P L D 1983 Lahore 355 (PLP)

Saeed Ahmad Khan v. The Federation of Pakistan and another P L D 1974 S C 151 ref. Maulvi Siraj-ul-Haq for Petitioners. G. S. Khan for Respondents Nos. 1 and

2. Bashir Ahmad Ansari for Respondent No.

3. Dates of hearing : 23rd, 26th, 27th, 28th February and 1st March, 1983. ??????????????????????? JUDGMENT This writ petition under Article 9 of the Provisional Constitution Order, 1981, calls in question the action of the respondents in acquiring about 100 acres of cultivable land, situated in village Dandot- for providing raw material to be consumed in the preparation of cement by the State Cement Corporation of Pakistan Ltd., for its Dandot Project.

2. It may be pointed out that Raja Muhammad Amir petitioner and fourteen others filed this writ petition on their own behalf, as well as, on behalf of other land-owners affected by the impugned land acquisition. The respondent-Corporation objected to their locus standi to represent all the land-owners. In consequence, the petitioners moved C. M. No. 625/C-82 for impleading 169 other affected land-owners as petitioners. This application was allowed on 28-11-1982. Subsequently, by interim order dated 21-12-1982, the petitioners were directed to pay separate court-fee of Rs. 100 each, in that, every petitioner was aggrieved in his own right in respect of his holding. Notwithstanding the said order, one hundred and forty-three writ petitioners failed to make good the deficiency. Consequently, try order dated 9-2-1983, the defaulters were deleted from the array of the petitioners.

3. The Collector, Jhelum District, under section 4 of the Land Acquisition Act - (No. I of 1894) (hereinafter called the Act) issued a notification No. 191E-G/DRA, dated the 15th March, 1979, published in the Punjab Gazette, dated the 4th April, 1979, indicating that the land mentioned therein was likely to be required to be taken by the Government at the expense of State Cement Corporation of Pakistan Ltd. for its Dandot Cement Project for the purposes of construction and setting up of cement factory,, the manufacture of which shall be useful to the public for construction of roads, quarrying and transportation of raw material, installations connected with and necessary for the running of the cement factory and for the erection of the dwelling houses for the workers and . other employees and .for providing amenities to the workers and employees of the Project. This notification relates to acquisition of land situated in three revenue estates namely, Kuliwal, Churan and Dandot. There were some errors in the description of certain Khasra -numbers which were later rectified by separate notifications. The dispute in this petition relates to acquisition of land measuring about 1,391 Kanals in Mauza Dandot alone. It is stated at the Bar by Mr. Bashir Ahmed Ansari, Advocate, that the area owned by the petitioners comes to about 416 kanals only and that the petitioners are not the sole owners of their respective holdings, but are merely co-sharers and the petition has not been filed by all the co-sharers. Maulvi Siraj-ul-Haq, learned counsel fur the petitioners has not placed any documentary evidence to show with particularity and Khasra numbers owned by the petitioners and the extent of the area. The said notification was followed by a declaration under section 6 of the Act embodied in the notification of the 3rd November, 1980 issued by the Commissioner, Rawalpindi Division, Rawalpindi and published in the issue of the Punjab Gazette, dated the 26th November, 1980 (Annexure A). The provisions of sections 5 and 5-A of the Act were dispensed with under subsection (4) of section 17 of the Act.

4. Subsequently, the Governor of the Punjab , also entered into an agreement dated the 3rd November, 1980, with the State Cement Corporation of Pakistan Ltd. This agreement was published in the Punjab Gazette, dated 19-10-1980 (Anexure `G'). Para. 3 of this agreement reads thus : "And, whereas, the Government of Punjab being satisfied that the land is needed by the corporation for its Dandot Cement Project for the purpose of construction and setting up a cement factory the manufacture of which shall be useful to the public, construction of roads, quarrying and transportation of raw materials, installation connected with and necessary for the running of the cement factory and for the erection of the dwelling houses for the workers and other employees and for providing amenities to the workers and employees of the Project, has consented to acquire the land on behalf of the corporation."

5. Maulvi Siraj-ul-Haq, ,learned counsel for the petitioners contends that the impugned acquisition . proceedings in so far as it. relate to quarrying, is ultra vires on the following grounds : (i) The State Cement Corporation of Pakistan is not a Government department but a `Company' within the meaning of section 3 (e) of the Act, therefore, the procedure provided in Part VII thereof had to be resorted to in order to lawfully acquire the land, in dispute, for its purposes, inasmuch as, in terms of the Proviso to subsection (I) of section 6 of the Act, no valid declaration can be made unless the compensation to be awarded for such property is to be paid by al Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. The precise submission is that in the instant case the cost is to be borne by the respondent Corporation itself and not by the Government, therefore, failure to comply with the aforesaid provision has rendered the acquisition proceedings coram non judice ; (ii) Part VII of the Act is a complete Code by itself for satisfying the conditions for setting into motion a machinery to acquisition beginning with section 6 and ending with section 37 thereof. Thus two-fold conditions for setting that machinery in motion namely, consent 'of the Commissioner and the execution of the agreement must be satisfied. In the instant case, it is submitted that the agreement (Annexure G) does not indicate that the land has been acquired for public purposes, therefore, the impugned acquisition is illegal ; (iii) The acquisition of the land, in dispute, for quarrying cannot be brought within the ambit of cl. la), cl. (aa) or cl. (b) of section 40 of the Act ; , (iv) The acquisition of the disputed land is violative of cl (c) of section 40 of the Act, inasmuch as, very fertile and cultivable land belonging to the petitioners is being acquired although clay free from all impurities and of the requisite standard is available from other lands lying in the vicitinity which are not cultivable and that in any case, an area of 1,858 kanals has already been taken on lease by the respondent-Corporation from some of the petitioners and others for this purpose ; and (v) The impugned acquisition is mala fide, inasmuch as, according to the report dated 19-1-1982 (Annexure `D') of the Deputy Chief Chemist of Pakistan Mineral Development Corporation, an alternate site of requisite standard is available for obtaining raw materials.

6. In support of his first contention, reliance is placed on State of Punjab and others v. Raja Ram and others (A I R 1.981 S C 1694) wherein it was held that the Food Corporation of India, created by section 3 of the rood Corporation Act, 1964 for which the land was acquired was a "company" within the meaning of section 3 (e) of the Act and not a Government department, therefore, the compliance of provisions of Part VII of the Act' had to be made in order to lawfully acquire any land for its purposes, It was further held that a Government department had to be an organisation which was not only completely controlled and financed by the Government but had also no identity of its own and the money earned by such a department went to the exchequer of the Government and losses incurred by the department were lossess of the Government. The Food Corporation, was held to be an autonomous body capable of acquiring, holding and disposing of property and having the power to contract. It could sue or be sued by its own name and the Government did not figure in any litigation to which it is a party, and the mere fact that one-third share capital was provided by the Central Government under section 5 of the F. C. Act would at best lead to the conclusion that the Corporation was an agency or instrumentality of the Central Government but that conclusion would not lead to the further inference that the Corporation was a Government Department. A few other decisions of the superior Courts of India in support of this proposition were cited.

7. Maulvi Siraj-ul-Haq submits that in the instant case the respondent Corporation is a private limited company which is a distinct and separate entity from the Government. It is capable of suing or being sued by its own name, therefore, the mere fact that it is run by the State as a Commercial Organisation would not ipso facto convert it into a Government Department, in the light of the ratio laid down by the Indian Supreme Court in the aforesaid case. On the other hand, Mr. Bashir Ahmad Ansari, learned counsel for the respondent Corporation, placed reliance on the Division Bench judgment of this Court reported as Ch. Khushi Muhammad v. Commissioner, Multan Division, Multan and 3 others (P L D 1965 (W. P.) Lah. 25) wherein it was held that the acquisition of land for the Sui Northern Gas Pipelines Limited for executing work in connection with the laying of pipeline of gas having onethird of its capital by the Government of Pakistan from the Public Revenue was acquisition not for the benefit of a company simpliciter but for the public purpose. And the provisions of section 17 (4) of the Act were held to be properly invoked to dispense with the application of sections 5 and 5-A of the Act, before execution of agreement by the said Company under section 39 thereof. Mr. Bashir Ahmad Ansari also relied on the dictum laid down in Mian Abdul Wanid and another v. The Collector, Sheikhupura and 2 others (P L D 1973 Lah. 739) to contend that even if in a given case, the land acquired is likely to prove useful to the public it would fall within the ambit of public purpose. Reliance was also placed on the dictum in Mohsan A. Reman and another v. Federal Government and another (P L D 1982 F S C 233) that the setting up of the industry in the country is for a public purpose.

8. Mr. Bashir Ahmad Ansari further submitted that the owing to the shortage of cement in the country and by virtue of Economic Reforms Order, 1972, the Cement Industry in the country having been taken over by the Central Government, it decided to establish one of its cement Projects at Dandot. It was financed by the Federal Government out of its own funds and from a loan obtained from the Government of Japan for this purpose. He also drew my attention to Memorandum and Articles of Association of the respondent-Corporation (Annexure 'R'). The authorised capital of the Company is rupees one thousand million and the Secretary, Additional Secretary and Joint Secretary of the Ministry of Production and Presidential Affairs, Government of Pakistan, Islamabad, are its subscribers. Reference was also made to the certificate dated 10-11-1982 (Annexure 'S') issued by the Joint Secretary, Ministry of Production, Government of Pakistan, Islamabad, certifying therein that the respondent-Company is wholly owned and controlled by the Ministry of Production, Government of Pakistan, Islamabad and the Dandot Cement Project is one of the Projects which is being installed at Dandot, Tehsil Pind Dadan Khan, District Jhelum by the S. C. C. P. The project is wholly financed from the public funds including foreign loans. The attention of the Court was also drawn to a memorandum of the Finance Ministry No. 3 (21)-G. M. 1111'73, dated 19-4-1979, Annexure'A' to the written statement regarding grant of a loan equivalent to Yen 10.500 million for financing Dandot and Thatta (Makli) Cement Plants under the Japanese Project Aid.

9. It is true that in view of the ratio laid down in A I R 1981 S C 1964, the respondent-Corporation cannot be treated as a Government Department but the Division Bench of this Court has taken a contrary view and a distinction has been drawn for the acquisition of land for the benefit of a company simpliciter and the company which is being financed and controlled by the Government out of its public revenues. Respectfully following the ratio laid down in Khushi Muhammad's case, I hold that the impugned acquisition was for a public purpose and, therefore, it was not necessary to resort to the provisions of Part VII of the Act.

10. As regards the second contention, the precise submission of the learned counsel for the petitioners is that the acquisition is bad in law, in that, the Agreement merely stated that the land is needed by the respondent Corporation- for its Dandot Cement Project for the purposes mentioned therein, which shall be useful to the public and not for a public purpose. The plea is misconceived and the objection is too technical. The substance of the Agreement as a whole is to be looked into and not by picking and choosing bits and pieces thereof for the purposes of considering as to whether the acquisition was for a public purpose. The mere fact that the phrase `useful to the public, instead of 'public purpose' was used in paragraph 3 of the Agreement would not alter the nature of the need which has .been stated with particularity in the Agreement, as well as, the notification. The case The State of West Bengal and others v. P. N. Talukdar and others (AIR 1965 S C 646) relied upon by Maulvi Siraj-ul-Haq in respect of this contention is distinguishable. In that case three purposes were specified in the notification under section 6 for which the land was acquired i.e. construction of staff quarters, hostel building. and playgrounds. The agreement between the State and the Mission did not set out the terms on which the public was entitled to use the work. However, the Mission failed to place any material or explanation before the Court as to what was the work for which staff-quarters were required within clause (aa) of section 40 of the Act. The agreement between the State and the Mission also did not set out the terms on which the public was entitled to use the work. It was under these circumstances that the notification was struck down. In the instant case, the need for which the land is acquired has been set forth in detail which appears to be for a public purpose. In The State of Bihar v. Sir Kameshwar Singh (A I R 1952 S C 252) the phrase `public purpose' was defined as a purpose which furthers the general interests of the community as opposed to the particular interest of the individual. It was held, "the proper approach is to take the scheme as a whole and then examine whether the entire scheme of acquisition is for a public purpose. It is an entirely wrong approach to pick out an item from a scheme and say that that item is not supported by a 'public purpose." "The phrase `public purpose' has to be construed according to the spirit of the times in which particular legislation is enacted." I In Jaishi Ram Goel and others v. The State of Punjab and others (A I R 1962 Punj. 177), it was held that the presumption as to the correctness of public purpose is rebuttable and, is subject to examination by the Court. In this case also a distinction was drawn for acquisition for Company simpliciter and for Company for public purpose. Furthermore, it was held that establishment of industry for sanitary wares would be for a 'public purpose' and the community would benefit by the set up of such a factory. In V. Harihara Prasad v. K. Jagannadham and another (A I R 1955 Andh. Pra. 184), it was held that where the members of the community are to be benefited by the construction of the temples, the acquisition for the purpose of construction of the temples must be held to be a public purpose. It was further held in this case that where the acquisition was made for the purpose of a Company it was not necessary that the compensation should be met wholly or partly out of public revenues. In Muhammad Akbar and 7 others v. The Commissioner, Rawalpindi Division and 2 others (P L D 1975 Lah 747) the term 'public purpose' was defined as under : "The classical definition of a 'public purpose,' is 'an object or aim, in which the general interest of the community as opposed to particular interest of . individuals, is directly and vitally concerned.' This definition knocks out from the bottom the case of the Land Acquisition Authorities because the object of acquiring the disputed lands is not such in which the general interest of the community is directly and vitally concerned." In Muhammad Ashraf Khan v. Revenue E. A. C. and 7 others (1980 C L C 1504), it was held that in terms of section 4 of the Act, the term "public purpose' broad speaking means any purpose aiming at promotion of general welfare and whether such a purpose amounts to public purpose is a matter within the exclusive domain of the Government. Keeping in view the definition. of term 'public purpose' as defined by the Superior Courts of this country and l decisions from Indian jurisdiction, I am inclined to hold that the, acquisitio In of land for Dandot Cement Project. wherein many works, specified in the notification and the agreement, shall be carried out including excavation ofl clay needed for the manufacture of cement are for 'public purpose'. The Court can take judicial notice of the acute shortage of cement in the country and the acquisition of land by the Government in an effort to increase the E production of cement to narrow down the gap between the demand and supply is in national interest. .The material placed on the record by the respondent Corporation also lends support to this conclusion. Furthermore, the land has, not been acquired for the excavation of clay simpliciter. In any event, the raw material for the purpose of manufacture of cement if imported would be too costly and if by excavation of clay the cement is made available t the community at competitive rate, the people at large will be benefited by such a process. In these circumstances, the declaration made by the Government under section 6 of the Act would raise a presumption that the acquisition was being made for a `public purpose'. The mere fact that the Dandot Cement Factory had been allegedly acquiring its clay for the last so many years without acquisition does not mean that the acquisition of the land for this purpose was outside the purview of `public purpose.

11. As regards the third contention relating to the interpretation of section 40 of the Act. reference may be made to Pramatha Aratha Talukdar v. The State of West Bengal and others (A I R 1963 Cal. 554), wherein it was held that the word `work' in the expressions 'building or work' and 'industry and work' ire section 40(1)(aa) of the Act need not be read in an ejusdem generis sense. The word 'work' appears to have been used to mean other constructions or works which are neither buildings nor industrial works."- Maulvi Sirajul Haq, however, took up the plea that the judgment delivered by the Calcutta High Court was set aside on appeal and the judgment of the Appellate Court was upheld by the Indian Supreme Court 3n A I R 1965 S C

646. The abovequoted judgment however. shows that the interpretation of clause (aa) of section 40 of the Act was not disapproved by the Indian Supreme Court, as is apparent from paragraph 14 of the judgment at page

653. The relevant portion reads thus . "The next question. then is whether construction of staff-quarters can be brought within the ambit of clause (a) or clause (aa). It is urged that it can come under clause (aa) which provides that acquisition is needed for the construction of some building or work for a Company which is "engaged or is taking steps .for engaging itself in any industry, or work which is for a public purpose.. It is urged that the Mission is a Company. Staff-quarters are obviously buildings. The question however is whether the Mission is engaged or is taking steps for engaging itself in a work which is for a public purpose. In this connection it is urged that the word 'work' used in clause (aa) is much wider than the word 'industry' used in the same clause, and that if the Mission is engaged in any work which is for a public purpose and the land is required for staff-quarters in connection with that work, the case would be covered by clause (aa). We do not think it necessary for present purposes to decide whether the word 'work' used in clause (aa) in the phrase 'industry or work' refers to some kind of productive activity which would result in production of goods' useful to the public. We shall assume it is wider. But the mission did not lay any foundation for the argument that the case was covered by clause (aa) in its reply. If the case is to be covered by clause (aa) and the word 'work' in the phrase "industry or work" has a wider meaning, it was the duty of the Mission. to explain what was the work within this wide meaning for which staff-quarters were required, so that the Court may be in a position to . judge whether the work was of such a nature as to come within the words 'any industry or work which is for a public purpose. We do not know for what particular work the staff-quarters were required and, therefore, it is in our opinion impossible to accept the contention on behalf of the Mission that the case is covered by clause (aa)."' Sufficient material has been placed on record to show that the land was acquired for a public purpose and, therefore, even if the provisions of Part VII of the Act had, to be resorted to acquire the land, in dispute, the case is covered by section 40 of the Act.

12. I am also inclined to hold that the word `work' used in clause (aa) of section 40 has been used in the widest term. The scope has been enlarged and not controlled by the addition of clause (aa) which was introduced into the principal Act by section 3 of the Land Acquisition (Amendment) Ordinance (I of 1965). Such an amendment was also made India in the Land Acquisition Act, in 1962. As a result of this amendment, every .acquisition for a Company can now be made for the construction off some building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose. In the instant case, the land was acquired for the construction and setting of a cement factory, therefore, in keeping with the spirit of times under which legislation was enacted, any work necessary for the running of the cement factory right from the stage of excavating clay to the ultimate sale and disposal of manufactured goods and all matters connected therewith would fall within the ambit of word "work" as used in clause (aa). It is, therefore, difficult to hold .that quarrying was not necessary for the running of cement factory and is. neither covered by clause (aa) nor is for a public purpose.

13. The fifth contention is again devoid of any force in view of the certificate issued by the Land Acquisition Collector (page 15 of the written statement) testifying therein that the land was reasonably required for the setting up of a cement plant. It is for the Government to be satisfied that the land proposed to be acquired is likely to prove useful to the public or is for a public purpose. The wishes of the land-owners are wholly irrelevant in this respect. Furthermore, the question of suitability of the site is not f open to judicial review and this Court in the exercise of constitutional jurisdiction is merely concerned to see as to whether the competent authority had: acted bona fide in the discharge of his statutory duties and as to whether there was any material upon which the satisfaction of the acquiring authority with regard to the necessity and expediency of the acquired land could have been founded. In the instant case, this requirement is fully satisfied. This Court is, therefore, not concerned to substitute its judgment for the selection of site, as it had no power to sit in appeal over the action of the acquiring authority. Additionally, a part of the impugned notification has already been acted upon and some of the petitioners who were allegedly adversely affected were deleted from the array of the petitioners on their own accord. I am, therefore, not inclined to exercise my constitutional jurisdiction for the benefit of the petitioners as the overwhelming affected land-owners have no objection to the impugned acquisition proceedings.

14. The plea of mala fide is ex facie untenable in law. Suffice it to say that the mere fact that at another alternate site .deposits of clay in the same vicinity are allegedly available does not per se render the acquisition proceedings mala fide. Furthermore, the respondent-Corporation has specifically disputed this question of fact and took up the plea that the clay deposits in the area were surveyed by Japanese experts in collaboration with the Pakistani experts and after, carrying out scientific investigations, calculations and making analysis by advanced methods, chose the land, in question. Its any case, this disputed question of fact cannot be examined in the exercise of constitutional jurisdiction. Reliance placed by Maulvi Siraj-ul-Haq on the) dictum in Murree Brewery v. Pakistan (P L D 1972 S C 279) is net attracted to the present case.; In Murree Burwery's case, the acquisition proceedings were held mala fide under the following circumstances : "(i) Different reasons given for the acquisition of the property; (ii) The Master Plan not showing that the land occupied by the property to dispute is earmarked for setting up the Presidential Secretariat ; (iii) No scheme framed in accordance with the provisions of Ordinance; (iv) The- acquisition of the property when it was already under requisition and in use for the same purpose ; (v) The unseemly bury in the process of acquisition." In the instant case, it cannot be held that the acquisition proceedings were mala fide merely because the petitioners' land was acquired instead of acquiring alternate land allegedly of the same standard. The question of malafide raised in the petition does not fulfil the test laid down in Saeed Ahmed Khan v. The Federation of Pakistan and another (P L D 1974 S C 151), wherein it was held that the allegation of mala fide must be pleaded with particularity. No enquiry is to be launched by the Court merely on the basis of vague and indefinite allegations, nor should a person be allowed roving enquiry into the files of the Government for the purposes of fishing out a case. The onus lies entirely upon the person alleging mala fide. The petitioners have failed the discharge the onus. Therefore, their plea of mala fide cannot be sustained. For the foregoing reasons, the writ petition fails and is hereby dismissed with no order as to costs. M. Y. M.???????? Writ Petition dismissed. ???????????