1. ' SARDAR SAID MUAHMMASD KHAN, C.J.---As the above appeals arise out of the single judgment, we propose to dispose of the same by this single order.
2. ' These appeals have been directed against the judgment of the High Court dated 26-11-1995, whereby the writ petition filed by Gohar Rehman and others was accepted and the impugned notification dated 21-4-1994 and award of the land acquitted were set aside.
3. ' The brief facts of the case are that the Azad Jammu and Kashmir Government acquired land measuring about 600 Kanals, including the land in dispute, for the purposes of construction of the buildings for Civil Secretariat and its allied offices in pursuance of the provisions of Land Acquisition Act. Consequently, an award was made on 27-10-1976.
4. ' Initially, a notification was issued by the Government as early as on 22-8-1974 whereby the owners whose land was to be acquired were also to be provided residential plots on nominal prices in addition to the compensation; similarly, the persons who had shops in the land acquired were to be allotted plots for nominal consideration. Consequently, in addition to the compensation of the land, the appellants, Khani Zaman and others as well as respondents were benefited by the allotment of the additional plots. According to the appellants, a writ petition was filed by one Abdur Rashid, whereby the acquisition proceedings were challenged on the ground that land acquired was being used for a purpose .Different from one it was acquired. The writ petition was partly accepted by the High Court on 10-12-1979 and in consequence thereof, the acquisition proceedings pertaining to Survey Nos.391 and 402 were cancelled and; thus, whole scheme of allotment of the plots had to be revised by the Allotment Committee. Consequently, a notification was issued on 21- 4-1994 which includes the scheme of the allotment of plots to various affectees of the acquisition.
5. The respondents first moved the Ombudsman challenging the said notifications but same was dismissed. Subsequenity, they filed a writ petition in the High Court challenging the notification dated 21-4-1994 and the order of the Ombudsman dated 14-7-1994. The High Court accepted the writ petition filed by the respondents and set aside the impugned notification and also partly set aside award dated 27-10-1976 on the ground that the disputed land which was being utilised for the purpose different from the one mentioned in the notification issued under sections 4 and 6 of the Land Acquisition Act.
6. ' We have heard the arguments and perused the file. Before dealing with the merits of the case we first propose to take up preliminary points raised by the learned counsel for the appellants.
7. ' Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for the appellants, has argued that the writ petition filed by the respondents was hit by the principle of res judicata and, thus should have been dismissed on that score. The learned counsel has submitted that the respondents, Gohar Rehman and others, filed the writ petition entitled Gohar Rehman and others v. Azad Government (Writ Petition No,17 of 1985, decided on 13-5-1986) challenging the acquisition proceedings but it was dismissed; the respondents did not raise the grounds in that writ petition on which the present writ petition has been filed. It may be stated here that in paragraph 11 of the present writ petition, the respondents have alleged that the plots made from the land in dispute wee being allotted in pursuance of the notification dated 21-4-1994 in violation of law. According to the respondent, they were not aware before the notification dated 21-4-1994 that their land was being allotted. The perusal of the record shows that the decision to provide plots to the land owners whose land was acquired was taken as early as in the year 1974; the Allotment Committee for preparing the scheme of allotment and making the allotments was constituted on 12-2-1975.
8. Consequently, the scheme for the allotment, including the land in dispute, was prepared before 1979 and in pursuance of the said scheme, some of the allotments of the plots were made in the years 1979 and 1981. The notification dated 21-4-1994 was necessitated because the previous plan had to be revised due to denotification of some land as a result of acceptance of the writ petition filed by one Abdur Rashid. Thus, it is not correct to suggest that the respondents were not aware at the time of the institution of the previous writ petition in 1985 that their land was to be allotted to the affected land owners. However, the petitioners-respondents did not raise this question in their previous writ petition. Thus, the present writ petition is clearly hit by the principle of constructive res judicata.
9. ' The next point which was raised by the learned counsel for the appellants was that necessary parties, namely, the allottees to whom the land was allotted and the members of the Allotment Committee who prepared the scheme of allotment and made the allotments to various persons were not arrayed as parties in the writ petition and, thus, the same was not properly constituted. It may be stated that the point regarding non-joinder of the necessary parties was raised by the appellants after affecting amendment in the written statement on 15-11-1995 but no replication was filed by the respondents. The learned counsel for the respondent has contended that the respondents had no knowledge of the fact that the land in dispute had been allotted at the time of the filing of the previous writ petition and, this, they could not implead the allottees concerned in the writ petition at the time of the institution of the writ petition. In paragraph 11 of the writ petition, the respondents have clearly stated that the land in dispute had been allotted to various persons.
10. It implies that at the time of filing of the writ petition the respondents were fully aware of the fact that the land in dispute had already been allotted to the allottees concerned. Under these circumstances, the contention of the learned counsel for the respondents has no substance that allottees concerned were not impleaded because the allotment of land in dispute was not in the knowledge of the respondents at the relevant time.
11. ' It has been further argued by the learned counsel for the appellants that the Government had constituted an Allotment Committee on 15-2-1975 which not only prepared the scheme of the allotment of surplus land to various persons but also made the allotments. According to the learned counsel for the appellants, it was not the Chairman alone who was competent to make the allotments but it was the Committee which consisted of a Chairman and three members which was competent to make allotments. The learned counsel has submitted that as all the members of the committee were the necessary parties, the writ petition was not competent without impleading them. The learned counsel has further maintained that it is well-settled principle of law that while assailing the order of an authority, which authority is necessary party in writ proceedings and should be impleaded as such. The learned counsel has relied upon the following authorities in support of his contention:-- ' In Muhammad Ashraf v. Azad Government of the State of Jammu and Kashmir (PLD 1985 SC (AJ&K) 102), it was observed that all parties who are likely to be deprived of any benefit by the order of the Court are necessary parties in whose absence no order can be passed and no effective writ can be issued by the High Court. Thus, non-impleadment of the necessary parties in a writ petition was held fatal to writ petition.
12. ' In an unreported case of this Court entitled Syed Muhammad Akram Shah v. Chairman, Allotment Committee (Civil Appeal No, 7 of 1995), decided on 24-7-1995), it was observed that as the Allotment Committee had the powers to make allotment under the relevant, law, the same was a legal person within the meaning of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It was observed that as the committee was not impleaded as party, the writ petition was incompetent and was dismissed, despite the fact that no objection was raised in that regard, from the opposite side; it was also observed that such an objection can be gone into by the Court suo motu without any objection from the opposite party. Identical view was taken in cases reported as Muhammad Resham Khan v. Chairman, Inspection Team (1990 CLC 1355), Abdul Hamid v.
13. Muhammad Zameer (1980 PSC 1014), Mirza Lal Hussain v. Custodian of Evacuee Property (1992 SCR 214), Barkat v. Sardar Misri Khan (PLD 1982 SC (AJ&K) 45), Muhammad Shafi v. Feroz Khan (1994 SCR 19) and Raja Muhammad Ashraf Kayani v. Azad Government of the State of Jammu and Kashmir (Civil Appeal No, 34 of 1995, decided on 17-2-1996).
14. We have given our due consideration to the objection raised and we are of the opinion that the allottees concerned were necessary parties because they had become beneficiaries after the allotments in their favour and they should have been impleaded as party. Similarly, the perusal of the order shows that the Allotment Committee on whose recommendations the notification dated 21-4-1994 was issued had full powers of the allotment in view of the notification dated 15-2-1975.
15. Thus, in view of the dictum laid down in Akram Shah's case, referred to above, the writ petition was not properly constituted as only the Deputy Commissioner, who .Was the Chairman of the Allotment Committee, was impleaded but the other members of the committee were not arrayed as respondents in the writ petition. Hence, we uphold the contention of the learned counsel for the appellants that the writ petition was not properly constituted due to non-impleadment of the allottees concerned and the members of the Allotment Committee and, thus, no effective writ could be issued in absence of the said parties.
16. The next point raised by the learned counsel for the appellants is that the writ petition filed by the respondents in the High Court suffered from laches. He has argued that this point was agitated before the High Court but the same has not been decided by the High Court. It may be stated. Here that the award of the suit land has not been specifically challenged in the relief clause of the writ petition but all the same it has been averred in the writ petition that the proceedings taken in the award may be declared null and void. It implies that the respondents have not only challenged the notification dated 21-4-1994 but they have also challenged the award made in the year 1976. The copy of the letter of the Chairman of the Allotment Committee dated 28-2-1994 shows that initially the plots were allotted in the year 1979 and then in 1981 to various persons. As has already been pointed out, a writ petition entitled Abdur Rashid v. Azad Government of the State of Jammu and Kashmir (Writ Petition No, 80 of 1986, decided on 1-12-1986) was filed alleging that some land belonging to the petitioner was allotted to different persons contrary to purpose for which it was acquired. The writ petition was accepted by the High Court and the land belonging to said Abdur Rashid was denotified. The aforesaid decision of the High Court necessitated the revision of allotment scheme which had already been partly executed. Thus, the previous allotment scheme was amended by the Allotment Committee and the impugned notification dated 21-4-1994 was issued. It implies that it was not for the first time that allotment of the plots to the persons who were deprived of the houses or shops was made in the year 1994.The fact is that in pursuance of the decision of the Government, the allotment of the plots first began as early as in the year 1979. It is clear even from the impugned notification dated 21-4-1994 that fresh scheme had to be prepared for the allotment of the plots due to the judgment of the High Court in Abdur Rashid's case, referred to above. This, it cannot be said that the scheme for the allotment of the plots for the first time was initiated in the year 1994 as a consequence of the notification dated 21-4-1994. It appears that the respondents decided to claim back the disputed land after the decision of the writ petition filed by Abdur Rashid, referred to above. Thus, we have no doubt in our minds that the respondents not only kept mum, at least, for fifteen years but even benefited themselves by getting allotments of the plots in pursuance of the aforesaid scheme. Therefore, we have no hesitation in holding that the writ petition filed by the respondents suffered from laches. It is well-settled principle of law that if a party has been sleeping over the matter such party cannot be given relief in exercise of writ jurisdiction. A reference may be made to a case reported as Haji Muhammad Ashraf v.
17. Development Authority, Muzaffarabad (1995 MLD 1343), wherein it has been held that even if an illegality has been committed by the authority, an aggrieved person cannot be given relief in exercise of writ jurisdiction if it is found that the conduct of the party concerned amounts to waiver or the petitioner has been guilty of lahces which would cause undue hardship to the opposite- party.
18. ' Coming to the question of legality of using the part of the land acquired for the allotments, the learned counsel for the appellants has argued that the High Court has committed error in holding that the purpose for which the land was acquired was changed. He has argued that as much as 600 Kanals of land was acquired for the construction of the Civil Secretariat and some allied offices and out of that only a small portion of land was allotted to the allottees including the respondents in lieu of their houses and shops which were adversely affected by the acquisition. He has contended that where the major portion of the land acquired is used for 'public purpose' for which it was acquired and the surplus land is utilised for any other purpose, it cannot be said that the purpose for which the land was acquired was changed or substituted. The learned counsel has argued that in such an eventuality, the Government, in whom the title of the land acquired vested completely, is at liberty to utilise the surplus land as it deems fit. He has further argued that in such eventuality, the original award or the acquisition proceedings are not adversely affected. He has relied upon a case reported as Mirza Muhammad Hussain Beg v. The Government of West Pakistan (PLD 1961 Lah. 696), ' In reply, Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the respondents, has argued that the whole of the land acquired should have been utilised for the purpose for which it was acquired and the allotment of a part of the land on nominal prices to the persons whose land was acquired or for that matter whose houses and shops were, adversely, affected by the acquisition of their land, cannot be legally justified and in such eventuality, the acquisition proceedings would stand nullified. The learned counsel for the respondents relied upon the following authorties in support of his contentions: ' In case reported as Mst. Naseer Zohra v. Multan Development Authority (1991 CLC 1001), the facts were that the proceedings for acquisition of land continued for a number of years and were almost complete when fresh acquisition proceedings were initiated under the Punjab Land Acquisition Housing Act, 1973. In the subsequent notification, contrary to the first notification, the purpose of the acquisition was stated to be that the land was required for housing scheme. In view of the facts of the case it was found that subsequent notification was dishonest and was struck down as being mala fide.
19. ' In Muhammad Aslam Khan v.- Province of Punjab (PLD 1979 Lah. 843), a notification was issued for acquisition of land under section 4 of the Land Acquisition Act stating that the land was required for the construction of the office accommodation for Assistant Commissioner, Kabirwala, District Multan. Subsequently, it was found that the office accommodation of the Assistant Commissioner had already been constructed. Therefore, it was contended that the land was required for the construction of Bar Room and Civil Courts. However, it was observed that the land was acquired for the construction of the office accommodation of the Assistant Commissioner which had already been constructed. Thus, it was held that if the Government needed land for any other public purpose, fresh notice should be issued under the relevant law.
20. ' In case reported as Prem Nath v. State of Jammu and Kashmir (AIR 1960 Jammu & Kashmir. 78), it was observed that if there is no public purpose, the notification under section 4 of the Land Acquisition. Act could not be issued. The facts were that the Chairman of the Town Area Committee gave the land of the petitioner to other person for private use. It was observed that it was an act of misuse of public power and, thus, being a fraud on the statute, the notifications issued under sections 4 and 6 were violative of law.
21. ' In Province of Punjab v. Muhammad Haziq (1986 CLC 530), a notification was issued by the Government under Land Acquisition Act for acquiring some land for the construction of a pond by the WAPDA. However, the Government withdrew from the acquisition and took no steps for obtaining the possession before the decision of the withdrawal. Subsequently, the WAPDA officials took fresh decision that instead of constructing the pond, the land was required for the construction of band. It was held that the Government could not proceed with the acquisition proceedings under old notification and it had to start fresh proceedings for acquiring the land by issuing fresh notification under section 4 of the Land Acquisition Act.
22. We have given our due consideration to the arguments raised at Bar. It is not controverted that a major part of the land acquired was utilised for the accommodation of the Secretariat offices etc. And only a small portion of the land was allotted to the affected persons in lieu of their houses and.
23. Shops. The respondents-petitioners have admitted even in their application for stay order filed in the High Court that the major portion of their land acquired was used for the construction of the Secretariat buildings etc. And only the land in dispute which measures only 4 Kanals and 5 Mamas, which remained unutilized, is being given in shapes of plots to various persons. Now the proposition which falls for determination is as to whether, if a major part of the land acquired is utilised for the 'public purpose' for which it was acquired, the Government was legally competent to utilise the surplus land according to its own choice or there is any embargo on its discretion. It may be stated that if some land remains surplus after utilsing its main part for the purpose for which it was acquired, the Government is at liberty to use such surplus land as it desires. Even if such surplus land is sold by the Government or used for a purpose which is not in any way related to the original 'public purpose', the award or for that matter the acquisition are not adversely affected. A reference may be made to the following authorities in support of the view: ' In case reported as Mirza Muhammad Hussain Beg v. The Government of West Pakistan (PLD 1961 Lah. 696), it was observed that the Government is not bound to use whole of the property for the purpose for which it was acquired. The Court would set aside the acquisition only if the Government does not utilise any part of the property acquired for the purpose for which it was acquired or the public purpose was merely as cloak to deprive the person of his property. While dealing with the proposition, it was observed as under:-- "Now the above-reported provisions of law, which are binding on parties as well as the Courts, make it clear that the Provincial Government becomes owner of the property which has come to it by means of acquisition effected under the provisions of the Land Acquisition Act, 1894, and gets absolute title in the property which thenceforth vests in the Government free of all encumbrances.
24. In the presence of these provisions, it is not possible to hold, in the absence of any other binding provision of law, that the rights of Government in land acquired under the Land Acquisition Act, 1894, are subject to an unwritten condition that the whole of the property of which the Government has become absolute owner is to be put to the use for which it was sought to be acquired, and the result has to be that if a part of the acquired property were not put to that purpose because the purpose had been carried out, the person from whom the property was acquired gets the option to get back the property, It may be that if the Government has acquired property by alleging that it was required for a public purpose and no part of the property is put to that purpose, or it can be conclusively proved that the mention of that purpose was merely a cloak to enable Government to deprive a person of his property, it will be open to Courts to set aside the acquisition, but I am clear in my mind that if the public purpose for which any property was acquired did not actually exist and only some part of the property acquired remained initialised the provisions of section 16 as those of subsection (1) of section 17 of the Land Acquisition Act will have full application, and the property which was surplus will remain the property of Government and subject to all the rights which any other property of Government is subject to. It need hardly be said that .When a person is owner of any property, be that person a natural person like a man, a woman, or a child or a juristic person like a Government, the right to deal with the property in any manner that the owner likes, subject to conditions imposed by law, vests in the owner and no one else can claim any rights in the property if the owner does not want to part with those rights."
25. ' In case reported as K.H. Srinivasan v. State of Mysore (AIR 1970 Mysore 185), it was observed that once, a declaration of existence of "public" is made .Under section 6, the declaration becomes conclusive by force of statute. The only way in which the said finality can be got rid of is by proof what in law is regarded as fraud on powers. When the acquisition is perfectly valid, the possibility of same land being surplus or unnecessary for the original purpose for which it was acquired cannot operate retrospectively to invalidate the acquisition either fully or in part. The position in regard to the utilisation of the surplus land has to be dealt with upon the considerations which are quite consistent with the fact that original acquisition is perfectly valid. The manner in which the surplus land is dealt with cannot have any effect on the validity of the acquisition nor can the purpose stated for acquisition have any relevance to the validity of the manner it which the surplus land has been dealt with.
26. ' In S. Sivaprakasa Mudallar v. The State of Madras (AIR 1964 Madras 115), it was observed that though the acquisition of land made for a particular purpose cannot divert for another object, the Land Acquisition Act nowhere postulates identity in the scheme by which the public object is to be carried out. It was held that the acquisition of land was made for housing accommodation for people living in slums and a part of the land was also utilised for accommodating some other persons who were equally in need of better housing accommodation. It was observed that this change in original object of acquisition would not invalidate the acquisition proceedings as this was not a blatant departure from the original purpose.
27. ' In AIR 1975 UJSC 934, the facts were that the land was acquired for the public purpose but surplus land was sold by the Municipal Committee. It was held that as after acquisition, the title of the land vested in the Municipal Committee, the sale of excess area by the Municipal Committee would not invalidate the original acquisition proceedings and it was not the concern of the Court as to how the excess land was utilised.
28. It is amply clear from the above authorities that if after completing the original 'public purpose', there remains any surplus land, that can be utilised by the Government according to its option. In such an eventuality, the original title of the Government or for that matter the award is not adversely affected.
29. ' As is evident from the survey of the authorities of the learned counsel for the respondents, the same are distinguishable and do not help the case of the respondents because in those cases the purpose for which the land was acquired was diverted for altogether a new purpose and no part of the land was utilised for the original purpose whereas in the instant' case the major part of the land was utilised for the purpose it was acquired and only a small portion of the surplus land was used for purpose which was ancillary to the original purpose.
30. ' In the light of what has been stated above, we accept both the above entitled appeals and set aside the impugned judgment of the High Court with no order as to the costs.