TANVIR BASHIR ANSARI, J.- The brief facts are that the petitioner claims to be co-owner in possession in land measuring 30 kanals, 8 marlas bearing khasra numbers 2345, 2348, 2349/1, 2368, 2655, 2356 and 2358 situate in Kotha Kalan Tehsil and District, Rawalpindi. The said land forms part of Shamlat of the -aid village. Notification under Section 4 of the Land Acquisition Act, 1894, dated 15.3.1J993 was issued by the Collector, Rawalpindi .District and was published in the Punjab Gazette on 6.4.1993. The said notification was issued as per requirement of the Army Welfare Trust. According to the said notification land measuring 243 kanals, 1 marlas in the village Kotha Kalan was proposed to. Be acquired.
2. This notification was challenged by the petitioner in the first instance through W.P, No. 767 of 1993.
However, vide order dated 21.9.1993 the sard writ petition was disposed of with the observation that the petitioner shall first avail of his remedy under the provision of Land Acquisition Act. The writ petition was dismissed as not pressed.
3. Further notification dated 14.9.1994 was issued under Section 17(4) of the Land Acquisition Act whereby it was directed that as the subject land was urgently required and the case was covered under Section 17(i) of the Act, provisions of Section 5 and 5- A of the said Act shall not be .Applicable. A declaration was made under Section 6 of the said Act. A direction was issued under Section 7 of the Act to the Land Acquisition Collector, Rawalpindi to take order for the acquisition of the subject land. The petitioner contends to have filed objections to the said acquisition before the land Acquisition Collector. However, it appears that in view of the direction issued under Section 17(4) of the Act whereby Sections 5 and 5-A were rendered inapplicable, no action favourable to the petitioner on the said objection was taken by the Collector.
4. Through the instant writ petition, the petitioner seeks to challenge the Acquisition of 30 kanals, 8 marlas of land mainly on the following grounds:-
(i) that although in the notification under Section 4 it was notified that the land was required to be taken for Army Welfare Trust to meet the defence requirement of its personnel at the expense of the State, it later transpired that the land was not required for any defence oriented purpose but was required by respondent No. 4 for Housing purpose. According to the petitioner Acquisition of Land was neither for public purpose nor at public expense.
(ii) that respondent No. 4 viz. Army Welfare Trust is a Society Registered under Societies Registration Act. Atleast part of the compensation (amounting to Rs.5105671.45) was deposited by A.W.T, itself, It was submitted that no part of compensation was made from public funds with the Government.
According to the petitioner, the Acquisition was bad on this score and was in-valid in view of Section 6(i) of the Land Acquisition Act.
(iii) that Section 17 of the Act did; not apply to the instant case as no grounds of urgency as enumerated in Section 17 of the Act were available to respondent No. 4 and that the entire exercise in issuing notification under Section 17(4) was mala fide. According to the petitioner the application of Sections 5 and 5-A could not be lawfully avoided.
(iv) that under Rule 8 of the Punjab Land Acquisition Rules, the Board of Revenue was required to issue a notification under Section 5 of the Act within one year from the date of notification under Section 4 ibid. As no notification under Section 5 was issued within the prescribed period, the entire acquisition proceedings had automatically come to an end.
4-A. The claim of the petitioner was controverted by respondent No. 4 through a written reply filed in the Court, It was contended that the Land Acquisition Collector had already announced the award on 27.2.1995 and thus the petition which merely challenged the two notifications under Sections 4, 6 and 17(4) of. The Act had become infructuous; that the petitioner was not in actual possession of the land in question before the acquisition as the subject land was Banjar Qadeem and Rakkar and was not susceptible of possession. After the acquisition, the possession was obtained by the said respondent; that despite being a society registered under the Societies Registration Act, the AWT undertakes a large number-of welfare projects which are approved by different Directorate, of GHQ. Regarding the acquisition in hand, respondent No. 4 had acted under the instructions of Welfare and Rehabilitation (W&R) Directorate of G.H.Q. (A.G. Branch) and that the acquisition was for a public purpose which was urgent in nature, it was elaborated that the entire procedure was strictly in accordance with law and as Section 17(i) of the Act was attracted, the necessary notification under Section 17(4) was issued and provisions of Section 5 and 5-A of the Act were rightly held not to apply.
5. Arguments have been heard and record perused.
6. Sheikh Zamir Hussain, Advocate for the petitioner has referred to the notification dated 15.3.1993 issued under Section 4 of the Land Acquisition Act and contended that the purpose for acquisition stated therein is that the land was required for the Army Welfare Trust to meet the defence requirements of'its personnel at the expense of the state. The land proposed to be so acquired was 243 Kanals, 1 maria, It later transpired that the said purpose was deviated from and that the acquisition was then made and the land utilized for housing purpose and not for any defence purpose. From this assertion, the .Learned counsel for the petitioner raises a two fold objection, It is firstly contended that the deviation in the purpose for acquisition shall render the entire acquisition proceedings as null and void.
7. It is secondly contended that the purpose for setting up of a housing scheme' is not a public purpose.
8. The learned counsel referred to Section 3(f) of the Land Acquisition Act which defined public purpose as follows:- Public purpose.- The expression "Public purpose" includes the provisions o 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 provisions".
9. After hearing the learned counsel for the parties, both the objections raised by* the learned counsel for the petitioner are found to be devoid of force. As is apparent from definition of public purpose, it does not conclusively circumscribe or limit its scope.
This term has to be used in an elastic sense so that its true import is appreciated and fulfilled.
Public purpose is indeed a relative terms and will depend and vary from one particular set of facts and circumstances to another such set. One characteristic of public purpose is, however, well- defined. This would certainly mean and include a purpose in which the general interest of the community as opposed to the particular interest of individuals is directly involved. To put it in another way, anything which" is useful to the public in the sense of conferring some public benefit or conducive to some public advantage is a public purpose, In this respect the reliance placed upon the rule laid down in Federation of Pakistan v. Province of Punjab and two others (1993 SCMR 1673) by the learned counsel for the respondent No. 4 is apt in that acquisition of land for a housing scheme formulated by the Board of Revenue Employees Housing Society Limited (in that case) is-a public purpose. For similar conclusion reliance is further placed on the case of Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. And 2 others (PLD 1983 Lah. 552), wherein, public purpose has been explained to mean any purpose to further general interest of community as opposed to particular interest of individuals:
10. In view of the foregoing, this Court feels no hesitation in holding that the acquisition of land under notification in question for the purpose of a housing scheme floated and established by respondent No. 4 was indeed for a public purpose. The contention of the learned counsel for the petitioner is repelled. The other question raised by the petitioner is that there has been a deviation of the purpose in that the original notification mentions the requirement of A.W.T, to meet the defence needs of its personnel, whereas, the purpose has since been altered to the setting up of a Housing Scheme without a further amendment or reissuance of the necessary notification. This submission of the learned counsel for the petitioner is repelled for more reasons than one. In the first place where the main and over-riding purpose remains the same a minor diversion of public purpose does not require a fresh notification under Section 4. Reliance for this proposition is placed upon a D.B. Judgment of the Peshawar High Court Fazal Rahim and 6 others v. Commissioner Peshawar Division and another (PLD 1979 Pesh. 91). When contemplated in juxta-position, the actual purpose of acquisition, for which the land has been acquired is substantially and materially the same, for which the original notification under Section 4 was issued, It would not be going too far to state that there is identity of intent and purpose between the object indicated in the notification dated 1 5.3.1993 and as actually carried out. Strength for this proposition is drawn from a Division Bench judgment S. Sivaprakasa Mudajar v. The State (AIR 1964 Madras 115).
11. Referring to the circumstances of the present case, it cannot be over-looked that initial notification specifically referred tp the acquisition of land by A.W.T, for meeting the defence requirements of its personnel. Neither can it be ignored that Army Welfare Trust, despite being a society registered under the Societies Registration Act; undertakes a large number of welfare projects which are approved by different Directorates of GHQ. Regarding the acquisition in hand, the AWT had acted under the instructions of the Welfare and Rehabilitation (W&R) Directorate of GHQ A.G. Branch.
In view of the foregoing, there appears to be no diversity of purpose between the object af acquisition as depicted in the notifications under Section 4 and Section 17 sub-section (4) of the Land Acquisition Act and the actual carrying out of the purposes of the acquisition by AWT. It may also be germane to the resolution of the controversy in hand to note that as per the case of AWT (respondent No. 4), it was in view of the acute shortage of accommodation and to address the said housing problems of the Army Persons that the Scheme in respect of which acquisition was ordered was formulated. For the accomplishment of Scheme, as per written submissions (made by respondent No. 4), a total areas of 6377 kanals was required. Out of this an area measuring 5615 kanals was purchased from the land owners through private negotiations while an area of 762 kanals was acquired through resort to land acquisition proceedings, It is submitted by the learned counsel for the respondent that bulk of land was obtained through private negotiations from the majority of land owners in the revenue estate of Kotha Kalan and the sale consideration has been made to the said vendors, It cannot also escape the notice of this Court that even out- of the acquired land, the present petitioner raises objections to the acquisition of a mere 30 kanals of land allegedly belonging to him.
12. It has also been brought to the notice of this Court that the Housing Colony since set-up has extensive provision of a college, High and Primary Schools, Hospital, Mosques, Community Centre Stadium and units of utility service including Banks and Post Office.
13. For what has been discussed in detail it is held that purpose for which the land has been acquired is squarely a public purpose and that th^re is no alleged deviation of purpose.
14. The learned counsel for the petitioner has laid great stress upon the contention that respondent No. 4 (A.W.T.) has admittedly itself deposited a sum of Rs.51,05671.45 through cheque dated 25.4.1994 as compensation for the acquired land. The argument forthcoming from this averment is.
That as the compensation has not come out from the public funds with the Government, it cannot be said that the requirement was for a public purpose. The learned counsel for the petitioner has relied upon Jatadhar Mitra and others v. The State (AIR 1970 Calcutta 90), Dau Dayal and others v.
The State (AIR 1996 Allahabad 237).
15. It is further contends that even if it is considered to be an acquisition for the company, the same is not lawful, as the respondent No. 4 has not executed any agreement with the Provincial Government as envisaged in Section 41 of the Land Acquisition Act. In this respect reliance has been placed upon The Co-operative Zenith Industries Ltd. v. Mst. Qavyum and others (1984 SCMR 1196), Federation of Pakistan through G.M.T. Telegraph and Telephone Department v. Province of Punjab through Land Acquisition Collector and 2 others (1993 SCMR 1673) and Abdu! Ghani and another v. Province of Baluchistan and 2 others (PLD 1982 Quetta 63).
16. It has. Be^n lastly contended that the provisions of Section 17 sub-section (1) did not apply to the case and that invocation of powers under Section 17(4) and the resultant non-application of Section 5 and Section 5-A of the Act was without authority.
17. After hearing the learned counsel for the parties, this Court finds no force in any of the foregoing submissions.
18. The Land Acquisition Act, 1894 was promulgated to amend the law for the acquisition of land for public purpose and for companies. A Company has been defined in Section 3(e) of the Act and includes a society registered under the Societies Registration Act, 1870. A society/Company is entitled to perform its functions in accordance- with objects/purposes and modalities as prescribed in its Constitution or be-laws and the memorandum and articles of association which are duly registered with Registrar of Joint Stock Companies, It has not been pointed out by the learned counsel for the petitioner that the purpose of acquisition of land for establishing a Housing Society falls beyond the purview of the memorandum or articles of association of respondent No. 4. Infact, no such case has been made out either in W.P: or at the bar.
As already observed the scope of public purpose as contemplated in the act is neither restrictive nor self defining. The genera incidents of public purpose, has however, been defined in no uncertain terms by a consensus opinion of the Superior Courts, It is thus after reconsoling the term public purpose with the purposes of a Company in relation to acquisition of land that it is found that such acquisition of 0 land for company or for the government may both be for a public purpose. Although there may be cases where the acquisition of land by Company may not strictly fall within the definition of a public purpose e.g. It may confine to the purpose specific only to the Company, yet where it is held that acquisition by the Company is for a public purpose, it would not be material if the compensation in whole or in part has been made by the Company itself, It would thus follow that it is the primary determination of the purpose and not the source of payment of the compensation which is relevant. If the common denominator as far as it relates to the acquisition of land for the Government or for the company is public purpose, it shall not make any difference whether the source of the payment of compensation is the Government or the company itself.
19. Even otherwise, the learned counsel for the petitioner has made reference only to the payment of a sum of Rs.51,05,671.45 which has been made by respondent No. 4 from its own account. No attempt has been made to place on the record regarding the breakup of the total amount of Compensation paid.
The objection to the acquisition on this account is repelled in view of the foregoing.
20. The contention of the learned counsel for the petitioner further is that as it was a case of acquisition of land by a Company, the said acquisition is bad in the absence of the execution of any agreement by respondent No. 4 with the Provincial Government.
21. To appreciate the validity of this contention it will be necessary to examine the stage at which the present petition was filed. Having been filed on 24.1.1995 the prayer which was made was in the following terms:-- "It is therefore, respectfully prayed that the writ petition may graciously be accepted and the impugned Notification No. 111/GAR, dated 15.3.1993 published in the Punjab Gazette of 6.4.1993 and No. M. VII. 711/A.C. 4933, dated 14.9.1994 issued by respondents Nos. 2 and 3 respectively and proposed acquisition of petitioner's land and proceedings thereof being continued by respondent No. 1, to be illegal, void, without lawful authority and of no legal consequence whatsoever.
It is, further humbly prayed that the acquisition proceedings be suspended and respondents be restrained from dispossessing the petitioner from his lands pending decision of this writ petition".
22. It has been pointed out by the learned counsel for respondent No. 4 that acquisition proceedings had since culminated in the award announced on 27.2.1995. The afore-mentioned amount of Rs.51,05671/45 was deposited in the Government treasury by acquiring agency on 25.4.1994. Since the assessed cost of land exceeded Rs. 10,00,000/- estimated cost plus the acquisition charges were approved after scrutiny by the Board of Revenue on 5.10.1994. The rationale of the agreement between the Company and the Provincial Government as contemplated in Section-41 is to ensure the following:-
(i) The payment to the Provincial Government to the cost of acquisition.
(ii) The transfer on such payment of the land to the company.
After the payment has been made and the land transferred in the name of the Company the question of execution of an agreement merely assumes an academic status as the purpose of the execution of the agreement has since been effectively fulfilled. However, the objection was not to the legality of the acquisition proceedings but merely to the quantum of 'the compensation that was assessed in his case. The contention of the petitioner is reflected in para 9 of the award.
23. The learned counsel for the petitioner has not been able to demonstrate as to whether the petitioner after the award made any reference under Section 18 of the Land Acquisition Act before the Competent authority or not. Be that as it may, the petitioner shall be disentitled to invoke the writ jurisdiction of this Court in respect of his above-mentioned conduct. The final submission of the learned counsel for the petitioner that the proper inquiry was not conducted by the Provincial Government within the meaning of Section 40 of the Land Acquisition Act also does not bear any scrutiny as it was the Commissioner, Rawalpindi who being satisfied of the urgency authorised the issuance of notification under Section 7(4) and Section 6 of the Land Acquisition Act. Reliance is aptly placed by the learned counsel for the respondent upon the rule laid down in the case of Mian Abdul Wahid and another v. The Collector and 2 others (PLD 1973 Lah. 739) to canvass the point that when an order is passed by a public authority, Courts may explore all possible explanation for its validity and to examine the entire field of powers in pursuance of which the impugned order was passed.
24. Having examined the act of the Commissioner, Rawalpindi, there is no material on the record to suggest any illegality in the said process.
25. For what has been discussed in detail there is no merit in this writ petition which is hereby dismissed.