' SHAHID KARIM, J.---A synoptical resumption of facts of the case as can be culled out from the record is that the petitioner is a land owner of a piece of land which falls within the purview of the acquisition proceedings undertaken by the Lahore Development Authority (LDA) under the Land Acquisition Act, 1894 (Act) for the development of a housing scheme viz LDA Avenue-I, Raiwind Road, Lahore (Scheme). The petitioner owns 33 Kanals, 9 Marlas of land comprising in Khasra Nos.
5157, 5158, 5159-min and 5160, Mauza Chung Punj Garain, Tehsil City, Lahore (Land). The Notification in terms of section 4 of the Act was published on 24-12-2002, the estimated price of the land calculated by the Land Acquisition Collector was deposited in the government treasury by the LDA on 20-6-2003. A Notification under sections 17(4) and 6 of the Act was issued and published in the official gazette on 8-7-2003. The Notification under sections 17(4) and 6 of the Act is at page 37 of this petition. It mentions the public purpose to be the establishment by the Government of the Scheme for Government servants and it was published by the Executive District Officer (Revenue)
Lahore being satisfied that the said land was urgently required for the Scheme.'
2. On 16-1-2003 an objection petition under section 5-A of the Act was filed before the Land Acquisition Collector by the petitioner against the inclusion of the land owned by the petitioner situated in Mauza Panjgarain, District Lahore. To complete the narration of facts it may be mentioned that a Constitution petition Writ Petition No,2292/2003 was filed in this Court by the petitioner which was decided on 24-2-2003 and the matter was remanded with certain directions.
Being dissatisfied with the second order passed upon remand, the instant petition has been filed.
This petition primarily challenges the Notification under sections 17(4) and 6 of the Act as also collaterally challenges the Scheme as being undertaken for a dishonest purpose.
Petitioner's contentions:
3. There are four planks of the arguments made by the learned counsel for the petitioner. Most of these arguments advanced today are not part of the grounds of challenge in the petition. However, in the interest of justice, I shall treat them as having been so taken and proceed to determine the issues raised. Firstly, it is submitted by him that there were two Notifications issued under sections 17(4) and 6 of the Act for the acquisition of the land for the Scheme. The first bears No,2385 and was gazetted on 8-7-2003 and the second is No,2386 of even date. His case simply is that the land of the petitioner is included in the Notification No,2385 (which is at page 62 of this petition) whereas the land was excluded by the LDA in the subsequent Notification No,2386 issued on the same date.
The second Notification No,2386, according to him, is a corrigendum of the first Notification and the LDA has omitted the land of the petitioner from the second Notification. It was, thus, that no further steps with regard to the land of the petitioner in the acquisition proceedings were taken by the LDA such as the service of notice under section 9 of the Act etc. In a nub, according to him, it shows that the land of the petitioner is not subject of acquisition for the Scheme.
' Secondly, he submits that the Award was announced on 21-10-2003. However, the area of the petitioner has not been included in the Award and since the land is not included in the Award, it further shows that the property of the petitioner has been excluded by the LDA.
' Thirdly, according to him, the land of the petitioner is situated in village immovable property as per the record of rights for that area and, therefore, cannot be 'deemed to be included within the definition of land as defined in the Act and thus, no acquisition proceedings can be held in respect of the said property. The learned counsel invites this Court to hold that the village immovable property/Abadi is not included in the definition of land as given in section 3 of the Act.
' Fourthly, the learned counsel submits that the possession has been taken over by the LDA but the mandatory procedural formalities were not fulfilled and so the act of taking over of the possession stands vitiated. He makes a reference to the mandate of section 9 of the Act and by virtue of which a notice of minimum period of fifteen days is required to be given for taking over of the possession of land after the Notification under sections 17(4) and 6 of the Act is gazetted.
' Lastly, the learned counsel challenges the proceedings for acquisition for having been held in contravention of rule 10(2) of Punjab Land Acquisition Rules, 1983 (Rules).
LDA's Reply:
4. The learned counsel for the respondent-LDA Mr. Waqar A. Sheikh, Advocate has retorted to the grounds urged by the learned counsel for the petitioner by submitting that the learned counsel for the petitioner is labouring under a gross misapprehension of facts. He submits that there were a series of Notifications for the Scheme and the learned counsel for the petitioner is seeking to rely on a Notification under sections 17(4) and 6 of the Act, which actually does not relate to the petitioner.
He submits that on 9-9-2003 a restraining order in respect of the property of the petitioner was passed by this Court and the LDA, therefore, stayed its hands and did not proceed with the acquisition of the petitioner's property any further. Therefore, there is no question of the taking over of the possession of the petitioner's property or any Award having been rendered. He sought to rebut the argument of the learned counsel for the petitioner with regard to section 3 of the Act and the definition of land by showing that the said definition itself includes crops and structures fixed to such land, therefore,. It is otiose to say that the land of the petitioner is not subject to acquisition simply because there is immovable property on the said land. He has lastly submitted that rule 10(2) of the Rules is not attracted to the present case since the said rule relates to a company which is defined in the Act itself and does not include the LDA, a statutory, body.
DETERMINATION
5. On the threshold, I would like to observe that the controversy raises vexed questions of facts which both the parties have invited this Court to determine. However, I will proceed to deal with the arguments raised by the learned counsel for the petitioner which can be dealt with without going into the factual controversy.
6. Two of the grounds, urged by the learned counsel for the petitioner can receive a short shrift. Ile has premised his entire case on the basis that the Notification No,2386 was a corrigendum for the Notification No,2385 although both' were published on the same date viz 8-7-2003. By this he invited the Court to conclude that since the LDA had issued a corrigendum and in that corrigendum the property of the petitioner did not find mention, the said property stood 'excluded by the LDA's own representation. This, I am afraid, is too simple a view of the matter. As has been brought forth by the learned counsel for the LDA the Notification in respect of the property of the petitioner under section 4 of the Act was gazetted on 24-12-2002 and the one under sections 17(4) and 6 of the Act was gazetted on 8-7-2003. This was the pedigree of the Notifications in respect of the properties of the petitioner. It is not clear as to how the learned counsel for the petitioner has concluded that the subsequent Notification was a corrigendum of the earlier Notification No,2385.
No such conclusion can be culled out from a reading of the said Notifications. In any case this argument does not take into account the fact that a series of Notifications were issued for the acquisition of property for the Scheme and these two Notifications were merely part of that series and were not a corrigendum of each other. The argument of the learned counsel for the petitioner, therefore, is fallacious and has no legal legs to stand upon.
7. The next two arguments raised by the learned counsel for the petitioner arc related to each other and can be disposed of together. They relate to the challenge on the basis of the Award having not been announced and the non-fulfilment of the procedural formalities for the taking over of the possession in respect of the petitioner's property. As has been submitted by the learned counsel for the respondent LDA no Award has been announced with regard to the petitioner's property and the Award dated 21-10-2003 relied upon by the learned counsel for the petitioner does not relate to the petitioner's property. According to the learned counsel for LDA, a restraining order was passed on 9-9-2003 and no proceedings either in the nature of possession or rendering of Award have been taken since then. He has produced documents today in Court which are copies of the Notifications in respect of the petitioner's property and on which is mentioned the fact of the pendency of the instant petition. It is placed on record as Mark 'A". According to him, therefore, no proceedings in respect of possession of the Land were put in motion by the LDA. These submissions of the learned counsel for the LDA should suffice to stunt and deflect the grounds taken by the learned counsel for the petitioner. It is true that the Award dated 21-10-2003 relied upon by the learned counsel for the petitioner, Mark 'B', does not include the land of the petitioner but the explanation for it is provided by the learned counsel for LDA which has been brought forth above. Since there was a restraining order by this Court and the proceedings were not continued in respect of the land of the petitioner, no question arises for them to be culminated in an Award. Since proceedings for taking over of possession have also not been undertaken by the LDA, the objections as to the non-fulfilment of the legal, formalities in respect thereof also fall on barren ground and lose their relevancy. In the same vein, it is also not essential for me to go into the objection as regards the notice under section 9(1) of the Act and the period of fifteen days being necessary before possession can be taken under section 17(4) of the Act. Since the argument presupposed the possession having been taken, it falls to the wayside in view of the fact that no such proceedings took place. At best, this will now be a disputed fact and I am not inclined to go into it in these proceedings.
8. Two issues remained to be dealt with regarding the applicability of section 3(a) of the Act and rule 10(2) of the Rules. The definition of the term land as given in the Act is reproduced as under:- "3. Definitions.- In this Act, unless there is something repugnant in the subject or context,
(a) the expression "land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth; ' They learned counsel for the petitioner sought to draw an inference from this definition that any village immovable property was not included in the definition of the expression land as used in the Act. According to the learned counsel, the property of the petitioner comprised of village immovable property as per the revenue record and, therefore, stood excluded from the definition of the term land. Upon a bare perusal of the definition reproduced above, it is clear that this argument is tendentious and without any basis. I need not dwell on this question for long as this question has been defined as far back as in PLD 1976 Lahore 1233 in the following terms:-- " "Land" as defined in Section 3(a) means land together with any superstructure, fixtures, etc., thereon and benefits arising therefrom, viz., sum total of aggregate rights in land vertically down to center of earth and up to sky. Acquisition must, therefore, relate to entire vertically located property and not its horizontal slices or its constituents. Acquisition procedure with regard to only first floor of building and not for ground floor or land underneath, not permissible under law."
Further, the word 'includes' signifies that the definition is not exhaustive nor restrictive but is extensive and, therefore, does not restrict the power of Government to acquire the totality of interest of land and it is open to the Government in a given case to acquire such interests and immovable structures attached to the land sought to be acquired. I, therefore, hold that the mere fact that immovable structures have been constructed on the land will not put a clog on the power of the Government not to acquire the land. Further, learned counsel for LDA disputes the fact of the existence of those structures in any case and, therefore, I am not inclined to go into this question of fact.
9. The, last ground urged by the learned counsel for the petitioner was his reliance on rule 10(2) of the Rules. However, these rules relate to a company and are in respect thereof. The expression company has again been defined in the Act and is being reproduced as under:-- "(e) the expression "Company" means a Company registered under the Companies Act; 1882, or under the (English) Companies Acts, 1862 to 1890, or incorporated by an Act of Parliament of the United Kingdom or by any Pakistan law, or by a Royal Charter or Letters Patent and includes a society registered under the Societies Registration Act, 1860, and registered society, within the meaning of the Co-operative Societies Act, 1912; "
The LDA, on the other hand, is not a company within the meaning of the expression as used in the Act and is a Governmental instrumentality set up under a statute viz the Lahore Development Authority Act, 1975 and, therefore, does not come within the ambit of the term 'company' as used in the Act. The challenge of the learned counsel for the petitioner on this ground too, therefore, fails.
' In view of the above discussion, this petition being without merit is dismissed.