MUHAMMAD AFZAL LONE, J.---This appeal by leave to appeal filed by the Federal Government is directed against the Lahore High Court's order dated 11-3-1989 whereby the writ petition brought by the appellant, questioning the validity of the Land Acquisition Collector's award dated 26-2-1987, was dismissed in limine.
2. The dispute between the parties is confined to acquisition of land measuring 24 Kanals, 14 Marlas, situate in the revenue estate of village Dhana Singhwala, falling within the urban area of Lahore. This land together with another fairly vast tract of land was included by the Collector, Lahore District in Notification No,IAC/AC-163 dated 9-9-1982 under section 4 the Land Acquisition Act published in the extraordinary issue of the Punjab Gazette of 30th September, 1982, for the purposes of construction of residential colony for the Punjab, Board of Revenue Employees Society Ltd., Lahore. The land alongwith other area was earlier purchased by the Pakistan Telephone and Telegraph Department from the Settlement Department.
3. Section 39 of the Land Acquisition Act inter alia lays down that in case of acquisition of land for a company, sections 6 to 37 shall not be put into force without the previous consent of the Commissioner. Under section 40 such consent cannot be given unless the Commissioner is satisfied, on a report of the Collector under section 5-A(2) or by an enquiry held under section 40 by such person, as appointed by the Commissioner:- "that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public."
It is evident from the record that Assistant Commissioner held an enquiry under section 40 of the Land Acquisition Act, and in the course of these proceedings in response to a public notice, inviting objections against acquisition, the Divisional Engineer Dev. P-II, Lahore, vide his communication dated 6-3-1985 filed objections to the effect that the land was required for building a colony for the employees of the Telephone and Telegraph Department. Later on he wrote another letter dated 9- 4-1985 to the Assistant Commissioner; the operative part whereof is reproduced below:-- "In continuation of letter No,B/L-8/II/1 dated 6-3-1985 where the utilization of land was shown as staff colony for employees it is further added and clarified that the staff accommodation is planned alongwith other tele communication installations and may not be exclusively regarded as colony and the ultimate utilization plan is however given as under:- KHASRA NO. AREA UTILIZATION K-M 571 7- 2 Telephone Exchange building 527 6-2 Workshop for telephone exchange equipment.
482 3-14 Telephone office.
560 2-6 Workshop 529 2-5 Accommodation for telephone exchange emergency duty staff.
576 2-5 Public call office and accommodation for telegraph office staff 525 1-0 Dispensary for staff.
T/Area 24 -14 In view of the above, it is requested that the Government interest may kindly be watched in the case.
(Sd.)
Divisional Engineer Dev. P-II Telegraph and Telephone, 11-Egerton Road, Lahore."
The column relating to area did not form part of the communication dated 9-4-1985 and has been added by us.
4. The Assistant Commissioner in his report dated 17-4-1985 under section 40, sent to the Commissioner., Lahore Division, Lahore, opined that there was no bar to the acquisition of the land owned by the Government and further expressed the opinion:-- "According to the instructions contained in paragraph No,1 of the Standing Order No,28 (Land Acquisition), it is inappropriate to acquire the land of Pak PWD and T,T. Departments under the Land Acquisition Act, 1894.
In the public interest it is proposed that the land belonging to both departments may be obtained from them through negotiation at higher level, otherwise, B.O.R.'s Housing Scheme is not applicable and feasible."
It appears that the suggestion given by the Assistant Commissioner did not weigh with the Commissioner; instead of obtaining the land, through negotiation with the Telegraph and Telephone Department Authorities, the machinery of law for acquisition of the land was set into motion. In the first instance Notification under section 17 of the Act was issued on 2-2-1986 which was followed by Notification dated 24-2-1986 under section 6 of the Act. It is on the record that on behalf of the appellant the objections to the acquisition were pressed into service even before the Collector in the proceedings under section 9 but of no avail. The Land Acquisition Collector made his award under section 11 of the Act on 26-2-1987 and the land in dispute was included therein.
4. As already observed, the appellant assailed this award through invocation of writ jurisdiction, but the High Court declined to intervene. Before the learned Single Judge, the utilization of the land for telephone exchange purpose, as disclosed in the Telephone Department's letter dated 9-4-1985, was urged, but it did not prevail with him largely for the reason that before the Assistant Commissioner originally the department's stand was that it planned to build a colony for its employees on the disputed land. An objection rested on Standing Order No,28 which had found favour with the Assistant Commissioner, was also rejected, as in the opinion of the learned Single Judge the rule in question was ultra vires of the Land Acquisition Act.
5. In the leave grant order it has been maintained:-- "The present case involves a human factor; namely, on the one hand the impugned acquisition was for Employees Housing Society while the land, it has been urged from the petitioner's side, was also to be used by the petitioner if not acquired, amongst others for Housing purpose. Public interest in so far as the purposes are concerned really does not clash. It is the question more of accommodation by the main parties to this case, to each others needs and interests. The proposal by an Assistant Commissioner made in 1985 to the effect that there should be negotiations between the departmental representatives and the representatives of the two Governments concerned, was not only laudable but a very practicable way out for resolving an unfortunate and complicated issue. We, accordingly, grant leave to appeal to examine further this particular feature of the case."
6. In pursuance of the observation made in the leave grant order the parties were asked to make an effort to resolve their dispute through negotiation, but unfortunately they could not come to any agreement. This appeal, therefore, shall have to be decided on merits. 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. The learned counsel for the appellant has drawn our attention to the transfer order under which the land in question together with other area was purchased by the department from the Settlement Department and submitted that the land so purchased has to be utilized for construction of a housing colony for the employees of the department, but so far as the appellant's land acquired at the instance of the Housing Society is concerned, it is essentially earmarked for construction of Tele-communication Building, Office and for allied objects mentioned in letter dated 9-4-1985.
7. After going through the record before us we do not feel persuaded to agree with the High Court.
From its perusal we find that soon after informing the Assistant Commissioner that the land was required for housing colony for the employees of the department, the Divisional Engineer sent him a letter dated 9-4-1985 explaining the purpose for which the land has to be utilized. There is no good ground to cast any doubt on the correctness of the departmental version. It is noticeable from the leave grant order that the land is required by the appellant "amongst others for Housing purpose". It is submitted that at the leave grant stage the use of the land for Tele Communication installations was also urged and though it is not specifically mentioned in the order yet is reflected by expression "amongst others" preceding the words "Housing purpose". The submission is that the words "amongst others" have reference to the requirement of the land for the purpose of Telephone Exchange Department, Workshop, Public Call Office, Dispensary and accommodation for emergency staff, as disclosed in the letter aforesaid. The contention is well grounded. The High Court was not justified in ignoring the objects for utilization of the land by the Telegraph and Telephone Department stated in their said communication, which decidedly is a public purpose of higher order as compared with the one for which the land is acquired for use by the Board of Revenue Employees Housing Society Ltd., namely, construction of housing colony. The reason being that so far as the latter is concerned only a section of the society would be benefited by the acquisition of the land but its utilization by Telegraph and Telephone Department involves the interest of the public at large. It seems to us that the Assistant Commissioner was conscious of this aspect of the case, who in his report categorically made suggestion that the land be procured through negotiation, otherwise the execution of the housing scheme would be rendered impracticable, to which unfortunately the Commissioner did not advert and chose to issue Notification under section 6 of the Act.
8. Before the High Court it was specifically asserted that the acquired land was to be used by the Telegraph and Telephone Department for higher public purpose than that by the Revenue Department, but in this behalf, the High Court did not determine the respective merits of the contentions of the parties; failed to assess the superiority of one public purpose over the other and rejected the appellant's contention for the simple reason that the appellant obtained the land in 1979, but did nothing to utilize it till 1985. We, however, feel that in the absence of evidence of abandonment of purpose for which the land was purchased by the appellant the High Court was not justified in brushing aside their plea summarily.
9. Under section 6, on consideration of a report submitted to the Commissioner under section 5-A or section 40 and compliance with other provisions of Part VII of the Act (which included sections 39 and 40) if he is satisfied that the land is needed for public purpose or for a company he may make a declaration to that effect. It is noteworthy that enquiry under section 40 is factual in nature in which hearing is given to the objectors. It is a channel to place information before the Commissioner for his satisfaction to enable him to have a correct perception of the situation before making a declaration that the land is needed for a public purpose and consequently its acquisition is warrantable, but the satisfaction of the Commissioner should be deliberate and arrived at after due care and proper application of the mind to the facts appearing on the record. It is clear to us that he did not advert to the purpose for which the land was purchased by the Telegraph and Telephone Department highlighted in their letter dated 9-4-1985. Upon the facts of the case and law on the subject, we are of the view that the declaration under section 6 made by the Commissioner was not warranted as the land was already held by the department for a paramount public purpose. This would rob away the validity of the notification under section 6, which is a condition precedent for sustenance of the award. These features of the case have escaped notice of the High Court.
For all these reasons this appeal is accepted; the impugned judgment is set aside and so is the Land Acquisition Collector's award to the extent of acquisition of the land in dispute. The Board of Revenue, however, shall be at liberty to take up the matter with the Telegraph and Telephone Department Authorities to procure the land through negotiation, mutual adjustment and exchange, if its retention by the Society is considered indispensable for proper implementation of the housing scheme. We have no doubt if such a move is made, it shall be given due weight by the appellant.
The parties are left to bear their own costs.