2002 PLP 1652 (SCMR)

MUNIR A. SHEIKH, J.‑‑‑By this common judgment, we propose to decide the above civil petitions which have arisen from the same judgment of a Division Bench of the Lahore High Court involving common questions of law and facts.

2. The facts relevant for disposal of these petitions shortly stated are that respondent No.6 which is a Cooperative Housing Society registered under the relevant laws made a request on 16‑12‑1987 to the Land Acquisition Collector for acquisition of land measuring 6312 Kanals,' 11 Marlas for a Housing Scheme prepared by it. However, subsequent to this request, the respondent‑Society managed to purchase directly through negotiations a substantial area of land needed for the said Scheme, therefore, on 21‑8‑1988, the Land Acquisition Collector was requested by it to acquire only land measuring 1385 Kanals, 5 Marlas. On 30‑8‑1988, a notification was issued under section 4 of the Land Acquisition Act for the acquisition of land measuring 1385 Kanals, 5 Marlas. Subsequently, however, according to the need of the respondent‑Society, a request was again made for further acquisition of land measuring 3506 Kanals against which another notification was independently issued. The respondent‑Society for the purpose of the said Scheme acquired further area, therefore, another request was made to the Land Acquisition Collector to acquire further land, as such, total land measuring 2533 Kanals, 4 Marlas was acquired inclusive of the land subject‑matter of these petitions.

3. A Notification under section 17(4) of the Land Acquisition Act was issued as a consequence of which the provisions of sections 5 and 5(A) of the Act and which the affected owners of the land could file objections were rendered inapplicable. A number of Constitutional petitions were filed before the Lahore High Court challenging the legality of acquisition of land through the above mentioned notifications, inter alia, on the ground that the purpose for which the same had been acquired was not a public purpose as contemplated by the relevant provisions of the Land Acquisition Act which were dismissed through judgment dated 16‑6‑1993 by the learned Single Judge of the said Court. I.C.As. were filed by the petitioners of six writ petitions which were accepted through judgment dated 28‑6‑1999 of a Division Bench of the said Court by holding that the acquisition of land was not bona fide, the same having been acquired for the benefit of only few persons i.e., the members of the Society. The finding that the acquisition was not bona fide it appears from the said judgment was reached keeping in view, among other circumstances, that each member of the Society had been allotted a number of plots, as such, the acquisition was not made for the benefit of public at large.

4. Appeals by leave of the Court were filed before this Court by the Society in which an objection was raised that against the judgment of the learned Single Judge of the High Court, the I.C.As., were not maintainable, for according to law, by which these acquisition proceedings were governed i.e. the Land Acquisition Act, provided a right of appeal against the original order. It was also argued that the expression "public purpose" was not correctly construed and interpreted while declaring the land had not been acquired for the benefit of public at large.. Those appeals were accepted by this Court through judgment dated 1‑10‑2001 on the basis of consent made by the learned counsel for both the parties and the case remanded to the High Court for disposal of I.C.As., afresh inclusive of the decision as to objection about the maintainability of the I.C.As., which was found to have not been earlier dealt with or decided by this Court.

5. After remand, the Division Bench of the High Court through the impugned judgment dated 1‑4‑2002 dismissed the I.C.As. on merits by holding that the acquisition of land was made for public purpose. It was also held that the I.C.As. were maintainable, for against the proceedings of acquisition of land, no appeal was provided by the Land Acquisition Act against which leave is sought.

6. The main burden of arguments raised by the learned counsel for the petitioners in support of these petitions was:‑‑ (a) That the acquisition of land had been made for the benefit of only members of the respondent‑Society and not members of the public as a whole, therefore, the same could not be held to have been acquired for public purpose as contemplated by Land Acquisition Act; (b) that according to Article 24 of the Constitution, no owner of the property could be deprived of the property except through acquisition for public purpose under the relevant law which must provide payment of adequate compensation to the owners thereof.

7. Learned counsel for the petitioners maintained that this criteria having not been satisfied by the acquisition of the land of the petitioners through the impugned Notifications, therefore, Notifications issued under sections 4 and 17(4) of the Land Acquisition Act were liable to be struck down.

8. These contentions have been raised on the assumption as if acquisition of land for a Company should necessarily be for public purpose as was required in the case of acquisition by the State or the Government. We have examined the relevant provisions of the Land Acquisition Act with the assistance of learned counsel for the petitioners and find that acquisition of any land for a Company may not necessary be for "public purpose" as defined and contemplated by law with the same strictness as the said expression was made applicable in the other cases. In section 3(e) of the Act, the expression "Company" has been defined as under:‑‑ "3(e) the expression 'Company' means a Company registered under the Indian Companies Act, 1882, or under the (English) Companies Act, 1862 to 1890 o: incorporated by an Act of Parliament [of the United Kingdom] or [by a Pakistan Law], or by Royal Charter or Letters Patent [and includes a society registered under the Societies Registration Act, 1860, and a registered society within the meaning of the Cooperative Societies Act, 1912]."

9. It is clear from a bare reading of this definition that a registered Society within the meaning of Cooperative Societies Act, 1912 has also been included in the definition of a "Company" for the purpose of this Act. There is no denial of the fact that respondent is a Society registered under the Co operative Societies Act, as such, for the purpose of the Acquisition Act, it shall be deemed to be a "Company",

10. Section 4(1) of the Act as amended to the extent of its applicability to West Pakistan at the relevant time but now to Punjab reads as under:‑‑ "4(1). Whenever it appears to the Collector of the District that land in any locality is needed or is likely to be needed for any public purpose or for a Company, a Notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such Notification to be given at convenient places in the said locality."

11. It is this section under which initial Notification for acquisition of land in any locality is issued. The use of the word "or" between the words "for any public purpose" and a "Company" is sufficient to demonstrate that if acquisition is made for a Company, it may not necessarily be for a public purpose as the said word "or" has been used disjunctively. In the same manner, section 5‑A of the Act has been worded, subsection (1) of which is reproduced below for ready reference:‑ ‑ "5‑A(1): Any person interested in any land which has been notified under section 5 as being needed for a public purpose or for a Company may, within thirty days after the issue of the Notification, object to the acquisition of the land or of any land in the locality, as the case may be."

12. In view of these express provisions of the Act, a distinction has been made as regards acquisition of land for a Company from the acquisition of the same for public purpose, therefore, the argument of learned counsel for the petitioners that the acquisition in question made for the purpose of the respondent‑Company should also have been made for public purpose in the same manner as it is made for public purpose cannot be accepted without doing violence with the express terms of these provisions.

13. Learned counsel for the petitioners also referred to section 40 of the Act the reading of which shows that it is this section which is more relevant regarding acquisition of land for a Company, therefore, the same is reproduced below as amended by the Provincial Government as to its applicability in the Province of Punjab:‑ "

40. Previous enquiry.‑‑(1) Such consent shall not be given unless the [Provincial Government] be satisfied, [either on the report of the Collector under section 5‑A, subsection (2), or] by an enquiry held as hereinafter provided,‑‑ [(a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses or workmen employed by the Company or for the provisions of amenities directly connected therewith, or (aa) that such acquisition is needed for the construction of some building or workman for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose. (b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public, or (c) that the area proposed to be acquired is reasonable for purpose. (2) Such enquiry shall be held by such officer and at such time and place as the (Provincial Government) shall appoint. (3) Such officer may summon and enforce the attendance of witnesses and compel the production of documents by the same means and, as far as possible, in the same manner as is provided by the Code of Civil Procedure in the case of a Civil Court."

14. The scrutiny of this section in isolation would not be complete unless sections 38, 38‑A and 39 of the Act are also read in conjunction therewith all of which fall in Chapter‑VII which relate to acquisition of land for Companies. All the sections if read together, it can safely be held that the Provincial Government is to be satisfied whenever a Company makes a request for acquisition of the land for a particular purpose that the same was, in fact, required for such a purpose and the said purpose also fell within the ambit of purposes mentioned in section 40 (ibid).

15. Acquisition of land for a Company made may be (a) for the purpose of erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or (b) for the construction of some work, and that such work is likely to prove useful to the public, or (c) 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.

16. In the presence of these express provisions, it could not be argued that the acquisition of the land for a "Company" could not be made for a purpose other than a public purpose. Clauses (b) and (c) of this section appear to be more relevant for resolving the controversy in this case.

17. The respondent‑Society made request of requisition of land‑which was needed for the purpose of development of a Housing Scheme to prove developed plots to the needy persons for construction of houses. According to clause (b) of this section the only requirement was that the said purpose was likely to prove useful to the public and that the area proposed to be acquired was reasonable for the said purpose. The expression "useful" to the public does not have the same meaning as could be assigned to the expression 'public purpose'. The expression "useful" to the purpose in our considered view would mean "beneficial" for the public. Learned counsel for the petitioners submitted that according to Article of Association of the respondent‑Society, the Housing Scheme had been prepared for the purpose of only its members, therefore, the purpose for which the land was acquired was too limited to hold that the same was useful to the public.

18. The Arguments as raised though appears to be ingenious but is found to be not tenable on close scrutiny. Unlike private or public limited company, the case of a Cooperative Society is different as regards its membership. According to the respondent‑Cooperative Society, after development of the land into residential plots, the public at large is offered to purchase the plots on payment and every person purchasing the plot would automatically become the member of the Society that the membership of the Society cannot be acquired without acquisition of a plot, therefore, membership of the Society is co‑extensive with the holding of a plot in the Scheme. Since there is no restriction or limitation that the sale of the plot is class of persons but it is open to all, therefore, the purpose of acquisition can safely be construed to be useful to public.

19. The next question which falls for consideration is whether the provisions of the Land Acquisition Act se far as they relate to acquisition of land on the request of a Company for a purpose other than "public purpose" are inconsistent with fundamental right relating, to protection of property right as enshrined in Article 24 of the Constitution, for if the argument as raised by the learned counsel for the petitioners is sustained, the said provisions of the Act would have to be declared void as provided in Article 8 of the Constitution. Sub‑Article (2) of Article 24 of the Constitution no doubt provides that no property shall be compulsorily acquired or taken possession of save for a public purpose and it does not, cover acquisition for any purpose as mentioned in section 40 other than public purposes but sub -clause (e) of sub‑Article (3) of this Article provides that nothing in the said Article shall affect the validity of any law providing for the acquisition of any class of property for the purpose of providing housing and public facilities and services such as roads, water supply sewerage, gas and electric power to all or any specified class of citizens, therefore, the provisions of the Land Acquisition Act so far as they relate to acquisition of land for the purpose of Company even for purposes other than "public purpose" as contemplated by sub‑Article (2) is valid in law and cannot be held to be void on account of inconsistency with the provisions of the said Article.

20. It appears that purpose behind the enactment of these provisions o the Land Acquisition Act relating to acquisition of land on the request of a Company for purposes other than "public purpose". The intention of the law makers appears to be to encourage private sectors to make investments in such work or other projects which may be beneficial i.e., useful to the public. There can be no denial of the fact that to provide developed plots for housing purpose to public in well‑nit Scheme is a purpose useful to the public to avoid construction of buildings in haphazard manner being not basic facility of sewerage and roads, etc., inclusive of the provisions for public parks for inhabitants of the locality.

21. For the foregoing reasons, the acquisition of land made for Housing Scheme premed by the respondent‑Company is not violative of the law, therefore, the judgment impugned in these petitions of the High Court does not suffer from any illegality. Resultantly all the petitions being meritless are hereby dismissed and leave refused. M.B.A./M‑563/S Petition dismissed.