P L D 1974 Lahore 468 (PLP)

5. In their parawise comments, the respondents have taken the position that the land in question falls within 220 ft. from the centre of the Highway. The piece of land in each case cannot be constructed upon by the owners because of the bar contained in the West Pakistan Highways Act. It is "further asserted that "the land on both sides of the road is lying in an unfit condition for cultivation or for building purpose and there are generally pits of various depths. The classification of land as entered in the Revenue Record is Banjar Qadim i.e., waste and arable land". On the question of the so-called defect in the sanction of the Commissioner, it has been pointed out that "the purpose for which the land was temporarily needed by the Punjab Government was mentioned in the Commissioner, Lahore Division's .aforementioned order dated 27-4-1973, and it was conveyed to the appellants wide Notices served upon them giving therein full particulars of their land .and also asking them to put in their claims/objections, if any. They got their statements recorded on 13-6-73 and again on 23-6-73 and thus they were in the knowledge of full proceedings 'of the Land Acquisition Act, 1894". It may be mentioned here that the respondents had during the hearing, brought the entire record showing that measurements and surveys were done so as to ascertain temporary use to which the land in question has to be put and further that the areas from where earth was to be dug ,were also measured and specified in detail in the files. All this was done before the sanction was obtained. It has also been asserted in this behalf that under section 35(2) of the Land Acquisition Act, digging of the material, if any, from the land under temporary occupation and use, is permissible.

6. The arguments in all the three petitions were addressed by Ch. Khurshid Ahmad, Advocate. He represented the petitioners in two writ petitions while the learned counsel appearing in the third petition adopted his arguments. Before elaborating the contentions noted during the motion hearing, learned counsel explained qua Writ Petition No. 1434/73, that a suit was filed in June 1973 on the assumption that no award had been made and stay was granted on 29-6-1973. As according to the learned counsel, the award was announced on 17-7-1973, therefore, the suit was withdrawn on 31-7-1973. Learned counsel reiterated the contentions which have already been noted above. However, with regard to the second point, he made a clarification in the following words:- "the purpose for which temporary occupation of land is permissible under Part VI of the Act is the temporary use and occupation and extraction of material as envisaged under section

35. If the extraction of the material has the outright effect of permanent impairing the value of the land it would not fall under Part VI" Such situation, learned counsel further explained, is not covered by any of the provisions relating to temporary acquisition contained under sections 35,. 36 and 37 of the Act. On the other hand resort would have, perforce to be: made to the other provisions relating to permanent acquisition and because the same has not been done in this case, therefore, it is argued, the acquisition. is without lawful authority.

7. Part VI of the Act consists of only three sections which read as follows:- "35. (1) Subject to the provisions of Part VII of this Act, whenever it appears to the Provincial Government that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a Company, the Provincial Government may direct the Collector to procure the occupation and use of the same for such term as it shall think fit, not exceeding three years from the com mencement of such occupation. (2) The Collector shall thereupon give notice in writing to the persons interested in such land of the purpose for which the same is needed, and shall, for the occupation and use thereof for such term as' aforesaid, and for the materials (if any) to be taken therefrom, pay to them such compensation, either in a gross sum of money, or by monthly or other periodical payments as shall be agreed upon in writing between him and such persons respectively. (3) In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector, shall refer such difference to the decision of the Court. 36. (1) On payment of such compensation, or on executing such agree ment or on making a reference under section 35, the Collector may enter upon and take possession of the land, and use or permit the use thereof in accordance with the terms of the said notice. (2) On the expiration of the term, the Collector shall make or tender to, the persons interested compensation for the damage (if any) done to the land and not provided for by the agreement, and shall restore the land to the persons interested therein: Provided that, if the land has become permanently unfit to be used for, the purpose for which it was used immediately before the commence ment of such term, and if the persons interested shall so require, the Provincial Government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a Company. ,

37. In case the Collector and persons interested differ as to they condition of the land at the expiration of the term, or as to any matter connected with the said agreement, the Collector shall refer such difference to the decision of the Court." It is so obvious and this position has not been seriously contested during the final arguments, that subsection (2) of section 35 clearly visualises the taking of materials, if any, from the land under temporary occupation and use. The materials, it is further clear, depending upon the circumstances of each case may be of any kind which can be taken from the land and earth is one of such materials. In case of acquisition under Part VI, the law postulates the assessment of compensation at two stages; (i) before taking the possession of the land; and (ii) as provided under section 36(2) "on the expiration of the term of temporary acquisition". The second occasion for compensation would arise in these cases where the damage done to the land is not provided for by the agreement. Thus, the law assumes that at the first stage it might not be possible to make full assessment of the damage which could be done to the land by temporary use and occupation thereof including the taking of the materials. And if it is found at the expiration of the term that the damage actually done to the land is not covered by the earlier assessment, the persons interested shall be com pensated in that behalf. This is not all. The Collector is bound under the law, at the expiration of the term, "to restore the land to the persons interested therein." The land as visualised in various decided cases should, at the time of restoration, be as nearly as possible in the original condition. If, however, the temporary use and occupation has made the land unfit to be used for purposes for which it was used immediately before the commence ment of the term of occupation; under the proviso to (subsection (2) of section 36, the persons interested have a choice of compelling the Government to acquire the land as if "it was needed permanently for public purpose or for company". In that eventuality, once the choice is duly exercised the Government shall have no power to refuse such a demand. The above interpretation of the provisions contained in section 36 is further supported by the language used in section 37, which provides for the resolution of disputes over the "condition of land" at the expiration of the term. If the dispute in this behalf is with regard to any matter connected with the agreement, the Collector shall refer it to the decision of the Court. Thus, it is clear that the question of permanent impairment or damage to the land (when the initial purpose is temporary use and occupation for a limited time), would not arise till the expiry of the term. The subtle argument advanced by the learned counsel that if it can be adjudged that the proposed temporary use and occupation is such that it would permanently impair the value of the land than it must be permanently acquired, is untenable because; firstly, the very object of the temporary occupation is the utilisation of the land for only a limited purpose, and secondly it is for a specified time. Further, the actual use might be different from the visualised one and much cause much lesson damage to the land. That is why a very wide choice has been left for the persons interested in the land to, demand permanent acquisition at the expiry of the term. Learned counsel ,has also in support of his argument relied on Secretary of State v. Abdul Salam Khan (A I R 1915 All. 477) and Tan Bug Tain and others v. Collector of Bombay (A I R 1946 Bom. 216). He slates that there is not much case-law on the part. I have carefully gone through the two judgments. They do not, in any way support the argument .advanced by the learned counsel. On the other hand, the reasoning therein, confirms the above interpretation of section 36 of the Land Acquisition Act. Therefore there is no need of any detailed discussion of these two judgments. It is further pointed out that the above interpretation finds support from the, report dated 23-3-1893 of the Select Committee on the then proposed legislation for land acquisition which reads as follows:

"Part VI of the Act deals with the occupation of land by the Govern ment for temporary purposes as opposed to permanent acquisition by the Government under the preceding part of the Act under which the land vested absolutely in the Government free from all other estates, rights, titles and interest. In the year 1861, it was found necessary to amend the (Act VI of 1857) on two points. Act II of 1861 provided for the case of an acquisition of land needed for the construction of any 'road, canal or railway' and authority was given for the temporary occupation of adjacent lands not more than 100 yards, and in certain cases, not more than two miles from the centre line' of the same for the purpose of taking earth or other materials for making or re-paring the same or for depositing earth, etc., thereon, or for erecting temporary buildings or workshops or for the construction of temporary roads or railway."

7. In the light of the above discussion, I repel the argument of the learned counsel that on account of the proposed digging of earth to the .depth of five feet, the temporary acquisition under Part VI of the Act, is without lawful authority. 1t is clarified here that I have intentionally avoided making any comments on the question of fact as to whether, in reality, if the earth is dug down five feet in the land in dispute it would, in fact, in all circumstances, make it "permanently unfit to be used for the purpose for which it was used immediately before the commencement of the term of temporary acquisition". There is no agreement on this factual question nor it can be finally decided before the expiry of the term. It should, therefore, be not, in any way, assumed that the above discussion on the question of law involves any finding of fact in this behalf. It being a disputed matter, is left to be resolved in accordance with law, as discussed above, on the expiry of the term.

8. The other two points raised by the learned counsel; one with regard ,to the sanction by the Commissioner and the other relating to type of the land, are essentially of fact and there is no agreement between the parties. According to the learned counsel for the respondents, the Commissioner was aware of the purpose of acquisition. He has relied on the contents of the files, prepared and maintained by the Highway Department, wherein the digging of earth from the land in dispute during the temporary occupation was clearly visualised and specified It has also been asserted that the persons interested in the land were aware of this position. Not only this but ,it is also to be noticed that the Executive Engineer while requesting the 'Deputy Commissioner, Sheikhupura, to make a reference to the Commissioner for sanction had, as is mentioned in his letter (Annexure `B'), requested that the papers which were referred to in the earlier part of the order as having been prepared from the revenue record and measurement of the spot "be ;processed and forwarded to the Commissioner". The Deputy Commissioner's letter addressed to the Commissioner, shows that the "relevant papers received from the Executive Engineer" were also forwarded to the Commis sioner. The sanction by the Commissioner clearly shows that he was aware of the purpose of the temporary acquisition of land namely, "the .construction of the new carriage-way" Keeping in view all the facts and .circumstances, it is not possible to give a finding that the Commissioner was not, at the time of according sanction, aware of the fact that the earth would be extracted from the land in question. "Temporary acquisition" under the Land Acquisition Act, as provided in Part VI thereof, is mentioned in the .very sub-heading of the sanction order, therefore, it is not possible to agree with the learned counsel that the Commissioner had not consciously sanctioned the digging of the earth. The argument in this behalf is, therefore, repelled.

9. With regard to the type of the land, according to the respondents, the portion under temporary occupation is a waste land because it is already lying in an unfit condition for cultivation or for building purposes and there are `generally' pits of various steps. It has also been asserted that the .classification of the land in the revenue record is Banjar Qadim. It is doubtful whether all the land which has been described in the revenue record as Banjar Qadim becomes necessarily a waste land because, in any case. it .can yet be an "arable land". It appears that most of the land in question has remained fallow since 1967, therefore, it has been described in the revenue record as Banjar Qadim. Even if it is assumed that there are no pits in the land so as to make it, for the time being, a waste land, all the .same it remains arable land.' It is not the case of any of the petitioners that the land in question was never under agriculture. It appears that on account of the zone having become industrial these lands might have been left fallow for a period of time but that would not make the land as other wise than arable. `This expression has not been defined in the Act. Its ordinary dictionary meaning is "fit for ploughing or tillage." It is not the case of the petitioners that the land is not fit for agriculture. On the other hand, their case is that the locality has become industrial area and some of -the petitioners having purchased the land specifically for the purpose of establishing industries, therefore, it is neither waste nor arable land. Admittedly industry has not yet been established, no foundations have been dug, nor even the boundary walls have been constructed. Mere purchase of the land for industrial purpose and even importing of machinery in that behalf, would not convert the land into non-arable. In any case, the area under temporary occupation falls within the prohibited limits under the Highways Act, and if no building can be constructed on this land, then it would remain arable. There is no force in this contention of the learned .counsel either.

10. In view of the above discussion, I find no force in these petitions therefore, they are dismissed. There shall be no order as so costs. K. B. A. Petitions dismissed.