' This judgment shall dispose of Writ Petition Nos. 342/81, 3687/81, 4008/81, 4523/81, 3682/81, 1950/82, 3757/82, 1007/83 and 953/83 involving identical questions of law and facts.
2. Writ Petition No, 342/81 relates to acquisition proceedings of Phase-I of the Lahore Cantt. Co- operative Housing Society Ltd., Lahore, which put up a proposal to acquire land measuring 12283, 2732 and 3651 Kanals in villages Charrar, Keer Khurd and Chung Khurd respectively in Tehsil and District Lahore, for the construction of a residential colony. It was followed by a preliminary notification dated 6-11-1976 published in the Punjab Gazette (Extraordinary), under section 4 of the Land Acquisition Act, 1894 (hereinafter called the Act). Subsequently, a notification dated 8-2-1978, appeared in the Punjab Gazette under section 17(4) of the Act for the acquisition of land measuring 1108 Kanals 10 Marlas, 1097 Kanals 8 Marlas and 332 Kanals 9 Marlas in the villages Charrar, Keer Khurd and Chung Khurd respectively.
Dr. Muhammad Nasim Javid, one of the writ petitioners herein and for others challenged the validity of the said notifications by their respective constitutional petitions in this Court. Their petitions were accepted on 19-5-1979 and it was held that the notification under section 17(4) of the Act was without lawful authority as the mandatory requirements of Chapter. VII of the Act had not been complied with. Refer Peoples Co-operative Housing Society Ltd., Lahore v. Collector Lahore and others (1). Consequently, the Assistant Commissioner (Sadar), Lahore, in pursuance of the order of the Commissioner dated 21-11-1979, directed the Tehsildar, Lahore, vide his memo. No, LAC/1605, dated 27-11-1979, to cause public notice of the substance of the notification under section 4 at a convenient place of the land proposed to be acquired in villages Charrar, Keer Khurd and Chung Khurd, measuring 89 Kanals 15 Marlas, 623 Kanals 11 Marlas and 182 Kanals 15 Marlas respectively. It was further directed that the land-owners/interested persons should be informed to appear before him at 10-00 a. m. On 5-12-1979 in the inquiry to be held in respect of the acquisition of the land, in question, and wide publicity be made in connection thereto by beat of drum in the concerned localities and report of Roznarricha Waqiati should be sent to him. The concerned Patwari was also directed to appear before the Assistant Commissioner along with the record. I have perused record of the acquisition proceedings with the assistance of the learned counsel for the parties. Dr. Muhammad Nasim Javid, one of the petitioners herein, and a number of other affected persons appeared before the Inquiry Officer who after hearing objections raised by the land owners/ interested persons and after providing them opportunity to appear before him and to cross-examine the witnesses appeared on behalf of the; respondent Society, recommended vide his report dated 4-3-1980, that necessary anction may be accorded, under the provisions of the Act to acquire the land in dispute, for the respondent Society in Phase-I. The Inquiry Officer also recommended that an area measuring 56 Kanals and 6 Marlas of the proposed land to be acquired in village Keer Khurd, be excluded from agreement. The Inquiry Officer further observed in his report that the area proposed tco {{FOOT NOTE}}
(1) 1979 CLC 184 {{FOOT NOTE}} ' be acquired for the respondent Society was reasonable for the purpose. Accordingly, the respondent Society entered into an agreement with the Provincial Government under sections 41 and 42 of the Act, published in the Punjab Gazette dated 12-3-1980. This was followed by a notification under section 17(4) of the Act, dated 25-3-1980, which was published in the Punjab Gazette (Extraordinary) on 26-3-1980. Dr. Muhammad Nasim Javid has challenged the aforesaid acquisition proceedings by means of writ petition. No, 342 of 1981.
3. The brief facts concerning Phase-II of the acquisition proceedings of the respondent Society are that the Collector Lahore District issued a preliminary notification dated 11-4-1979, published on the even date, under section 4 of the Act for the acquisition of an area measuring 990 Kanals 15 Marlas and 565 Kanals 10 Marlas in village Charrar and Chung Khurd, tehsil and district Lahore at the respondent Society's expenses for the construction of residential colony (Township). Subsequently, the respondent. Society decided to acquire an area of 871 Kanals 15 Marlas and 385 Kanals 11 Marlas in village Charrar and Chung Khurd respectively. The Commissioner Lahore Division by letter No, LA/853/11/3566 dated 8-5-1979 appointed Assistant Commissioner, Sadar, as an Inquiry Officer under section 40 of the Act. The Inquiry Officers vide memo. No, LAC 202, dated 25-5-1979, directed the Tehsildar Lahore that he will inspect the site on 27-5-1979. Directions were also issued to make necessary arrangement for the information of the general public, as well as, the interested landowners to attend the inquiry proceedings on the said date, time and site., He was also directed to inform the land-owners through beat of drum to appear at the sites for the purpose. Directions were also issued that necessary entries in the roznamacha waqiati be made and its copies be furnished on 27-5-1979. The Inquiry Officer examined Muhammad Tufail Lambardar of village Charrar on 27-5-1979 and after hearing the representative of the respondent Society recommended in his report 30-5-1979 that, necessary sanction may be accorded under the provisions of the Act to acquire the land measuring 871 Kanals 15 Marlas and 385 Canals 1 Marlas in village Charrar and Chung Khurd respectively for the Society for Phase-II. He also observed that the land to be acquired was reasonable for the purpose. The record of the inquiry which has been examined by me with the assistance of the learned counsel for the parties and the representatives of the respondents shows that no one appeared before the Inquiry Officer on behalf of the land owners/interested persons. Thereafter, the respondent Society entered into an agreement on 30- 4-1979 which was published in the Punjab Gazette . Dated 20-6-1979 under the provisions of sections 41 and 42 of the Act. This 'was followed by a notification dated 30-4-1980, published in the Punjab Gazette on 6-5-1980, under section 17(4) of the Act. The final declaration under section 6 of the Act was issued vide notification dated 5-5-1981, published in the Punjab Gazette dated 9-5-1981 (Extraordinary). Thereafter, the Assistant Commissioner, Sadar/Land Acquisition Collector, started inquiry under section 11 of 'the Act for the announcement of the award. Notices under section 9 of the Act were issued to the land owners/interested persons vide No, LAC 434, dated 11-6-1981. They were required to appear before the Collector on 28-6-1981. Notice was also published in daily Nawa-i-Waqe, Lahore and Mashriq' dated 7-7-1981. The petitioners herein challenged the acquisition proceedings and obtained stay order to the effect that their possession may not be disturbed.
4. The main contention urged by the learned counsel' for the petitioners is that the acquisition is not for a public purpose within the menial of section 40 of the Act and, therefore, it is void. It is argued that the land now sought to be acquired will vest in the individual members of the Society as their own private property, which would benefit them alone and the public shall in no way be benefited by the scheme. In fact the acquisition would amount to taking the property of one private individual and transferring it to another and that, therefore, there was no public purpose within the ambit of section 40 of the Act. It was further argued that the Society is a commercial organization, inasmuch as; the plots acquired by the Society can be re-sold by it under its bye-law No, 2.
5. Learned counsel for the respondents submitted that the Society with its bye-laws was registered on 19-3-1975 under the Co-operative Societies Act, 1925. It is not a commercial organization. He further submitted that after the acquisition of the land by the Society, residential accommodation is to be provided to the Military and Civilian Personnel. The plan of the scheme also includes public works of the nature of laying of roads, construction of schools, earmarked spaces for parks and other public amenities to be provided by the Society in that particular area, and therefore, the acquisition was for a public purpose and is useful to the public within the ambit of section 40 of the Act.
6. The respondent Society is admittedly registered under the Cooperative Societies Act, 1925. The Preamble of the said Act states that it is expedient further to facilitate the formation and working of co-operative societies for the promotion of thrift, self-help and mutual aid Manion agriculturists and other persons with common economic needs so as to bring about better living, better business and better methods of production. -Unde section 5, a society which has as its object the promotion of economic interests of its members in accordande with co-operative principles, or a society established with the object of facilitating the operation of such a society, may be registered under the said Act. The bye-laws of the Society have to be approved by the Registrar, who has all powers of control over the Societies. The object of the respondent Society is enshrined in bye-law No, 2, which reads thus : "The object of the Society shall be to develop, on modern lines, to the best advantage of the members of the Society, in accordance with co-operative principles, and to establish and carry on social recreate and educational work in and around Lahore Cantonment. It shall have full powers to do all things it deems necessary or expedient for the accomplishment of all objects specified in its bye-laws, including the powers to purchase, hold, sell (with full proprietary rights) exchange, mortgage, rent, surrender, accept surrenders of and deal with lands of any tenure and to sell by installments and subject to any terms or conditions and to make and guarantee advances to members for building or purchasing property and to erect, pull down, repair, alter, or otherwise deal with any building thereon."
' I am, therefore, of the opinion that there is no substance in the objection that the respondent Society is a commercial organization and not constituted for the benefit of the public.
7. Let me now turn to the crucial question as to whether the acquisition of the land by the Government at Society's expenses for the construction of residential accommodation for the Defence and Civilian Personnel can be said to be a public purpose. The term "public purpose" as defined in section 3( f ) of the Act is in the following terms :- "The expression 'public purpose' includes the provision of village-sites in districts in which the Provincial Government shall have declared by notification in the official Gazette that it is customary for the Government to make such provision."
8. Sections 6 to 37 of the Act lay down the procedure for all acquisitions under it. Part VII of the Act which consists of sections 38 to 44 provides for acquisition of land for companies for certain specified purposes. The acquisition in the instant case was purported to be made under Part VII of the Act. The relevant provisions of Part VII read thus :- "38.--(1) The Commissioner may authorize any officer of any Company desiring to acquire land for its purpose to exercise the powers conferred by subsection (2) of section 4.
(2) In every such case section 4 shall be construed as if for the words "for such purpose" the words "for the purpose of the Company" were substituted; and subsection (3) of section 4 shall be construed as if after the words "the officer" the words "of the company" were inserted.
"39. The provisions of sections 6 to 37 (both inclusive) shall not be put in force in order to acquire land for any Company, unless with the previous consent of the Commissioner, nor unless the Company shall have executed the agreement hereinafter mentioned."
"40.-(1) Such consent shall not be given unless the Commissioner be satisfied, either on the report of the Collector under section 5-A subsection (2), or by an enquiry, held as hereinafter provided,-
(a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or
(aa) that such acquisition is needed for the construction of some building or work for a Company which is engaged or is taking steps for engaging itself in an industry or work which is for a public purpose, or
(b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public, or
(c) that the area proposed to be acquired is reasonable for the purpose.
(2) Such enquiry shall be held by such officer and at such time and place as the Provincial Government shall appoint.
(3) Such officer may summon and enforce the attendance of witnesses and compel the production of documents by the same means and, as far as possible, in the same manner as is provided by. The Code of Civil Procedure in the case of a Civil Court,
41. If the Commissioner is satisfied after considering the report, if any, of the Collector under section 5-A, subsection (2), or on the report of the officer making an inquiry under section 40 that the object of the proposed acquisition is to obtain land for one of the purposes referred to in clause (a) or clause (aa) or clause (b) of subsection (1), of section 40, it shall require the Company to enter into an agreement with the Provincial Government providing to the satisfaction of the Provincial Government for the following matters, namely :-
(1) the payment to the Provincial Government of the cost of the acquisition
(2) the transfer, on such payment, of the land to the Company ;
(3) the terms on which the land shall be held by the Company ;
(4) where the acquisition is for the purpose of erecting dwelling houses or the provision of amenities connected therewith, the time within which, the conditions on which and the manner in which the dwelling houses or amenities shall be erected or provided ; and
(5) where the acquisition is for a purpose falling under clause (b) of subsection (1) of section 40, the time within which and the conditions on which the work shall be constructed and maintained." -
9. It is an admitted fact that the Commissioner declared that he was satisfied that the land was required to be taken by the Government for the respondent Society for a public purpose, namely, for the construction of residential accommodation for Defence and Civilian Personnel. The petitioners, however, contended that such a purpose is not a work contemplated by section 40 of the Act, therefore, the acquisition proceedings are, void ab initio. The term "public purpose" has been interpreted by the superior Courts of India and Pakistan in a large number- of cases, which means a purpose furthering general interest of community as opposed to particular interest of individuals and to be construed according to the spirit of times in which particular legislation is enacted. Refer Raja Muhammad Amir and others v. Province of Punjab and others (1). Refer also Babu Barkya Thakur v. State of Bombay (2), wherein it was held "It will thus be noticed that the expression `public purpose' has been used in its generic sense of including any purpose in which even a fraction of the community may be interested or by which it may be benefited."
10. The question as to whether acquisition would be for a public purpose if Government were to acquire land for housing scheme of any kind has been examined in a number of cases from Indian jurisdiction. In. Hamabai Framjee Petit v. Secretary of State for India (3), a question arose whether the acquisition of land for erecting buildings for the use of Government servants was a public purpose. It was held : "The phrase 'public purpose' must include a purpose that is an object or aim in which the general interest of the community as opposed to the particular interests of the individuals is directly and vitally concerned. The resumption of lands for erecting building for the use of Government officials is for public purpose as it will redound to public benefit by helping the Government to maintain the efficiency of its servants."
' In Jhandu Lal Budh Rain and others v. The State of Punjab and another (4), it was held :- "It is perfectly legitimate policy on the part of the Government, in view of the extraordinary shortage of house accommodation at Delhi, to encourage the development of Co-operative House Building Societies on a non-profit basis, and it amounted to a public' purpose if the Government helped such societies by acquiring land for them."
' I he same view was taken in Tej Ram Jag Ram v. Union of India, Ministry {{FOOT NOTE}} '(I) PLD 1983 Lab. 355 (2) AIR 1960 SC 1203
(3) AIR'1914. P C 20 (4) AIR 1959 Pb. 479 {{FOOT NOTE}} ' of Works, Housing and Supply, New Delhi and others (1), wherein it was held "The meaning of the term 'public purpose' is undoubtedly hard to define but in the case of acquisition of land it is not confuted to the direct use of land by Government itself or even that the land acquired is to be made available to the public at large.
' Thus the acquisition would be for a public purpose if Government were to acquire land for a housing scheme of any kind in which the houses were to be sold or let to persons of any class if an acute housing shortage existed and this shortage could not be, and was not being adequately met by private enterprise.
' That as an acute housing shortage existed in the Delhi area, an acquisition of land for the persons forming themselves into co-operative house-building societies for the purpose of building homes for themselves on a strict co-operative and non-profit-making basis must be regarded as a legitimate public purpose."
' In Radha Raman v. State of Uttar Pradesh and others (2), interpreting the word "work" as employed in section 40 of the Act, it was held : "The word 'work' has a very wide meaning and, therefore, no useful purpose will be served by quoting the meaning as given in the dictionaries. The word is really used in two senses of bestowing labour and that upon which labour has been bestowed. The word gets its color and complexion from the nature of the work, and when used in singular with reference to construction it is not confined to only big industrial or scientific constructions. Taking the ordinary popular meaning of the word the construction of ordinary houses for purposes of residence comes within its meaning and the Government, therefore, has jurisdiction to give its consent to the acquisition of land for the purpose.
' The general dearth of residential accommodation in the towns and cities of Uttar Pradesh is very well known and if a Society is found to construct a number of houses and the houses are actually constructed, the construction is likely to ease the situation, as there will be an increase in the total residential accommodation in the town, and rents may also possibly go down. In spite of the fact that the bye-laws of the society as well as Co-operative Societies Act itself are mainly concerned with the interests of the members of the Society if in carrying out its objects a situation is brought out which may also help the other members of the public, the acquisition may be said to be one useful to the public. In conditions prevailing in the towns the construction of more residential houses will benefit not only the members of the society but also the resident public of the town and therefore, it is an object which is useful to the resident public of the place."
11. Mr. Muhammad Nawaz Malik, Advocate, strongly relied on the majority view expressed in R. L.
Arora v. The State of Uttar Pradesh and others (3), to contend that what the provisions of sections 40 and 41 of the Act require is that the work should be directly useful to the public and the agreement shall contain a term how the public shall have the right to use the work directly themselves and that the work contemplated is a work like a hospital, a public reading room or a library or an educational institution {{FOOT NOTE}}
(1) AIR 1959 Pb. 478 (2) AIR 1954 All. 700
(3) AIR 1962 SC 764 {{FOOT NOTE}} ' open to the public or such other work as the public may directly use and it is only for such works, which are useful to the public in this way and can be directly used by it, that land can be acquired for a Company under the Act. Sarkar, J., expressed contrary view and observed as under "It would be unduly restricting the meaning of the word 'useful' to say that a work is useful to the public only when it can directly be used by the public. The words are not 'work which the public can use', in which case it might with some justification have been said that the work must be such as the public could use. Reading section 40(1)(b) itself, it cannot be accepted that the work there contemplated is only a building or other construction put up for a philanthropic purpose or is such as itself can be used by the public. The work contemplated is a work from the construction of which the public can in any way derive benefit, whether by the direct use of the work or by the enjoyment of the fruits of the activities, carried on there, or, may be, otherwise."
' Though it is not for the Court to enter upon a consideration of the question how far the provisions made by the Government in the terms of the agreement sufficiently safeguard the interests of the public, that being a matter entirely for the satisfaction of the Government, the interpretation of the material terms in section 40(1)(b) and the fifth term of the agreement provided in section 41 read together is and must always be within the jurisdiction of the Court. It is for the Court to say what the words in sections 40 and 41 mean though it is for the Government to decide whether the work is useful to the public and whether the terms contain provisions for the manner in which the public shall be entitled to use the work. It is only in this latter part that the Government's satisfaction comes in and if the Government is satisfied that satisfaction may not be open to challenge ; but the satisfaction of the Government must be based on the meaning given to the relevant words in sections 40 and 41 by the Court. The Government cannot both give meaning to the words and also say that they are satisfied on the meaning given by them. The argument therefore that it is the Government's satisfaction which is required both by sections 40 and 41 is of no help.
' Whether the land was acquired for the setting up of a textile machinery parts factory and the Government was satisfied that it was a work which would prove useful to the public, it seems that Government were entitled so to be satisfied within the meaning of section 4000(b). It is no part of the duty of the Court to sit in judgment over the merits of Government's satisfaction."
12. Reliance was also placed on Pakistan through The Secretary, Ministry of Defence v. Province of Punjab and others (1), wherein it was held that the term "public purpose" is a variable term and its meaning must depend upon the context of the legislative language used and the object sought to be achieved.
13. In view of the majority decision in R. L. Arora's cave section 40 was also amended in India by incorporating clause (aa) to give effect to the minority view of Sarkar, J. This question was examined in Shansi Nagar {{FOOT NOTE}}
(1) PLD.1975 SC 37 {{FOOT NOTE}} ' Co-operative Housing Society Ltd., Etah v. Nar Singh Das Bhargava and others (1), wherein it was held :- "It has been contended on behalf of the petitioners respondents that clause (aa) of section 40 requires that the construction itself should be for a public purpose and it is not enough that the company is engaged or taking steps for engaging itself in any industry or work which is for a public purpose. In other words the contention is that the construction or work must be of the nature of a hospital or an education institution or public reading room or library. We are unable to agree. In or judgment the very purpose of clause (aa) of section 40 which has been introduced by the amending Act subsequent to the decision in Arora's case AIR 1962 SC 764, would be frustrated if such restricted meaning were to be given to this clause. It is well known that it was due to the majority decision in Arora's case AIR 1962 SC 764 that the Act was amended.
' It appears to us that the purpose of clause (aa) is to give effect to the view of Sarkar,. J. (minority view) in Arora's case AIR 1962 SC 764."
14. In view of the ratio laid down in the aforementioned cases, the legal position which emerges is that the acquisition for Co-operative House Buildin D Society may serve a public purpose. It, however, depends upon circumstances of each case whether or not such an acquisition is for a public purpose.
15. In the State of Bihar v. Sir Kameshwar Singh (2), it was observed that ordinarily the Government has no right to acquire private property to give it to private persons even on payment of compensation. My learned brother A. S. Salam, J., in a very well-reasoned and illuminating judgment in Muhammad Akbar and others v. The Commissioner, Rawalpindi Division and others (3), held :- "From the Preamble as well as the relevant provisions in the Land Acquisition Act, it is quite clear that land of people may be acquired by the State for a public purpose meaning thereby for the use of the public or people at large, or, for a Company under Part VII of the Act for its use which the Provincial Government believes would serve some specified statutory purposes. The Land Acquisition Act, 1894, does not envisage at all taking of land of one to be given over to the other.
One cannot rob Peter to pay Paul. That may be Robinhood's philosophy but that is not part of the law. That is expressly barred by the fundamental law of the land i,e, the Constitution of Islamic Republic of Pakistan which allows acquisition of private property only for public purposes."
' In Muhammad Akbar's case, it was found that land of private persons had been acquired only for the benefit of an individual and not in lieu of his acquired land but for his agreeing to shift the Shrine. It was further held that acquisition I for such a purpose was not a "public purpose" in the eye of law though it 'may be laudable otherwise. I say so with respect that the rule laid down in Muhammad Abkar's case that the land could not be acquired for an individual is not absolute.
There may be exceptional circumstances and times where such an acquisition would serve public purpose. In the instant case, the land is not acquired for the benefit of an individual simpliciter, but is needed for a Co-operative Housing Society and such a need has been held to be a public purpose in a number of cases some of which have been quoted above. The record of the acquisition proceedings {{FOOT NOTE}}
(1) AIR 1965 All. 17 (2) AIR 1952 SC 252
(3) PLD 1976 Lab. 747 {{FOOT NOTE}} ' shows that the respondent Society proposed the acquisition of the disputed land to ease the acute housing shortage in Lahpre Cantt. And to provide - shelter to defense and civilian personnel's. A large number of applications are pending with the Society for over six years for the allocation of plots. Public purpose does not cease to be so simply because incidental benefit will ensure to private individual. (Refer Nichols on Eminent Domain, Vol. 2, section 7.222). There can be no doubt that the acquisition of the disputed land for providing housing facilities and civil amenities, ancillary buildings, god owns, roads etc., as envisaged by paragraph 2 of the Agreement will serve public purpose, within the ambit of clauses (as) and (b) of section 40 of the Act. The word "work" used in the aforesaid clauses has a wide meaning. (Refer Raja Muhammad Amir's case). The Society is undoubtedly engaged and is taking steps for engaging itself in a work which is for public purpose and therefore, no exception can be taken to the acquisition of a purpose covered by the aforesaid provisions. It is, therefore, difficult t sustain the plea of the learned counsel for the petitioners that the acquisition is ultra vires of section 40 of the Act. There is no material on the record to lead to the conclusion that the opinion of the Government that public purpose would be served by this acquisition is incorrect.
16. It is next contended that the notification under section 4 is vague, inasmuch as, it does not give Khasra numbers or other adequate particulars which would enable the owners to file objections under section 5-A of the Act. Sh. Gbias Muhammad argued that the rationale behind this provision is that the owners should know and identify the land' belonging to them and intended to be acquired to enable them to file objections. Reliance was placed on Haft Feroz Din v. Government of West Pakistan (1), to contend that the object of the notification is not merely to prescribe technicalities but to achieve a substantial purpose, namely, to notify interested persons of Government's intention to acquire land. In this case, however, proper description of the land proposed to be acquired was given in the notification under section 4, with specific reference to the District. Tehsil, locality and with its direction and boundaries, as well as, the area. It could, therefore, be reasonably presumed that the residents of the locality had noticed th intention of the Government to acquire the land situate in the villages of Charrar, Chung Khurd and Keer Khurd. It is situated within the Urban Area of Lahore. I, therefore, hold that the notification under section 4 of the Act can neither be treated as defective nor vague in the light of the ratio laid down in the aforementioned case, wherein it was. Observed, "with regard to property and land situated in urban town, particularly by large ones, like Lahore, it is clear to us that an appropriate description, intelligible to all concerned would be to indicate the name of the road, Mohallah, or municipal ward where the property is situated, besides mentioning the revenue estate concerned". Thus visualized, minor inaccuracy in the description of the land does not cause serious prejudice to the petitioners, so as to annul the to acquire the land, in dispute. Refer the Tariq Transport Company, Lahore VI notification when they remained fully aware about the move of the respondent Sargodha-Bhera Bus Service, Sargodha and others (2), wherein it was held :- "It is a sound rule, recognised by almost all general codes of procedural law and absolutely essential for the preservation of all duly considered verdicts, that an omission or error in procedure, unless it has occasioned a failure of justice or prejudiced a party in the presentation of his case, is not a sufficient ground for reversing the decision."
(1) II 1, D 1961 (W. P.) Lab. 304 (2) PLD 1958 SC (Pak.) 437
17. It is next contended that according to the combined effect of sections 39 and 40, the acquisition for a company can be made only with the consent of the Government, which is to be accorded in the manner prescribed in section 40 i,e, after institution of inquiry by a designated officer and on his report to make certain that the purpose for the intended acquisition is within the purview of section 41. Sh. Ghias Muhammad submitted that holding of a proper inquiry is a pre-condition to validate the acquisition proceedings. He argued that this pre-condition not having been fulfilled, the acquisition is void. He further argued that at any rate in the case of village Chung Khurd there was no proper inquiry and no proclamation and to that extent the pre-condition is lacking. The contention is devoid of any force. The petitioners/land-owners cannot question the consent given by the Government for acquisition of the land, in dispute, to the respondent Society merely on the ground that no proper inquiry was conducted. Refer Ghulam Bhik v. Government of West Pakistan (1), wherein it `was held :- "After issuance of a notification under section 4, land-owners are to be alert that their lands are likely to be acquired. At that time they may raise objections under sections 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, as held by me in a connected case, namely Faqir Muhammad and others v. Government of West Pakistan and others, Writ Petition No, 588/1968."
' The same view was taken in Ezra v. The Secretary of State and others (2), affirmed in appeal by Privy Council in Ezra v. Secretary of State for India (3). Also see Ch. Khushi Muhammad v. The Commissioner, Multan and others (4), wherein it was held : "A comparison of provisions of sections 4, 5, 5-A and 9 with the provisions of section 40 of the Land Acquisition Act, 1894 will show that wherever it was intended by the Legislature that the person affected will have a right to show cause, a distinct provision to that effect is made.
' The omission in section 40 of a provision as regards notice to "persons interested" in the land to be acquired for the benefit of a Company is, thus, deliberate ; the underlying consideration being that the satisfaction of the Commissioner is not in the nature of an adjudication whether land belonging to a person shall be acquired for the benefit of a Company or not but is intended to provide material for determining whether the Government shall act on behalf of a Company in that behalf or not. The non-issuance of the notice to the petitioner in the inquiry under section 40 has, thus, no effect on the validity of the consent given by the Commissioner to the acquisition in question."
18. In the instant case the record shows that an inquiry was conducted under section 40 of the Act and the learned counsel for the petitioners have not been able to show any material irregularity in the conduct of the inquiry which, in view of the circumstances of the case, will render the whole acquisition proceedings void, especially, when it has caused no prejudice to the petitioners. {{FOOT NOTE}}
(1) PLD 1973 Lab. 617 (2) I L R 30 Cal. 36
(3) I L R 32 Cal. 60$ (4) PLD 1965 Lab. 250 {{FOOT NOTE}}
19. It is next contended that the notification under section 17 stands invalidated for non-compliance with pre-conditions laid down in that behalf in the Government Circular No, 2364/1553-LA(II) dated 15-6-1968 in that, (i) no adequate justification was made out by showing the existence of emergency, for issuance of the said notification ; (ii) no inquiry was held nor any finding recorded to the effect that the land sought to be taken possession of was not excessive and was reasonable ; (iii) no certificate was furnished to the effect that the estimate cost as worked out by the Collector had been physically placed at the disposal of the Land Acquisition Collector and (iv) no certificate was furnished to the effect that endeavors to obtain land through private negotiations had been unsuccessful or have been considered inexpedient. It was submitted that in consequence of failure to comply with mandatory directions as aforementioned the notification under section 17 suffers from obvious infirmity and illegality.
The plea as to alleged violation of aforesaid instructions is not sustainable. The record shows that these instructions have been substantially complied with. Refer Zainul Abedin v. The Government of West Pakistan and another (1), wherein it was held that the requirement of subsection (4) of section 17 is only that in the opinion of the Provincial Government the provisions of subsection (1) or subsection (2) should be applicable. It is not necessary that requirements of those subsections should be complied with. Also refer Muhammad Mushtaq Ahmad Khan and others v. The Assistant Commissioner, Sialkot and others (2).
20. It is next contended that the impugned acquisition is violative of paragraph 10 of Martial Law Instruction No, 23, inasmuch as, the petitioner were not granted exemption to the extent of 30 per cent, of land acquire from them. The contention is untenable. The Instruction is applicable to I all housing schemes of L. D. A., housing plots in municipal land, housing plots at nazool land, plots allotted by the Housing and Physical Plannin Department and none else. It is, therefore, apparent that these instructions are not applicable in the instant case.
21. It is next contended that the impugned acquisition is violate of the directive of the President conveyed by the Board of Revenue vide its letter dated 7th July, 1973, wherein it is directed that as far as possible agricultural land sholud not be acquired and the people should not be deprived of their fertile area. The plea is not tenable. The direction conveyed by the President on the executive side has not always the force of law. Furthermore, there is no embargo even in terms of the aforesaid directions not to acquire the agricultural land under any circumstances. It I merely stated that as far as possible, agricultural land should not be acquired. The acquiring authority is primarily the Judge as to whether particular type of land should or should not be acquired. The controversy, N therefore, relates to the suitability or otherwise of the land to be acquired, which is not open to judicial review.
22. It is next contended that the notifications under sections 6 and 17 having been issued beyond one year of the notification under section 4 and being violative of the instructions issued by the Member Board of Revenue the entire proceedings have been rendered illegal. A similar objection was earlier raised and repelled in Peoples Co-operative Housing Society Ltd., Lahore v. Collector, Lahore District and others (3), wherein it was held that {{FOOT NOTE}}
(1) 1969 SCMR 228 (2) PLD 1983 Lab. 174
(3) 1979 CLC 189 {{FOOT NOTE}} ' the petitioners had been agitating against the acquisition and at various levels their representations had been under consideration. This fact alone accounted for the delay. They cannot make the authorities responsible for not following the instructions which otherwise they would have. I am, however, not inclined to exercise my discretionary constitutional jurisdiction to annul the acquisition proceedings on this ground alone, inasmuch as, the land has been acquired for a public purpose.
24. Reliance was placed by the petitioners on Province of Punjab and others v. Ch. Zahoor Elahi etc. (1), to contend that where an order of acquisition has been passed mala fide, it is an act without jurisdiction, being fraud on statute. It is submitted that the land was acquired for the benefit of individual members of the Society for commercial gain and not for a public purpose. Mr. Muhammad Nawaz Malik, Advocate, submitted that the land of one Dr. M. M. Khan was once exempted by the Commissioner from acquisition and a letter was also issued to this effect.
Thereafter the Deputy Martial Law Administrator, who is also the Chairman of the respondent Society visited the office of the Commissioner along with some other Military Officers and it was under their pressure that two days later the exemption was withdrawn. The argument carries no weight. It is well settled that presumption of regularity attaches to all official acts and the onus lies entirely upon the person alleging mala fide. No inquiry can bet launched by the Court merely on the basis of bald allegations. The petitioner have failed to discharge the onus, therefore, their plea of mala fide cannot be sustained. The question of mala fide raised by the petitioners does not fulfill the test laid down in The Federation of Pakistan v. Saeed Ahmad Khan and others (2). When faced with this situation, learned counsel for the petitioners took up the plea that in the absence of any written statement, the allegations levelled in the writ petition and the facts narrated therein are deemed to have been admitted by the respondent Society. The contention is devoid of any force.
Written statement has been filed by the respondent Society in Writ Petition. 342/81, specifically controverting therein the allegations levelled in the writ petition. In the circumstances the facts which are denied tee the Society in one writ petition can also be treated as denial in Q other writ petitions, in that, all the petitions are being heard together and, therefore, no prejudice has been caused to the petitioners by not filing separate written statements in each case. Be that as it may, it is well settled that before an order passed by any public authority is struck down, it is the duty of the Courts to explore every possible avenue for its validity. Refer The Chairman, East Pakistan Railway Board, Chittagong v. Abdul Majid Sardar Ticket Collector (3), Lahore Improvement Trust, Lahore v. The Custodian, Evacuee Property, West Pakistan, Lahore and others (4) and Syed Muhammad Khurshid Abbas Gardezi and another v. Multan Development Authority (5).
' In view of the above the writ petitions fail and are hereby dismissed but in the circumstances of the case there shall be no order as to costs. {{FOOT NOTE}}
(1) 1982 SCMR 173 (2) PLD 1974 SC'151
(3) PLD 1966 SC 725 (4) PLD 1971 SC 811
(5) P L p 1983 SC 151 {{FOOT NOTE}}