P L D 2002 Supreme Court 706 (PLP)

JAVED IQBAL, J.‑‑‑This petition for leave to .appeal is directed against judgment dated 19‑7‑2001 passed by learned Lahore High Court (Rawalpindi Bench) whereby the writ petition preferred on behalf of petitioner challenging the acquisition of land measuring 4 Kanals, 10 Marlas in Khasra No.92/1 situated in village Maldev, Tehsil and District Jhelum has been dismissed.

2. Precisely stated the facts of the case are that land in dispute was acquired by the Government of Punjab through the Land Acquisition Collector after completion of necessary formalities as enumerated in the Land Acquisition Act, 1894 (hereinafter referred to as the Act) for the provision of Fruit and Vegetable Retailers Market which was challenged by the petitioner by way of writ petition which has been rejected vide judgment impugned, hence this petition.

3. Heard Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court at length on behalf of petitioner who mainly contended that the petitioner could not have been deprived of his property in view of the provisions as contained in Article 24 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) as the land in dispute was acquired arbitrarily and in violation of the fundamental rights guaranteed by the Constitution and thus the acquisition being unlawful and ultra vires of the Constitution is liable to be declared unlawful un‑Constitutional and without any legal effect. It is urged emphatically that the land was acquired for the benefit of some private persons which is against the policy of law as enshrined in the Act. It is also pointed out that no public purpose was available for acquiring the land in question which aspect of the matter escaped notice of the learned High Court resulting in serious miscarriage of justice. It is also argued that the provisions as contained in section 18 of the Act can simultaneously be invoked with that of the Constitutional jurisdiction in the absence of any legal bar.

4. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of the Act. We have also examined the judgment impugned. It is an admitted feature of the case that Notification No.6713‑G/DRA, dated 20‑10‑1994 was published in the Punjab Weekly Gazette dated 26‑10‑1994 for the proposed acquisition of land in question followed by another Notification bearing No.M‑VI 314/AC/274 under section 5 of the Act duly published on 18‑1‑1995 in the Punjab Weekly Gazette whereby objections were invited from the interested persons. It is worth‑mentioning that no objection whatsoever was filed by the petitioner for the reasons best known to him which could have been filed conveniently at opportune time. The notification under section 6 was also got published by the Commissioner, Rawalpindi Division on 27‑2‑1995 after completion of formalities as envisaged under sections 4 and 5 of the Act. The land was finally acquired on 27‑2‑1995. The petitioner remained mum and no action whatsoever was taken for the redressal of his grievances for about seven months after the publication of notification under section 5 of the Act. A writ petition was filed on 17‑8‑1995 which was dismissed. It is worth mentioning that by‑invoking the provisions as enumerated in section 18 of the Act a reference has also been 'filed by the petitioner to get the compensation enhanced which is demonstrative of the fact that the real grievance of the petitioner is not acquisition of land but improper compensation.

5. There is no denying the fact that land in question has been acquired for public purpose as is indicative from notification dated 20‑10‑1994 issued under section 4 of the Act which makes it abundantly clear that the land was acquired for the construction of Fruit and Vegetable Retailers Market in village Maldev, Tehsil and District Jhelum. By no stretch of imagination can it be inferred that the land in question was not acquired for public purpose and that its main object was to give benefit to a few private retailers. It is well‑entrenched legal position that "a requisition can be for public purpose even though it is given to an individual or group of individuals. If the object of such person or persons is to have the land for the immediate benefit of public, it can be held to have been taken for a public purpose. If, however, the benefit to the public is only prospective, remote or incidental, the purpose is not public. Contrarily if the object is the benefit of the public is direct and immediate and some one derives some benefit incidentally or remotely the purpose is a public purpose". (Razab Ali v. The Province of East Pakistan PLD 1959 Dacca 115; Ramaswami v. Secretary of State AIR 1931 Madras

361. We have absolutely no doubt in our mind that the provision of Fruit and Vegetable Retailers Market is in the ultimate interest of public at large.

6. It is pressed time and again that the acquisition of land in this case was due to the highhandedness of the then Governor of Punjab and is also in violation of the provisions as contained in Article 24 of the Constitution. In so far as the first limb of the argument is concerned nothing could be produced on record showing that the then Governor of Punjab was interested in acquiring the land for certain personal reasons. It is well‑settled by now that "mere assertion cannot take place of proof so as to tilt balance in favour of mala fides". (Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457).

7. We have minutely perused the provisions as contained in Article 24 of the Constitution. There is no cavil with the proposition that the .sanctity of private property has been acknowledged in a crystal clear manner but it must not be lost sight of that where a person is deprived of his property under the authority of law and according to the provisions of law, he has no ground for complaint under the Constitution and the only embargo which has been imposed under Article 24 of the Constitution is that no private property can be acquisitioned save in accordance with law and that too for a public purpose and on payment of compensation. (Fauji Foundation v Shamimur Rehman PLD 1983 SC 457). It can thus be concluded that a land can be acquired for public purpose subject to payment of compensation to be F determined by the competent forums provided under the Act. It may not be out of place to mention here that the above plea was neither agitated before the High Court nor incorporated in the grounds as enumerated in the writ petition. When Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court was confronted with the said position he argued that such new pleas can be agitated and no restriction whatsoever has been imposed in this regard. We are not persuaded to agree with his submission as this Court does not itself entertain for consideration new pleas which were never agitated before and dilated upon by the High Court. In this regard we are fortified by the dictum as laid down in case titled Neelam Mawaz v. State PLD 1991 SC 640; Mad Ajab v. Awal Badshah (1984 SCMR 440); Mairaj Sons v. United Bank Ltd. 1985 SCMR 987; Central Board of Revenue v. S.I.T.E. PLD 1985 SC 97; Said Quresh v. Ghafia Begum 1974 SCMR

528. In a few cases this Court has refused to allow such new pleas which were not urged before High Court and, therefore, it does not lie at the whims of the counsel to raise any plea at any time. If any authority is required case titled Shah Sultana v. Shaukat Ali 1985 SCMR 1568 can be referred. We are conscious of the fact that a new point of law may be urged before this Court but it does not mean that every new point of law can be raised at the hearing. The law as laid down in case titled Hamad v. Khushi Muhammad 1971 SCMR 365 can be referred.

8. A careful scrutiny of the entire record would reveal that land in question has been acquired after completion of all the necessary formalities as envisaged under the Act and no illegality whatsoever has been committed by functionaries concerned on the basis whereof the acquisition of the land in question could be declared as unlawful. The learned High Court has dilated upon and decided the controversy in a comprehensive manner and no infirmity or irregularity could be pointed out by the learned Advocate Supreme Court on behalf of the petitioner warranting interference in the judgment impugned. In the light of what has been discussed hereinabove the petition being devoid of merits is dismissed. M.B.A./M‑424/S Petition dismissed.