2004 PLP 629 (YLR)

5. A further notification under section 4 was published on 31-12-1998 whereby the land in village Kurtana was sought to be acquired to meet the scheme of housing requirement of Army Personnel by Army Welfare Trust. This was followed by a notification under section 17 dated 28-10-1999 which was issued with regard to village Hummak Niazian and Kurtana. After necessary proceedings the Land Acquisition Collector announced its award dated 23-10-2001 and 28-2-2002 respectively whereby the compensation regarding built up area and that regarding agricultural land was respectively paid. Possession was also taken over through the revenue staff.

6. The instant writ petition has been filed by the petitioners who are landowners in village Niazian and Hummak respectively. The proceedings carried out by the Land Acquisition Collector and the ensuing awards have been called in question on the grounds that there was inordinate delay in completion of the process of Acquisition and payment of compensation whereby the entire acquisition process was rendered null and void; that the requisite N.O.C. was not obtained from the C.D.A. under section 12(5) of C.D.A. Ordinance, 1960 in the absence of which the entire acquisition proceedings became illegal and that the only N.O.C. dated.2-1-1994 was with regard to village Hummak alone and that too for a limited purpose and that this N. O. C. could not be used for the acquisition of land in other villages namely Niazian Kurtana etc.; that the land was not acquired for a public purpose as recognized under law, in that in the earlier notification the purpose of acquisition was mentioned as defence purposes while in the subsequent notifications the same was mentioned as establishment of housing society for Army Personnel.

7. On the other hand, the claim of the petitioners was controverted on various legal and factual grounds. It is contended that the petitioners had no locus standi to invoke the jurisdiction under Article 199 as remedy available under Land Acquisition Act has not been availed of; that the delay by itself does not nullify the entire acquisition proceedings, unless the delay is contumacious unreasonable and a result of negligence on the part of acquiring authority; that the C.D.A. had issued the necessary N.O.C. which is relevant for the entire scheme and is not to be obtained on issuance of each separate notification in respect of the same scheme and that it is in the discretion of the acquisition authority to dispense with the requirements of sections 5 and 5-A of the Land Acquisition Act. Even otherwise it is submitted that the acquisition process is complete compensation has been paid and the possession has been taken over through the revenue staff.

8. Mr. Ibad-ul-Rehman Lodhi, Advocate for petitioners has placed reliance upon the case cited as Divisional Engineer (Dev.), N-I1 T&T v. Rana Muhammad Sharif 2002 CLC 985 in order to support his contention that the delay in acquisition proceedings without a reasonable plausible and compelling explanation of the process of acquisition and payment of compensation to affected persons would defeat the acquisition itself. He also referred to case of the Murree Brewery Co. Ltd. v. Pakistan and 2 others PLD 1972 SC 279 to contend that acquisition of land by advancing different reasons at different times was ample proof of mala fides of the acquiring agency. The learned counsel also referred to the Islamabad Capital Territory (Zoning Regulation, 1992) in order to emphasize that any acquisition in violation of the said Zoning Regulations would be void. According to him the land in question fell in Zone No.5 which could not be utilized for the purpose which violated the said Zoning Regulations.

9. It is further submitted that acquisition is in gross violation of section 12(5) of the C.D.A. Ordinance which prohibits the acquisition of land without a requisite N.O.C. from C.D.A. Section 12(5) is reproduced as under:-- "No planning or development scheme shall be prepared for any person or by any local body or agency except with the concurrence of the authority."

10. It is contended that N.O.C. relied upon by the respondents as contained in the letter dated 2-1-1994 was with regard to village Hummak only and could not be extended to the other villages.

11. Choudhary Mushtaq Ahmad Khan, Advocate relied upon Subedar (Retd.) Muhammad Ashraf v. D.C., Jhelum and others PLD 2002 SC 706 to contend that the land in question has been acquired after completion of all the necessary formalities as envisaged under the Land Acquisition Act, 1894 and no illegality whatsoever has been committed by the functionaries concerned. The purpose for which the land was acquired squarely fell within the purview of a public purpose and could not be challenged on this ground. He further relied upon the case of Raja Muhammad Amer and 14 others v. Province of the Punjab and 2 others PLD 1985 Lahore 355 to contend that the purpose furthering general interest of community as opposed to particular interest of an individual is to be construed as a public purpose. The learned counsel relied upon Messrs U.C.C. Private Limited v.. D.C., Lahore 1999 MLD 1186 to contend that Army Welfare Trust was fully covered by definition of company as given in section 3(c), Land Acquisition Act, 1894 and that the acquisition of Land by a registered trust for public purpose was valid.

12. The learned counsel further relied upon Subedar (Retd.) Muhammad Ashraf v. D.C., Jhelum PLD 2002 SC 706 to contend that where a notification issued under the Land Acquisition Act was not challenged for almost 7 months, a Constitution petition challenging the same thereafter would suffer from laches. To the same effect reference has been made to the case of Liaquat Rashced and 3 others v. The Commissioner, Lahore Division 1993 CLC 558.

13. Arguments have been heard and record perused.

14. The parties are not at divergence as regards the basic facts of the case. It is admitted that the petitioners are owners in the villages, wherein, the land has been acquired under Act of 1894. It is also not disputed that earlier notification under section 4 issued on 13-2-1995 was in respect of land situate in village Niazian Sihala and Hummak and were required to be acquisition for defence purpose. This notification had lapsed. Thereafter fresh notification under section 4 was issued on 19-8-1998. A further notification was issued on 31-12-1998 whereby the land in village Kurtana was also sought .to be acquired.

15. It is further not disputed that C.D.A. had issued only one N.O.C. on 2-1-1994, wherein only village Hummak was mentioned.

16. Deduced from the above, the following points would require determination in this Constitution petition:-- (i) Whether there was such delay in the acquisition proceedings which can be termed as unreasonable, unexplained and a result of gross negligence which would defeat the entire proceedings? (ii) Whether the requisite N.O.C. as contemplated by section 12(5) of the C.D.A. Ordinance, 1965 was not granted in respect of the entire acquired land and whether this deficiency shall vitiate the acquisition proceedings? (iii) Whether there was any material change in the purpose of acquisition as disclosed in the successive notifications issued under section 4 of the Land Acquisition Act and if so whether the same would defeat the acquisition proceedings? (iv) Whether the acquisition proceedings are mala fide?

17. As noticed herein before the first notification under section 4 of the Lane Acquisition Act was issued on 13-2-1995. This notification had lapsed and had become ineffective. It is not denied that for the purpose of the scheme almost 60 % land had been obtained from the landowners through private negotiations. The first notification having lapsed, respondent No.3 proposed, that the land which was no privately purchased was to be acquired afresh. A fresh notification under section 4 was thus issued on 19-8-1998. A notification under section 4 was further issued in respect of land situate in village Kurtana on 31-12-1998. It is pertinent to note that there is absolute no delay insofar as the acquisition proceedings commencing from the subsequent notification under section 4 are concerned. To the contrary on account of urgency notification under section 17 of Act was issued on 28-10-1999 and 8-3-2001 respectively regarding all the villages. Through both these notifications ii was declared that provisions of sections and 5-A of the Act would not apply to the instant case. The respective awards were announced on 23-10-2001 and 28-1-2002. The petitioners are complaining of delay with reference to the first notification dated 13-2-1995 which stood lapsed in the circumstances hereinbefore mentioned. In this view of the matter, the petitioners' counsel's reliance upon the case of Divisional Engineer (Dev.), N-II T&T (supra) is not apt. It is only such delay which is unexplained and unaccounted for which adversely affects the acquisition proceedings. Indeed ' no premium can be placed upon the default of the acquisition authority itself. In the present case, however, no such delay is discoverable which could defeat or demolish the acquisition process itself.

18. The contention raised by the learned counsel for the petitioners that N.O.C. dated 2-1-1994 did not cover the entire land sought to be acquired and was limited only to the area of village Hummak is devoid of force. Section 12(5) of the C.D.A. Ordinance, 1960 does not obligate the acquiring agency to obtain an N.O.C from C.D.A. for every piece of land who is proposed to be acquired through notification from time to time if the aggregate of land is required for the same comprehensive scheme. This provision of law ordains that no planning of development scheme shall be prepared for any person by any local body or agency except with the concurrence of the authority. The C.D.A. through its N.O.C. dated 2-1-1994 decided as under:-- "C.D.A. has no objection an4 Army is allowed to develop whole scheme including the lava belonging to C.D.A."

19. It would make no difference if this N.O.C. , only mentioned the transfer o C.D.A. land in area of Hummak only. The No-Objection Certificate issued by C.D.A. was in respect of the whole scheme as envisaged and this N.O.C. would cover All or any acquisition of land which forms part and parcel of the development scheme as a whole.

20. The contention of the learned counsel for the petitioner that the original purpose was described in the notification as "defence purposes" which was later altered into the purpose of establishment of housing scheme for Army Personnel, does not advance the case of the petitioners. In the first place the description of public purpose earlier is a more comprehensive and general purpose and does not in any manner come in conflict with the later ascribed purpose. Both the purposes aim at promotion of general welfare of defence personnel. Judicial notice of acute shortage of accommodation and rehabilitation facility for the beneficiaries of the Army Welfare Trust can be taken. What suitably is the essence of a public purpose is a matter which is within the exclusive domain of the acquiring agency. Nothing has been brought on the record to detract from the same.

21. The next submission that the acquisition proceedings are tainted with mala fides is not supported by any material available on the record.

22. On the other hand, it is found that Army Welfare Trust does fall within the definition of a company and land can be acquired for a public purpose having nexus with such Trust.

23. The upshot of the above discussion is that this writ petition is found toll be without merit which is hereby dismissed. S.A.K./B-167/L Petition dismissed.