' AMIN-UD-DIN KHAN, J.---Through this writ petition petitioners have challenged the process of acquisition of land for respondent No, 5 (Messrs Angro Foods Limited).
2. Through this single judgment I intend to decide Writ Petition No, 11216 of 2013, Writ Petition No, 7605 of 2013, Writ Petition No,16361 of 2013, Writ Petition No, 6971 of 2013 and Writ Petition No, 15263 of 2013 whereby the petitioners of the said writ petitions have also challenged the game acquisition.
3. According to brief facts of the case, on 12-7-2012 respondent-company (Messrs Angro Foods Limited), a private company limited by shares registered under the Companies Ordinance, 1984, conversion of which into a public company was approved by the Security and Exchange Commission of Pakistan through certificate issued on 9-3-2007, moved for acquisition of land for extension of their existing industry at 8 k.m. Pakpattan Sharif Road, Sahiwal, to the Director of Industries, Land Acquisition Section, Government of Punjab, Pounch House, Lahore. After the approval was granted by the Industries Department in accordance with the procedure provided under the law, a Notification under section 4 of the Land Acquisition Act, 1894 (hereinafter called as "the Act") was issued on 8-10-2012 for land measuring 530 Kanals 6 Marlas, which was published in the official gazette on 12-10-2012. Another notification under section 4 of the Act was issued on 19- 12-2012 for acquisition of land measuring 7 Kanals 7 Marlas which was published in the official gazette on 24-12-2012. The estimate of cost was prepared on 30-1-2013, the cost of acquisition was deposited on 4-2-2013. Agreement with the Government of Punjab for land measuring 537 Kanals 13 Marlas was executed on 1-3-2013 by the Company and published on 4-3-2013. Notification under sections 17(4) and 6 of the Act was issued on 1-3-2013 and published on 4-3-2013. The demarcation of land was conducted on 29-5-2013, which was approved by the Board of Revenue on 5-6-2013.
Notice under section 9 of the Act was issued on 20-5-2013. The effected parties who participated were heard on 6-6-2013 and matter was adjourned for 12-6-2013 and a press publication was made on 8-6-2013 for information of hearing and the Award was announced on 12-6-2013.
4. Petitioners have challenged the process of acquisition mainly on the ground that land is not required for the extension of existing plant of the company. The issuance of notification under sections 17(4) and 6 of the Act has also been challenged. It is also challenged that no notice has been issued under section 5-A(2) of the Act. The holding of inquiry by the Commissioner through appointed person has been denied and even facts through which the proceedings have been conducted have also been denied by the petitioners in their writ petitions. Writ petitioner in Writ Petition No, 16361 of 2013 has raised another objection that his land has been frozen under the order of the NAB Court, therefore, same could not have been acquired.
5. I have heard learned counsel for the parties at full length and gone through the record with their able assistance. Even one of the learned counsel representing writ petitioner of Writ Petition No, 16361 of 2013 has unnecessarily argued the matter disputing the facts whereby proceedings were conducted, therefore, he was asked that if he disputes conducting of the, proceeding and dispute the facts, through which the acquisition proceedings have been conducted then petitioner may challenge the same before the civil court and this Court cannot dilate upon these factual controversies and cannot adjudge the factual controversies as on the basis of his objections the matter has been made disputed by him as on the other hand the official record is otherwise than the facts stated before this Court. Despite that the learned counsel kept on pressing his point and disputes the fact of the proceedings conducted by the respondent Department.
6. I have been informed by the Land Acquisition Collector that the parties participated in the proceedings and the Award was announced in their presence on 12-6-2013 and some of the land owners have filed their references under section 18 of the Land Acquisition Act, which are now pending before the Referee Court and further that some of the land owners have received their compensation and they have not disputed the land acquisition for the company. I have further noted that the instant writ petition to challenge the acquisition proceedings was filed on 2-5-2013.
The basic point challenged in all the writ petitions is that the issuance of notifications are in violation of section 40(aa) of the Act and the expansion of existing dairy based food plant of the respondent company does not carry element of "Public purpose".
7. Respondent, Government of Punjab was directed to place on record the complete documents relating to the process of acquisition so that the court may be able to see the same, therefore, the learned A.A.-G. Filed C.M. No,591 of 2014 wherein documents consisting upon 340 pages relating to the complete process of acquisition have been placed on the file of this case, copies of which were delivered to the learned counsel for the writ petitioners.
8. As I have noted supra, learned counsel for the petitioners have argued that expansion of plant is not a "public purpose", therefore, whole of the process of acquisition is not sustainable under the law and same be declared as illegal. Learned counsel for the writ petitioner in Writ Petition No, 16361 of 2013 has further argued that the property of the petitioner has been freezed by the NAB Court, therefore, it could not have been acquired. When he was confronted that whether any order of the NAB Court is available, he has referred some noting of the Patwari on the Jamabandies with regard to freezing of the property. Learned counsel states that there is no order of the Chairman NAB or passed by the Court with him. In these circumstances, only on the basis of a noting by the Patwari, which does not confirm that the order has been passed by the NAB Court, the objection raised by learned counsel for the petitioner has no value, as an order passed by the Chairman NAB under section 12 of the National Accountability Ordinance, 1999 cannot remain in field for an indefinite period.
9. As I have noted supra, so far as disputing the official record and publication of notifications in the official gazette which relates to the point in issue in this case is concerned, this Court cannot dilate upon the matter of disputed facts, therefore, learned counsel for the petitioners were given choice to file a civil suit if they dispute the process of acquisition. Now the only points for determination before this Court are whether the expansion of existing plant for which the request for acquisition has been made by the company is a "public purpose" or not and whether the company entered into an agreement with the Provincial Government, further that the Commissioner got conducted the inquiry in accordance with section 40 of the Act and whether issuance of notification under sections 17(4) and 6 is in violation of law.
10. The Land Acquisition Collector, Industries Punjab Lahore has written a letter to the District Collector, Sahiwal mentioning the purpose of acquisition which is necessary to be noted for ready reference:- "No,LAO/IND/1017/2012/150 DIRECTORATE OF INDUSTRIES, PUNJAB POONCH HOUSE, MULTAN ROAD, LAHORE (LAND ACQUISITION CELL)
Dated Lahore, the 12th September, 2012. To, The District Collector, Subjea: ACQUISITION OF LAND MEASURING 530 KANALS 06 MARLAS SITUATED IN CHAK NO. 97/9-L, TEHSIL AND DISTRICT SAHIWAL FOR ENGRO FOODS LTD.
' With reference to your letter No, 116-TSC/DRA/GAR/SWL dated 31-8-2012 on the subject noted above.
' It is recalled that the order of Board of Revenue (BOR), Punjab, No, 648-2004/637-S.IV dated 10-4- 2004 was passed relating to acquisition of land for cooperative Housing Societies/Companies, Employees Cooperative Housing Societies/Housing Schemes etc. In the public sector as well as in the private sector. This order was not aimed at restriction in the acquisition of land relating to development and investment in industrial sector, either by public sector or by private sector, as is clarified by the BOR by way of a foot note set in the believed order. Since the above - order did not originate embargo on acquisition of land relating to industrial concerns therefore, acquisition of land for Industrial Companies has never been put off. Rather it has remained continue flawlessly in line with the provisions of sections 38, 38-A, 40, 41 and 42 (Part-VII) of the Land Acquisition Act, 1894 and the BOR has been approving estimated cost of land in such like cases without any hindrance/ barrier.
' Furthermore, Section 3 of the Punjab Industries (Control on Establishment and Enlargement) Act, 1963 and Industrial location policies made thereunder from time to time requires prospective Entrepreneurs to obtain prior approval of the Provincial Government (industries department) before setting up of . An industrial undertaking. The order of the Financial Commissioner bearing No, 2931-C-Lahore dated 28-4-1953 appearing in "Colonization of Government Land Act, 1912"
(copy enclosed) is in the analogy which constitute that "all application for Land for Industrial purposes will be entertained through the Director of Industries, Punjab". The Director of Industries Punjab has, therefore, competently approved the area for acquisition in favour of ENGRO FOODS LTD., under the aforesaid mandate which impliedly require District Collector to go for upholding such public welfare actions. Also in view of scope of work of this department, the provincial Government in Revenue Department has appointed/posted a full time Land Acquisition Collector
(LAC) Industries in this Directorate to acquire Land under the Land Acquisition Act for Government schemes and for Industrial Companies for their projects in order to promote industrial activity, economic growth and poverty alleviation. Besides, acquisition of land for a Company which is engaged or taking steps to engage itself in any Industry is for a work useful to public as provided under section 40(1)(aa) of the Land Acquisition Act and settled by the superior courts in certain cases. The LAC has, therefore, drafted notification under Section 4 of Act ibid, fixed his signature on it and forwarded to your office with the approval of competent authority for your signature and publication in the Punjab Gazette (extra ordinary issue). Your office has countered against and has replied contrast to your statutory duty and orders of the superior courts that none should hamper freedom of action of the authorities in the matters concerning welfare of the State.
' ENGRO FOODS LTD., is not a private firm. Rather it is a Company incorporated under the Companies Act, 1984 and is limited by shares. The Company has established a dairy based food plant at Sahiwal which, is producing all purpose packed milk Olper's, Olper lite 0lfrute, Omung, Owsum, Tarang and Omore with the investment of Pkr 12.2 billion in CAPEK and Pkr 4.6 billion in brands. It is providing employment to over 2800 people including 1300 locals and contributed to Government an amount of Rs, 471,687 million as revenue in the shape of taxes during 2011. The company has planned to enhance production 'capacity of its existing project with additional investment. With this expansion, the Government will earn heavy amount of revenue and consequential creation of employment for the locals to the vast magnitude. Such ventures are supported rather to dishearten or devastate.
' In this view of the matter, it is requested to issue Notification under section 4 ibid in the best interest of the Government and public at large. Nevertheless, for any further apprehension, you may take up the matter with the Board of Revenue, Punjab for clarification at your end please.
Encl. As above.
' LAND ACQUISITION COLLECTOR INDUSTRIES, PUNJAB, LAHORE"
As the complete feasibility report was submitted. It is not only the stricto sensu expansion of existing plant rather it is expansion of existing plant, installation of fresh plant and coal power plant for generation of electricity, the plan of which was submitted before the Industries Department, thereupon previous inquiry in accordance with section 40(aa) was conducted and it was declared that it is a "public purpose", then the agreement in accordance with provisions of Sections 41 and 42 of the Act was entered by the Company with the Government, thereafter draft agreement was prepared which was subsequently notified and published in the official gazette on 4-3-2013.
Clauses Nos. 1 and 2 of the notified agreement are important to be noted:-
(1) On demand "the Company" shall pay to "the Government" all and every compensation in respect of "the Land" tendered, paid or awarded by the Collector under the Land Acquisition Act or by the appellate court or courts and all costs; charges and expenses of the proceedings in the said court or otherwise incidental to the proposed acquisition or payable in respect thereof under the provisions of the act.
(2) On payment by "the Company" of all demands under the foregoing clause "the Government" shall make, execute and do all such acts, deeds as may be necessary and proper for effectually vesting "the Land" in "the Company" and giving "the Company an absolute title thereto, subject to the terms and conditions:-
(a) "The Land" shall be used by "the Company" only for expansion of its dairy based foods plant, in accordance with the rules prescribed for the sanction of plans by the Federal, Provincial, or concerned District Government within two years from the date of the possession of "the Land" being given to "the Company" by "the Government" or within such further period as may be agreed to in writing between "the Company" and "the Government".
(b) "The Company" shall pay to "the Government" the land revenue and other cesses to which "the Land" is or under the law for the time being in force may be assessed.
(c) "The company" shall not transfer "the Land" or any part thereof, by sale, mortgage, gift, lease or otherwise except with the previous permission of "the Government".
(d) "The company" shall provide employment to the public and it shall also provide technical knowledge and training to the suitable members of the Public.
(e) "The Company, does hereby acknowledge and recognize the right now and thereafter of "the Government" to and in all mines, minerals, coal, oil and gold washings and querries of every description in or under "the Land" and also the right of control of provincial Government to do all such acts, deeds or things as may be necessary or required to be done for the enjoyment thereof.
(f) "The Company" shall not do or suffer to be done any act inconsistent with or injurious to any of the rights accepted or reserved to "the Government".
(g) "The Company" shall abide by the rules and regulations framed by "the Government" or any other authority as may be legally applicable.
(h) In the event of "the Company" being wound up or in the event of the failure on part of "the Company" to carry out any of the terms of this agreement, "the Land" shall be liable to be resumed and taken back by "the government" on the payment to "the Company" of the amount of award as finally settled less the compulsory acquisition charges, or the estimated market value of "the Land" at the time of resumption, whichever shall be less, and if there are any buildings on "the Land" on payment of their estimated value at that time, or, direct "the Company" to remove the buildings at its own cost within such time as may be allowed by "the Government" provided that if the breach is capable of rectification, "the Government" shall not order resumption unless a written notice requiring "the Company" to rectify the breach within reasonable time has been issued, and "the Company" has failed to comply with such notice.
(i) If at any time "the Government" feels that "the Land" acquired is in excess of the requirements of "the Company" such portion as may be found in excess of the requirements shall be resumed keeping in view the principle of consolidation subject to the conditions laid down in para (h) above."
11. In these circumstances when it is the prerogative of the Government to determine the "public purpose" and the agreement has been entered upon by the Company with the Provincial Government, therefore, the rights of the land owners are protected and while entering into the agreement company is bound by the agreement that if the land is not required for purpose for which it is being acquired, the same can be resumed back by the Government.
12. Now comes the question of inquiry, which is available on the record that an inquiry was got conducted by the Commissioner and objection that the order of the Commissioner is without any reason, when an inquiry has been got conducted by an official and when Commissioner agreed with reasons given in the inquiry, there was no further requirement for the Commissioner to further give reasons for agreeing with the inquiry. In case of disagreement with the findings of the inquiry, the reasons would have been necessary. In this case when the Commissioner agrees with the inquiry there was no obligation upon the Commissioner to pass a detailed order agreeing with the inquiry report. The objection of the writ petitioners that they have not been heard is factually not correct. Even otherwise light can be taken from the law declared by this Court reported as "Ghulam Bhik v. Government of West Pakistan through Secretary, Revenue Department, Lahore and 3 others"
(PLD 1973 Lahore 617), I quote para from the judgment, of this Court:-- "After issuance of a notification under section 4, land-owners are to be on alert that their lands are likely to be acquired. At that time they may raise objections under section 5-A or under section 40 of the Act but in the latter case that is when the matter is proceeding under section 40 (which is the situation here), the initiative is no longer in their hands and it is the Government and the Government alone which is to form its opinion. The land-owners have no locusstandi to participate in the said enquiry."
' As per august Supreme Court of Pakistan the question of "public purpose" can be adjudicated by the civil court, therefore, light can be taken from the judgment reported as PLD 2009 Supreme Court 217 (Suo Motu Case No, 13 of 2007) and quote the following paragraph from the said judgment:- "Similarly, disputed factual questions regarding non fulfilment 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 which was published in official gazette and copies thereof were affixed at conspicuous places at the land under acquisition, thus, the requirements of law were sufficiently met."
13. The argument of learned Assistant Advocate General that the issuance of Notification by the Government under section 17(4) and section 6 of the Act is not justiciable. I have gone through the judgment referred by him i,e, "Muhammad Ashiq and another v. Water and Manpower Development Authority, Lahore through Chairman, WAPDA House and another"
(PLD 2008 SC 335) and I fully agree with the same.
14. In this view of the matter there is no defect in conducting the acquisition proceedings, therefore, there is no force in this petition, same stands dismissed.