2017 LHC 244 Judgments: Stereo. HCJDA 38
IN THE LAHORE HIGH COURT, LAHORE.
Writ Petition No.24493/2012
M/s Eden Developers (Pvt.) Limited
Government of the Punjab etc.
Date of Hearing:-
Mr. Muhammad Shahzad Shaukat, Advocate.
Mr. Muhammad Hammad Khan Rai, A.A.G.
CH. MUHAMMAD IQBAL, J:– Through this writ petition, the petitioner has challenged the legality of order dated 10.05.2012 passed by learned Senior Member/Member (Revenue), Board of Revenue, Punjab, Lahore whereby the application of the petitioner was rejected and also sought direction against the respondents to proceed with the process of acquisition initiated vide notifications dated 05.04.2004 and 26.04.2007 respectively.
2. Brief facts of the case are that the petitioner submitted an application to the District Collector, Lahore for the acquisition of land measuring 2187-Kanals 09-Marlas situated in Mauza Malikpur, Sehjpal and Jhugian Alfa enabling the petitioner to establish a Housing Scheme. On 05.04.2004 a Notification
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under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred as ―the Act‖) was published in the Official Gazette. On 26.04.2007, a corrigendum Notification was issued on the request of the petitioner whereby land measuring about 393-Kanals 09-Marlas (Mauza Malikpur 334-Kanals 06-Marlas & Mauza Sehjpal 59-Kanals 03-Marlas) was intended to be acquired instead of the area mentioned in the preliminary Notification under Section 4 of the Act dated 05.04.2004. On 28.09.2007 another Notification under Section 4 of the Act was issued for rectification of area as 21-Kanals 12-Marlas in place of 29-Kanals 06-Marlas 114-Sq.Ft. for construction of approach road and thereafter no further proceedings were carried out in matter for a period of more than two years.
The District Officer (Revenue) / Collector, Lahore withdrew / de-notified the initial Notification issued under Section 4 of the Act dated 05.04.2004 and corrigendum Notification dated 26.04.2007 through Official Gazette Notification dated 28.01.2009 published on 31.10.2009. The petitioner challenged the impugned withdrawal Notification before learned Senior Member, Board of Revenue through an application which was allowed vide order dated 20.04.2011 and consequently the Notifications under Section 4 of the Act in favour of the petitioner were restored. The petitioner filed Writ Petition No.25126/2010 seeking direction for expeditious/early
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completion of land acquisition proceedings, which was disposed of with the direction to the DOR, Lahore vide order dated 01.12.2010 to decide the representation of the petitioner. The petitioner filed second Writ Petition No.12476/2011 with the same prayer which was disposed of vide order dated 06.06.2011 by this Court with the direction to the District Collector, Lahore to treat the writ petition as a representation and decide the same in accordance with law expeditiously. Meanwhile, one of the affectee of land acquisition proceedings filed application to the Chief Minister, Punjab / Chief Executive of the Province regarding the alleged acquisition notification under Section 4 of the Act. The Chief Executive of the Province obtained report with regard to matter in issue from the District Collector, Lahore alongwith a list of all such land acquisition proceedings made for the companies since 2002. The Commissioner Lahore Division made his report accordingly. The Board of Revenue through Memorandums dated 26.10.2011 and 11.11.2011 decided that all acquisition proceedings / notifications issued under Section 4 of the Act to acquire the land for private / commercial / profitable or cooperative housing societies which had not been completed within more than one year be immediately withdrawn and no further compulsory proceedings for acquisition of the land under the Act be initiated for the private / commercial housing
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schemes or for the housing schemes launched by the cooperative housing societies. The petitioner challenged the aforementioned Memorandums dated 26.10.2011 and 11.11.2011 through Writ Petition No.25634/2011 and vide order dated 18.11.2011 this Court directed to the learned Senior Member, Board of Revenue to treat the writ petition as an application of the petitioner and decide the same after hearing the petitioner and concerned parties in accordance with law. Learned Senior Member / Member (Revenue), Board of Revenue, Punjab in compliance of order dated 18.11.2011 after affording an opportunity of hearing the concerned parties rejected the said application vide order dated 10.05.2012. Hence, this writ petition.
3. Learned counsel for the petitioner submits that the impugned order is against the law; that learned Senior Member, Board of Revenue lacks jurisdiction under Section 48 of the Act to pass such order; that the Government can withdraw acquisition of any land before obtaining its possession whereas the Chief Minister of Punjab is not a government; that impugned order is clearly violation of acquisition laws, as such, same is liable to be set aside.
4. Learned Law Officer appearing on behalf of the respondents submits that the Notification under Section 4 of the Act and corrigendum Notification issued by the District Officer
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(Revenue), City Government, Lahore were not inconsonance with the Land Acquisition Act, 1894; that land under Section 4 of the Act was not acquired for public purpose which is mandatory requirement under the law whereas the petitioner is doing a business of real estate under the garb of a company and there is no provision available in the acquisition laws which provides that land may be acquired for private housing schemes or commercial purpose, as such, learned Senior Member, Board of Revenue rightly passed the order dated 10.05.2012 and turned down the request of the petitioner; that the Notifications under Section 4 of the Act were issued in violation of the Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973, as such, subsequent Notification dated 28.01.2009 for withdrawal of earlier Notifications was rightly issued; further submits that this Court has no jurisdiction to direct the respondents for the compulsory acquisition of land for establishment of a private housing schemes which legally vests in the exclusive domain of the acquiring agency / authority, as such, learned Senior Member, Board of Revenue, Punjab rightly passed the order and has committed no illegality.
5. I have heard the arguments and gone through the record with the able assistance of learned counsel for the parties.
6. Admittedly, the petitioner is a real estate business concern dealing in the sale and purchase of land in the name
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and style of M/s Eden Developers (Pvt.) Limited. In para No.2 of the instant writ petition, the petitioner admitted that they purchased an area of land from different owners for establishing housing scheme, however, some owners have refused to sell their land to the petitioner through private negotiation whereafter the petitioner approached the government for the acquisition of suit land for the purpose of establishing housing scheme. On the request of the petitioner a Notification for acquisition of the land of the private individual was issued which was subsequently withdrawn by the government vide Gazette Notification dated 28.01.2009. The core issue before this Court is whether the land of private individuals can be acquired under Section 4 of the Land Acquisition Act in favour of a Real Estate Company and after issuance of the Notification for compulsory acquisition of private land for a real estate private company the same can be de-notified by the government. It would be appropriate to firstly take up the point of acquisition of the land for public purpose of the state. There is no cavil or cudgel that the Provincial Government is fully vested with the power to issue a preliminary Notification expressing its intention for the acquisition of land likely to be needed for any public purpose. Section 4 of the Land Acquisition Act, 1894 is as under:-
―4. Publication of Preliminary notification and powers of officers thereupon. (I) Whenever is appears to the [Provincial Government] that land in any locality [is
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needed or] is likely to be needed for any public purpose, 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.
(2) Thereupon it shall be lawful for any officer, either generally or specially authorised by such Government in this behalf, and for his servants and workmen,–
to enter upon and survey and take levels of any land in such locality;
to dig or bore into the sub-soil;
to do all other acts necessary to ascertain whether the land is adapted for such purpose;
to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;
to mark such levels, boundaries and the line by placing marks and cutting trenches; and
where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle
Provided that no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling-house unless with the consent of the occupier thereof without previously giving such occupier at least seven days‘ notice in writing of his intention to do so.‖
Undoubtedly, the sanctity of the public purpose gathers supremacy over the individual interest. Public purpose varies with the time, place and need of the society which furthers the general interest of the community as opposed to the particular interest of the individual. Though the exact meaning of public purposes conclusively is not available in the statute and it is most pertinent to demonstrate the probable, alike, synonymous literal meaning of the same which would be quite beneficial to understand the issue. The term ‗Public Purpose‘ has been defined in Black‘s Law Dictionary (5th Edition) as under:- Download Complete Judgment: