P L D 1979 Peshawar 91 (PLP)

ABDUL HAKEEM KHAN, C. J.--Fazal Rahim and six others have moved this Constitutional petition to question the decision of the Commissioner, Peshawar, whereby he proposes to utilise the land, acquired for timber estate, for construction of a housing colony, on the grounds that there is no power in the acquiring department to make such caoversion and that if at all they are so minded they should issue a fresh notification. The facts, given to us by the learned counsel for the petitioner supported by annexures are that a notification under section 4, as in Annexure D, was made on 25-2-1971, with respect to the land-in-question and it was therein stated that the land was acquired by the Government at the public expense for public purposes, namely, construction of a timber market. Award in the case was given on 8-1-1974, vide Annexure G. In pursuance of the award, the rate per kanal was fixed at Rs. 8,

140. The petitioners lodged objections on 20-2-1977 but those were dismissed on 11-10-1977 and they moved an appeal and the same was also dismissed by a Single Judge of this Court on 12-6-1978. The petitioners thereafter moved the present writ petition, with a prayer which has already been indicated in the opening paragraph of this order. When we enquired from the learned counsel for the petitioners as to whether it was necessary for the Government to issue a fresh notification, when they have changed their mind and wanted to utilise the land for construction of a housing colony, instead of timber market, the learned counsel referred us to Sahibdad Khan Advocate v. Commissioner, Rawalpindi Division (P L D 1969 Lab, 207) and Parshotam Jethalal Soni and others v. Secretary to State and another (A I R 1938 Bom. 148). In the Lahore case second notification was, no doubt, issued but all that his Lordship observed is that issuance of a second notification, when the purpose for which the land was being acquired has been changed would not be illegal. This certainly does not show that his Lordship was of the view that second notification under section 4 was at all necessary. His Lordship observed that there is no 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. As far as the bombay authority is concerned it relates to a scheme for the construction of an arterial road by the municipality and the proposal was to acquire some land for that purpose. The Government on the request of the Municipality and on being satisfied the lands were needed for public purpose, issued a notice under section 4 of the Act. Later on, the scheme was cancelled and a revised scheme was introduced. The Government, after some five years of the first notice, issued a notice under section 6, without first issuing a notice under section

4. The municipality had in the mean time given permission to certain persons to erect buildings and make repairs to buildings on some of the notified land. After the issue of the notice under section 6 by the Government, certain persons brought a representative suit for declaration that the notices were illegal and for an injunction, restraining the Municipality and the Secretary of State from proceeding with the acquisition proceedings. It was held that the notices were valid and the fact that at some time between the dates of the two notifications the Municipality was of a different opinion was irrelevant. Their Lordships further observed that the Land Acquisition Act nowhere postulated identity in the scheme by means of which the public object was to be carried out. It was further elaborated that all that was legally necessary was that the lands which it intended to acquire-for public purpose should be notified first under section 6 and then under section 4 and therefore, a fresh notification under section 4 was not necessary. In the light of the aforesaid law and facts, it is difficult for us to agreel with the learned counsel for the petitioner, and this petition, having no force, in it, is hereby dismissed in 11mine. S. A. H. Petition dismissed.