2017 Y L R Note 7

[Lahore]
Before Amin-ud-Din Khan and Shahid Bilal Hassan, JJ
ANJUMAN MUTASAREEN GARMENTS CITY SHEIKHUPURA M-2 through
Authorized Representative and 15 others---Appellants
Versus
GOVERNMENT OF THE PUNJAB through Chief Secretary and 4 others---
Respondents
Intra-Court Appeal No.84 of 2014 and Writ Petition No.10 of 2014, decided
on 18th February 2014.
(a) Land Acquisition Act (I of 1894)---
----Ss. 6 & 39---Constitution of Pakistan, Art. 199---Law Reforms Ordinance
(XII of 1972), S. 3---Intra-court appeal---Land acquisition---Establishment of
company for development of industrial estates---"Apparel Park"---"Public
purpose"---Scope---Contention of petitioners was that establishment of
"Apparel Park" was not a "public purpose"---Validity---Company was in the
status of attached department of Industries, Commerce and Investment
Department---Company was wholly owned and controlled by the
Government and funds which had been given by the government for
acquisition of land would remain to be public funds---Prior agreement in
accordance with S. 39 of Land Acquisition Act, 1894 was for ensuring the
payment of cost of acquisition---Government had already transferred the
funds to the company---No illegality was pointed out in the impugned
judgment---Intra-court appeal was dismissed in circumstances. [Paras. 15 and
16 of the judgment]
Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd.,
Tokht Bhai and 10 others PLD 1975 SC 244 and Raja Muhamamd Amir and 40
others v. Province of Punjab and 2 others PLD 1984 Lah. 295 rel.
(b) Land Acquisition Act (I of 1894)---
----Ss. 4, 6, 9, 17 & 39---Civil Procedure Code (V of 1908), O. II, R. 2---
Constitution of Pakistan, Arts. 199, 24 & 10-A--- Constitutional petition---
Maintainability---Land acquisition---Establishment of company for
development of industrial estates---"Apparel Park"---"Public purpose"---
Urgency---Scope---Contention of petitioners was that notifications issued
under Ss.17(4) & 6 of Land Acquisition Act, 1894 were ultra-vires of Art. 10-A
of the Constitution and establishment of "Apparel Park" was not a "public
purpose"--- Validity---Company incorporated would be considered to be
attached department of Government under the law---Purpose for acquisition
of land was a "public purpose" and urgency for issuance of notifications
under Ss.17(4) & 6 of Land Acquisition Act, 1894 could not be adjudicated
while exercising constitutional jurisdiction---Impugned notifications had been
issued in accordance with law and no provision of Constitution or law had
been violated---Disputed facts could not be adjudicated in constitutional
jurisdiction---Petitioners had not impleaded Federation as party in the
present constitutional petition and without impleading the same and without
notice to the Attorney-General provisions of any Federal statute could not be
scrutinized and adjudged ultra vires of any Article of the Constitution ---
Notifications for acquisition of land had been issued and mutation had been
sanctioned in favour of company---Question of "public purpose" could be
adjudged by the civil court---Present constitutional petition had not been
filed against the Province and no order could be passed against the same
without impleading it---Such constitutional petition was not competent---
Procedure of Civil Procedure Code, 1908 was applicable in proceedings under
the constitutional petition---Cause of action on the basis of which present
constitutional petition had been filed was available at the time of filing of
first constitutional petition and bar contained under O.II, R.2, C.P.C. would be
applicable---Constitutional petition was dismissed in circumstances. [Paras.
17, 18, 19, 20, 21 and 23 of the judgment]
Shahzada Khurram Nazir and another v. Province of Punjab through
Secretary Industries, Punjab, Lahore and 4 others PLD 2011 Lah. 276;
Muhammad Ashiq and another v. Water and Manpower Development
Authority, Lahore through Chairman, WAPDA House and another PLD 2008
SC 335; Muhammad Afzal Bhatti and 17 others v. Province of Punjab through
Collector, Rawalpindi and 4 others 1997 SCMR 296; Suo Motu Case No.13 of
2007 PLD 2009 SC 217; Government of Balochistan, CWPP&H Department
and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010
SCMR 115 and Central Board of Revenue and another v. S.I.T.E. PLD 1985 SC
97 rel.
Dr. Abdul Basit and Muhammad Iqbal for Appellants.
Mustafa Ramday, Advocate General Punjab for Respondents.
Madam Samia Khalid, A.A.G. for Respondent.
Aamir Iqbal Basharat for Respondent No.7 (In Writ Petition and for
Respondent No.5 in I.C.A.).
Major. Gen. (R) Javed Iqbal, CEO, PIEDMC.
Col. (R) Naveed Mushtaq Gill, G.M. (Technical) PIEDMC.
Nasir Qadir, CEO/General Secretary PIEDMC.
Kh. Muhammad Zaman, Assistant Manager PIEDMC.
Irfan Ali, Secretary Industries Punjab.
Javed Iqbal Malik, Economic Advisor Industries Department.
Kashif Warraich, Senior Law Officer Industries Department.
Syeda Kalsume Hai, ADC, Sheikhupura.
Ali Jan Khan DCO, Sheikhupura.
Dates of hearing: 13th, 17th and 18th February, 2014.
JUDGMENT
AMIN-UD-DIN KHAN, J.---Through this judgment we intend to decide
instant I.C.A. No.84 of 2014 as well as Writ Petition No. 10 of 2014, which has
also been fixed before us due to pendency of this ICA as both these matters
have nexus with each other.
2. In the instant Intra Court Appeal under section 3 of the Law Reforms
Ordinance, 1972, the appellants have impugned the judgment passed by
learned Single Judge of this Court dated 16.01.2014 whereby the Writ
Petition No. 33471 of 2013 filed by the appellants was dismissed.
3. According to the brief facts of the case appellants on 23.12.2013 filed
Writ Petition No. 33471 of 2013 with the following prayer:-
(i) Respondent Government be directed to act in accordance with Part VII of
the Land Acquisition Act, 1894.
(ii) Respondent Government be directed specifically to indicate a time, date
and place for holding an inquiry contemplated by section 40(1) of the
1894 Act, ibid.
(iii) No statutory agreement as is contemplated in section 41 of the 1894 Act,
ibid, be entered with the Respondent Company until proper satisfaction
is obtained as a result of the inquiry in which process members of the
Petitioner Anjuman have a right to participate so as to demonstrate that
the impugned acquisition is repugnant to public interest.
(iv) Any other relief deemed suitable to the peculiar facts of this Case may
also be afforded to the Petitioner.
The Writ Petition was heard by the learned Single Judge. Comments were
filed by the respondents as well as re-joinder was filed by the writ
petitioners. Further notable fact is that originally writ petition was filed by
Anjuman Mutasareen Garments City Sheikhupura, a Society to be registered
under the Societies Act, through its alleged authorized representative and
subsequently through C.M. No.4 of 2014 which was filed under Order I, Rule
10 of the C.P.C., applicants were allowed to be impleaded as petitioner Nos.
2 to 16 vide order dated 10.01.2014 and the learned Single Judge vide order
dated 16.01.2014 dismissed the writ petition. Feeling aggrieved petitioners
have filed the instant appeal.
4. Writ Petition No. 10 of 2014 was also filed on 1.1.2014 by the same
Anjuman Mutasareen Garment City Sheikhupura, which filed the ICA and
subsequently C.M. No.3 of 2014 was accepted and applicants were allowed
to be impleaded as Writ Petitioners Nos. 2 to 16. In Writ Petition No. 10 of
2014 following prayer has been made:-
(i) "The impugned Notification under section 17(4) as also Section 6 of the
Land Acquisition Act, 1894 be declared ultra-vires of Article 10-A of the
Constitution of Pakistan.
(ii) The entire acquisition proceedings initiated on the basis of the
engineered summary got approved by the Chief Minister Punjab be set
aside as an illegal and mala fide exercise which has violated statutory
provisions.
(iii) Respondents be restrained from making any entries in the revenue
record to divert the title of the Members of the Petitioner Anjuman in
the land targeted for compulsory acquisition in pursuance of the
impugned Notification under section 4, ibid.
(iv) All Respondents be restrained from taking over physical possession of
any land owned by the members of the Petitioner Anjuman pursuant to
the impugned Notifications.
(v) Any other relief deemed suitable to the peculiar facts of this Case may
also be afforded to the Petitioner."
5. For fair appreciation of the matter in issue the facts necessary to be
noted are that Government of the Punjab (hereinafter called "the
Government") established a Company for development of Punjab Industrial
Estates and its management, the same was incorporated under section 42 of
the Companies Ordinance, 1984 and was registered with the Joint Stock
Companies, City District Government, Lahore vide order dated 18.09.2003 in
the name of Punjab Industrial Estates Development and Management
Company Lahore, (hereinafter called "the Company"). The Company in order
to take the benefit for the Country as Pakistan was expecting the status of
GSP Plus, with a plan to establish a Garment Industrial Zone initially by the
name of "Garment City", afterwards it was renamed as "Apparel Park",
therefore, moved for acquisition of the land for the said purpose for the
Company, therefore, the 1st Notification under section 4 of the Land
Acquisition Act, 1894 (hereinafter called as "the Act") was issued on
28.10.2013 for the land measuring 8845-kanals 12-marlas and a 2nd
Notification under section 4 of the Act, was issued on 26.11.2013 for the land
measuring 2554-kanals and 13-marlas. Notification under sections 17(4) and
6 of the Act was issued with regard to the land mentioned in the 1st
Notification, on 23.12.2013.
6. The complete facts have been noted by the learned Single Judge while
deciding the Writ Petition which is subject matter of the ICA but for clarity
we note that the facts are correct with the clarification that on the basis of
subsequent notification under section 4 of the Act issued on 26.11.2013 for
additional land measuring 2554 kanals 13 marlas, admittedly, no further
proceedings have been carried out yet, therefore, 2nd Notification issued
under section 4 of the Act is not the subject matter of both the matters
before this Court.
7. The grievance of the appellants in the Writ Petition which is subject
matter of appeal was that since the acquisition was being undertaken for the
benefit of a private limited company, therefore, the process of acquisition
prescribed for a company under Part VII of the Act was mandatory and must
have been followed whereas in the writ petition in hand i.e. Writ Petition
No.10 of 2014 their attack is on issuance of Notification under section 17(4)
and section 6 of the Act and their prayer was that same be declared ultra-
vires of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
8. Learned counsel for the appellants argues that if the judgment of
learned Single Judge is accepted, Part VII of the Act becomes redundant; that
the procedure adopted by the respondents while acquiring the land is
violative of Article 24 of the Constitution of Islamic Republic of Pakistan,
1973 and the purpose of acquisition which is mentioned as "public purpose"
is not a "public purpose"; that there is no distinction in the Act with regard to
a company as has been mentioned in section 3(e) of the Act and there is no
exemption with regard to the company owned by the Government from the
procedure provided under Part VII of the Act; that this Company i.e. Punjab
Industrial Estates Development and Management Company (PIEDMC) has not
been formed in accordance with section 42 of the Companies Ordinance,
1984; that the case law relied by the learned Single Judge is absolutely not
applicable to the facts of this case; that execution of agreement in
accordance with section 39 of the Act was necessary and further, previous
inquiry in accordance with section 40 was necessary, therefore, prayed for
acceptance of this appeal as well as acceptance of writ petition and setting
aside of the judgment passed by the learned Single Judge.
9. Learned Advocate General Punjab has argued that the impugned
judgment is in accordance with law and states that the judgment is based on
the previous judgments of this Court as well as august Supreme Court of
Pakistan and the learned counsel for the appellants could not show any
defect in the judgment passed by the learned Single Judge in Chamber.
Further with regard to distinction of the company simplicitor and company
for the benefits of public and public purpose argues while referring the
judgments of this Court as well as august Supreme Court of Pakistan and that
the company is in accordance with section 42 of the Companies Ordinance,
1984. Further that the new grounds taken before this Court while arguing
this appeal are not tenable under the law as the same have not been
agitated before the learned Single Judge. Lastly informs that the Government
intends to give 25% compulsory acquisition charges along with the
compensation to the owners of land.
10. Learned counsel representing the company i.e. respondent No. 5 in
ICA and respondent No. 7 in Writ Petition has adopted the arguments of
learned Advocate General Punjab.
11. While arguing the Writ Petition learned counsel for the petitioners
argues that the purpose of establishing the "Garment City" or the "Apparel
Park" (Industrial Estate) is not a "public purpose"; that if it is a "public
purpose" the making of a new Industrial Zone is not a "public purpose" and
further that making the Industrial Zone on the specific property which is
owned by the petitioners is not a "public purpose"; that the proposed land
for which Notification under section 4 of the Act has been issued is not
required for the public purpose. Lastly argues that the provision of section
17(4) of the Act has been applied which is ultra-vires of Article 10-A of the
Constitution of Islamic Republic of Pakistan, 1973; that the proposed
compensation is not adequate and the same has been determined by the
persons who were not competent to determine the same; that the "urgency"
pleaded by the respondents while issuing Notification under section 17(4) is
not an "urgency"; that the status of GSP Plus was given to Pakistan on
12.12.2013 and the issuance of Notification previous to that by the official
respondents under section 4 of the Act shows that it was not for taking the
benefit of the status given as GSP Plus; that the acquisition process is in
violation of Rule 10(3) of the Land Acquisition Rules, 1983; that six Industrial
Estates are already in existence and there is sufficient space in the said
Industrial Estates for establishing garment industries. Further argues that at
least three years will be required to construct the infrastructure and
thereafter the industry can be established and alleged purpose for achieving
the goals of the export of garments to take benefit of GSP Plus status cannot
be achieved. Even learned counsel has argued with regard to the potential
value, compensation and grant of compensation.
12. Learned Advocate General Punjab argues that notice under section 9(i)
of the Act was issued and that ground No. (iii) of the Writ Petition is an
admission in favour of the Company and against the case of the petitioners
and further that policy decision has been challenged in the writ petition,
which is not permissible under the law. Further argues that petitioners have
contradicted the facts without any substance. While referring the feasibility
report states that hectic efforts as well as labour was put by the concerned
officials and departments by preparing the feasibility report which consists
upon more than 100 pages and there are deliberations and experts' opinions
from all relevant quarters and after that the site has been proposed. Argues
that petitioners have no right to raise objection with regard to site of the
land as well as purpose of acquisition and also the urgency as determined by
the Government. Further argues that near about 20 to 25 million people will
be accommodated in the "Apparel Park" and most of them will be females
and that it is the responsibility of the Government that in accordance with
the Conventions signed by the Government with the International
Organizations, the Government is to take care that the industries established
therein provide the facilities to their workers in accordance with the
Conventions and further while refuting the arguments of learned counsel for
the petitioners that the units of the Garment Industries can be established in
already existing Industrial Estates established by the Government through
the Company, learned Advocate General argues that admittedly in the
already existing Industrial Estates there are various industries wherein the
problem of pollution as well as setting off the complete infrastructure for the
establishment of "Apparel Park" is not feasible, therefore, it was necessary
that a fresh "Apparel Park" be established so as to take the benefit of status
of GSP Plus which has been initially given to the Country for five years.
Argues that after publication of Notification under section 17(4) and section
6 of the Act on 26.12.2013 a mutation has also been sanctioned in favour of
the Company on 30.12.2013. Referred the case law of this Court as well as
august Supreme Court of Pakistan, we will discuss the same in detail while
recording our findings.
13. For better understanding the GSP Plus, we have downloaded the
material from the internet, which is hereby quoted as under:-
"The primary objective of the Generalized System of Preference,
commonly called GSP is to contribute to the reduction of poverty and the
promotion of sustainable development and good governance. Tariff
preferences in the EU market enable Developing Countries to participate
more fully in international trade and generate additional export revenue
to support implementation of their own sustainable development and
poverty reduction policy strategies. The European Union's GSP covers
three separate regimes;
(i) The standard GSP, which provides preferences to 90 (previously 177)
Developing Countries and Territories on over 6300 tariff lines;
 (ii) The special incentive arrangement for Sustainable Development and
Good Governance, known as GSP+, which offers additional duty free
exports to support vulnerable developing countries (previously 16 now
25 countries - Including Pakistan) in their ratification and implementation
of relevant international conventions in these fields, and;
(iii) The Everything But Arms (EBA) arrangement, which provides Duty-
Free, Quota Free access for the 50 Least-Developed Countries (LDCs)."
14. We have heard learned counsel for the parties, gone through the
record available before us as well as findings recorded by the learned Single
Bench and law cited before us.
15. The main attack in the appeal by the learned counsel for the
appellants that the land has not been acquired in accordance with law,
therefore, process of acquisition is violative of Article 24 of the Constitution
of Islamic Republic of Pakistan, 1973, though in the pleading the Company
was referred as Private Limited Company but learned counsel submitted that
the appellants admit that Company has been registered under section 42 of
the Companies Ordinance, 1984 and it is a Company limited by guarantee.
We have gone through the First Schedule to the Punjab Government, Rules
of Business, 2011 wherein the Company is in the status of attached
department of Industries, Commerce and Investment Department. For better
understanding and appreciating the real position of Company we have the
honour to go through the judgment reported as PLD 1975 Supreme Court
244 (Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht
Bhai and 10 others) and we borrow the following paragraphs and quote the
same:-
"Now, what is meant by the phrase" performing functions in connection
with the affairs of the Federation or a Province." It is clear that the
reference is to governmental or State functions, involving, in one form or
another, an element of exercise of public power. The functions may be
the traditional police functions of the State, involving the maintenance of
law and order and other regulatory activities; or they may comprise
functions pertaining to economic development, social welfare,
education, public utility services and other State enterprises of an
industrial or commercial nature. Ordinarily, these functions would be
performed by persons or agencies directly appointed, controlled and
financed by the State, i.e. by the Federal Government or a Provincial
Government. However, in recent years, there has been manifest a
growing tendency on the part of Governments to create statutory
corporations for undertaking many such functions, particularly in the
industrial and commercial spheres, in the belief that free from the
inhibiting effect of red-tapism, these semi-autonomous bodies may
prove more effective, flexible and also profitable. Inevitably, Government
retains effective control over their functioning by appointing the heads
and other senior officers of these corporations, by regulating their
composition and procedures by appropriate statutes, and by finding
funds for financing their activities."
---------------
---------------
---------------
---------------
However private organizations or persons, as distinguished from
government or semi-government agencies and functionaries cannot be
regarded as persons performing functions in connection with the affairs
of the Federation or a Province simply for the reason that their activities
happen to be regulated by laws made by the State.
---------------
---------------
---------------
---------------
The primary test must always be whether the functions entrusted to the
 organization or person concerned are indeed functions of the State
involving some exercise of sovereign or public power; whether the
control of the organization vests in a substantial manner in the hands of
Government; and whether the bulk of the funds is provided by the State.
If these conditions are fulfilled, then the person, including a body politic
or body corporate may indeed be regarded as a person performing
functions in connection with the affairs of the Federation or a Province;
otherwise not."
Further we have also gone through the judgment reported as PLD 1984
Lahore 295 (Raja Muhammad Amir and 40 others v. Province of Punjab and 2
others), same has been referred by the learned Single Bench and came to the
conclusion that it is not a Company Simplicitor as it is wholly owned and
controlled by the Government, therefore, in the light of the case law referred
supra, the learned Single Judge came to the conclusion that as the company
is wholly owned and controlled by the Government, therefore, the funds
which have been given by the Government for the acquisition of the land
remained to be public funds and fall within the meaning described under
section 6 of the Act, therefore, it is a "public purpose". So far as prior
agreement in accordance with Section 39 of the Act is concerned, the
learned Single Judge came to the conclusion that this agreement is for
ensuring the payment of cost of acquisition. In the case in hand for cost of
acquisition the Government has already transferred the funds to the
Company, therefore, there was no need for an agreement on this point to
ensure payment to the Government by the Company. We do not agree with
the arguments of learned counsel for the appellants that the judgment of
learned Single Judge will make Part VII of the Act as redundant. As we have
noted supra, the judgment of the learned Single Judge is based upon the
judgments passed by the learned Division Bench of this Court as well as of
august Supreme Court of Pakistan and there is absolutely no chance of
redundancy of Part VII of the Act by the pronouncement of the judgment by
the learned Single Judge. We also do not agree with the argument that the
case law relied upon by the learned Single Judge is not applicable to the facts
of the case, as except the argument learned counsel for the appellants could
not show us that how the case law relied upon by the learned Single Judge is
not applicable to the facts of this case.
16. Learned counsel for the appellants could not show any illegality in the
judgment passed by the learned Single Judge, therefore, we are unable to
disagree with the judgment of the learned Single Judge. Resultantly, this
appeal being not maintainable stands dismissed.
17. While arguing on the writ petition, the contentions raised by learned
counsel for the petitioners are mostly concerned with regard to the
suitability of the land, which have been controverted by the other side,
therefore, on the basis of disputed facts, this Court cannot adjudicate the
matter in issue. So far as prayer that issuance of Notification under section
17(4) and Section 6 of the Act, same be declared ultra-vires of Article 10-A of
the Constitution of Islamic Republic of Pakistan, 1973, this prayer is based
upon the fact that no notice under section 9(i) of the Act has been issued
whereas it is the case of the other side that process of issuance of notice
under section 9 has been completed. The argument of learned counsel for
the petitioners that the issuance of notification under section 17(4) of the
Act is violative of Article 10-A of the Constitution of Islamic Republic of
Pakistan, 1973. Learned counsel argues that after the insertion of Article 10 -
A in the Constitution, the issuance of Notification under section 17(4) of the
Act is violative of this newly added Article. To dilate upon this question we
must refer the argument of learned counsel for the petitioners, when
learned Advocate General referred "Shahzada Khurram Nazir and another v.
Province of Punjab through Secretary Industries, Punjab, Lahore and 4
others" (PLD 2011 Lahore 276) passed by the learned Single Judge of this
Court whereby Rule 10(3) of the Punjab Land Acquisition Rules, 1983 was
declared as inconsistent of Land Acquisition Act, 1894, learned counsel for
the petitioners raised the objection that by perusal of reported judgment it is
not clear whether the Federation of Pakistan was made party in that writ
petition, learned counsel argued that as the Land Acquisition Act 1894 is a
Central Statute though there are Provincial amendments in the Statute but
while adjudicating upon any provision of that Statute the Federation of
Pakistan is a necessary party and issuance of notice to the Attorney General
is also necessary. We cannot say that these arguments have given benefit to
the petitioners but we see that these arguments are fatal for the petitioners
themselves as in this case when the petitioners require from this Court for a
declaration that after the insertion of Article 10-A in the Constitution the
provision of Section 17(4) of the Act are ultra-vires of the above said newly
added Article of the Constitution. We have seen that the petitioners have not
made the Federation as party as respondent in the Writ Petition, therefore,
without impleading the Federation as party and without notice to the
Attorney General the provisions of any Federal Statute cannot be scrutinized
and adjudged ultra-vires of any Article of the Constitution of Islamic Republic
of Pakistan, 1973. Therefore, on the basis of disputed facts, issuance of
notification under section 17(4) and section 6 of the Act, we are afraid how it
can be declared ultra-vires of Article 10-A of the Constitution of Islamic
Republic of Pakistan, 1973.
18. The argument of learned Advocate General that the issuance of
Notification by the Government under section 17(4) and section 6 of the Act
is not justiciable. We have gone through the judgment referred by him i.e.
"Muhammad Ashiq and another v. Water and Manpower Development
Authority Lahore through Chairman WAPDA House and another" (PLD 2008
SC 335) and are fully agree with the same. We quote relevant observation i.e.
paras 8 and 9 of the said judgment.
"8. We have found from the above noted para that the land was being
acquired by the Government at the public expenses. Secondly, the land
was being required for public purpose, namely, for the construction of
WAPDA offices and official residential colony. This aim and purpose was
again reiterated and declaration to that effect was also got published by
the Provincial Government under section 6 of the Land Acquisition Act,
1894. According to subsection (3) of section 6 of the Land Acquisition
Act, 1894, the said declaration has got the presumption of conclusive
evidence of the fact that the land was acquired for the public purpose.
 After the publication of this declaration, the presumption was to be
rebutted by the present petitioners through sound material and cogent
evidence. Mere plea that the land of Seth Abid and his relative was not
acquired although it was situated within the area surrounded by the area
to be acquired, could not lead to this conclusion that the land was not
being acquired for the public purpose or the acquisition was based on
mala fides. The explicit words of acquisition of land in dispute, by the
Government at the public expense in the Notification under section 4 of
the Land Acquisition Act, 1894 are sufficient to hold that the land was
being acquired by the Government for the purpose of construction of
WAPDA offices and residential colony. The Government was to decide as
to which land was suitable for its purpose. Therefore, no mala fides could
be attributed to the Government merely on this plea. The plethora of
judgments have found place in the judgments of the learned Division
Bench as well as the learned Single Judge in Chamber of the Lahore High
Court, Lahore which need not be repeated in this judgment.
9. As regard the contention of the learned counsel that emergency
provision of section 17(4) of the Land Acquisition Act, 1894 was invoked
for securing the possession of land to be acquired, although there was no
urgency to proceed in such a manner was not an objectionable act
because it was the subjective satisfaction of the competent authority to
apply those provisions or not according to given circumstance, which was
not to be allowed to be made available for scrutiny by this Court through
the instant jurisdiction. The learned Division Bench of the Lahore High
Court has dealt with this subject also in Para-8 of its judgment. It was
noted that Central Testing Laboratories were to be established urgently
as the project was being implemented with the consultative assistance of
U.N.D.P. in WAPDA Thermal Scheme. Therefore, this being an urgent
requirement of aforementioned organization/ department, the
notification issued under section 17(4) of the Land Acquisition Act cannot
be considered to be invalid proceedings."
We have the honour to further quote Para 6 of judgment reported as
"Muhammad Afzal Bhatti and 17 others v. Province of Punjab through
Collector, Rawalpindi and 4 others" (1997 SCMR 296) which is also relevant:
"It was next contended by the learned counsel for the petitioners before
us that the notification under sections 6 and 17 of the Act had been
jointly issued which, besides being legally not permissible, were not
sustainable as no notice thereof had been served upon the petitioners.
The two pronged attack on the impugned joint notifications is devoid of
substance. There is nothing in the Act against issuance of notifications
under sections 6 and 17 ibid jointly nor any prejudice to the petitioners is
shown to have thereby occasioned. Again the existence of urgency under
section 17 of the Act is a matter solely for the determination of the
Government and is generally not a subject of judicial review. In so far as
the allegation of omission to serve notice upon the petitioners is
concerned, it was neither grounded in the petition nor was it urged
before the High Court. Similarly, the assertion noted earlier qua the
property or legality of issuance of joint notifications under sections 6 and
17 of the Act had also been taken for the first time in this Court. These
contentions having been raised for the first time have not impressed us,
for, the point not raised before the High Court cannot be agitated before
this Court."
Learned counsel for the petitioners has mainly attacked the purpose of
acquisition as well as urgency, against which the record of the respondents
show that summary was initiated by the Secretary Industries on 30.8.2013
through the route of Senior Member Board of Revenue, same was approved
on 1.10.2013, therefore, first Notification under section 4 of the Act was
issued on 28.10.2013 and notice under section 9 was issued on 11.11.2013
for 26.11.2013 and the status of GSP Plus was given to Pakistan on
12.12.2013 and the same has been given initially for five years, therefore,
Notification was issued under section 17(4) and Section 6 on 23.12.2013
which was published on 26.12.2013 in the official Gazette and the mutation
was sanctioned in the name of the Company on 30.12.2013. As per august
Supreme Court of Pakistan the question of "public purpose" can be
adjudicated by the civil court, therefore, we can take light from the judgment
reported as PLD 2009 Supreme Court 217 (Suo Motu Case No. 13 of 2007)
and quote the following paragraph from the said judgment:-
"Similarly, disputed factual questions regarding non fulfilment of
conditions precedent for issuance of notification under the Act and the
question as to whether acquisition is for public purpose or not, can be
determined by the Civil Court. In the instant case, prima-facie laying of
Housing Scheme for the utilityuse of public-at-large, as compared to
some individuals, is a public purpose within the meaning of section 4 of
the said Act which was published in official gazette and copies thereof
were affixed at conspicuous places at the land under acquisition, thus,
the requirements of law were sufficiently met."
The objection that writ petition has not been filed in accordance with Article
174 of the Constitution as well as section 79 of the C.P.C. against the
Provincial Government, therefore, same is incompetent. Reliance has been
placed on "Government of Balochistan, CWPP&H Department and others v.
Nawabzada Mir Tariq Hussain Khan Magsi and others" (2010 SCMR 115). We
take light from the judgment and quote the following finding:-
"No suit can be filed against Provincial Government without impleading
the Province as a party and the procedural precondition is mandatory in
nature and no relief can be sought without its strict compliance and such
suit would not be maintainable."
The objection of the learned Advocate General Punjab has weight, the writ
petition has not been filed against the Province of Punjab. When writ
petition has not been filed against the Province of Punjab no order can be
passed in this writ petition against the Province of Punjab and without
impleading Province of Punjab the writ petition is not competent. This is also
a fatal defect in filing of the writ petition.
19. In the light of judgment reported as "Central Board of Revenue and
another v. S.I.T.E" (PLD 1985 Supreme Court 97) we are of the view that
company incorporated will be considered to be attached department of the
Government under the law. Furthermore, under the Rules of Business this
Company has a status of attached department of the Government.
20. On the basis of judgment of the august Supreme Court of Pakistan we
are of the considered view that the purpose of acquisition is a public purpose
and the "urgency" as stated by the Government for issuance of notifications
under sections 17(4) and 6 of the Act is not justiciable by this Court while
exercising jurisdiction under Article 199 of the Constitution of Islamic
Republic of Pakistan, 1973, therefore, we are of the view that all the
notifications have been issued in accordance with law and there is no
violation of any provision of the Constitution or law.
21. The last argument of learned Advocate General as well as learned
counsel for the respondent is that Order II, Rule 2 of the C.P.C. is also a bar
against filing of the present writ petition. As at the time of filing of earlier
petition, alleged cause of action was available to the petitioners at that time
and they did not include the cause of action on the basis of which this
petition has been filed, therefore, Order II, Rule 2 of C.P.C. is a clear bar
against filing of this petition also. We hold that as the procedure of C.P.C. is
applicable upon the writ petition, therefore, on the basis of bar contained
under Order II, Rule 2 of the C.P.C., when at the time of filing of first writ
petition the cause of action on the basis of which present writ petition has
been filed was available, therefore, present petition is also barred under
Order II, Rule 2 of the C.P.C.
22. So far as matter of grant of compensation of the land acquired is
concerned, in our view the arguments advanced by the learned counsel for
the petitioners are overdoing, as yet no award has been announced,
therefore, we do not comment upon this point.
23. In this view of the matter, we see no force in the writ petition, same
stands dismissed.
ZC/A-44/L Petition
dismissed.