' SHAHID KARIM ,J ---A synoptical resumption of facts of the case as can be called 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 20 Kanals, 10 Marlas of land comprising in Khasra Nos.
248/7-19, 250/10-7, 251/2-4, Khewat No.262, Khatoni No.318, Mauza Bhobtian, Raiwind Road, Tehsil City, Distt. Lahore. 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 and 23-6-2003. A Notification under sections 17(4) and 6 of the Act was issued and published in the official gazette on 8-7-2003. 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. This petition primarily challenges the Notification under section 4 of the Act as also collaterally challenges the Scheme as being undertaken for a dishonest purpose.
3. The learned counsel for the petitioner Mr. Muhammad Ahmad Qayyum Advocate has raised three submissions with regard to the challenge in the instant petition:
(1) The Scheme is not covered by the term public purpose' as used in the Act and, therefore, the acquisition proceedings and the impugned Notification ought to be set aside.
(II) The petitioner is being discriminately treated in that the land on both sides of the land of the petitioner is not the subject of acquisition proceedings, therefore, the petitioner is the victim of cherry-picking by the LDA.
(III) The petitioner has not been heard in the matter with regard to the acquisition proceedings.
4. The learned counsel for the respondent-LDA has passionately defended the Scheme and the acquisition proceedings in respect of this Scheme by the LDA. He submits that owing to the litigation the Scheme is far behind its schedule and the petitioner has brought this petition on frivolous and unwarranted grounds. He submits that it is settled by now that land acquired for a housing scheme is a public purpose within the meaning of the Act and, therefore, there is no cavil with this anymore. He has also made a categorical statement that the lands adjoining the land of the petitioner are also subject to the acquisition proceedings and the drawing plan relied upon by the learned counsel for the petitioner is merely an initial plan of the Scheme. Further submits that the matter is fait accompli and 80% of the Scheme has been developed. He lastly submits that the Award has not been announced in the case of the petitioner because of the restraining order of this Court and the petitioner can always join the proceedings before the Land Acquisition Collector.
DETERMINATION
5. The issues raised by the learned counsel for the petitioner shall be dealt with in seriatim. ISSUE No.1
6. The learned counsel submitted that the acquisition proceedings in respect of the Scheme is not a public purpose. For this he has referred to judgments of the superior courts which shall be dealt with in due course. It is observed here that the question whether the land acquired for a housing scheme is a public purpose within the Act has been subject matter of various cases in the past and the superior courts have had the occasion to dilate upon it conclusively. But firstly I will revert to the case law submitted by the learned counsel for the petitioner.
' He has placed much emphasis on Federal Government Employees Housing Foundation through Director, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad (PLD 2002 Supreme Court 1079). However, the issue in that case was diametrically opposed to the issue in hand and it was whether the allotment of plot claimed by the respondent in the housing scheme of the Housing Foundation fell within the terms and conditions of service so as to attract the jurisdiction of the Federal Service Tribunal established by Federal Service Tribunal Act, 1973. This was the point on which leave was granted by the Hon'ble Supreme Court of Pakistan. The entire case has, therefore, revolved around this question. This judgment is not apt for our purposes. The learned counsel next placed reliance on Muhammad Akbar (through legal representatives) and 7 others v. The Commissioner, Rawalpindi Division and 2 others (PLD 1976 Lahore 747) but in this case also the land in dispute had been acquired for the benefit of an individual and for the shifting of a shrine and thus, it was held that this was not a public purpose, however, the following observations in that judgment could be made use of with regard to the term 'public purpose': "14. Learned counsel for the parties have referred to numerous decision to canvass their point of view but all those relate to what is a public purpose. The classical definition of a "public purpose" as observed with approval by their Lordships of the Supreme Court of Pakistan in the case of Pakistan through the ' Secretary, Ministry of Defence v. Province of Punjab and others (1), as given by the Privy Council in the case of Hamabai FramJee Petit v. Secretary of State for India (2) is "an object or aim, in which the general interest of the community as opposed to particular interest of individuals, is directly and vitally concerned"."
' Muhammad Ishaq and another v. Collector, Lahore Distirct, Lahore and others (2000 YLR 1074) is a case relied for the proposition that the setting up of a private housing scheme is not a public purpose for which land can be acquired under the provisions of the Act. It is clear that that is not the case here.
7. The learned counsel for the respondent-LDA has referred to Suo Motu Case No.13 of 2007 (PLD 2009 Supreme Court 217) which properly encapsulates the proposition as to the true construction of the term 'public purpose' wherein it was held:- "22. The pivotal question requiring adjudication by this Court is whether a housing scheme for the benefit of a specified segment of the society is for a public purpose and in the public interest, in terms of the Act and the Rules. The aforesaid question has repeatedly came up for discussion before the superior Courts and it has been consistently held that the acquisition of land for establishing a housing society is a public purpose. In this behalf reference can be made to the case reported as Zafeer Gul and others v. N. W. F. P through Secretary and others (2001 CLC 1853) wherein the learned High Court while relying upon the cases reported as:--
(1) R.L. Arora v. The State of Uttar Pradesh and others AIR 1962 SC 764; (2) Anand Kumar and another v. State of M. P. And others AIR 1963 Madih. Pra. 256; (3) Veeraraghavahariar and others v.
The Secretary of State for India AIR 1925 Mad. 837; (4) Pakistan through Ministry of Works Government of Pakistan, Karachi and another v. Muhammad Ali and others PLD 1960 SC 60.Has held that the land acquired for establishing residential Colony for the WAPDA employees falls in the category of public purpose. Similarly, learned Lahore High Court in the case of Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. And others (PLD 1983 Lah. 552) and Bostan v. Land Acquisition Collector, Rawalpindi and others (PLD 2004 Lah. 47) while maintaining the acquisition proceedings for the establishment of housing society is public purpose thus dismissed the constitutional petitions.
23. Similarly, this Court in case reported as Pakistan through Ministry of Works Government of Pakistan, Karachi and another v. Muhammad Ali and others (PLD 1960 SC 60) has held that the provision 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 residences 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. Secondty, 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".
A perusal of the aforesaid judgments reveals that acquisition of land for a housing scheme for a limited and specified segment of the society is a public purpose though where the benefit would ensure to the entire community the same would be a higher public purpose. 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 public-at-large. In view of above, this Court has no hesitation in holding that establishment of a housing colony for the benefit of a specified segment of citizens does not 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.
' It will be seen that in this case the Hon'ble Supreme Court of Pakistan has relied upon an earlier judgment of the Hon'ble Supreme Court i.e. Pakistan, through Ministry of Works Government of Pakistan, Karachi and another v. Muhammad Ali and others (PLD 1960 Supreme Court 60) which is the basic judgment on the issue.
8. I would here refer to Fauji Foundation and another v. Shamimur Rehman (PLD 1983 Supreme Court 457) in which the term 'public purpose' has been dealt with in the following terms:-- "297. Similarly here too, the expression "public purpose" has no precise 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. In this connection I would refer to C.D. Basu's "Commentaries on the Constitution of India", Vol. II, page 217: "The definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society and its needs. The point to be determined in each case is whether the acquisition is in the general interest of the community as distinguished from the private interest of an individual.
' No hard and fast definition of a 'public purpose' can, therefore, be laid down. Whatever features the general interests of the community as opposed to the particular interests of the individual must be regarded as a public purpose and the expres'sion has to be construed according to the spirit of the times in which the particular legislation is enacted. Thus: "With the onward march of civilization our nation as to the scope of the general interest of the community are fast changing and widening with the result that our old and narrower notions as to the sanctity of the private interest of the individual can no longer stem the forward flowing tide of time and must necessarily give way to the broader notions of the general interest of the community."
298. It will be seen that conceptually the expression "public purpose" has also the same connotation and I do not see why it should not be taken to be included within the concept of public welfare which according to Schwartz, is a broader expression and includes within its 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."
' Lastly I would refer to Federation of Pakistan through G.M. Telegraph & Telephone Department, Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/Assistant Commissioner, Headquarters, Lahore and 2 others (1993 SCMR 1673), which is squarely on the issue whether acquisition of a land for a housing scheme is a public purpose. It was held as under:-- "There is no doubt that the acquisition of the land for a Housing Scheme formulated by the Board of Revenue Employees Housing Society Limited is a public purpose. By public purpose is meant an object or aim in which the general interest of the community as compared with the interest of an individual is involved, but it can hardly be denied that the object for which the land has been purchased by the Telegraph and Telephone Department from the Settlement Authorities is also a public purpose."
9. In order dated 22-6-2005, this Court in Writ Petition No.432/2005 has adjudicated upon and declared the Scheme as one included in the term 'public purpose'. Its paragraph 8 is to the following effect:-- "The question of urgency for taking possession is a matter to be determined by the Commissioner and the same is not subject to judicial review by this Court as referred by the learned counsel for the respondent in case 1994 CLC 430. Learned counsel for the respondent has rightly placed reliance on PLD 2004 Lhr 47 to contend that establishment of housing scheme is a public purpose.
In the cited case, Army has established a housing scheme for his officers while in the instant case the provincial government has established housing scheme for civil servants, therefore, the scheme is nothing but a public purpose as observed by this Court in the above referred judgment."
10. From the case law which has been referred to above, it is evident that the setting up of a housing scheme and the acquisition of land for such a scheme by the Government is a public purpose. The rulings by the Hon'ble Supreme Court of Pakistan cited above have authoritatively determined the said issue and I would respectfully follow the said judgments. In the instant case as well it is not denied that there is no benefit to a private individual or a small coterie of individuals but the land is being acquired for the setting up of a housing scheme for the Government servants.
No discrimination in this regard has been made by the Government and all Government servants are entitled to be benefited by the said scheme. The jurisdiction at this stage for this Court to interfere is limited and circumscribed. It is only to ascertain if the element of public purpose is woefully lacking in any acquisition being done. In the instant case, however, the purpose seems to be well within the term 'public purpose' and any challenge to the Scheme on this basis must fall on barren ground. I, therefore, hold that the acquisition of land for the Scheme is for a public purpose and the attack of the petitioner on this ground must fail.
ISSUE No.2
11. This issue relates to the challenge on the basis of discrimination.
' However, no documents have been brought forth in this regard by the petitioner to substantiate his claim. As I have stated above, the learned counsel for the respondent-LDA has without equivocation stated that such is not the case and the land adjoining and contiguous to the land of the petitioner is also subject to acquisition. However, that land will be acquired through separate acquisition proceedings and an Award will be rendered separately since there are issues which need to be resolved. Also as per site plan which has been relied upon by the petitioner, I am not convinced that there is an element of discrimination with regard to the petitioner since land belonging to hundreds of land owners has been acquired and there is no discrimination in that respect. It is otiose to allege discrimination without proof and only with regard to two land holdings adjoining the petitioner's land. I am, therefore, of the-view that no case for discrimination, to work against the petitioner has been made out.
' ISSUE NO.3
12. The learned counsel for the petitioner has made a flanking rather than a frontal attack on this basis. He submits that the petitioner has not been heard in the matter of acquisition of his land.
However, as brought forth above, the Award in respect of the petitioner's land has yet to be announced and the petitioner is wall within his right to join the proceedings in respect of the acquisition of his land and needless to mention that he shall be entitled to all his rights under the Act before and after the making of the Award.
' In view of my findings above, this petition is without merit and B is, therefore, dismissed.