1979 PLP 180 (CLC)

Directions and Boundaries. North-Khurshid; Bcdian Road. South-Kasur Road. East-Kaire Lahore Distributary. West-Main line, Pakistan Railways.

It was followed by another notification appearing in Punjab Gazette dated 8-2-1978, under section 17(4) of the Land Acquisition Act, which in terms was as follows.:- "No. LA/853/668.-Whereas it appears to the Commissioner Lahore Division that the land herein referred to as said land specified in the Notification under section 4 of the Lard Acquisition Act, issued by the Collector, Lahore District, vide No. 2525 dated 6th November 1976, is required to be taken by Lahore Cantt. Co-Op Housing Society Ltd. (Lahore Cantt. Company's expense for a public purpose, namely for the construction of residential accommodation for 1 Defence/Civilian personnel. (2) And whereas the Commissioner, Lahore Division, is satisfied that the land specified below is urgently required and the provisions of subsection (l) of section 17 of the Land Acquisition Act, 1894 are applicable to the aforesaid land. (3) Now, therefore, in exercise of the powers under subsection (4) of section 17 of the said Act the Commissioner, Lahore Division, is further pleased to direct that the provision of sections 5 and 5-A of the said Act shall not be applicable in the case of said land and that the Land Acquisition Collector, Lahore should take action accordingly. Land upon which any religious place of worship, shrine, tomb, graveyard or any immovable property attached to any institution and the boundaries of which are contiguous with the site of the same shall be excluded from the said land. Similarly waqf and evacuee properties and waqf land shall be excluded." The land specified thereunder was identified by particulars of District, Tehsil, Village, Khasra and area. The petitioners in these Constitutional petitions who are either owners of land or claim interest in land sought to be acquired have challenged the proceedings on numerous grounds starting with the notification under section

4. These grounds are as follows :- . "(11 Notification under section 4 of the Land Acquisition Act is vague, does not disclose with sufficient particularity the property that was sought to be acquired. (2) There was no public notice served in the locality as is required for notification under section 4. ;:AA. (3) The land is not required for a public purpose. (4) The notification has exhausted itself in view, of the instructions of the Board of Revenue that consequential steps must follow within a period of 12 months after notification under section 4, failing which fresh notification should issue. (5) The respondent for whose benefit acquisition is sought to be made does not qualify as a company under section 3, clause (e) of the Land Acquisition Act. (6) Compliance with the provisions of Chapter VII of the Land Acquisition Act has not taken place and for that reason the notifica tion under section 17(4) is a nullity.

2. These petitions have been argued substantially and primarily with regard to the requirements of Chapter VII of the Land Acquisition Act for it is admitted that the compliance with sections 39, 40 and 41 had not taken place before the issuance of notification under section 17(4).

3. The scope and effect of section 39 of the Land Acquisition Act is required to be determined in this particular case. Taking into account the amendment made by the Provincial Government, the sections reads as hereunder :- "The provisions of sections 6 to 37 (both inclusive) shall not be put in force in order to acquire land for any company, unless with the previous consent of the Commissioner, nor unless the company shall have executed the agreement hereinafter mentioned." On the strength of this provision, it is contended by the petitioners that as there was a non-compliance with the provision thereof, and it is not stated to be otherwise, the notification under section 17(4) could not issue. The learned counsel representing the Society has in this context referred to the following decisions :- "Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others P L D 1970 Lah. 321 ; Jhandu Lai Budh Ram and others v. The State of Punjab and others A I R 1959 Pb. 535 ; Bhagwat Dayal and others v. Union of India and others A I R 1959 Pb. 554 and Bhagwat Dayal Mattu Mal and others v. Union of India Ministry of Works Housing and Supply, New Delhi and others A I R 1959 Pb. 479." The contention on the basis of these authorities is that where the object of the acquisition is public purpose though the acquisition may be for a company, the requirements of Chapter VII are directory and the acquisition does not get defeated.

4. The attention of the learned counsel for the Society was drawn to the basic law which governed the compulsory acquisition of land. I could be either under the power of eminent domain or under the prerogative of the sovereign. In either case, one necessary ingredient for the' exercise of that power was and continues to be that the purpose of acquisition should be public use. The definition of eminent domain in Corpus Juris Secundum, para. 1 page 161 is as follows :- "Eminent domain is the right or power to take private property for public use; the right of the sovereign, or of these to whom the power has been delegated, to condemn private property for public use, and to appropriate the ownership and possession thereof for such use upon paying the owner a due compensation." Halsbury's Third Edition 10, page 5 para. 4, mentions "No owner of lands appropriated by statute for public purposes is entitled to compensation, either for the value of the land taken or for damage on the ground of injurious affection to his land unless he can establish a statutory right."

5. In this background of the power contained in the Land Acquisition Act, public purpose alone can justify the compulsory acquisition of land.

6. This requirement of the law is amply reflected in the Land Acquisition Act itself. Section 4 before its amendment by West Pakistan Ordinance IL of 1969 provided that the land must be needed for any public purpose. It may be needed for the Government, for a company as defined under section 3 clause (e) or for a firm deemed to be a company under section 38-A. Some of two cases decided in the Indian jurisdiction like A I R 1961 Guj. 93 and A I R 1959 Pb. 535 have proceeded to avoid this necessary requirement of a notification under section 4 on the strength of provisions of section

33. Section 38 does not accomplish any such feat. It comes into play only when under subsection (l) of section 38, the Provincial Government authorises any officer of any company desiring to acquire land for its purposes to exercise the powers conferred by section

4. That situation has not arisen. Even if it does the substitution permissible on the strength of section 38, subsection (2) is for the words "for such purpose" the words "for the purposes of the company" shall be substituted. The expression which can, therefore, be substituted is not public purpose, but as it does in 3rd clause of subsection (2) of section 4, to do all other acts necessary to ascertain whether the land is adapted for such purpose. It is here that the expression for such purpose has to be substituted by "for the purposes of the company". By no reasoning, the requirement of public purpose can be dispensed with, curtailed or diminished on the basis of such a reference. These two limitations being obviously there controlling the application of section 38, the decisions relied upon by the learned counsel for the petitioners and from Indian jurisdiction are of no avail.

7. It is contended that the company may acquire land for private purposes and this view has been formed on the basis of the recital in the preamble to the effect that the law provides for acquisition of land for public purpose or for the purposes of the company. This would not be a correct interpretation for the provisions of section 38-A and section 40 read with section 4 before its amendment by the West Pakistan Ordinance clearly establish the element of public purpose even though the need be of a company. For example, in section 40 it is provided that consent shall not be given acquisition for the benefit of a company unless the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the company or for the provision of amenities directly connected therewith, or that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public. All the authorities from the Indian jurisdiction which have been cited are at one in treating such requirement of a company to be a requirement for public purpose.

8. The only difficulty that arises in the cases is concerning the decision given in Mian Abdul Wahid and another v. The Collector Sheikhupura and 2 others (P L D 1973 Lah. 739) where the learned Judge has distinguished between the acquisition of land for benefit of companies simpliciter and acquisition of land for the benefit of company for a public purpose. However, therein the basis of the land acquisition law, the effect of section 4 requiring that all the acquisition must be for a public purpose were not specifically noted. Besides, even after Provincial amendment in 1969 in section 4 an acquisition made by a firm under section 38-A has to' qualify as for a public purpose. Apart from the requirements of sections 38-A and 40 of the Land Acquisition. Act the benefit available to a company under section 4 is not available to firms under section 38-A for their definition and deeming effect is restricted to Chapter VII and does not extend to section 4 of the Land Acquisition Act.

9. The effect of the above enunciation of law is that whether the acquisition is for a company or for Government it has to be for a public purpose and the element of public purpose is fully brought out by the restraining clauses contained in section 38-A and section 40 of the Lan Acquisition Act and section 4 and it is not possible therefore to avoid the compulsive effect of section

38. As the compliance therewith has not taken place, the notification under section 17, subsection (4) is without lawful authority and of no legal effect.

10. As regards notification under section 4, the objections are, on the present state of record, not tenable. The notification does mention for the purposes of section 4 by . boundaries, the land sought to be acquired. The question of fact whether there was service of the notice in the locality recedes in the background, as the petitioners have now due notice of it and proceedings are in law not taken to have gone beyond the stage of that notification under section 4.

11. The other objection seriously advanced was that the housing society does not qualify as a company for the reason that it is registered under 1925 Co-operative Societies Act and not under 1912 Act. This objection is not an impediment for the Ordinance No. VII of 1965 repealed, consolidated and re-enacted 1925 Co-operative Societies Act. The law is expressed to be one amending and consolidating the Co-operative laws. The savings were further enumerated in Ordinance No. XVII of 1966. Keeping in view the evolution and the enforcement of 1925 law, it cannot but be said to be a case of repeal and re-enactment and section 8 of the General Clauses Act will, therefore, take care of the situation. The reference in section 3, clause (e) will also naturally include a co-operative society registered under 1925 Act,

12. It appears that the objection of the petitioners that as consequential proceedings had not been taken after the notification under section 4 within the time prescribed by the instructions of the Board of Revenue, the acquisition cannot be proceeded further, was preferred before the Board of Revenue and there is no clear response from that authority. It is urged that in the meantime the petitioners had been agitating against the ac4utsi tion and at various levels their representations had been under consideration. This fact alone accounted for the delay. If in a given situation the petitioners themselves have invited adjudication on a question which has taken long then they cannot make the authorities responsible for not following the instructions which otherwise they would have.

13. In view of the discussion of the law above, these petitions are allowed. The notification under section 17, subsection (4) of the Land Acquisition Act is declared to be without lawful authority and of no legal effect, as the mandatory requirements of Chapter VII have not been complied with. The parties will, therefore, be within their rights to agitate before the authorities who are seized of the matter before it is finalised by re-course to the provisions of Chapter VII. There will be no order as to costs in the circumstances of the case. S. Q. Petitions allowed.