' SALEEM AKHTAR, J.-The petitioner has challenged the acquisition of property in respect of which Notification was issued by the respondent No,
1. The petitioners are owners of agricultural land in Surveys Nos. 82 and 351 situated in Deh Landhi, Tapo Landhi, Taluka and District Karachi. In the year 1969 the Original Survey Nos. 82/19-22 was sub-divided into Survey Nos. 446 to 458 and 82 and entries were accordingly made in the record of rights. In the year 1966 the father of respondent raised a temporary unauthorised construction of a hotel on the Government land alongwith the site of Katcha approach road from Landhi National Highway leading to Hyderabad. His case was referred by respondent No, 1 to K. D. A. For its regularisation and in October, 1966 two Gunthas were temporarily leased out to respondent No, 3 on condition that no Pucca construction will be made.
After the expiry of the lease Katcha construction was removed. The respondent No, 2 by his letter, dated 26-4-1969 allotted to respondent No, 3 1,600 Sq. Yards out of Original Survey No, 82 but it was cancelled, on 14-6-1969 as the land allotted was a private land. As the petitioners apprehended that respondent No, 3 was likely to dispossess them from the disputed land, they filed Suit No, 1280/1970 for declaration and permanent injunction. This plaint was rejected under Order VII, rule 11, C. P. C., on 23-8-1971.
2. On 6-4-1970 the respondent No, I issued a Notification under section 4 of the Land Acquisition Act stating that for public purpose viz. Constructing 150' wide approach road for Scheme No, 3 lands from Surveys Nos. 446, 447, 464, 465, 466 and 369 are likely to be needed. On 31-124970 a notification under section 6 of the Land Acquisition Act was published declaring that the lands from the aforestated survey numbers were needed for public purpose. The respondent No, 1, therefore, acquired for public purpose the land specified in the Notification which included the disputed land of 1,600 Sq. Yards out of Survey No, 447 which was initially a part and parcel of Survey No, 82 belonging to the petitioners. The petitioners have alleged that in the counter-affidavit filed in the suit it was stated by K. D. A. That 1,600 Sq. Yards were being allotted to respondent No, 3 out of Survey No, 447 in Scheme No, 25-A and possession was given on 6-5-1967. The petitioners have, therefore, challenged the acquisition of land mainly on the ground that it has not been acquired for public purpose.
3. In the counter-affidavit filed by the respondent No, 2 it has been stated that the respondent No, 1 had acquired a strip of land for public purpose 'namely construction of 150" wide approach road for Scheme No, 3 Landhi Ind astrial Area and proper notifications were issued. This land was partly covered by Survey No, 447 and other Survey numbers. It was acquired on payment of compensation and the Land Acquisition Officer after completing the necessary formalities passed an Award on 19-2-1971 in respect of 7.3 Acres of land acquired for the above purpose. The possession of land was taken by K. D. A. On 7-4-1971. It has also been stated that the disputed land measuring 1,600 Sq. Yards was also required for the purpose of consecution of the road and as it was treated extra land, it was disposed of by allotment to respondent No, 3 in due course of law which the respondent No, 2 were entitled to do, as after acquisition the land vested in respondent No, 2.
4. Mr. Sher Afghun the learned counsel for the petitioner has contended that the purpose of acquisition was not the construction of road, but to allot the land to respondent No, 3, and such purpose cannot be deemed to be public purpose.
5. It is to be considered whether the land was acquired for public purpose ? The Land Acquisition Act provides that before acquiring the land whenever it appears to the Provincial Government that the land in locality is to be needed or is likely to be needed for a public purpose a Notification to.
That effect is published in the Official Gazette. Th Government has, to satisfy itself before issuing Notification under section 4 that the land is required for public purpose. After the notice has been issued any one having interest in land which has been included in the notification issued under section 4 may within 30 days of the issue of Notification file objection to the acquisition. Such objections shall be decided after giving an opportunity of hearing by the Collector of the area and if the Collector feels necessary be may send the case for decision of the Provincial Government.
After the objections have been decided and the Government is satisfied after considering any report that land is needed for public purpose, a declaration shall be made to that effect which shall be published in the Official Gazette. Therefore, law requires two Notifications to be issued, first under section 4 and the second under section 6. The effect of such Notifications has been stated in section 6(3) of the Land Acquisition Act which is reproduced as follow :- "6(3) The said declaration shall be conclusive evidence that the land I owned for a public purpose or for a Company as the case may be ; and, after making such declaration, the Provincial Government may acquire the land in manner hereinafter appearing."
A scrutiny of these provisions manifestly make it clear that decision whether land is required for public purpose is the subjective decision o the Government. Passingly it may be mentioned that section 3(f) defines "public purpose" in the following manner.
"3(f) 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 ; and This definition is not exhaustive. In fact the 'word public purpose' cannot be strictly defined as it is liable to change from time to time, from place to place and matter to matter. The definition has to be used in an elastic sense so that it may satisfy the changing facts, circumstances, and requirements of the society and needs of the public.
6. Once the Government determines that the acquisition is for public purpose it cannot be challenged except on the ground that it is mala fide or in abuse of the powers conferred on the authority. In this regard Mr. Mirza A. Rashid for the respondent No, 3 and Mr. S. H. Kizalbash for respondent No, 2 have referred to the case of Ghopi and others v, Hasnad C Saresh (1), where referring to section 6(1) and (3) it was observed that the declaration made under section 6(1) will be conclusive evidence under subsection (3) that the land is required for public purpose.
Reference was made to AIR 1963 SC 151 that the conclusiveness or finality attached to declaration made under section 6(1) is not only as regards the fact that the land is required but also as regards the question that purpose for which the land is required is in fact a public purpose. It was further held that the provision of subsection (3) precludes the Court from ascertaining whether all the ingredients of the declaration existed except where it appears that in making the declaration there has been a fraud on the power conferred. VLooking to the scheme of the Act, it seems clear that the declaration of public purpose cannot be challenged in Court which is conclusive. In the case of Muhammad Ashraf Khan E. A. C. And 7 others (2), it was held that whether a purpose amounts to public purpose, entirely rests in the decision of Government and its satisfaction to that effect cannot be challenged.
7. There is consensus that the question whether the land is required for 'public purpose is entirely dependent upon the subjective decision of the Government. Once such decision has been notified as required by the Act it cannot be challenged except on the ground that such decision is mala fide, fraud on the statute and a colourable exercise of power.
8. The next question which arises is whether the notifications issued in this case are illegal and without lawful authority because a portion of land namely 1,600 Sq. Yards have been allotted to the respondent No,
3. Mr. Sher Afghun the learned counsel for the petitioner has contended that it establishes that the land was required for respondent No,
3. It has not been denied that the big strip of land was not required for constructing road. It is well-settled that after a land is acquired by the Government entirely vest in it. The Government, is, therefore, entitled to use this land in any manner it likes provided it is in conformity with the declared intention and purpose. Circumstances may rise when after utilisation of land for particular purpose for which it was acquired portion may be left out or is found to be in excess. In such cases the Government is entitled to dispose it of in any manner it likes as it entirely vests in the Government. Such deviation can be made only after the declared public purpose has been satisfied. {{FOOT NOTE}}
(1) AIR 1965 Ham, Par, 8 (2)1980 C LC 1504 {{FOOT NOTE}}
9. The learned counsel has relied on Muhammad Akbar and others V. The Commissioner, Rawalpindi Division and others (1), where it was held that the Land Acquisition Act does not envisage taking of land of one to be given to other. In this case, there was a shrine in the area of Mangla Dam Project and the said area was required immediately by the Project. In order to get the area vacated the Land Acquisition Collector approached the Mutawalli, who agreed to shift the shrine to a new location on the understanding that he, his family members and others would be given land in return near the new location of the shrine. The authority accordingly acquired the land for the said purpose. It was held that as the land in dispute was acquired only for the benefit of an individual and in lieu of his acquired land, it could hardly be a public purpose in the eye of law. This case is completely distinguishable on facts as in the present case the notification was issued for acquiring the land for constructing a road, which is a public purpose. In fact more than 3 Acres of land were acquired for this purpose out of which excess land of 1,600 Sq. Yards was allotted to respondent No,
3. As discussed above this can hardly nullify the validity of the notification.
10. The entire grievance of the petitioners is in respect of strip of land of 1,600 Sq. Yards allotted to respondent No,
3. Such allotment does not make the order of acquisition and the Notifications as illegal or without lawful authority. For these reasons, by a short order, the petition was dismissed. {{FOOT NOTE}}
(1) PLD 1976 Lah. 747 {{FOOT NOTE}}