This constitutional petition calls in question the Notification dated 19-6-1979 under section 4 of the Land Acquisition Act, 1894, published in the Punjab Gazette on 1-7-1979 regarding acquisition of land of the petitioner measuring 28 Kanals 2 Marlas situated in Qadirpur Rawn, Multan and Notification under section 17/(4) of the Land Acquisition Act published on 15-5-1992.
2. Briefly the facts giving rise to this Constitutional petition are that through Notification dated 19-6- 1979 issued under section 4 of the Land Acquisition Act 1894, published in the Official Gazette on 1- 7-1979 land comprising Khewat No.741, Khasra Nos. 200/15, 16, 17, and 214/9 measuring 28 Kanals 2 Marlas in village Qadirpur Rawn belonging to the petitioner was intended to be acquired. The land was to be used by Municipal Committee Qadirpur Rawn for the purpose of construction of Jinnah Hall, Water Tank and Disposal Works. The acquisition proceedings were initiated at the request of the Municipal Committee, Qadirpur Rawn and Notification under section 4 was accordingly issued in the Gazette on 1-7-1979. Estimated cost of the land including 15% compulsory acquisition charges were deposited with the Acquiring Agency before publication of Notification under section 17(4) of the Land Acquisition Act, 1894. The petitioner made a representation before the District Collector that the proposed land owned by him may not be acquired for the reason that he has already surrendered an area of 32 Kanals 2 Marlas for the purpose of Market Committee and that there is other suitable land owned by other persons and Government available for the purpose of construction of proposed schemes of the Municipal Committee. The District Collector called for report from the concerned quarters and meanwhile acquisition proceedings were suspended. The Assistant Commissioner concerned submitted report dated 20-12-1979 stating that 32 Kanals 2 Marlas land belonging to the petitioner was given by him to the Market Committee through negotiations on the basis of retaining 1 /3 of the developed area by the owner and the acquisition of land in question has been requested by the Municipal Committee for public purpose. The Deputy Commissioner/District Collector, Multan on the request of the representative of the petitioner directed the Naib-Tehsildar to inspect the spot and put the alternate proposal of acquisition in view of objections raised by the petitioner. The concerned Naib-Tehsildar submitted alternate proposal and resultantly Assistant Commissioner was directed to visit the spot who vide his report dated 1-5-1980 approved the proposal of acquisition of land of the petitioner. The District Collector, Multan accordingly passed order to the following effect: "On consideration, I find that the acquisition of the other piece of land is either impracticable because it vests in Central/Provincial Government and will take too much time in processing or belongs to the small owners and is out of range. The objection of the petitioner that certain piece of land has already been acquired. For market committee is not worth consideration because he has been compensated by the market committee by giving him certain plots for shops free of cost.
Under these circumstances, I do not want to interfere in the acquisition proceedings and the same may follow its normal course."
3. The Acquiring Agency after observing all the formalities issued Notification under section 17(4) of the Land Acquisition Act, 1894. After query and long correspondence by the Commissioner, Multan Division, Multan on different aspects of the matter including the estimated cost of the land finally approved the publication of Notification under section 17(4) of the Land Acquisition Act, 1894. The Notification was published in the Punjab Gazette on 15-5-1982. However, before possession of the land could be taken by the Acquiring Agency, the petitioner filed the present writ petition and a status quo order was issued.
4. Joint comments to the writ petition were filed on behalf of respondents Nos.l to 3 wherein it has been stated that the objections of the petitioner before the District Collector, Multan regarding the acquisition of land belonging to him, were looked into and after thorough inquiry it was finally concluded that there was no other suitable land available in the area to be acquired for the schemes of respondent No.l and therefore the objections were disposed of accordingly. After issuance of Notification under section 4 ibid the acquisition proceedings could not be undertaken for the reason of representation of the petitioner who was heard by the District Collector or more than one date. The matter in the light of the objections raised by the petitioner was further thrashed out at the level of the Commissioner, Multan Division. The representation of the petitioner before the Commissioner was disposed of after a detailed inquiry culminating into the conclusion that the land of the petitioner to be acquired was the most suitable land for the purpose of Jinnah Hall, water tank and disposal work. It was also urged that surrender of land measuring 32 Kanals 2 Marlas by the petitioner in favour of the Market Committee was through negotiations and has nothing to do with the acquisition of land for respondent No.l. The petitioner in fact for his own benefit had given the land to the Market Committee and the availability of the other land in surrounding are either belonged to the Federal Government or to the small owners. It was pointed out that the state land is in occupation and use of a school of district council whereas the remaining area was with Public Works Department. The contention of the petitioner that the land belonging to one Sajjad who is relative of the Vice-Chairman of the Municipal Committee was available in the vicinity but the land of the petitioner is being acquired with mala fide intention to safeguard the interest of said Sajjad without alleging mala fide against the Acquired Agency.
5. With this factual background, following points were raised by the learned counsel for the petitioner.
(i) That the Notification under section 4 of the Land Acquisition Act, 1894 was not properly published and no notice was issued to the petitioner either under section 4 or under section 17(4) of the Land Acquisition Act, 1894.
(ii) That there was other land belonging to the Federal Government as well as to the private owners adjacent to the land of-the petitioner but the same was intentionally not included in the proposal for acquisition and the land of the petitioner was proposed to be acquired with mala fide intention.
(iii) That pending disposal of the writ petition respondent No.l has constructed water tank disposal works on the alternate land and the possession of land subject-matter of this petition owned by the petitioner was not delivered to the respondents. Only Jinnah Hall is required to be constructed out of the schemes of respondent No.l, therefore, the proposed scheme for which the land was required has already been completed, therefore, there is no justification for acquisition of the land in question.
(iv) That in fact there was no urgency in the matter but provisions of section 17(4) were made applicable to avoid the objections of the petitioner otherwise the Notification was issued in 1982 and after lapse of more than 10 years the construction of Jinnah Hall is pending which fact itself makes it a case of no urgency to attract the provisions of section 17(4) of the Land Acquisition Act, 1894.
6. The arguments on the face of it certainly have some attraction but on close analysis and scrutiny it appears that the site was genuinely required for public purpose for which the acquisition proceedings were initiated. After approval of the proposal, Notification under section 4 of the Land Acquisition Act is to be published to show the intention of acquisition of the proposed land. It is commonly made known to the land owners by the Acquiring Agency. It is not necessary that after publication of the Notification under section 4, the proposed land must be acquired. It is for the concerned agency to proceed further or to withdraw further proceedings in peculiar circumstances and situation. It is, therefore, not the requirement of section 4 to give notice to individual land owner before publication of A notification. In the present case Notification was published in the Gazette and in the newspapers which was sufficient notice to the land-owners regarding the proposal. Therefore objection of the petitioner regarding issuance of notice before publication of Notification under section 4 is without any substance.
7. The objection regarding the availability of other land in the area belonging to private owners as also owned by the Government, is no ground to 8 question the acquisition of the proposed land.
The 4cquiring agency has to see the suitability of the land for the purpose of proposed schemes.
The acquiring agency, the District Collector and the Commissioner, Multan Division after entertaining the objections of the petitioner got the matter thrashed through detailed enquiry and also looked for the possibility to accommodate the petitioner but finally concluded that there being no other suitable land available for the schemes, the request of the petitioner not to acquire his land could not be acceded to. The efforts by the concerned authorities to look for the alternate land is a strong evidence of their bona fides. Except the general assertion there is nothing on the record to show that respondent No.l or the acquiring agency acted in mala fide for the interest of one Sajjad Hussain or some other land-owners in the area. Mala fide means an action taken in bad faith for some personal motive either to cause damage to one and to give benefit to another. It is the responsibility of the person who alleges mala fide to establish it on the basis of given facts.
Mere allegations are not sufficient to establish the mala fide. Thus the acquisition of land for public purpose to be utilized by respondent No.l cannot be termed as mala fide action on the part of the respondents. The petitioner has not been able to place on record any material showing that the land was acquired by the person not authorized by law or the same was acquired for some personal grudge against the petitioner. Therefore, the circumstances and the proceedings undertaken by the authorities in the manner is a strong circumstance of their bona fides.
8. The next point urged is that section 17(4) of the Land Acquisition Act, 1894 was made applicable without any urgency involved in the matter as there was no notice under section 9(1) to indicate the urgency. The arguments in this behalf are not impressive. The careful reading of section 17(4) indicates that declaration under section 4 has to be made under section 9(1). No notice under section 9(1) was required before notification under section 17(4) of the Land Acquisition Act. The contention that Notification under section 17(4) does not contain the required urgency is also without any force and failure to specifically declare the urgency in the Notification does not invalidate it. The fact that acquiring agency through that provision of section S-A are not applied to the land was a matter of forming opinion by the concerned agency that the land was acquired urgently. The question whether the urgency to acquire the land for a particular purpose exists or not in a matter for solely determination by the Government and the concerned authority, as the case may be, and is not subject to review by this Court.
9. Section 17(1) provides for taking emergent measures in case of urgency without waiting for the formalities to be completed and to avoid any delay in the proceedings. In the present case after issuance of Notification under section 17(4), the petitioner approached this Court and stay order was issued and the matter remained pending till this time, therefore, because of the act of the Court the urgency for the purpose of section 17(4) has not come t6 an end. The land is still need for the construction of Jinnah Hall which is for public purpose. The objection of the petitioner that after such a long delay the matter has urgency, if any, cannot be entertained.
10. The learned counsel with reference to case titled The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others (PLD 1972 SC 279) contended that the acquisition being bad in law is to be struck down. I am afraid the principle laid down in the cited case is not attracted in the case of the petitioner.
11. Admittedly the schemes of water tanks and disposal works have been completed. The representative of the Municipal Committee, present in Court, states that some land was acquired for the purpose of construction of water tank and disposal works in view of the urgency of the matter. However, Jinnah Hall and the servant quarters of the employees are to be constructed.
Muhammad Abbas, Chairman, Municipal Committee Oadirpur, Rawn appeared in Court and stated that out of 28 Kanals, the total area notified to be acquired, the Town Committee is prepared to release 14 Kanals as water tank and disposal works have already been constructed on the alternate land and for the purpose of construction of Jinnah Hall only 14 Kanals of land is needed. In view of the statement of the Chairman, Town Committee, an area of 14 Kanals is directed to be excluded from the acquisition proceeding and the same shall be de-notified accordingly.
As a result of above discussion, it is held that the Notification under sections 4 and 17(4) of the Land Acquisition Act, 1894 to the extent of remaining area i.e. 14 Kanals was validly issued and the proceedings were initiated with bona fide intention. The petitioner has not been able to establish his case for quashment of the Notification. The writ petition is accordingly dismissed.