1969L36 (PLP)

3. Learned counsel for the appellant canvassed for a negative answer to the above question though he frankly conceded, as also observed in the judgment of the learned lower appellate Court, that there is no direct authority bearing on the question. Therefore, the question falls to be determined on a proper construction of section 4 of the Act and other relevant statutory provisions. Section 4 of the Act occurs under the caption "Preliminary Investigations" and reads‑ "4. (1) Whenever it appears to the Provincial Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. (2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf and for his servants and workmen‑ to enter upon and survey and take levels of any land in such locality; to dig or bore into the subsoil; to do all other acts necessary to ascertain whether the land is adopted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels boundaries and line by placing marks and cutting trenches; and, where otherwise the survey cannot be completed and the level taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle; Provided that no person shall enter any building or open any enclosed Court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so." A plain reading of the section makes it clear that the object of the notification under subsection (1) is to empower any office either generally or specially to enter upon the land to make survey, etc. In other words, the notification is in the nature of a statutory licence for entry upon the land for investigation or else it would amount to a civil or criminal trespass. The notification issued under the section is also important in another respect, namely, it fixes the material date for determining the market value of the land to be acquired, vide section 23 (1) of the Act. There is nothing, whatever, in the section to suggest, that with the publication of the notification under section 4 any interest or title in the land sought to be acquired is created in favour of the Government, or any company, as the case may be, for whose purpose the land is being acquired or there is a divestiture of the right or title of the owner. Rather sections 16 and 17 of the Act fix the time when the land sought to be acquired shall vest absolutely in the Government. Section 17 deals with cases of urgency which provides that on the expiration of fifteen days from the publication of the notice mentioned in section 9(1) of the Act, the land sought to be acquired shall vest absolutely fn the Government. But this is not the case before us. Therefore, only section 16 is relevant: it reads‑ "When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumb rances." It is not the appellant's case that the Collector ever took possession of the appellant's land after making the award. The indications are that the project of constructing the Directorate Soil Conservation, West Pakistan, for which the land was being acquired pursuant to the notification of the 8th July 1958, fell through. Conversely, subsection (1) of section 48 of the Act provides that except in the case covered by section 36 of the Act, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. Section 36 read with section 35 of the Act provides procedure for the temporary occupation of waste or arable land and possession of the same on payment of compensation or execution of agreement. The fact that the notification dated the 8th July 1958, was withdrawn on the 31st May 1963, without any demur by the appellant clearly points to the fact that possession of the land was never taken over by the Government in pursuance of the first notification: else the appellant should have had claimed compensation for temporary occupation of the land.

4. On the examination of the above provisions, therefore. I have no doubt in my mind that the proprietary title in the land still inhered fn the appellant when the second notification with regard to the land was issued on the 22nd November 1959 (hereinafter called the impugned notification) declaring that it was required for the extension of Ayub National Park.

5. On general principle, when the vires of an act of statutory authority falls for examination, the first question to be considered is, whether the power is available framing statutory source for the performance of the act secondly, whether there is any condition precedent for the performance of the act and if so, whether such condition is satisfied: and thirdly whether there is any prohibition whether express or implied forbidding the performance of the act in certain circumstances. In the instant case, section 4, still continues to be the source of statutory power. The mere fact that a notification had already been issued in relation to a particular piece of land would not exhaust that source, for the impugned notification. Section 14 of the General Clauses Act, 1897 is clear on the point. It reads:‑ "14 (1) Where, by any Central Act or Regulation . . . . . any power is conferred, then, unless a different intention appears, that power may be exercised from time to time as occasion requires . . . . ." Learned counsel could not point to any provision in the 1894 Act which militates against the issuance of a second notification under section 4 during the concurrency of a previous notification with regard to the same land. In the absence of any such negative provision in the Act, the notification of 8th July 1958, did not exhaust the power of the Commissioner in the relevant field, more so when the title in the land still vested in the appellant. The second condition is also satisfied in the instant case. It is not the appellant's case that extension of the Ayub National Park is not a public purpose or that the land in relation to which the second notification was issued has since ceased to exist. As to the third condition, I have already observed that there is no prohibitory provision express or implied in the 1894 Act. All that could possibly be agitated against the impugned notification is that it was unnecessary because of the currency of the earlier notification which had not been withdrawn till then. But this is not to say that the impugned notification became ultra vires on that account. It seems to me that the Commissioner thought it fit to issue the impugned notification because by virtue of it, the land was sought to be acquired for a wholly different purpose and for the Central Government and thereby he wanted to obviate the possible objection that land acquired for one public purpose cannot be utilized for or diverted to a different public purpose, although such objection would apparently have been untenable.

6. For the foregoing reasons, I see no merit in this appeal which is dismissed in limine.

7. At the close of his argument learned counsel for the appellant prayed for the grant of certificate for Letters Patent Appeal. In my opinion, the law point involved is beyond any doubt and, therefore, I reject the prayer. A. E./K. B. A. Appeal dismissed in limine.