1983 PLP 149 (SCMR)

MUHAMMAD HALEEM, ACTG,. C. J. ‑The dispute in this petition relates to the acquisition of Survey No, 79, measuring 2‑31 acres, situate in Deh Lahori, District Larkana, for a public purpose, namely, for being utilized by the Chandka Medical College. This Survey number is Sikni land and is owned by the petitioner. In this behalf a Notification under section 4 of the Land Acquisition Act. 1894, was issued on 6th of March, 1980, followed by another Notification dated 25th of September, 1980, issued under sections 6 and 17 of the said Act, which was challenged in the High Court on the ground that the Additional Commissioner was not competent to issue it as it was only the Commissioner who was designated under section 6 of the Act to do so. But the High Court rejected this submission on the short ground that under section 2 (17) of the West Pakistan General Clauses Act, 1956, a Commissioner includes an Additional Commissioner and, therefore, while construing section 6 as applicable to the Province of Sind, it held that an Additional Commissioner would be included within the definition of the word "Commissioner". As such he could also issue the impugned Notification. The further submission urged before the High Court was that as there was no urgency as contemplated by section 17 of the Act, the Additional Commissioner wrongly invoked section 17 of the Act. The High Court did not allow the contention to be raised as it was not pleaded in the Writ Petition and for that reason, in the comments forwarded in reply to the petition, nothing was said in regard to it by the first respondent. The learned counsel seeks leave on the same grounds as were urged before the High Court. His submission is that the word "Commissioner" was substituted for "a Secretary to such government" in section 6 (i) of the Land Acquisition Act in the Third Schedule to the West Pakistan (Adaptation and Repeal of Laws) Act, 1957, and therefore, it was the Commissioner who was the designated authority and he could alone issue the Notification under that section. He also placed reliance on section 5 (i) and (it) of the said Act in support of his submission. However, in order to overcome the applicability of section 2 (17) of the West Pakistan General Clauses Act, 1956, it was incumbent on the counsel to show that either in the context of this section or that of section 6 of the Land Acquisition Act, the extended definition of the word "Commissioner", to include an Additional Commissioner, could not be pressed into service either by the definition of the word "Commissioner" or for that matter that the Additional Commissioner could riot perform the function of a Commissioner under section 6 of the which he failed to do. Therefore, the High Court was correct in holding, as it did, that the word "Commissioner" included an Additional Commis sioner and as for the second submission, since no factual, foundation was laid, it is difficult for us to judge the ground of urgency in the absence of the comments and the opinion of the High Court which refused to examine this plea. It is also not free from doubt as to whether the ground is at all justiciable. Accordingly, we see no merit in this petition and dismiss it. Petition dismissed.