1986 PLP 1841 (CLC)

(iii) That petitioner filed objections before the Deputy Commissioner within time and they were not given any hearing. The notifications are sought to be declared mala fide, illegal and ultra vires of the powers on the following reasons. (i) That the Army Welfare Trust, Rawalpindi, being an organization of Retired Army Officers, yields considerable influence with the Martial Law Administrator in Pakistan and the Provincial Government of Sind which is headed by a Lt.‑General of the Army as Governor and Martial Law Administrator of the Province. Having failed in their effort to get possession of the land from the petitioners mentioned in para. 1 above and bring the litigation between them and the petitioners to a successful conclusion in their favour, the Army Welfare Trust has tried to wreck vengeance on the petitioners by persuading the respondents to acquire the land of petitioners Nos. 1 to 23 which is subject‑matter of existing litigation between the parties and also to acquire the land of other petitioners who are relations/friends/party members of the Hari Committee like the petitioners. The acquisition of the land in petition by the respondents is, therefore, mala fide on tile part of the respondents. (ii) That the land of the petitioners, which is cultivated by them since a long time, has been acquired in direct violation of the instructions of Board of Revenue, Hyderabad, dated 21‑11‑1982 and is consequently illegal and mala fide. (iii) That Establishment of Cantonment at Panoakil is not for public purpose (as contemplated by section 4 of the Land Acquisition Act) as per impugned notifications of the respondents which are, therefore, illegal and ultra vires of the powers of the respondents. (iv) That the direction of Commissioner, Sukkur Division, Sukkur that the provisions of sections 5 and 5‑A of the Land Acquisition Officer, Rohri should take action accordingly, are also absolutely illegal and against the mandatory provisions of the Land Acquisition Act. It is significant that the Commissioner has not specified reasons why provisions of sections 5 and 5‑A of the said Act shall not be applicable in the case of the land included in the schedule given in the notification.

4. Mr. Shaikh Ayaz, learned counsel for the petitioner contended that objections filed by the petitioners are still pending and have not been finally disposed of, therefore, second notification under section 17(4) of the Act is not competent. On this point he has referred to a case reported in 1983 CLC 2079 and submitted that matter cannot proceed further till disposal of objections. It is also contended that Additional Commissioner has not specified the reasons as to why provisions of sections 5 and 5‑A of the Act have been dispensed with and that there is no urgency for Establishment of Cantonment. His contention is that land of petitioners is being acquired with mala fide.

5. We have also heard Mr. Sharafuddin Ada and Mr. Zawwar Hussain Jaferi, A.A.‑G. appearing on behalf of the respondents. It is contended by learned counsel that Commissioner is competent to take action under section 17(4) of the Act in case of emergency and it is not necessary for him to give reasons on that behalf. It is contended that Establishment of Cantonment is in national interest and comes within the meaning of public purpose. As regards objections their contention is that objections are time‑barred. They have referred the cases reported in P L D 1968 Dacca 36, P L D 1968 (W .P.) Lah. 250, P L D 1984 Quetta 24, 1983 CLC 1478 and A I R 1963 Mys. 318.

6. Now we proceed to deal with the contentions raised by the learned counsel. The admitted position is that Deputy Commissioner invited objections as stated in the notification, dated 2nd April, 1985. It has been admitted by the Commissioner in his comments that some of the owners of Kabuli land filed objections but in the meanwhile land was declared to be acquired. Under urgency clause of the Act and such notification under sections 6 and 17 of the Act was issued, by the Additional Commissioner in respect of 598‑23 Acres of Kabuli land including area 11 villages and it was mentioned in the notification that provisions of sections 5 and 5‑A of the Act will not apply, as such objections were not considered and that meeting with Khatedars of Kabuli land and owners of the houses acquired under the scheme was held on 3‑8‑1985. On this point Mir Shafqat Ali, Assistant Commissioner and Land Acquisition Officer, has filed counter‑affidavit and in para. 7 he stated that petitioner No.8 filed objections on 5‑5‑1985 which are time‑barred and cannot be termed as legal objections, therefore, petitioner cannot be deemed as legal objection under section 5‑A o' the Act and other persons who filed objections are not petitioners. The petitioners have not filed any rejoinder in rebuttal. It is now to be considered if authorities without disposing of objections are debarred from taking action under section 17(4) of Act in case of emergency. The reliance has been placed on a case reported in 1983 CLC 2079. The facts of that case are that dispute concerning that property went upto Supreme Court and matter was finally decided by its judgment reported in P L D 1971 S C

376. The land of Mujawars of Dargah was subject‑matter and they were to be provided with alternate accommodation and it was observed as under:‑ "We are of the view that it will not be fair on the part of the department to proceed under section 17 till the objections are finally disposed of." We are sure that the Collector concerned would take notice of ,! this section and would act in accordance with law." The facts of the case in hand are different. In this case the land in question is being acquired for the National interest for Establishment of Cantonment and it is not disputed that Panoakil is adjacent to INDIAN Border. In our view the security of country is more important than interests of individual. On the other hand except one of two petitioners they are not the owners of the land nor it has been shown that they are enjoying some rights. However if it is proved, they can claim compensation, which Government will definitely consider. As it appears in the circumstances that Government is already considering as meeting of Kahtedars and owners of houses was held and process in continuing. In reported case the Honourable Judges have expressed their views looking to the circumstances of that case. We are of the view that in. case of Emergency the Commissioner can pass order under section 17(4) of the Act without disposing of objection as there is no such provision in the Act which prevents the competent authority for passing such orders. The proceedings under section 17(1) of the Act are independent and not subject to any restrictions or conditions. We are satisfied that the Additional Commissioner in this case has rightly issued Notification which is not without lawful authority. He has not violated any provision of law.

7. The next contention of the petitioners is that their land has been acquired with mala fide because this land was originally earmarked for ARMY WELFARE Trust and was to be allotted to retired Army Officers to which petitioners filed civil suit and got stay., We are not impressed by this argument on the ground that vast area including disputed land is being acquired for the purpose of establishment of Cantonment and acquisition is not for any individual. The Advocates, appearing for the respondents have made statement at the Bar that this land will, in no case be given to Welfare Trust or any retired Army Officer. We can hardly believe that due to civil suit or dispute the authorities would take a point of prestige and have chosen land of petitioners for Establishment of Cantonment. The Authorities concerned while considering Cantonment are supposed to consider Project from various angles. On the other hand Commissioner Sukkur Division in his comments has not admitted any right of petitioners over the land in dispute but admitted that petitioner Sajjan and others filed civil suit against Government, which was dismissed. The Civil suit of 23 petitioners is still pending but from petitioners side no documentary proof has been furnished to snow that land belongs to them or they are entitled. to have benefits as stated in the petition. Affidavit in rejoiner was filed by the petitioner after the comments received in which it is stated that civil suit of Sajjan was dismissed by the Civil Judge, Ghotki but in appeal his order was set aside. On perusal of order, dated 30‑5‑1985 of learned IInd Additional District Judge, Sukkur, it is clear that case was remanded. The civil suits are pending for adjudication and evidence is to be recorded. We are of the view that this Court in exercise of Constitutional jurisdiction is not required to consider the case on facts and it is almost a settled Law. We, however, refer to the latest cases of Muhammad Mehfooz v. Collector Customs (Provincial) Custom House, Karachi and 2 others P L D 1986 Kar. 28 (relevant 43) and Muhammad Hanif v. Habibullah Khan and others reported in 1986 SCMR

143. The, upshort of the above discussion is that no mala fide on the part of authorities has been proved for acquiring this land. Moreover, the petitioners except two have not been able to establish their vested right over the land, which is intended to be acquired.

8. The other contention of the petitioner is that there is no urgency for establishment of Cantonment. We hardly accept this kind of argument as Cantonments are established on various consideration and it is for the authorities concerned to decide this issue and it has been held from time to time, that such decision is not subject to judicial review of 'this Court in exercise of Constitutional jurisdiction. In case of Jan Meah v. Deputy Secretary Government of East Pakistan reported in PLD 1965 Dacca 36, it has been observed at page 37 as under:‑ "C" So far as the second branch of this argument is concerned, namely, that as he Provincial Government did not specifically state in the notification that the lands were acquired urgently, the notification is bad, we are of the view that the absence of any such statement in the notification does not invalidate it. The very fact that the Provincial Government thought that the provisions of section 5‑A should not apply to the lands in question clearly points to the fact that it had formed an opinion that the lands were required urgently. We may, in this connection observed that the decision of the Provincial Government in this regard is not subject to review by the Court. Whether an urgency exists or not is matter solely for the determination of‑ the Government and it is not subject to review by any Court " In case of Kashappa Shivappa v. Chief Secretary to Government of Mysore and others reported in A I R 1963 Mys. 318, observation at page 320 are as under:‑ "(6) The first question, therefore, would be whether it can be said that the notification issued by Government on 13th December, 1960, contains no indication of the formation of the opinion in the mind of the Government that the case was one of urgency.. When the notification is lonked into for that purpose it is found that what notification says its that the Government made a direction under subsection (4) of section 17 since the acquisition of the lands was "urgently necessary". The words used in fourth a paragraph of the notification are, "as the acquisition of the said lands are urgently necessary, the provisions of section 5‑A of the said Act shall not apply in respect of the said lands. "Although it is stated in this paragraph of the notification by the Government that the acquisition of the land was urgently necessary, can it be contended that statement was made by the Government without the application of their mind to the question whether the case, was or not one of urgency. I found great difficulty in accepting the argument advanced on behalf of the petitioner that notwithstanding the statement contained in this paragraph of the notification to the effect that the acquisition was urgently necessary, we should, nevertheless come to the conclusion that no opinion was formed in the mind of the Government when they issued this notification as to the urgency or otherwise of the case within the meaning of that expression occurring in section 17(1) of the Act. If any authority functioning under a statute is authorised to exercise power on its being satisfied that the case is one of urgency and that authority in justification of the exercise of that power says that it exercised that power because something to be done under that statute. we urgently necessary. I fail to understand what more is necessary, to be established in proof of the formation of the opinion in the mind of that functionary that the case was one of urgency. It is thus clear that had not the Government satisfied themselves that the case .was one of urgency, they would not have stated that. what had to_ be done was urgently necessary." And observation in para. 16 are "(16) so posted, I do not find it possible to say that in this case we can substitute our own opinion for the opinion of the Government which they clearly formed that the case was undoubtedly one of urgency. The challenge made to the direction under section 17(4) on the ground 26 that the case was not one of urgency or on the ground that it was not believed to be one of urgency must, therefore, be negative. " and in case of Abdul Ghafoor and others v. Province of Baluchistan relvant 3*l‑M it has been held as under: ‑ "(M) The enquiry provided under section 40 of the Act is of special nature limited to a particular object. Section 40 constitutes the Government as the Custodian of public interest the sole Judges of the two facts mentioned therein namely whether the land is required for the construction of some work and secondly whether the work is likely to prove useful to the public. The only other person concerns in the matter is the company which make the application for lands and so long as they are satisfied upon the two matters which are made conditions precedent to according their consent to the acquisition of the land, no Court is competent to question the validity of the proceedings under sections 40 of the Act and if the Government is satisfied with it shall require the company to enter into an agreement with the Government provided to the satisfaction of the Government for the several matters which are setforth in that section."

9. Now we come to legal plea taken by the petitioners that Additional Commissioner has not specified reasons for non‑applicability of sections 5 and 5‑A of the Act in acquisition proceedings. The Additional Commissioner, Sukkur in his notification of 6th June 1985 in exercise of its powers under section 17(4) of the Act directed that provisions of sections 5 and 5‑A of the Act shall not be applicable. Subsection (4) of section 17 (applicable to the then West Pakistan ) is as follows: "(4) In cases where in the opinion of the Commissioner, the provisions of subsection (1) or subsection (2) are applicable, the Commissioner may direct that the provision of section 5 and 5‑A shall not apply, and, if he does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under subsection (1) of section 4. " The Additional Commissioner, Sukkur is not legally obliged on bound to assign any reasons for such directions but the reasons are obvious as he intends to acquire land under emergency as contemplated under section 17(1) of the Act. On this, we refer to a case of Abdul Rahim and others v. Province of Sind and 3 others reported in 1983 CLC 1478 where it has been held that functionaries in suitable cases can provide for exemptions from compliance with provisions of sections 5 and 5‑A of the Act. The relevant observations at page 1480 B & C are as follows:‑ "The next contention of the learned Advocate is by reference to section 5 and 5‑A of the land Acquisition Act. It is contended that the provisions are of a mandatory nature, and non‑compliance has vitiated all action. It seems the learned Advocate has overlooked the provisions of subsection (4) of section 17 of the said Act. It would be useful to reproduce the said subsection. It reads as follows:‑ "In the case of any land to which, in the opinion of the Provincial 7'~%'I ' Government, the provisions of subsection (1) or subsection (2) are applicable, the Provincial Government may direct that the provisions of section 5‑A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4, section (1). It would thus appear that, in suitable cases, the relevant functionaries can provide for exemptions from compliance with the provisions of sections 5 and 5‑A of the Act, such a notification has indeed been issued Mr. Muhammad Jamil had, however, attached such notification on ground that there was no urgency, and, therefore. the notification, dispensing with following the requirements of sections 5 and 5‑A of the Land Acquisition Act, was mala fide. He has relied on the case of Thirumalalah v. State of Mysore and another a case from Indian jurisdiction. In the above case observation have been made to the effect that urgency, requiring exercise of power under section 17(4) of the Land Acquisition Act, has to be established as any other fact. The learned Judges have not stated that evidence has to be led in order establish urgency, although this judgment may be construed to be pronouncing an opinion that the existence of, urgency was a justifiabie question.‑Even if this test is applied to the present case, there can be no doubt whatsoever that making of a road, leading to a shrine, which is frequented by thousands of persons, does indeed call for urgent action for construction of the road. On the other hand,. the notification, invoking the powers under section 17(4) of the Land Acquisition Act, on the face of it, states that the case was one of emergency. We see no force in this contention." For the` foregoing reasons, we find no legal defect in the I proceedings under which land for the purpose of Establishment of Cantonment at Panoakil has been acquired as such we dismiss the petition, with the result stay already granted stands vacated. I n the circumstances there will be no order as to costs. A.A. Petition dismissed.