1980 PLP 1504 (CLC)

MUHAMMAD SARDAR KHAN, J.--Mohammad Ashraf Khan petitioner has by this writ petition, called in question the compulsory acquisition of 15 marlas of land out of Khasra No. 2588 situate in village Balakot, Tehsil and District Mansehra as being mala fide, without lawful authority and of no legal effect.

2. The facts alleged in the writ petition and reiterated by the learned counsel for the petitioner briefly stated are as follows. That petitioner is owner of land bearing Khasra "No. 2588 situate on Mansehra Balakot road; in a locality known as Banpura, at a distance of one mile from village Balakot. Respondents Nos. 7 and 8, namely Wasil Khan and Babu Gohar Rehman Khan, also of Balakot, similarly own an area of 7 kanals and 19 marlas comprising K hasra Nos. 2586, 2587 and 2616 in the same locality. Assistant Director, Animal Husbandry, Mansehra (respondent No. 6 entered into a private agreement on 4th December, 1978, with the said respondents Nips. 7 and 8 for the acquisition of the said area (7 kanals 19 marlas) for "Live Stock Extension Project at Balakot" @ Rs. 12,500 per kanal. But on 26th December 1978, said Respondent No. 6, in collusion with respondents Nos. 7 and 8, and at the back of the petitioner, acting mala fide, dropped Khasra No. 2616 from the original scheme and in its place included an area of 15 marlas out of Khasra No. 2588 belonging to the petitioner. This khasra number has fallen to his lot after a pro longed litigation of more than two decades and had been reserved by the petitioner in its entirety for construction of his residential house. Notification under section 4 of the Land Acquisition Act, 1894 (hereinafter called the Act) to this effect was got issued by respondent No. 6 through Collector, Land Acquisition, Mansehra (respondent No. 1) and Deputy Commissioner/Col lector, Mansehra (respondent No. 2) on 26th December 1978, followed by proceedings under sections 5, 6, 7 and 9 of the Act, Though petitioner was not served with notices nor the Notification was validly published or notices validly issued, as required under the relevant provisions of the Act. Petitioner filed objection on 19th June, 1979, against the acquisition of land under section 5-A of the Act but the same, instead of being forwarded to the Commissioner, who alone was competent to pass orders on the same, were dismissed by the Collector 'summarily on the same day and petitioner was not given an opportunity to be heard in person or through his pleader. Petitioner, however, again pursued his objections and submitted an application dated 16th July, 1979 to respondent No.1 for exclusion of petitioners area (15 marlas) from the scheme. This application was forwarded .by respondent. No. 1 to the Deputy Commissioner with the report that Department could revise its scheme at any time before the announcement of the Award though this application should have been forwarded to the Commissioner, for appropriate orders. The Deputy Commissioner rejected the application on 23rd July. 1979, by a short and crisp, order in the following words :- "The law can't be changed to change the compulsorily acquired land at this belated stage. Proceed with the case". And on 25th July 979, the award was announced by respondent No. 2.

3. The petitioner has asked for quashment of the entire proceedings on the grounds that (1) notices under sections 5, 6, 7 and 9 of the Act were not issued validly nor their service was effected on the petitioner in accordance with law; (2) that respondents acted mala fide in abandoning Khasra No. 2616 to tile acquisition of which respondents Nos. 7 and 8 had voluntarily agreed and in taking instead 15 marlas out of the land of the petitioner ; (3) that respondents did not stand in need of acquiring the land of the petitioner as they had already acquired 7 kanals 19 marlas froth respondents Nos. 7 and 8 of their own free volition, who, at any rate; wanted to dispose of the said area, the same being in possession of tenants who could not be ejected : (4) that petitioner had acquired this land for construction of his own residential house as he had none in Balalkot and if a portion of his land is taken from him, petitioner will not be able to make a house of his choice for him, whereas respondents could secure suitable land from other owners who had their own houses and had no such requirement as that of the petitioner ; (5) that if objections under section 5-A of the Act had been forwarded to the Commissioner the latter could have excluded the land of the petitioner, thus the whole proceeding were male fide, violative of the principles of natural justice and without lawful authority and jurisdiction. Two further grounds taker in the writ petition are that the Award was announced on 25th July, 1979 whereas the Notifications under sections 6 and 7 of the Act were published in the Official Gazette on 6th August 1979, thus subsequent proceedings including award were ultra vires and that, as a matter of fact, `public purpose' for which the land had allegedly been acquired could not be achieved because the natural route of the entire livestock passes at a distant of about. 1 miles away from this site across the Balakot bridge, thus the acquisition was not for a `public purpose'. It was also requested that the Court may n public interest, appoint a Commissioner, at the cost of the petitioner, in order to verify the correctness of his petition.

4. When this petition came up- for hearing in motion before us for the first time on 12th August, 1979 we thought it appropriate, in view of the averments made therein, to call for comments from respondents Nos. 2 and 4 and also directed that `status quo' be maintained in the meantime.

5. In his comments, Deputy Commissioner/Collector; Mansehra has not denied that respondent No. 6 had entered into negotiations resulting intro an agreement with the owners (respondents Nos. 7 and 8) for purchase of their land comprising Khasra Nos. 2616, 2586 and 2587 but this was done by him without the prior sanction of the Revenue Commissioner of the Division as requited under paragraphs 51 :45 of the Revenue Circular No.

54. These paragraphs may as well as quoted here :- "

51. Negotiations for the acquisition of land by private agreement may be conducted by the officers of any Department desiring to acquire the land, but preliminary notification under section 4 is essential, and in every case the permission of the head of the Department must be obtained at both the opening and concluding of the negotiations.

52. Officers acquiring land by private negotiation should bear in mind the necessity of thoroughly examining the vendor's title during the period of limitation i.e., twelve year. Documents supporting the title should be examined in original. In all cases where the title is in any way open to doubt the land should not be acquired under the Act.

53. No agricultural land can be acquired by private negotiation for any Department of Government without the Revenue Commissioner's sanction.

54. When acquiring land by private negotiation the acquiring officer should insist on the vendor-- (1) handing overall title deeds relating to the land. (2) executing and registering a deed of sale, on stamped paper in favour of Government.

55. On compliance with these terms payment may be made. At the time of making payment the acquiring officer should prepare and send to the account officer concerned a Statement in the form given in the appendix." Besides, the land was agricultural land and was in possession of tenants who could not be ejected if it had been purchased- by private negotiation. Keeping these things in view, therefore, the agreement was cancelled in the best interest of the public and the case was submitted by respondent No. 6 for necessary proceedings for compulsory acquisition under the Land Acquisition Act. Consequently proceedings for compulsory acquisi tion of the land bearing Khasra Nos. 2586, 2587 and ,2588/1 measuring 8 kanals were initiated. Khasra No. 2616 was delete,) for the reason that it was situated on the western side of the road and Kasra No. 2688/1 was included instead because it is adjacent to the remaining land acquired, so that it should be a compact plot. ' The remaining area of Khasra.No. 2588 was left out and if petitioner wanted to construct his residential house the said area of 2 kanals and 5 marlas was more than sufficient for this purpose, particularly when the front portion by the said area abuts on the road the Deputy Commissioner/Collector, Mansehra also forwarded alongwith is comments Aks Shajara Kishtwar in which the land acquired as well as the remaining area of 2 kanals and 5 marlas excluding 15 marlas acquir ed, is shown. Perusal of the said of Aks'. shows that what has been stated by him is perhaps incontrovertable.

6. It, has also been mentioned by respondent No: 2 in the comments that the notification under section 4 of the Act, was issued by him on 30th December, 1978 and the same was published in the official Gazette on 12th April,

199. A Photostat of this notification is enclosed with the comments marked as Annexure `C'. It is said that the publicity amongst the owners and in the locality was also made through 'Revenue Staff as required by law and Notification No. 7616/20/Revenue dated 31st March. 1979 under section 5 of the Act was issued by the Commissioner, Nazara Division and this was also published in the official Gazette on 15th May, 1979 (Annexure `D'). He has also reported that the publicity amongst the interested persons and in the locality was made through beat of drum as well and to prove this fact a copy of the report of the Patwari Circle, Balakot (Annexure `E') has been annexed with his comments. It is said that during the period of one month as required by law no objection from the interested persons was received in his office and therefore notification under section 6 dated 25th May, 1979 was issued by Commissioner and after its publication the persons interested in the matter were summoned through a notice under section 9 of the Act. This notice was served upon the parties through Tehsildar, Mansehra. All the person interested appeared before the Land Acquisition Collector on the date fixed, but the petitioner was absent and was reported by the Patwari Circle to be away from his home in connection with `Tabligh'. He was, however, inform ed on his return and on 19th June, 1979, petitioner moved an application in person against acquisition of 15 marlal of land reflected by Khasra No. 2588/1. The Land Acquisition Collector Mansehra issued a notice under section 9 of the Act to the petitioner asking him to appear before him on 17th July, 1979. The petitioner appeared on the said date and gave another application under section 5-A of the Act. The Collector after hearing him submitted a detailed report to the Deputy Commissioner 23rd July, 1979. Since both the applications by the petitioner were not made in time (they were moved 3 or 4 months after) therefore they were rejected. It is said that after completion of all the necessary legal formalities the award was announced on 25th July. 1979. It is asserted that all the notifications etc. under sections 4, 5, 6 and 9 of the Act were issued by a competent authority from time to time and were duly publish ed in the Official Gazette and wide ,publicity in the locality was also given to them. Respondent No. 2 has controverted the averments made in the petition and has also entered a caveat as regards the grounds on which the writ petition has been moved. More or less similar comments have also been given by respondent No. 4 namely the Director Animal Husbandry, Peshawar.

7. It is in these circumstances that we are called upon to declare the acquisition proceedings as regards 15 marlas to be male fide, without lawful authority and of no legal effect. In doing that we would like to take up the last objection of the petitioner first, that the acquisition of the land is not for a "Public purpose". The determine this, petitioner has gone to the extent of even asking us, to appoint a Commissioner public interest" to verify the correctness of his stand. It is like asking us to sit in judgment, in constitutional jurisdiction, over the decision of the Government whether the purpose for which, land in question has been acquired is "public purpose" or not. Now the expression "public pur pose" has not been defined anywhere. We believe that it is not capable of a precise and exact definition. 1n fact it would be futile to embark upon such an exercise. Broadly speaking however any purpose which aims at promoting general welfare would be a public purpose. The record shows that the land has been acquired for the purpose of' construction of residential and office accommodation for the Headquarter Staff of the pro ject, the main object of which is primarily to provide veterinary aid through mobile units to the migratory livestock owners who take their stock to high Alpine pastures for summer grazing. These pastures are situated on heights and are cut off from the veterinary facilities available in the valley. Besides when this (stock descends on the plains after the summer grazing period the staff as stationed at this "LIVE STOCK EXTENSION PROJECT" will look after this precious national wealth here, too. The Government therefore, felt that the Headquarter of the Project at this site was imperative and being in the vicinity of Balakot would serve the purpose of the scheme well.

8. How if this cannot be a public purpose then we are afraid it would be difficult to conceive of any other purpose as a public purpose. We have examined this question though it was; not necessary to do so because it is not for us but the Government to decide what is a public purpose". And when the Government. had decided it; as it has done in this case, then we must presume that Government was possessed of all the necessary facts which induced it to declare that purpose to be a public purpose. There fore in the absence of some very strong and compelling reasons, it would be well nigh impossible for us to enter into this controversy. This Court, therefore, cannot sit in appeal over the judgment of the Government as to whether the purpose for which land has been acquired is public purpose or not. Even otherwise the purpose for which. the !and in question has been acquired and which we have discussed above would show that it is indeed a laudable public purpose and if this cannot be (a public purpose) then nothing can be a public purpose. The request for appointment of a Commissioner, in the circumstances, would seem to be untenable. But .if we had appointed one, we would have done it in support of the validity of the action taken by the public authority and not otherwise. And this reminds us of the remarks of their Lordships of the Supreme Court in the case The Chairman, East Pakistan Railway Board, Chittagong and an other v. Abdul Majid Sardar, Ticket Collector (P L D 1966 S C 725) and these we quoted with reverence as under :

"Acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act and perform their functions examin ed and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare, them to be of no legal effect." And this was reasserted' with greater force in the case of Lahore Improvement Trust, Lahore v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (P L D 1971 S C 811). In this view of the matter, therefore, the contention is clearly unacceptable.

9. The next is the question of `male fide': Now no one can dispute that a male fide act is by its very nature an act without jurisdiction. Malafide act literally would mean an act done in `bad faith', that is to say that the act is done by a person out of personal motives, either to hurt the person against whom it is done or to benefit one self. An action taken it. Colourable exercise of rowers or in fraud of law would also he a mole fide artier But it cannot also be disputed that any one who pleads mala fides must plead so with particularity. Therefore in order to make out a case of male fides, petitioner must establish that a small portion of his land was taken not for the purposes authorised by the law but for the personal agrandisement of the person authorised to make the order of acquisition or the person so authorised to take action bore any personal grudge against him. And we must also make it clear that the onus to prove mala fides lies entirely on the person alleging mala fides because to there is a presumption of regularity attached with all official acts, and until that presumption is rebutted the action cannot be challenged merely upon vague allegation of mala fides. Judged in this contest, we see that no personal motive has been alleged by the petitioner against the acquiring authority. Petitioner has also failed to prove that the area was not taken for a public purpose. There is only a general albiet vague allegation that this was done by the authorities in collusion with respon dents Nos, 7 and

8. Two reasons have been given for the same. Firstly that respondent No. 6 had initially entered into a private agreement with the aid respondents foe acquisition of Khasra Nos. 2586, 2587 and 2616 but after Khasra No. 2616 was sumptuously dropped. from the scheme and instead an area of 15 marlas out of his land was included which Khasra No. he had reserved for construction of his residential house. This argument, to say the least is, on the face of it, misconceived. It is not denied that the land was in possession of the tenants and in case acquisition had been resorted to on the basis of a private agreement then the authorities would not have been able to take possession of the land and the very purpose for which the land was being acquired would have been frustrated. Therefore, the entire agreement was cancelled. . And there was another reason for this also. It does not seem to have been negotiated in accordance with the provisions of paragraphs 51--55 of the Revenue Circular No. 54, which paragraphs we have already quoted hereinabove. Besides Khasra No. 2616 was excluded because it is situated on the Western side of the road whereas Khasra No. 2588/1 is adjacent to the other two Khasra Numbers, namely 2586 and 2587, thus making the land acquired as one compact plot. What are the mala fides involved in it ? And if there was any question of collusion with respondents Nos. 7 and 8, then why their remaining two khasra numbers having much larger area than the one given up, were not left out also. Again the authorities contended themselves by taking barest minimum area of 15 marlas from the land of the petitioner, leaving the remaining area of 2 kanals and 5 marlas for him. If there was any personal motive involved they would have acquired the entire khasra number and not 1/4th of it. Again they left out that area of the petitioner which abuts on the road. Would any one call it mala fide action ? So judged from whatever angle we may, we find that the allegation of mala fides is wholly unfounded. The area of 2 kanals and 5 marlas should be more than enough for the petitioner to build his own house, if he so desires. This contention is, therefore, also repelled being without any substance whatever.

10. Another grievance of the petitioner is that Notification under section 4 of the Act was not validly published nor petitioner was served with notices under sections 5, 6, 7 and 9 of the Act. We must confess that we have failed to understand as to how Notification under section 4 of the Act can be said to have not. been validly published. Nothing has been pointed out to this effect by the learned counsel for the petitioner either. A photostat of the Notification under section 4 has been placed on record by respondent No.

2. It was published in the official Gazette on 30th December, 1978. We have discerned nothing wrong with the. said notifica tion. It contains all the necessary requirements which should be there. Therefore it would not be possible for us to hold, in the absence of anything to the contrary, that the said notification was not validly published. And so is the case with the proceedings under other provisions of the law mentioned by the petitioner. The respondents have asserted and we have no reason to doubt it nor any .has been shown to us by the petitioner, that, public notice of the substance of such notifications was also given in the locality. The petitioner had thus been put sufficiently on guard and it was thereafter in his own interest to keep in touch with the proceedings. It was said that Notification under section 6 was published even before Notification under section 4 of the Act. This is, however, not true. The notification under section 6 was published in the official Gazette on 25th Inlay, 1979 whereas section 4 notification is dated 30th December, 1978 i.e. much earlier that 25th May, 1979. Notification under section 5 of the Act was published on 31st March. 1979 and objections similarly invited within the prescribed period If for certain reasons petitioner has not been able to come and file his objections in time it is for no fault of the authorities. It is true that on his return to the town, he did file objections under section 5-A of the Act but that was sometimes in the later half of June or July, 1979, i.e. fairly beyond the prescribed period of 30 days. It may not be proper for the Collector to reject these objections, instead of forwarding the same, after having heard the petitioner, to the- Provincial Government or the Commissioner but they were admittedly barred by time. He was under a legal obligation to forward such objections as were filed within 30 days after the issuance of the Notification under section 4 and not those filed at any time and at all times to come. In fact on or about the time petitioner filed his objections under section 5-A of the Act, Award by the Collector had been made. It is an admitted position between the -parties that the Award was announced by the Collector on 25th July, 1979. At any rate, we do pot in the circumstances, consider it to be a fit case for. interference on this score. The writ petition is thus without any merit. The same is therefore dismissed in limine. And the `status quo' order made earlier on 12th August, 1979 exists no more now. M. Y. M. Petition dismissed.