' MUFIAMMAD BASHIR KHAN JEHANGIRI, J.---Ghulam Yasin and 10 others of Musa Khar, Tehsil and District D.I. Khan by this petition under Article 199 of the Constitution of Islamic Republic of Pakistan have challenged the legality of acquisition of land and have called in question Notification issued on 5-9-1990 by the Commissioner, D.I. Khan Division (respondent No,2) under section 5-A of the Land Acquisition Act, 1894 (I of 1894) (hereinafter referred to as the Act).
2. The relevant facts are that Collector/Deputy Commissioner, D.I. Khan' issued, under section 4 of the Act, Notification on 7th November, 1983, stating therein that land described in the Notification is likely to be acquired and taken by the Government at public expense for purpose, namely, "Acquisition of Land for Farm Drainage Channel and Road, Government Seed Farm, Rakh Manghan".
3. The case of the petitioners in this petition briefly is:--
(i) That the authorities of acquiring department encroached upon the petitioners' land which was secured with great hardship in the year 1981-82.
(ii) That the acquiring department have in their possession 891 acres which was not only surplus but more than their requirement and, therefore the disputed area was being acquired with mala fides.
(iii) That the acquiring department purportedly required the area for what has been described as construction of 'Draining Channel and Road, Government Seed Farm, Rakh Manghan" for which 25 kanals and 17 marlas was not at all needed.
(iv) That the Deputy Commissioner to whom objections were preferred had recommended to the Commissioner for withdrawal of the notification dated 7-11-1983 but the Commissioner was adamant who had illegally issued the impugned notification.
4. The Notification dated 5-9-1990 was sought to be declared "illegal exercise of jurisdiction and of no legal effect" on the following grounds:--
(a) That the impugned orders have been passed in disregard of the facts and circumstances of the case and the learned Commissioner has erred in not appreciating the objections in their true perspective and, therefore, it amounts to an illegal exercise of jurisdiction vested in him.
(b) That the land can be compulsorily acquired for the public purpose alone which does not include that since a certain chunk of land was in illegal possession of the Department for a long time, it robs its owners of any rightful claim over it. As highlighted in the letter dated 1-11-1986 of the Deputy Commissioner, D.I. Khan, the Agriculture Authorities were motivated primarily because in their view this land was in their possession for a sufficiently length of time and they had developed it. This desire of the Agriculture Department could not be strictly construed as a public purpose.
(c) That the pretext of acquiring the suit land for the purpose of Drainage is incorrect because the Department never felt its necessity till 1982 when no drainage was developed over this land. And rightly so because the Seed Farm has had self-contained drainage system. The learned Commissioner has failed to examine the matter from this aspect at all.
(d) That as a result of the partition proceedings of 1982, the Seed Farm did not lose any area. On the contrary while the above-referred area was found under the illegal occupation of the Seed Farm a corresponding area on the other side of the Farm was restored to the authorities and, therefore, the only fact that they were in the illegal occupation of the petitioners' land, could not be a ground for the acquisition of this land.
(e) That the contentions of the petitioners have been supported by the learned Deputy Commissioner, D.I. Khan that this is the only area available for the petitioners for subsistence and the petitioners would be deprived of their livelihood if they are deprived of this area. The desire of the Agricultural Authorities could not be more important than the subsistence of the petitioners and their families.
5. S. Zafar Abbas Zaidi, learned counsel for the petitioners laid much stress on points (b), (c), (d) and (e). As regards points at (b) and (c) it may be observed that in essence acquisition of the land in dispute has been assailed as mala fide, albeit without describing it as such. As has been pointed by the august Supreme Court in the cases of Government of West Pakistan v. Begum Agha Shorish Kashmiri (PLD 1969 SC 14) and Federation of Pakistan v. Saeed Ahmad (PLD 1974 SC 151) mala fides must be pleaded with particularity---nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations. A mere allegation that an action has been taken, as is the case before us, whith a view to deprive the petitioner of their developed lands which had been encroached upon by the respondents is not sufficient to strike down the impugned A order of acquisition. Thus the action to acquire land for the development of Seed Farm cannot be characterised as action taken mala fide. In this regard we may also refer to the observations of the Supreme Court in the case of Federation of Pakistan v. Saeed Ahmad cited above where the question of mala fides was elaborated in the context of the action of acquisition of land which are as follows:-- "Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of policy intended for introducing a more socialistic system cannot be characterised as action taken mala tide. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorised by the law but for the personal aggrandizement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken."
6. The points at (b), (c) and (d) are thus devoid of substance. As regards point at (e) it may be pointed out that as held in a case from Indian Jurisdiction reported as Mandir Sita Ram v. Governor of Delhi (AIR 1974 Supreme Court 1868) the power to hear the objection under section 5-A of the Act is that of the Collector and not of the appropriate Government but it is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it; but the requirement of the section that when a person's property is proposed to be acquired, he must be given an opportunity to show cause against it. In the case before us this requirement of law has been admittedly complied with and the Collector had made recommendation favourable to the petitioners. The Commissioner did not accept the recommendations in their entirety and rightly so becuase those recommendations were not binding upon the Commissioner.
7. Let us now attend to the last objection of the learned counsel for the petitioners that acquisition of land measuring 25 kanals and 11 marlas as against proposed 57 kanals and 11 marlas at Government's expense for the "Farm Drainage Channel and Road, Government Seed Farm, Rakh Manghan" cannot be said to be a public purpose. In this context the learned counsel had pointed out that as observed by the Deputy Commissioner the Agricultural Authorities were motivated primarily because in their view this land was in their possession for a sufficiently long time. This inference, we are afraid, is simply hypothetical. The entire reliance has been placed on the recommendation of the Collector/Deputy Commissioner, about which we have already held that those recommendations do not have the binding effect. On the other hand, it is an admitted fact that the Commissioner had declared, by virtue of the impugned notification that he was satisfied that 25 kanals and 11 marlas was required to be taken by the Government for the Agricultural Department for "Farm Drainage Channel and Road, Government Seed Farm, Rakh Manghan".
8. For the foregoing reasons, we find no legal infirmity in the proceedings under which the land for the Farm Drainage Channel and Road, Government Seed Farm, Rakh Manghan, has been acquired, as such we dismiss this petition in limine.