writ Petition No, 2137/12, the appellant has sought implementation of the orders of Prime Minister dated 21.4.2008, 20.3.2009, 14.4.2009, 25.9.2009 and 2.11,2012, respectively for de-notifying the land comprising khasra No, 274 and 274/1, measuring 3 kanal 5 marla. She has alleged that after being acquired, the land in dispute remained in her possession which was utilized for construction of residential houses worth millions. The possession of the land was not taken by the Government respondents as the compensation was not received by the father of the appellant. She has also alleged that the land in dispute is not included in the proposed plan for construction of Prime Minister's house. Later on, She moved an application for withdrawal of Writ Petition No, 2137/12 before the High Court with the prayer for permission to file afresh.
5 The learned High Court, after necessary proceedings dismissed both the writ petitions filed by the appellant. The appellant has now challenged the legality and correctness of the judgment of the High Court dated 30.11.2012, through the instant appeal.
6. Mr. Abdul Rashid Abbasi Advocate, the learned counsel for the appellant has moved an application for amendment in the writ petition/petition for leave to appeal alleging that, he moved an application for withdrawal of Writ Petition No, 2137/12 with permission to file afresh one. The learned single Judge in the High Court heard the arguments only on the withdrawal application but instead of deciding it, dismissed the writ petition in limine Without hearing arguments on merit. The learned counsel argued that previously, the Prime Minister has issued orders for de-awarding the land in dispute. Now it has come to the knowledge of the. appellant that the Government has issued two notifications on 5th November and 20th December 2012 whereby the orders dated 25th September 2009 and 3rd December 2012 have been withdrawn. After issuance of said notifications, it has become necessary to amend the writ petition. He wants to add Para No, 4-A along with the grounds, after para-4 in the writ petition. He argued that notification dated 5th November 2012 and 20th December, 2012 are colorful exercise of authority. The land was acquired for construction of State Guest House which was abandoned by the respondents for almost 30 years back, the same remained in possession of the father of the appellant and after his death the same is in possession of appellant. No compensation of the said land was paid to her or her father. The land is not genuinely required for public purpose. It should have been de-awarded in favour of the appellant.
The Prime Minister had issued valid orders for de-awarding the land but the present Government in colorful exercise of authority, has cancelled the orders. The land is shown to be utilized for construction of Prime Minister's house, in fact it is net genuinely required for the Prime Minister's House. He has referred to annexure "PZ" a detailed design of the proposed Prime Minister's house.
7. The learned counsel argued that initially land in dispute was entered in Survey No, 47 and during the new settlement, new survey numbers 273, 274 and 274/1 have been allotted to it. He argued that the appellant has categorically stated in her application that the land was owned by her mother and she is entitled to retain the same. There are two parts of the land i,e, the land measuring 10 marla, comprising Survey No, 273 was de-awarded in favour of her father whereupon he constructed a house and remaining 3 kanal and 5 marla is being utilized by her father and after his death the same is utilized by her. Initially the land was acquired for construction of State Guest House. The purpose has been fulfilled and the land is now surplus. The Prime Minister of the time has genuinely ordered for de-awarding the land in favour of the appellant. Without amending the writ petition/appeal he cannot challenge the notifications. If the amendment is not allowed, there will be multiplicity of litigation.
8. The learned counsel vehemently argued that the land is not required for public purpose. He referred to the letter of Deputy Commissioner addressed to chief Engineer Public Works Department, whereby on the order of Prime Minister, the Deputy Commissioner sought a report from the Chief Engineer for de-awarding the land. He also referred to a report of Director Design and argued that the Director Design has reported on 18th August, 2010 that the Prime Minister has ordered for de-awarding the land, it has not been decided yet whether the Prime Minister's house will be constructed or not. It is further argued that the Director Design has reported that the land is not suitable for construction of Prime Minister's house because is situated in a thickly populated area and the same is also in the possession of the appellant. The Government has already de- awarded some land in the vicinity in favour of the previous owners. He recommended for de, awarding the land. The learned counsel also referred to the Annual Development Program of the current year and argued that the construction of Prime Minister's house is not included in the Annual Development Program. He also referred to the letters written by the Chairman Muzaffarabad Development Authority to the Secretary Works in which the Chairman has requested that the construction of Prime Minister's house shall not be included in the City Development Project, whereas the case of the respondents is that the construction of Prime Minister's house is part of the City Development Project. The learned counsel referred to the report of Tehsildar which is at page 39 of paper book along with site-sketch, documents and argued that Tehsildar has reported that only 22 kanal land is required for construction of the Prime Minister's house and Survey Nos, 275, 277, 289 and 299 have already been acquired for construction of Prime Minister's. House, total acreage of which comes to 22 kanal 3 marla and the land which Sajida Maqsood, the appellant, wants to get de-awarded, is not required for construction of Prime Minister's house. He also referred to the site-sketch at page 40 and record of rights at page 41 of the paper-book. The learned counsel submitted that it is clear from the reports, referred to hereinabove, that the land is not genuinely required for construction of Prime Minister's house rather it is being acquired with mala fide intention. To prove mala fide, the learned counsel referred to certain documents, through which the land acquired in the same vicinity, measuring 15 kanal and 1 marla, was de-awarded by the authorities on 9th May, 2003. All the proceedings taken with regard to the suit land are nullity in the eye of law and based on mala fide. The learned counsel vehemently argued that right in the property is guaranteed under the Constitution. The authorities have power to acquire the land for public purpose and while awarding or de-awarding the land, the executive discretion is to be exercised in a fair manner and genuineness of a cause is to be considered. The executive discretion cannot be exercised in an arbitrary manner. He referred to the cases reported as Walayat Khan & 2 others vs. Muhammad Azam & 12 others [PLD 1996 SC(AJK) 18], Province of Punjab & 2 others vs. Ch. Zahoor Elahi etc. [1982 SCMR 173], Province of Punjab through Collector Lahore & another vs. Saeed Ahmed & 4 others [PLD 1993 SC 455], Divisional Engineer (Dev.) N-II, T&T, Gujranwala & 3 others vs. Rana Muhammad Sharif [2002 CLC 985], Messrs Gadoon Textile Mills vs. WAPDA & others [1997 SCMR 641], and Government of NWFP through Secretary & 3 others vs. Mejee Flour & General Mills (Pvt.) Ltd. Mardan & others [1997 SCMR 1804].
He requested for acceptance of appeal.
In the case reported as Walayat Khan & 2 others us Muhammad , Azam & 12 others [PLD 1996 SC(AJK) 18] the land of Walayat Khan and two others was acquired on the pretext that a road link is to be provided to some allottees of the plots in Azizpur Hamlet. Walayat Khan & others challenged the acquisition proceedings on the ground of mala fide, alleging therein that the road already exists in the sector plan of Azizpur hamlet and some allottees have encroached upon the road. Instead of removing the encroachments, the Chairman Mirpur Development Authority has acquired their land with mala fide intention on the ground of political victimization as in the previous elections of Legislative Assembly they have not supported him. After detailed examination of record, the. Supreme Court reached the conclusion that mala fide of the executive authorities is proved from the record. It was observed as under:-- "....From the material on the record we can safely infer that the proceedings for acquisition of the land of the appellants have been initiated with a mala fide intent and the appellants had no other adequate, effective and efficacious remedy except "to invoke the writ jurisdiction of the High Court.
In the case reported as Province of Punjab & 2 others vs. Ch. Zahoor Elahi etc. [1982 SCMR 173] the land of the respondents was being acquired for a housing scheme. The land was situated outside the municipal limits and for, bringing the land into the municipal limits a notification for extending the municipal limits was issued. The respondents challenged the vires of the notification being mala fide and issued on the behest of the Prime Minister, who was the political opponent of the petitioner. The notification was challenged through civil suit. The trial Court held that the notification has been issued with mala fide intention. On appeal the judgment remained intact. The High Court also dismissed the appeal of the Government and the matter came to the Supreme Court. The Supreme Court held that from the record the mala fide of the appellant-Government is proved. The appeal of the Government was dismissed.
In the case reported as Province of Punjab through Collector Lahore & another vs. Saeed Ahmed & 4 others [PLD 1993 SC 455], the facts of the case were that the Government wanted to construct a road. Instead of acquiring the land, the Collector purchased 54 kanal land by negotiation through sale-deed. After construction of the road, 30 kanal land remained unutilized. The Department decided to de-award the land in favour of the previous owner. A notice was issued to the previous owners to deposit the price. The notice couldn't be served upon some of the previous owners. When the fact came to their knowledge, they approached the Department for depositing the price. The Department refused, whereupon they filed a suit. The Department took the plea that if the land is acquired for a particular purpose and couldn't be utilized for the said purpose, it can be utilized for any other purpose. The trial Court decreed the suit on the ground that the official defendants failed to show any other public purpose. The appeal before the District Judge failed. A revision, petition in the High Court also failed. On appeal of the Government, the Supreme Court while interpreting Finance Commissioners Standing Order No, 28, Para 100, which deals with restoration of an utilized acquired land to the previous owner, held that there seems to be no prohibition under law for the Government to utilize the land for any other public purpose other than for w hich originally it was intended so long as the action is bona fide but in the present case the Government failed to demonstrate that such land was in fact needed for any other scheme duly approved by the competent authority.
In the case reported as Divisional Engineer (Dev.) N-II, T&T, Gujranwala & 3 others vs. Rana Muhammad Sharif [2002 CLC 985], the matter before the Lahore High Court for resolution was that after issuance of notification under Section 4 of the Land Acquisition Act, the authorities failed to take further steps towards acquisition proceedings. It was held by the Court that the provisions of the Land Acquisition Act are confiscatory in nature. The provisions are to be construed strictly and jealously.
In the case reported as Messrs Gadoon Textile Mills vs. WAPDA & others [1997 SCMR 641] it has been observed by the Court that discretionary powers are not unbridled and unfettered, the same are to be exercised reasonably, fairly and justly without giving any cause of complaint to any person, who may be interested in exercise of such discretion.
In the case reported as Government of NWFP through Secretary & 3 others vs. Mejee Flour & General Mills (Pvt) Ltd. Mardan & others [1997 SCMR. 1804], the proposition before the Court came in the circumstances that some persons applied to the Government for perthission to construct - flour mills. After construction of the flour mills, they applied to the Government for allocation of wheat's quota. The Government refused to allocate, the quota on the plea that the Government has imposed ban on issuance of wheat quota to the new flour mills. A writ petition was filed in the High Court. The writ petition was accepted. The Government filed an appeal in the Supreme Court.
The Court described the exercise of discretionary powers in Para 10 of the judgment, which is reproduced as under:- "10. In,his treaties 'Discretionary Powers' which is Legal Study, of Official Discretion DJ. Gilligan has acknowledged that "the general principles that discretionary decisions should be made according to rational reasons means: (a) that there be, findings of primary facts based on good evidence, and (b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner". According to the celebrated author, the actions which do not need these threshold requirements are arbitrary, and may be considered a misuse of nowers. In Amanullah Khan & others vs. The Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad & others (PLD 1990 SC 1092), Shafiur Rahman, J. who was sitting in the full bench, has very ably propounded by now well-known doctrine of Structuring the discretion in the following paragraph of the report at page 1147:-- 'Wherever wide-worded powers conferring discretion exist there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Clup Davis (page 94) that the structuring of discretion only means regularizing it, orgnizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open finding., open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide-worded conferment of .discretionary powers are reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the powers and it gives that impression tt thi fltst instance but Where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such powers appearing arbitrary and capricious at times."
9. While controverting the arguments, Ch. Shaukat Aziz, the learned Additional Advocate-General argued that the application for amendment has been moved only to prolong the matter. The notifications were brought on record during the arguments in petition for leave to appeal. These were in the knowledy of the appellant. The application is filed at a belated stage. He contended that the land was acquired almost 27 years back. The appellant has no locus-standi to file writ petition because the land was not in the ownership of her father, mother or the appellant herself.
Had the land owned by the appellant, her mother or father, then she may have a right for de- awarding the land on the ground that after fulfilling the purpose, the land has become surplus. The appellant has only verbally alleged that the land was in the ownership of her mother. The fact of the matter is that the mother of the appellant obtained a gift-deed of 10 marla of the land from her maternal uncle. She has no locus standi to file the writ petition. The writ petition merits dismissal.
The learned counsel referred to a copy of the judgment passed in the civil suit filed by her father, decided on 15th May, 2004 in respect of land bearing Survey Nos, 274 and 274/1 wherein it was held by the civil Court that these survey numbers never remained in the ownership of the plaintiff. The land measuring 10 marla only was gifted to the mother of the appellant. He referred to a copy of the judgment passed in another suit which was dismissed on the ground of res judicata and it was held that the same matter has been previously decided by the civil Court and the District Judge also dismissed the appeal. On the basis of these two judgments, the learned counsel argued that neither the appellant nor her mother or father were owners of the land, therefore, they have no right in the land, the writ petition was correctly dismissed in limine. The application for amendment also merits dismissal. The learned counsel referred to an application of appellant addressed to the Prime Minister on 22A.2008 wherein she herself stated that a sewerage line has been laid and a septic tank has also been constructed in the land which she wants to get de-awarded in her favour. The learned counsel argued that it is abundantly clear from the application that the land has already been utilized for public purpose. He referred to the case reported as Ali Shan vs. MDA & 6 others [2000 SCR 286]. The learned counsel while arguing on Writ Petition No, 591/2010 submitted that the land is genuinely required for public purpose i,e, construction of Prime Minister's house. He referred to the copy of the site-sketch finding place at page 40 of the paper book and argued that Survey No, 273 is located in the centre of Survey Nos,272, 274 and 274/1 which are already acquired and construction exists in Survey No, 272. Survey No, 273 is located in the centre of the acquired land and it is not possible to complete the Prime Minister's house without acquiring the said survey number. He also referred to the detailed design/drawing of the Prime Minister's house produced by the counsel for the appellant and argued that from the said drawing, it is clear that the said land is situated in the centre of the proposed Prime Minister's house. No mala fide is shown by the appellant. The learned Additional Advocate-General referred to and relied upon the cases reported as Administrator Municipal Committee Kotli & another vs. Muhammad Abdullah & 3 others [2001 SCR 128], Azad Jammu & Kashmir Government & others vs. Gohar Rehman & others [1996 SCR 112], Suo Motu case No, 13/2.007 [PLD 2009 SC 217] and Sub. (Retd.) Muhammad Ashraf vs. District Collector Jehlum & others [PLD 2002 SC 706].
In the case reported as Ali Shan vs. MDA & 6 others [2000 SCR 286] the appellants filed a writ petition in the High Court for de-awarding the land in their favour which was acquired for construction of Mangla Dam and allied purposes on the ground that after fulfilling the purpose, the land remains surplus. The writ petition was 'dismissed on the ground that after fulfilling the public purpose, for which the land was acquired, if some land remains surplus, it can be utilized by the Government for another public purpose.
In the case reported as Azad Jammu & Kashmir Government & others vs. Gohar Rehman & others [1996 SCR 112] it was observed by this Court that after utilization of land for the purpose for which it was acquired, if some land remains surplus, it can be utilized by the Government for any other public purpose.
In the case reported as Administrator Municipal Committee Kotli & another vs. Muhammad Abdullah & 3 others [2001 SCR 128] the land of one Muhammad Abdullah and others was acquired for construction of DHQ hospital and other allied purposes, Muhammad Abdullah applied to the Prime Minister for de-awarding the land in his favour. The Prime Minister ordered for de-award of the land and a notification was issued. Later on the notification was withdrawn by the Government.
Previous owner of the land challenged the same by way of writ petition. The writ petition was accepted and the notification was cancelled. On appeal this Court held that the land has been acquired for the public purpose. The public purpose cannot be determined by the High Court. The mala fide cannot be alleged on the part of the official functionaries. Only official functionaries can determine the public purpose. The appeal was accepted by this Court.
In the case reported as Sub. (Retd.) Muhammad Ashraf vs. District Collector Jehlum & others [PLD 2002 SC 706] the acquisition proceedings were challenged on the ground that the land is not required for the public purpose. It was observed by the Court that the construction of fruit and vegetable retailer market is a public purpose. By no stretch of imagination it be inferred that the land in question was not acquired for the public purpose and that its- main objective was to give benefit to few private retailers. It was further observed that if the benefit to the public is only prospective, remote or incidental, the purpose is not a public purpose. If the object is the benefit of the public, is direct and immediate and someone derives some benefit incidentally or remotely, the purpose is a public purpose.
In the case reported as Suo Motu case No, 13/2007 [PLD 2009 SC 217] while defining the term "public purpose" in Section 4 of the Land Acquisition Act, it was observed that laying of housing scheme for utility/use of public at large as compared to some individuals is a 'public purpose' within the meaning of Section 4 of the Land Acquisition Act. In the referred judgment the Supreme Court of Pakistan has further observed that where a collective interest of the community is involved, the individual interest must give way to the interest of the community. It was held by the apex Court of Pakistan that establishment of a housing colony for the benefit of a specified segment of citizens doesn't offend against the fundamental rights granted by the constitution.
10.We have heard the learned counsel for the parties and perused the record. Firstly we will deal with the amendment application. The appellant wants to challenge the notifications dated 5.11.2012 and 20.12.2012 on the ground that the Prime Minister had ordered for de-'award of Survey No, 274 and 274/1 and these orders have been withdrawn through the referred notifications in an arbitrary manner. The question of amendment is to be decided in the light of record produced by both the parties. The claim of the appellant is that the land was owned by her parents, which was awarded in the year 1972-73. Her parents have not received the compensation. While the claim from the other side, brought on the record, is that the land bearing Survey No, 274 and 74/1 were never owned by the appellant's parents. In proof the respondents have produced the copies of the judgment of Civil Judge; Muzaffarabad delivered in Civil Suit No, 232, filed on 25.1.1997 and decided on 15.5.2004, copy of the judgment of the Civil Judge Muzaffarabad in Civil Suit No, 777, filed on 28.11.2007 decided on 19.5.2009 and copy of the judgment passed by the Additional District Judge?
Muzaffarabad in Civil Appeal No, 35, filed on 28.5.2009, decided on 29.6.2009.
11.We have perused the judgments referred to by the learned Additional Advocate-General. The mother of the appellant filed a suit for declaration and perpetual injunction against the respondents on the ground that the land was in the ownership of her maternal uncle. He has given three kanal 15 maria land to her mother as sharer and 10 maria land was given to her through a gifted deed executed in the year 1975. The land was awarded in the year 1979. Later on, through the Government notification issued on 17.1.1984, 10 marla land was de-awarded in her favour but she is in possession of the land measuring 3 kanal 15 marla. She challenged the award dated 20.3.1979 and sought perpetual injunction that she may not be dispossessed. After necessary proceedings the Civil Judge dismissed the suit on 15.5.2004. She again filed a suit for declaration-cum- perpetual injunction whereby she challenged the award dated 20.3.1979 in the Court of Civil Judge, Muzaffarabad on 28.11.2007. The suit was dismissed on 19.5.2009 on the ground of res judicata that previously suit in respect of same land has been dismissed. An appeal filed before the District Judge was also dismissed on 15.1.2009. In the said suit there is no specific assertion on behalf of the appellant that the land remained in her ownership. A perusal of the application addressed to the Prime Minister on 22.4.2008 shows that Mustafa Begum alleged that some land acquired by the Government is vacant on three sides of her house. The construction-cannot be raised over the said land as a sewerage line has been laid on the said land and septic tanks have been constructed.
This awarded land measures around 1 1/2 or 2 kanal. It is in her possession. She requested that this land be given to her for her use or on payment of price. There is no claim of the mother of the appellant in the said application that she is the owner of the said land. The Prime Minister referred the application to the Senior Member Board of Revenue for processing the case for de-awarding the land. The appellant moved an application to the Prime Minister on 25.4.2009 alleging therein that the land bearing previous Survey No, 47 was awarded for the public purpose in the year 1972-
73. Her parents have not received the compensation of land to the extent of land measuring 3 kanal 15 marla, 10 marla land was de-avvarded in favour of her parents. The Prime Minister sent the application to Senior Member Board of Revenue with the orders that if lane is not required for Government purpose, it may be de-awarded under the relevant provisions. The assertion of the appellant in the said application is contrary to the stand taken by her mother in the application dated 22.4.2008. Her mother has taken the position that the land measuring to 2 kanal is owned by the Government. She never claimed that it remained in her or her husband's ownership while the appellant has claimed that it was in the ownership of her parents. No survey number of the land is mentioned in the referred applications. There is a third application (annexure H) addressed to the Prime Minister on 24.9.2009 wherein the appellant specifically claimed that the land bearing previous Survey No, 47 was acquired for public purpose in the year 1972-73. Her parents have not received the compensation of land to the extent of land measuring 3 kanal 15 marla. The land bearing Survey No, 274 and 274/1 measuring 3 kanal 15 marla be de-awarded in her favour. The Prime Minister referred the application to the Senior Member Board of Revenue with the direction that this land be de-awarded forthwith. There is another application dated 2.8.2010 (annexure I) addressed to the Prime Minister for de-awarding the land. The application was referred to the Senior Member Board of Revenue with the observation that the case be processed for de-award of the land, if she is entitled. There is another application on the record presented by the appellant to the Prime Minister on 2.11.2012 for de-awarding the land measuring 3 kanal 15 marla, Survey Nos,274 and 274/1 on the ground that the same was acquired but her parents have not received the compensation. The Prime Minister ordered for de-awarding the land. From perusal of the whole record and particularly the applications addressed by the mother of the appellant and appellant herself to the Prime Minister, it reveals that it was never the claim of the mother of the appellant that the land was in. her ownership rather she claimed that the land is of the Government. The appellant claims the acreage of the land to be de-awarded as 3 kanal 15 marla while her mother claims the same as 1 1/2 to 2 kanal. It is admitted by both the appellant as well as her mother that sewerage line has been laid in the land and septic tanks have also been constructed over the land.
A perusal of the whole record reveals that there is nothing on the record to substantiate that the land ever remained in the ownership of the appellant, her mother or her father. It may be observed that when the land of an owner is acquired for a public purpose and after fulfilling the said public purpose, some land is left unutilized, the Government is at liberty to utilize it for another public purpose and if the other public purpose is not proved from any scheme approved by the Governments then the land is to be de-awarded in favour of the original owner or his legal heirs. In a recent judgment of this Court delivered in the case reported as Ghulam Rasool & another vs. Said Ahmed & others [PLJ 2012 SC (AJ&K) 204, it was observed as under:-- "10. The reading of hereinabove reproduced rules reveals that once the land is acquired by the Government for public purpose or for company or industry it cannot be utilized against the public interest or for the individual's benefit. The first condition is that the acquired land can only be used for the purpose it is acquired. The- land can be acquired under the Land Acquisition Act, whereas there is no provision empowering the Government to acquire land for any individual's personal interest or benefit. The other condition is that even if the land is acquired for a company, the company cannot sell the same without express approval of the Government. This condition also is laid down with spirit that public interest is supreme. The Government will have to watch the interest of public. The third condition is that if at all, the acquired property is not required for the public purpose or for the purpose for which it is acquired, the same shall be resumed and restored to the original owners or their heirs from whom it was acquired and if there is no such eventuality, the land shall be utilized or disposed of by the Board of Revenue, in accordance with the policy of Government regarding disposal of the land. Thus, the scheme and spirit of these rules ultimately also is in consonance of the constitutional provision as expressed under the provision of Section 52(A) of the Interim Constitution Act, 1974, which means that without any express and specific legislation no one is empowered to transfer the Government land to any person in an arbitrary manner." (underlining is ours)
The proposition came under the consideration of the Supreme Court of Pakistan in the case reported as Province of Punjab through Collector Lahore & another vs. Saeed Ahmed & 4 others [PLD 1993 SC 455], wherein it was observed in Para 12 as under:--
12. The above statement is contrary to the above averment in the written statement mad in Para 4.
Additionally, no material was brought on record to indicate that there was factually any sanctioned scheme for which the suit land was to be utilized. Sh. Abdul Majid, learned counsel for the appellants, has also submitted that there is no prohibition in law for the Government to utilize the acquired land for any public purpose other than the public purpose for which the same is acquired.
Reliance has been placed by him on the case of Secretary of State v. Amulya Charan Banerjee and others (AIR 1927 Calcutta 874). There seems to be no prohibition in law for the Government to utilize, land for any other purpose than for which originally it was intended, so long as the action is bona fide. But in the present case, as pointed out hereinabove, the appellants failed to demonstrate that they in fact needed the suit land for any other Scheme duly approved by the competent authority."
12. Only a land owner from whom the land was acquired or his legal heirs have a right to apply for de-awarding the land if after fulfilling the purpose for which it was acquired, some land is left unutilized. No other person can apply for de-awarding the same. The appellant failed to prove that the land was in her or her parent's ownership and it was acquired from them, therefore, she is not entitled to apply for de-awarding the land in her favour. It is evident from the applications addressed by the mother of the appellant to the Prime Minister for de-awarding the land that sewerage lines have been laid in the said land and septic tanks have been constructed, which is sufficient proof that the land has already been utilized by the Government. Once the, land has been utilized by the Government, it cannot be de-awarded in favour of even an original owner. The appellant failed to prove her ownership. She has no right to apply for de-awarding the land in her favour.
13. We have gone through the orders passed by the Prime Minister on the applications of the appellant. The Prime Minister at different times ordered the Senior Member Board of Revenue for de-awarding the land. No final order was issued. Mere order by the Prime Minister for de-awarding the land on simple applications cannot carry the weight of Government order/notification. The notification issued by the Collector Land Acquisition cannot be cancelled by the Prime Minister by passing an order on the application that land may be de-awarded. In the case reported as Administrator Municipal Committee Kotli & another vs. Muhammad Abdullah & 3 others [2001 SCR 128] this Court observed as under:- "7. From the survey of the case law, referred to above, we have reached the conclusion that the respondent who alleged the mala fides on the part of appellants failed not only to allege the same specifically but also failed to prove the same. Thus the notification issued by the Collector Land Acquisition under Section 4 of the Land Acquisition Act couldn't be cancelled by the Prime Minister by passing an order on the application of respondent that the land may be de-awarded. In a case reported as Government of Punjab vs. Sikandar Khan & others [PLD 1987 Peshawar 68] it was observed that in acquisition cases notification issued under Section 4 the Land Acquisition Act could be cancelled only by a notification as contemplated by Section 21 of the General Clauses Act, 1897. Thus, the mere order on the application submitted by the respondent to Prime Minister that the land, may be de-awarded is not sufficient in the eye of law to stop the acquisition proceedings initiated by the Collector Land Acquisition."
Similarly in the case reported as: Major Muhammad Aftab Ahmed (Retired) vs. Azad Jammu & Kashmir Government [1992 SCR 307], it was observed as under:--
(iii) Even if it is assumed for the sake of arguments that the Prime Minister had made the order for the appointment of the appellant to the post of Superintendent of Police still it cannot be given effect to or enforced by way of issuing writ directing the respondent to issue the order of his appointment to the said post as it is a settled law that the writ jurisdiction cannot be exercised to direct a person to give effect to any unlawful order of any authority even though it is competent authority to pass such order in a lawful manner. Since, as said earlier, the appointment of the appellant couldn't be made to the post of Superintendent of Police under the rules the orders of the Prime Minister claimed by the appellant to be the orders of his appointment to the said post being violative of the relevant rules were unlawful and consequently were not enforceable by the High Court in its write jurisdiction which is discretionary in nature and its exercise is always refused where the ends of justice and facts of the case do not justify and call for to do so."
This Court recently in a case titled Gulzaman Awan & others vs. Azad Government & others (Civil Appeal No, 133/2011, decided on 19.11.2011), observed as under:-- "...In the light of the facts of this case, on this point the relevant basic constitutional provision is Section 52-A of the Azad Jammu & Kashmir Interim Constitution Act, 1974. The subsection 5 of Section 52-A speaks that transfer of land by the Government or the Council shall be regulated by law. The constitutional provision has got precedence and priority over all the provisions of subordinate legislations or any other prattle or mode. The learned counsel for the appellants is unable to bring on record that in compliance of sub-section 5 of Section 52-A, any law has been made or exists on the statute book. The Prime Minister has unconditionally issued the orders of the allotment and transfer of the Government property. Such orders, in the light of the above referred constitutional provision cannot be termed as legal - and valid. Therefore, unless for carrying out the purpose of Section 52-A, of the Interim Constitution Act, 1974, the mode of transfer of Government land is not prescribed, any order like the one the subject matter of this case cannot be legally passed. Therefore, for implementation of such orders, Writ cannot be issued...."
14.The appellant has no right to challenge the vices of notifications dated 5.11.2012 and 20.12.2012, which have validly been issued. The amendment application is disallowed.
15.We have also considered the argument of the counsel for the appellant that the arguments in the High Court were addressed only on the application for withdrawal of the writ petition. The arguments on merits were not addressed. Assuming the argument as correct, even then, when we have already reached the conclusion that neither the appellant nor her parents were owners of the land before the acquisition, as she failed to bring on the record any document to the effect that the land was owned by her parents, therefore, the remand order will be an exercise in futility. The appeal to the, extent of Writ Petition No, 2137/2012 has no force, which merits dismissal.
16.Now we advert to Writ Petition No, 591, through which the appellant has challenged the acquisition proceedings on the ground of mala fide, as per argument of the counsel for the appellant already narrated above. The land is being acquired for construction of the Prime Minister's house. The counsel for the appellant has brought on the record the detailed design prepared by the Government of Pakistan, Project Management Unit, Muzaffarabad City Development Project, Earthquake Reconstruction & Rehabilitation Authority, Contractor E China International Water & Electric Corporation and JERS Engineering Consultants (JEC). A perusal of the said design reveals that the disputed land is included in the said design. It is further proved from the record appended with the writ petition by the counsel for the appellant along with the report of Tehsildar dated 12.11.2010. The Revenue Department's map shows that Survey No, 273 falls between Survey No, 272, 274, 274/1 and 275. All the survey numbers have already been acquired. The Prime Minister's house is being constructed at a larger area including Survey No, 277, 275, 274, 274/1", 273 and 240 etc. When a large area of land is required for construction of Prime Minister's house, one survey number in the center of all survey numbers cannot be left un-awarded.
17.The appellant has taken different stands in the applications. Her mother's stand was that the land is owned by. the Government. It may be given to her for her use or be sold to her against the price while the appellant claims that it has been acquired from her parents. Her mother claimed the acreage of land as 1 1/2 to 2 kanal while the appellant claims it as 3 kanal 15 marla. The appellant claims that the land was acquired in the year 1972-73 while the record reveals that it was acquired in the year 1979. The claim of the appellant and her mother is that the sewerage line has been laid in Survey Nos,274 and 274/1 and septic tanks have also been constructed. They also claimed that they are in possession of the land. When septic tanks have been constructed and sewerage line has been laid down, it means that the land has been utilized for the purpose it was acquired. The possession of the appellant is illegal possession. The illegal possession confers no right in a person. The writ petition cannot be maintained for retention of ill-gotten gains.
18.There' is no weight in the arguments of the counsel for the appellant that the land is not genuinely required for construction of Prime Minister's house. It is being acquired with mala fide intention. We have also perused the Annual Development Program (ADP) and details of Muzaffarabad City Development Project including a letter of the Chairman Development Authority, Muzaffarabad that the construction of Prime Minister's house shall not be included in the Muzaffarabad City Development Project. It is correct that no funds have been reserved for construction of the Prime Minister's house in the ADP for current year. The letter of Chairman Development Authority Muzaffarabad also says that the construction of the Prime Minister's house shall not be included in the Muzaffarabad City Development Project but another letter of Chairman Development Authority Muzaffarabad addressed to the District Collector Muzaffarabad on 9.10.2009 says that the Prime Minister's house will be constructed and included in the Muzaffarabad City Development Project. The land measuring 10 kanal 5 1/2 marla situate in village Narrul is required for the purpose, therefore, proceedings for acquisition of the land be initiated. The District Collector Muzaffarabad issued fitness certificate of the said land. In the light of proceedings, notification under Section 4 of the Land Acquisition Act was issued. Apart from the other record, this document is another proof that the land is required for the construction of Prime Minister's house.
The Land Acquisition Act empowers the Collector Land Acquisition to decide the public purpose for which the land is being acquired. The Collector has decided that the land is required for the construction of Prime Minister's house. The acquisition of land for Prime Minister's house is a public purpose, which is sufficiently proved from the record. In the case reported as Administrator Municipal Committee Kotli & another vs. Muhammad Abdullah. & 3 others [2001 SCR 128] it was observed as under:-- "8. Even the question of public purpose cannot be determined by the High Court in exercise of writ jurisdiction because it is always the Collector Land Acquisition who determines under Section 4 of the Land. Acquisition Act as to whether a purpose is a public purpose or not. In a case reported as Muhammad Ashraf Khan vs. Revenue E.A.C. & 7 others [1980 CLC 1504] it was observed that public purpose broadly speaking means any purpose aiming at promotion of general welfare. Whether a purpose amounts to public purpose is a matter for Government and not for the High Court to decide."
In the case reported as Sub. (Retd.) Muhammad Ashraf vs. District Collector Jehlum & others [PLD 2002 SC 706] it was observed as under:-- "5. 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 & District Jehlum. By no stretch of imagination can it be inferred that the land in question was not acquired for public purpose and that its main objective was to give benefit to few private retailers. It is well-entrenched legal position that "a requisition can be for public purpose even through 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. Contrarily if the object is the benefit of the public is direct and immediate and someone derives some benefit incidentally or remotely the purpose is a public purpose..."
In the case reported as Suo Motu case No, 13/2007 [PLD 2009 SC 217], it was observed as under:-- "... Similarly, disputed factual questions regarding nonfulfillment 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. "
It was further observed in the same report as under:-- "...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 publicat-large. In view of above, this Court has no hesitation in holding that establishment of housing colony for the benefit of a specified segment of citizens doesn't 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."
19. We have also perused the report of Tehsildar dated 12.11.2010. The application of Sajida Maqsood, appellant, for de-warding the land was referred to the Tehsildar Muzaffarabad for report. Instead of making the report in respect of location of the land, the Tehsildar has made a report in respect of suitability of other land and land required for construction of Prime Minister's house. The Tehsildar has reported that the land, which is being proposed for construction of Prime Minister's house, is not suitable. 22. kanal land is required for construction of Prime Minister's house and Survey No, 275, 277, 289 and 292 are already acquired, the total acreage of which is. 23 kanal 3 marla. He has also attached the Revenue map{{URDU TEXT}}, which shows that Survey No, 273 is situated in the centre of all survey numbers which have already been acquired. The report is against the record. The conduct of the said officer appears to be against the departmental service rules. It has become an unhappy practice in Azad Jammu & Kashmir that Government officers/officials often are involved in illegal acts while performing official duties. The notification under Section 4 of the Land Acquisition Act was issued in respect of Survey. u. 220, 222, 223, 224, 224/1 273, 289-min, 292-min, 228, 2/1, 216, 218, 229 and 3. The Tehsildar instead of reporting the physical position of Survey No, 273, has suggested that the land already acquired measuring 22 kanal is sufficient for construction of Prime Minister's house. It was not his duty. Prima facie he appears to be guilty of misconduct,
20. We have also gone through the report submitted to the Chief Engineer by the Director. Design on 18.10.2010. The report is sent on the application of Sajida Maqsood, appellant, for de-awarding the land comprising Survey No, 274 and 274/1, measuring 3 kanal 15 marla, wherein he has suggested that the land is not suitable for construction of Prime Minister's house. The report has been made in respect of Survey No, 272/1 and 274. He was not asked to report that the land is suitable for construction of Prime Minister's house or not. The Director Design exceeded its powers while instead of making report in the light of application of Sajida Maqsood that in Survey No, 274 and 274/1, sewerage line has been laid and septic tanks have been constructed or not. He was duty bound to Consult the record and report that there is sewerage line or not. Instead, he declared that the whole site is not suitable for construction of Prime Minister's house because it is situated in thickly populated area, which was not in his domain. He reported and declared the appellant previous owner of the land without any record and against the facts. The conduct of Director Design of the time is against the State interests and against the service laws. The report appears to have been prepared in connivance with the appellant or any other interested person. Prima facie this officer appears to be guilty of misconduct and liable to be proceeded against under the Efficiency & Discipline Rules.
Regrettably, it appears that the business of the Government is not being run according to law and settled principles of law rather it depends upon sweet discretion of a person whatever he wants, he writes own. It is very amazing that some concerned authorities have Categorically in their official correspondence written that the land is not required for the public purpose, some opined that for the construction of the Prime Minister's house, the disputed place is not suitable, somewhere it is opined that inclusion of construction of Prime Minister's house in Muzaffarabad City Development Project is against the public interest. Same like it has also been brought on record that the land acquired for the public purpose is sometimes de-notified in the individual's favour while ignoring the public purpose. This unhappy state of affairs clearly speaks that the matters are improperly dealt with.
21.The Earthquake Reconstruction & Rehabilitation Authority addressed a letter to the Project Director, Muzaffarabad City Development Project and Chairman Development Authority Muzaffarabad on 16.2.2012 with the details of the site. The user requirements and the site plan were furnished and after necessary proceedings the said land was approved and foundation stone was laid on 13.5.2011 on the present site where Survey No, 273 ' is situated. The argument of the counsel for the appellant that the construction of Prime r. Minister's house is not included in the Muzaffarabad City Development Project, has no force in the light of above-referred documents including the detailed drawing produced by the counsel for the appellant. We have reached to the conclusion that the land is genuinely required for construction of Prime Minister's house, which is a public purpose and there is no element of mala fide in the acquisition proceedings.
22.We have also considered the argument of the counsel for the appellant that in adjacent locality land was de-awarded to the original owners in the year 2001-02, therefore, the land of the appellant may not be acquired under the principle of equality of citizens. The record is correct that the land was de-awarded in favour of original owners because from the reports the Government was of the opinion that the purpose for which the land was acquired, is fulfilled and the land is left unutilized. It is not required for another public purpose. Be that as it may, if an acquired land is de- awarded in an illegal manner while ignoring the public purpose, it is an ill-gotten gain, which cannot be encouraged. The land which is being acquired is required for the public purpose i,e, the construction of Prime Minister's house, therefore, the argument has no force and is repelled.
23.The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs.
A copy of this judgment shall be sent to the Chief Secretary for initiating proceedings against the Director Design, who was appointed as J such on 18.10.2010 and Tehsildar Muzaffarabad, the scribe of above-referred report, appointed on 12.11.2010, under the service laws.