PLD 1976 Lahore 747 Before Abdul Shakurul Salam, J MUHAMMAD AKBAR (THROUGH LEGAL REPRESENTATIVES) AND 7 oTHERs- Petitioners versus THE COMMISSIONER, RAWALPINDI DIVISION AND 2 OTHERS--Respondents Writ Petition No. 1605 of 1965, decided on Sth February 1976. Land Acquisition Act (I of 1894) — Preamble and Ss. 4. 5-A & 6--"Public purpose"-Land of people can be acquired by State for "public purpose" only-Act does not envisage taking of land of one to be given to other-.Constitution of Pakistan (1973), Arts. 23 & 24.-[Words and phrases]. From the Preamble as well as the relevant provisions in the Land Acquisition Act, it is quite clear that land of people may be acquired by the State for a public purpose meaning thereby for the use of the public or people at large, or, for a company under Part VII of the Act for its use which the Provincial Government believes would serve some specified stam tory purposes. The Land Acquisition Act, 1894. does not envisage at all taking of land of one to be given over to the other, One can't rob Peter to pay Paul. That may be Robinhood's philosophy but that is not part of the law. That is expressly barred by the fundamental law of the land i-e. the Constitution of Islamic Republic of Pakistan which allows acquisition of private property only for public purposes. [p. 754]A Tn the instant case, there was a shrine located in a certain area of Mangla Dam Project and tile said area was required immediately by the Contractor of the Project. In order to got the area vacated, the -Land Acquisition Col lector approached the mutawalli of the shrine. The mutawalli agreed to shift the shrine to a new location on the understanding that he, his family members and others would be given land, in return, near the vicinity of the new location of the shrine. The authorities accordingly acquired the disputed lands for the said purpose. The owners of those lands objected to the acquisition on the ground that the lands could not be acquired for a purpose other than public purpose. It was contended on behalf of the Land Acquisition Authorities that since the Contractors of Mangla Dam required the area immediately. they were pressing hard for the same and it was not possible to get the area vacated except with the agreement of the mutawalti and his terms had to be agreed to. Consequently, it was for a public purpose of Maagla Dam Project that the lands in dispute were acquired for being given over to the mutawalli concerned Held, 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. [p. 754]B The lands in dispute have been acquired only for the benefit of an individual not in lien of his acquired land but for his agreeing to shifi the shrine. This is hardly a “public purpose" in the eyes of law, though it may be a laudable one otherwise. [p. 7551C Pakistan v. Province of Punjab and others P L D 1975 S C 37 : Hamabai Framjee Petit v. Secretary of State for India AI R 1914 P C 20 and Tdak Ram Wadhwa Mal and others v. State Of Punjab AIR 1956 Ph. 83 ref. Saleem Aftab for Petitioners S. M. Hussain for Respondent No. 1. Ch. Mehrajuddin for Respondent No. 2. Sh. Magboo! Ahmad 11 for Respondent No. 3. Date of hearing : 3rd February 1976. JUDGMENT Facts leading to this Constitutional petition are that in village Manaramai. Tehsil and District Jhelum, the petitioners individually owned the following pieces of land t (1) Petitioner No. 1 = 7 kanals. (2) Petitioner No. 2 = 7 kanals. (3) Petitioner No. 3 = 6 kanals. and 13 marlas. (4) Petitioner No. 4 = 3 kanals. (5) Petitioner No. 5 = 3 kanals. (6) Petitioner No. 6 = 11 kanals. (7) Petitioners Nos. 7, Sand 9. =4 kanalsTotal = 42 kanals 13 marlas. The dispute is about the acquisition of these pieces of land. Petitioner No. 1 had died on 13-12-71 and petitioner No. 6, too, had died on 23-11-68. Their legal representatives were not brought on record within time. The learned counsel for the petitioners as well as the respondents agree that the petition has partially abated as far as their rights are concerned but bas survived in respect of the other petitioners. It may also be mentioned that petitioner No. 8 had also died on 29-11-1972 but as his death had occurred after the enforcement of the Law Reforms Ordinance, 1972, the learned counsel for the parties agree that there is no question of abatement as far as the deceased petitioner No. 8 is concerned and the deceased petitioner's legal representatives subsequently brought on record have the right to continue with the proceedings. The net result is that excluding the land belonging to petitioners Nos. 1 and 6 measuring 181 kanals, the dispute is now confined to 24 kanals 3 marlas belonging to the rest of the peti tioners. 2. The Commissioner, Rawalpindi Division, Rawalpindi, issued a Notification published in the Provincial Gazette on 3-10-1962 to the follow ing effect : "Whereas, it appears to the Commissioner, Rawalpindi Division, Rawalpindi, thet land is likely to be required to be taken by Government at the public expense for a public purpose, namely for the Mangla Dam Project and allied purposes, it is hereby notified that land in the locality described below is likely to be required for the above purpose. This notification is made under the provisions of section 4 of the Land Acquisition Act, 1894 to all whom it may concern", It was followed by another Notification of the Governor of the West Pakistan dated the 16th of July 1963, which is,. to the following effect : "Whereas the Governor of the West Pakistan is satisfied that the land notified under section 4 of the Land Acquisition Act 1894, vide Commissioner, Rawalpindi Division's Notification No. 13775/AL, dated the 3rd of October 1962, is required to be taken by the Government at the expense of Government for a public purpose namely for the displaced persons of Sultanpur (Pirkot) affected by the Mangla Dam Project. Now, therefore, in exercise of the powers conferred by section 5 of the said Act as amended by the Land Acquisition (Punjab Amendment) Act 1954, the Govemor of West Pakistan is pleased to notify that the land specified below of which plans may be inspected in the offices of the Land Acquisition Collector, Mangla Dam Project, Jhelum and Executive Engineer Mangla Reservoir Division, Mirpur is required for the said purpose. Persons interested who may have any objection to the acquisition of land specified below may, within thirty days of the publication of this Notification file it in writing before the Land Acquisition Collector, Mangla Dam Project Jhelum". The entire area mentioned in the Notification is 80 kanals. 3. One Shah Muhammad, petitioner No. 1, Mst. Aisha, petitioner No. 6, Tikka Khan, petitioner No. 1, No. 7 and petitioner No. § filed an objection petition under section 5-A of the Land Acquisition Act against the aforesaid Notifications before the Land Acquisition Collector inter alia to the effect that the land was being acquired not for apublic purpose but for a private individual. The Land Acquisition Officer submitted the comments on 22-10-1963 that the acquisition of land did come under the public purpose as it was taken to settle a land owner of the same area, The Deputy Commissioner. Jhelum sent a memo to the Commissioner on 8-10-1964, paras. 5 and 11 of which are to the following effect :- "5. This is a fact that the building of the Civil Rest House at Sheikhu pura has been given to Agha Sardar Ali Jan for his residential pur poses. The area proposed to be acquired is required to rehabilitate other family members of Agha Sahib who are the mutawallis of the Pirkot Shrine. The shrine of Pirkot is in village Sultanpur within the orbit of the Mangla Dam and had to be removed and located near about the old site. If the Mutawalli Agha Sardar Ali Jan had not agreed to shift the shrine the Government according to the terms of the contract would have to pay several lacs of rupees as damages to the Mangla Dam Contractors for idle hours. Accord ingly, the proposed acquisition is for a genuine allied work to the Mangla Dam Project." "11. As the shrine of Pirkot was located just in front of the residence of Agha Sardar Ali Jan, his other family members and mutawallis of the Shrine are required to be rehabilitated near the Shrine." The Commissioner passed the following order on 9-11-1964: "There is nothing substantial in the objections raised by the land owners, The Land Acquisition Collector, Mangla Dam Project, may please be directed to proceed further in the case", and sent the record to the Collector. 4. On 23-12-1964, the Commissioner, then, issued another Notification to the following effect : "Whereas the Commissioner. Rawalpindi Division is satisfied that the land is required to be taken by Government at the public expense for a public purpose namely for works connected with the Mangla Dam Project it is hereby declared that land described in the specification below is required for the above purpose. This declaration is made under escape through the main entrance by bolting the door from outside so that they might not be chased. The police officers who were stated to watch the house from the street either possibly arrived there after they had escaped and found the entrance door bolted from outside or they did not dare to apprehend or chase the escaping appellants out of fear that such desperate persons might be armed with lethal weapons. We do not agree with learned counsel that the police had arrived on the spot long after the occurrence when even the injuried and the deceased had been removed to the hospital. There is nothing on the record from which such an inference could be drawn. On the contrary there is evidence to establish this fact. One of the police officers, namely, Muhammad Siddiq A. S. I. P. W. who was on the roof and had fired two shots had pro duced his service revolver P. 32 which had two empties in its chambers. This police officer along with Allah Ditta P. W. and others had descended to the middle storey of the house and had apprehended Muhammad Aslam appellant, Allah Bakhsh and Babar acquitted co-accused on the spot while they tried to escape by going down the stairs. It hasbeen submitted before us that the prosecution has not explained as to how Allah Bakhsh and Babar acquitted co-accused who were apprehended on the spot according to the prosecution, had sustained blunt weapon injuries. But from the circumstances an inference can be drawn that on their apprehension they were beaten up by the persons who had arrived at the scene of crime, after it had been committed, particularly because they were members of the accused party. They had themselves stated that they were beaten up by the police. It was only on the arrival of the police that Mst. Razia P. W. came out from the storeroom and saw the injured lying there. At that stage due to the condition of the injured they were immediately sent to the hospital and it was redsonably probable that after the departure of the injured the statement the provisions of section 6 of the Land Acquisition Act 18)4, to all whom it may concera and under the provisions of section 7 of the Act the Land Acquisition Collector Mangla Dam Project Jhelum is hereby directed to take order for the acquisition of the said land". 5. Award No. 107 was announced by the Land Acquisition Collector wherein he made the following observation: "During the proceedings under section 9-LAA the Jand owners, other than those reluctant to part with the area at any cost demanded the compensation at Rs. 2,000 per kanal. As in this case the land was to be acquired for a Mangla Dam affected person Agha Syed Sardar Ali Jan, it was considered in the fitness of things that the data necessary for an estimate of the affected area be supplied by the Collector of the District under para. 18 of the Standing Order No. 28." 6. It is submitted by the learned counsel appearing for the Land Acqui sition Collector, respondent No. 2, on the basis of the record, that Agha Syed Sardar Ali Jan was entitled to compensation of Rs. 7,960 and he also paid Rs. 16,971.89 for compensation of the land acquired for him from the petitioners. This is also accepted by the learned counsel appearing for the other respondents. Paragraph 4 of the written statement filed by the Land Acquisition Collector, respondent No. 2, is to the following effect : "Not admitted. The true facts, however, are that the Pirkot Shrine, situated within the limits of village Sultanpur. Tehsil Jhelum, was affected by the Mangla Dam Project. The followers of the Shrine from all over the West Pakistan made representations to the authorities concerned that the Shrine should be left intact. On the other hand, the Contractor of the Dam demanded immediate surrender of the site. The problem assumed a delicate and com plicated shape. The mutawalli of the shrine, however, was persuaded by the Chief Engineer Resettlement Organisation WAPDA Mirpur, to agree to shift the shrine to some other place outside the Reservoir and for this purpose he was offered allotment of land by the Government, close to the old site. Appreciating that the surrender of the site of the shrine for the Dam was in the welfare of the country, the mutawalli showed co-operation and agreed to the shifting of the shrine. Accordingly the site of the old District Rest House situated on the bank of Jhelum between Mangla and Dina wasimmediately made available by the Government whereas the shrine was re-located and thus an interruption in the construction of the Dam was averted. The land belonging to the petitioners alongwith that of other owners which is in the vicinity of the present location of the shrine, was sought to be acquired for rehabilitating the miutawalli, bis other family members, servants, mujawars and other very close devotees of the shrine who had been displaced by the Mangla Dam Project.” 7. Leamed counsel appearing for the petitioners has submitted that the acquisition of the land of the petitioners has, admittedly, been acquired to be given over to Agha Syed Sardar Ali Jan, his family members, servants, mujawars and others and, consequently, could not have been acquired under the Land Acquisition Act. It is submitted that under sections .t and 6 of the Land Acquisition Act, land of a private individual may be acquired for a "public purpose", but, it cannot be acquired for a private individual. The learned counsel submits that the powers under the Land Acquisition Act for acquisition for a public purpose have been used as a cloak to satisfy the insistence or whim of a private individual. The learned counsel has elaborated that the property of a private person can only be acquired for a public purpose, meaning thereby, that it can be acquired to vest and to be used by the State for a public purpose. The power of acquisition is not meant for acquiring private property to be given over to other private persons whatever the motives or reasons for doing that might be. The learned counsel contends that it is no law to acquire private property in the name of public purpose so as to bring about the result of taking away Peter's property to be given over to Paul. The learned counsel contends that it makes no difference that the person to whom the property has been given had himself been deprived of his property by acquisition for a public purpose. For such eventualities, the law provides for payment of compensation and not for depriving another person of his property to be given over to the former. The learned counsel has pointed out that the fact that the property had been acquired for the private Indivi dual stands established and is admitted by the respondents, even though in the Notifications it had been said that the lands of the petitioners were acquired for public purpose. Learned counsel contends that the Notifi cations have been issued mala fide and for a collateral purpose and, con sequently, have no legal validity whatsoever. Moreover, it is also pointed out that for the property acquired from the aforesaid private individual, the later had been paid compensation in cash. The Shrine which was shifted from the vicinity of the Mangla Dam Project was re-located in the public property. Government Rest House. The land belonging to the petitioners had been purportedly acquired for being given over to Agha Syed Sardar Ali Jan and his family members, mujawars and the devotees. The learned counsel contends that, in fact, it is to be given to either Agha Syed Sardar Ali Jan or to any other member of his family whose land might have been acquired and this cannot be done under the cloak of public: purpose. 8. Learned counsel for the Land Acquisition Collector, respon dent No. 2. has contended that there was a Shrine which was in the area of the Mangla Dam Project. Agha Syed Sardar Ali Jan mutawalli of the Shrine, agreed in the national interest to shift the Shrine to a new location, Government Rest House, on the understanding thathe, his family members and others would be given land, in return, nearby the vicinity of the new location of the Shrine. Since the Contractors of Mangla Dam required the area Wherein the Shrine was originally situated immediately, they were pressing hard for the same and it was not possible to do so except with the agreement of Agha Sahib and the latter's terms had to be agreed to. Con sequently, it was for a public purpose of Mangla Dam Project that the petitioner's lands were acquired for being given over to Agha Syed Sardar Ali Jan. Learned counsel for the Commissioner, respondent No. 1, has, contended that a declaration under sections 6(3) of the Land Acquisition Act, that the property is acquired for a "public purpose" is "conclusive" and cannot, therefore, be challenged in a Court of Law. Learned counsel for Agha Syed Sardar Ali Jan, respondent No. 3 has supported the arguments of the other learned counsel for the other respondents and has submitted that the lands of the petitioners, were acquired for a public purpose of Mangla Dam Project, and have rightly been given to the respondent in lieu of the shifting of the Shrine. 9. Before proceeding further, it would be useful to reproduce the preamble and relevant portions of sections 4, 5-A, and 6 of the Land Acqui sition Act 1894. These are as follows :-- "An Act to amend the law for the acquisition of land for public purposes and for Companies. Whereas it is expedient to amend the law for the acquisition of land needed for public purposes and for companies and for determining the amount of compensation to be made on account of such acquisi tion S. 4.-(l) Whenever it appears to the Provincial Government that land in any locality is 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. $.5-A.-(1) !Any person interested in any land which has been notified under section 4, subsection (1), as being needed or likely to be needed for a public purpose or fora 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. (2) Every objection under subsection (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such forther inquiry, if any, as he thinks necessary, submit the case for the decision of the Provincial Goverament, together with the record of the proceedings held by him and a report containing his recommendations, on the objections. The decision of the Provincial Government on the objec tioas shall be final. S. 6-(1) Subject to the provisions of Part VIT of this Act, when the Provineial Government is satisfied, after considering the report, if any, made under section 5-A,subsection (2) that any particular land is needed for a public puspose, or for a company, a declara tion shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders : Provided that no such declaration shall be made unless the compensation to be awarded for sueh property is to be paid by a company, wholly or partly out of public revenues of some fund controlled or managed by a local authority. (2) The declaration shall be published in the official Gazette, and shall state the district or other territorial division in which the land is statute, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be, and, afer making such declaration, the Provincial Govemment may acquire the land in manner hereinafter appearing. 10. Part VII of the Act provides for acquisition of land for a company for certain purposes and for payment of compensation for the acquisition to the Provincial Government. 11. The admitted and established facts on record are that the present dispute is confined to 24 kaaale 3 marlas of land belonging to the petitioners (excepting Nos. | and 6) out of an area of 80 kanals mentioned in the above quoted notifications. It is also admitted by the learned counsel for the respondents and is established on record that the land mentioned in the notifications was acquired for being given over to Agha Syed Sardar Ali Jan for agreeing to shift the Shrine from its original habitat. It may be noticed here that for the new abode of the Shine, Government Rest House had been given to Agha Sahib but for his agreement to shift, the land of the petitioners had been acquired to be given over to him. There is no dispute about these facts. The dispute is that according to the petitioners for the aforesaid purpose, the petitioners! lands could not be acquired under the Land Acquisition Act, 1894, because that is not a "public purpose". On the other band, the learned counsel for the respondents have contended that the aforesaid purpose is a "public purpose" and the notifications, above referred to, cover the case of acquisitions, of the petitioners' lands, Further, the learned counsel for the respondent No. | has contended that a declara tion of public purpose under a notification under section 6(3) of the Land Acquisition Act, 1894, is "conclusive evidence" that the land is needed for a "public purpose", and, therefore. this Court cannot go behind the declaration. 12. Besides that it is established from the record and is admitted by the learned counsel for the respondents, that the land of the petitioners had been acquired for being given over to Agha Syed Sardar Ali Jan, a private indivi dual and it would be a travesty of law and justice to say that, not for an individual, but, for a "public :purpose", the land of the petitioners is being acquired, and if this were not a cloak for a collateral purpose to exercise police authority, what else could that be?, it is also worthwhile to see whether the notifications would be applicable for the acquisition of the lands of the petitioners. The first notification under section 4 of the Land Acquisition Act, 1894, is that the "land is likely to be required to he taken by Govern ment at the public expense for a public purpose, namely for the Mangla Dam Project and allied purposes". Three points may be taken notice of, Firstly, the notification is not issued by the Provincial Government. Secondly, it is mentioned on the record of and is admitted by the learned counsel for the respondents that the land of the petitioners had been taken at the expense of the Agha Sahib who had paid for it. Therefore, it was not being taken at public expense. Thirdly, the public purpose stated is "Mangle Dam Project and allied purposes." The question would arise whether acquisition of private individuals’ property for, admittedly, appeasing a private individual falls within the "Mangle Dam Project and allied purpose". Could any body objecting to the Mangla Dam Project be made to give up his objection by acquiring private people's property and giving hire that and call that an "allied purpose"? It is obvious that that would not be so If that be so, why an exception in favour of A.-ha Sahib at the cost of the petitioners. 13. Second ‘notification under sec ion 5 of the Land Acquisition Act 1894, by the Governor states that the specified land "is needed to be taken by the Government at the public expense for a public purpose namely for construction of Mangla Dam and its allied works in village Sultan- Pur". Besides the comments on the previous notification, it may also be noticed that there is a shift from the "public purpose of Mangla Dam Project and the allied purposes" to "Mangle Dam and its allied works". Now "allied purposes" may be one thing but "works" in the context of the Mangla Dam clearly mean construction work or connected with it, like housing for the stall’ working on the Project and has absolutely no relevance for purposes other than "works", like satisfying a disgruntled objector to the Project or the "Works". The point becomes clearer when one looks at the notification of acquisition issued under section 6 of the Land Acquisition Act, 1894 by the Commissioner wherein it is stated that "the land is required to be taken by Government at the public expenses for a public purpose namely for works connected with the Mangla Dam Project.” Besides that the final Notification under section 6 of the Act is by a Commissioner and not by the Provincial Government the "public purpose" is stated to be "for works connected with the Mangla Dam Project." Now, "Works connected with the Mangla Dam Project" clearly mean what it says "works connected with the Mangla Dam Project". "Works" in connection with a Dam Project patently mean construction works. The word "works" is a plural and in such like context always means "works" on the spot like construction of Dam, etc. It never means other collateral or other side matters like paying in cash or kind obstructionists who are not involved in the "works connected with the Project". Therefore, even if the learned counsel appearing for the respondent No. | is right that a declaration under section 6 of the Land Acquisition Act, 189.1 is conclusive evidence under subsection (3) that the land is needed for a public purpose, then too, it would be available for "public purpose" of "works connected with the Mangla Dam Project". It would not be available for other than"works" and not for being given over to a private individual. From the preamble as well as the relevant provisions in the Land Acquisition Act, it is quite clear that land of people may be acquired by the State for a public purpose, meaning thereby for the use of the public or people at large, or, for a company under Part VII of the Act for its use which the Provincial Government believes would serve. some specified statutory purposes. The Land Acquisition Act, 1804 does not envisage at all taking of land of one to be given over to the other. One cannot rob Peter to pay Paul. That may be Robinhood's philosophy but that is not part of the law. That is expressly barred by the fundamental law of the land i.e. the Constitution of Islamic Republic of Pakistan which allows acquisition of private property only for public purposes. 14, Learned counsel for the parties have referred to numerous decisions to convass their point of view but all those relate to what is a public purpose. The classical definition of a "public purpose" as observed with approval by their Lordships of the Supreme Court of Pakistan in the case of Pakistan through the Secretary, Ministry of Defence v. Province of Punjab and others (1), as given by the Privy Council in the case of Hamabai Fram-Jee Petit v. Secretary of State for India (2) is "an object or aim, in which the general interest of the community as opposed to particular interest © fl individuals, is directly and vitally concerned". This definition knocks out from the bottom the case of the respondents because the object of acquiring petitioners’ lands is not in which the general interest of the community is directly and vitally concemed. On the other hand, it is for the particular benefit of Agha Syed Sardar Ali Jan. Reference to Tilak Ram Wadhwal Mal and others v, State of Punjab (3) would be of some interest and use wherein the lands of the persons which were acquired were given over to other persons whose lands had been acquired far Bakhra Dam and when the former objected to the acquisition on the ground that that was not for a public purpose, it was held that more than thirty thousand persons had been ejected from their lands for Bakhra Dam, their lands had b; en acquired for that purpose, and for rehabilitation of so many persons acquisition of the lands of the petitioners was for a public purpose especially when the latter were living far away from their lands. It was, however, observed that "it may be argued with certain measure of plausibility that to rehabilitate one or two or half a dozen persons who are displaced by the acquisition of their land should not be done by acquiring the lands of other private individuals and that to do so would not amount to a public purpose". In the present case, the lands of the petitioners have been acquired only for the benefit of Agha Sahib not in lieu of his acquired land but for his agreeing to shift the Shrine. This is hardly a "public purpose" in the eyes of law, though it may be a laudable one otherwise. (1)PLD1975SC37 (2)AIR1I914PC20 (3) AIR 1956 Pb. 93 15, Learned counsel for the respondent Agha Syed Sardar Ali Jan. has submitted that in Liew of these pieces of land, a direction may be issued that the acquiring authorityshall give the said respondent land of equivalent area and quality from its own resources. For this relief, the said respondent shall have to move the relevant authorities who might still be willing, as they were before, to satisfying the said respondent. No order can be passed by this Court in this behalf. 16. In view of what has been stated above in the penultimate paragraphs, the impugned notifications to the extent that these concer the lands of the petitioners, excepting petitioners Nos. 1 and 6, to the extent of 24 kanals 3 marlas are declared to be inapplicable and without lawful authority and of no legal effect. In the circumstances of the case, however, the parties am left to bear their own costs. s. Q. Petition accepted.