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Petitioner: ABDUL GHAFFAR AND ANOTHER VS Respondent: PROVINCE OF BALUCHISTAN THROUGH JUDGMENT
Court Name: Balochistan High Court Judge(s): Abdul Qadeer Chaudhry, Muftikhar-ud-Din Title:ABDUL GHAFFAR AND ANOTHER vs PROVINCE OF BALUCHISTAN THROUGH
JUDGMENT
Reported As: PLD 1984 Quetta 24 Result: Petition dismissed Judgment JUDGMENT ' MUFTAIKHIRUDDIN, J.--By this petition the acquisition proceedings in respect of lands mentioned in the Notifications, dated 1st June, 1980 and 1st August, 1980 issued by Deputy Commissioner, Lasbella and Commissioner, Kalat Division respectively under sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act") required at the expenses of Messrs Galadari Cement (Gulf) Ltd., a Company registered under the Companies Act, 1913 and having its registered office at Awane Sadar Road, Karachi, for a public purpose namely for the establishment of Cement Factory in Mauza Pathara, Tehsil Hub. District Lasbella have been challenged and it has been prayed that the said notifications and the proceedings based thereon including the award given by Deputy Commissioner/ Collector be declared void, without jurisdiction, of no legal effect and without lawful authority and also restrain the respondents and/or person claiming through them from giving effect to the said notifications and/or from interfering with the plots of the petitioners and/or handing over the possession of the same to any one claiming through or under the said notification and/or proceedings based thereon. 2. In order to understand and appreciate the respective contentions raised it is, necessary to set forth in some detail the circumstances under which the land acquisition proceedings were initiated. ' A cement plant was proposed to be set up by the Galadari Group of companies Dubai (United Arab Emirates) after the approval of Investment Promotion Bureau, Ministry of Industries, Government of Pakistan vide letter No, IPB/CH/Cement/Galadari/78, dated 18-12-1978. The
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Government of Baluchistan had also issued a no objection certificate vide letter No, SOI (IND) 3- 23/95-11, dated 1-3-1979. This letter reads as follows :- ' Messrs Abdul Rahim E. Galadari & Bros. P. O. No, 158, Dubai, United Arab Emirates. ' "Subject: No-Objdection Certificate for the Establishment of Cement Plant at Lasbella District (Baluchistan). ' Dear Sir, ' Reference your letter No, Nil, dated 17-1.1979, on the subject noted above. 2. The Government of Baluchistan welcome your decision to the establishment of Cement Plant in Lasbela and are pleased to grant their no objection subject to the following conditions :- (1)Construction work is commenced, within a period of 6(six) months failing which the no objection certificate granted will be liable to be cancelled. (2)It would be mandatory for you to appoint 75 % of the labour force and equal percentage of the total managerial staff from amongst the permanent residents of Baluchistan within a period of 2 years from the date of commercial production. In other words you may employ outsiders for the first 5 years where local candidates with requisite qualifications or experience may not be available but during that period you shall undertake imparting of training to Baluchistan is in sufficient number so that at the end of the prescribed period of 5 years 75% of the total labour force and equal percentage of the total managerial staff should be from amongst permanent residents of this Province. (3)In order to enable the Baluchistan Government to watch the labour training arrangements made by your venture, half yearly statement have to be submitted to this Government by you so as to reach on 10th January, and 10h July each year showing the number of persons trained. Violation of this condition makes the N. 0. C. Liable to cancellation. (4) We wish you good luck in the venture and would be at your service should you need our help or assistance. (Sd.) Section Officer-I Industries Department." ' The detailed investigation and land survey carried by both the local and foreign consultants for exact location of factory site and Housing Colony in Deh Pathara District Lasbella was finalized. The project was expected to catter the domestic need of the country and yield foreign exchange by exporting 50% of the Cement produce. The Project was thus declared by the Government as of National importance. Accordingly an application was made, on 16-9-1979 to the Deputy Commissioner Lasbella. The said applications is reproduced below "To, ' The Deputy Commissioner, District Lasbela, 'Uthal. ' Subject.-Land Acquisition for the Galadari Cement Project Deh Pathara Tehsil Hub, Distt: Lasbella Baluchistan. ' Dear Sir, ' Reference our letter of 2nd October, 1978 followed with the discussion we had regarding the land requirement for the Galadari Cement (Gulf) Limited in Lasbela near Bawani Deh Pathara Tehsil Hub. ' The proposed cement plant to be set up by the Galadari Group of companies Dubai U.A.E. After the approval of Investment Promotion Bureau, Ministry of Industries, Government of Pakistan vide letter No, IPB/CH/Cement/Galadari/78, dated 18-12-1978. Moreover, Government of Baluchistan have also issued "No Objection Certificate" vide letter No, SOI (IND) 3-23/9541, dated 1-34979 (Copies enclosed) see Annexures 1 and 2. ' After a detailed investigation and land survey around Deb Pathra, Deh Beruit and Deb Sakran, our local and foreign consultants finalised the exact location of factory site and. Housing Colony in Deh
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Pathra between Beruit Nala located in Khasras Nos. 29, 30, 31, 42, 42/2, 47, 48, 50 and 150. Total area 752 acres and 3rod. Details of land are given-in Annexure 3 and location in Annexure 4. ' We shall extremely grateful if the land indicated above is allocated for the GALADARI CEMENT (GULF) LIMITED in accordance with Acquisition Act, 1894 and amendment to date. KINDEST Regards (Sd.) S. Lftikhar Ali." ' The Government lands and the lands belonging to the private persons including the land of Bolan Housing Society Ltd. (respondent No, 4) came under this project. The Government lands under Khasra No, 50 was handed over to Messrs Galadari Cement (Gulf) Ltd., and the cost determined therefor was realized while for the lands belonging to the private persons and the Bolan Housing Society Ltd., proceedings under the Act were initiated and a notification under section 4 of the Act was issued, on 1-6-1980. The said notification reads as follows :- "Office of the Deputy Commissioner/Collector Lasbella. Dated Uthal, the 1st June, 1980. NOTICE ' No, 6942-46/5. (160)/80/Rev.-Whereas it appears to the Collector, Lasbela District that land as likely to be required to be taken by Government at the Company expense for a Company purpose, namely for the construction/establishment of Cement Factory in Mouza Pathra, Tehsil Hub; District Lasbela, it is hereby notified that land in locality described below is likely to require for above purpose. ' This Notification made under the provisions of section 4 of the Land Acquisition Act, 1894 to all whom it concerns. ' In exercise of the powers conferred by the aforesaid section, the Collector is pleased to authorise the officers for the time being engaged in the undertaking with their servants and workmen to enter upon and survey any land in the locality and do all are required or permitted by that section. ' Any person interested who has any objection to the acquisition of land in the locality may, within one month of the publication of notification, file an objection in writing before the Collector of Lasbella, {{TABLE}} Khasra No, Location Total area acquired in acres. a- 29 Deb Pathara. 182-0-11 30 lit 45-3-22 31 44 2-2.09 ..,.......Rlow.18m....a.*:awoosswa *Aa.011iileelow.Momm, 42 Deh Pathara 168-0-37 42/2 41 18-0-32 47 44 118-3-04 150 ,i, 150-0-24 130 .4 67-1-24 753-1-3 (Sd.) (Major Nadir Ali), Deputy Commissioner/Collector Lasbella at Uthal." {{TABLE}} ' The Bolan Co-operative Society (respondent No, 4) in this petition through whom the petitioners claim the allotment of land in their favour in respect of 120 yard each in the Bolan Town, filed objections which were heard and disposed off and the objections rejected and the decision conveyed to the Commissioner Kalat Division whereafter the notification under section 6 of the Land Acquisition Act was issued. The same reads as follows :- "Office of the Commissioner Kalat Division (Revenue Branch)
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dated Khuzdar, the 1st August, 1980. NOTIFICATION ' No, 9631-55/RE-80.-Whereas it appears to the Provincial Government that land is required to be taken by Government at the company expense for a public purpose, namely for construction/establishment of Cement Factory in Mona Pathara, Tehsil Hub, District Lasbela, it Is hereby declared that land described in the specification below is required for the abo purpose. ' This declaration is made under the provision of section 6 of the Land Acquisition Act, 1894, to all whom it may concern and under the provisions of section 7 of the said Act, the Collector of Lasbela District, is hereby directed to take order for the acquisition of the said land. ' A plan of the land may be inspected in the office of the Collector Lasbela- Uthall, Commissioner Hub and Tebsildar Hub of District Lasbela. a (Specification) Khasras Nos. Location Total area required (in acres) 29 Deh Pathara Tehsil Hub 182-0-11 30 do 45-3-22 31 do 2-2-09 42 do 168-0-37 42/2 do 18-0-32 47 do 118-3-04 150 do 150.0-24 130 do 67.1-24 Total : 753-1-24 (Sd.) (Col. Abdul Rauf Khan) Commissioner Kalat Division." 3. The Deputy Commissioner Lasbela, on 29-10-1980 asked the Galadari Cement (Gulf) Ltd. To deposit the amount in respect of 797-2-11 Acres of land. This assessment was further re-examined and the enhanced amount was also paid by the respondent No, 5. The Collector made the award on 9-4-1981 which is reproduced below :- "AWARD ORDER ' Subject.-Acquisition of land from Mouza Pathara for Galadari (Gulf) Cements (Gulf) Limited for the purpose of construction/establishment of cement factory at Hub. ' Read.-(1) Notification under section 4 of the Land Acquisition Act, 1894 issued by the Collector Lasbela District under his No, 6942-46/5 (160)/80/RB, dated 1.6-1980 and No, 8425-29/5 (160)/80 RB, dated 2-7-1980. (2) Notification under section 6 of the Land Acquisition Act, 1894 issued by the Commissioner Kalat Division, Khuzdar under his No, 9637-41/RB/80, dated 1-8-1980 and No, 9631-35/RB-80, dated 1-8- 1980. ' Reasons of Award. ' Since the area of the private land is coming under Galadari Cement (Gulf) Limited for the purpose of construction/establishment of Cement Factory at Pathara Mouza, Tehsil Hub, District Lasbela, hence the land have been acquired as per notification issued by Commissioner, Kalat Division except those land for which Honourable High Court of Baluchistan has issued a Stay Order. Hence for issue of this award order arises, Ownership ' The land belongs to various persons as per record of rights maintained by Tehsildar Hub, District Lasbela
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{{TABLE}} S. No, Name of Owner. Area. Acre Rod Pole val 411 1. Bolan Co-operative Housing 514 - 1 14 Society Ltd. Hub. 2. Sher Mohd s/o Goreech Caste Gujar, r/o Pathara Tehsil Hub. 32 0 3. Rashid son of Abdul Latif, Mohd. All son of Suleman and Shabir 2 - 2 sit) Pir JMohd. r/o Karachi. 4. Aidoo, Saleh, Guloo, Matoo, Shambey sons of Mandoo, caste 20 - 34 Gujar r/o Pathara Tehsil Hub. 5. Bolan Investment, New Naham 63 - 2 04 Road, Karachi. 6. Muhammad Siddique son of Umer Baluch r/o Hub. 18 - 0 - 32. Total : 651 - 1 13 simmowlIMIONI1.1 Notice {{TABLE}} ' As the provisions of sections 5 and 5-A of the Land Acquisition Act, 1894 has been waived, therefore, the Baluchistan Government notified that land under section 6 of the Land Acquisition Act, 1894, stating therein that land is needed for construction of Cement Factory by Galadari Cements (Gulf) Limited. ' Requisition notices under sections 7, 8, 9 and 10 of the Land Acquisition Act, 1894 were issued stating therein that Galadari (Gulf) Cement Company Limited is constructing a Cement Factory on the Private land at Mouza Pathara and asked that all claims and statements for compensation and for all purposes may be made in the office of the Collector Lasbela, subsequently notices under section 11 of the Land Acquisition Act, 1894, were issued to the land-owners and date for holding enquiry was fixed and the claimants were heard accordingly. Claims ' In response to the notices issued, the land-owners have submitted their statements and claims. The rate of compensation claimed by the landowners ranges from Rs, 30,000 to Rs, 50,000 Messrs Bolan Co-operative Housing Society Limited have submitted documentary evidence in support of their claims. The claimant claimed the rate of compensation on the grounds that Bolan Co- operative Housing Society have sold that area to its members at the rate of Rs, 8 per sq. Yard. However, keeping in view of the situation and national importance of the the Cement Factory following rates are fixed :- {{TABLE}} (1) Land within one mile of R.C.D. Highway Rs, 5,000 Per acre. (2) Land failing one mile away from R. C. D. Highway Rs, 4,000 do {{TABLE}} ' In addition to the above rate of compensation, I award 25 percent statutory allowance as admissible under the Land Acquisition Act, 1894. (Sd.) Major Nadir Ali. Deputy Commissioner & Collector Lasbela Distt:" ' The amount of compensation determined by the Collector has been received by Messrs Bolan. Co-operative Housing Society Ltd., under protest. The letter issued in this behalf by the said Housing Society is reproduced below :- "The Deputy Commissioner/Collector Lasbela District. What ' Dear Sir,
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' Please refer to your award Order No, 1711/5 (160) RB, dated 8-4-1981 awarding compensation at the rate of Rs, 5,000 per acre in respect of land within one mile of R.C.D. Highway and at the rate of Rs, 4,000 per acre in respect of land falling one mile away from R.C.D. Highway in addition to 25% statutory allowance. ' We have not accepted and are not accepting your award in relation to the amount of compensation fixed by you and we propose to make an application to you to refer the matte to Court for determination of the amount of compensation under the provisions of Land Acquisition Act of 1894. ' In the meanwhile, it may be noted that the payment made by you on the basis of your award in respect of our land is received under protest as we do not accept the award given by you and the receipt of the payment by us will be without prejudice to our rights to challenge the award and the amount of compensation awarded therein. Yours faithfully For Bolan Co-operative Housing Society Limited." ' The physical possession of the land was handed over, on 6-5-1981. The proceedings initiated for enhancement of the compensation at the instance of respondent No, 4 are however pending. 4. The petitioners have filed this Constitutional Petition, on 11-9-1982 in this Court and claim that they bad been allotted, on 3-1-1979 pieces of land measuring only 120 sq yards by the Bolan Co- operative Housing Society (Plots Nos. 633 and 631) and they had paid the price thereof but the possession had not been delivered to them. It is alleged in the petition that in July, 1982 they had asked the Bolan Housing Society Limited to give them possession of their plots but had been informed vide letter dated 19-7-1982 that since the Society's land has been acquired by the notifications, dated 1-6-1980 and 1-8-1980 (Annexures I and J) they are not in a position to give possession, hence the petition has been filed in this. Court Messrs Galadari Cement (Gulf) Ltd., for whom the lands were acquired filed a Civil Miscellaneous Application No, 1 of 1983 on 11-1-1983 and have been impleaded as respondents Nos. 5 by order of this Court, dated 8-1-1983. The amended petition has been filed and the affidavit in rejoinder has been filed by the respondent No, 5. 5. The petitioners have raised a number of questions of law attacking the constitutionality of the land acquisition proceedings and the main grounds urged are that :- (a)the land has not been properly described; (b)The name of the company has not been mentioned in the notifications under section 4/6 of the Act. The notification are, therefore, invalid as there is no provision for acquiring the land for an undisclosed company; (c) Messrs Galadari Brothers whom the Notifications were forwarded is not a Company within the meaning of the Act as such the land cannot be acquired for said concern; (d)without prejudice and in the alternative the agreement was with a Company namely Messrs Galadari Cement (Gulf) Ltd. Which is a different concern namely Messrs Galadari Brothers for whose benefit the land was acquired through the notifications issued under section 4/6 of the Act; (e) No public notice as required under section 9(1) of the Act was issued; (f) No notice was issued to the petitioners as required under section 9(3) of the Act; (g)It was mandatory to effect service of notice under section 4 of the Act to the persons effected including the petitioners. (h)The action of acquiring land is against the principles of natural justice; (i) No agreement has been executed between the Government and the Company before taking steps under sections 6 and 37 of the Act and one published was subsequent to the notification issued under section 6 of the Act; 6. In reply to the grounds mentioned by the petitioner as said above, the counsel for the respondent No, 5 has contended that the proceedings for acquisition of land had been conducted properly and entirely in accordance with the Act. The Government has satisfied itself that such
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acquisition was necessary for public purpose and it was needed for the construction of a cement and housing Society by Messrs Galadari Cement (Gulf) Ltd., Company and which was likely to prove useful to the public and the declaration to that effect was made published in accordance with section 6 of the Act and by clause 3 of that section such declaration was conclusive that the land was required for the purpose declared. After the declaration the land had been acquired in the manner prescribed by the Act and the acquisition was in all respects valid. The possession of the land was obtained after the proceedings were completed. 7. Legal objections about the status of the petitioners to challenge the acquisition proceedings specially when respondent No, 4 has accepted the acquisition has also been made. It has been further contended that the contractual obligation if any between the petitioners and the Housing Society (respondent No, 4) have no bearing on the right and interest of the respondent No,,. 5, accruing from the acquisition of land. The petitioners for their grievance, if any, have the remedy under the Act. It is also asserted that this petition is the result of collusion between the petitioners and the respondent No, 4. 8. In order to satisfy ourselves we have perused the record and facts borne out from the record have been mentioned in paras. 2 and 3 above in order to complete the narration of facts so as to appreciate the respective Contentions raised by the parties. 9. In order to determine the present controversy it is necessary at this stage to examine the relevant provisions of the Act. The Act has the following preamble: "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 acquisition." The words "company" and "public purpose" are particularly noteworthy in section 3 of the Act. The expression company has been used in comprehensive sense of including not only the companies under several statutes, but also includes a Society registered within the meaning of the Co- operative Societies Act. ' The expression public purpose as defined in section 3(f) does not determine its scope. All that has been said in the Act, is :- "The expression "public purpose" includes the provisions of village sites in districts in which the Provincial Government shall have declared by Notification in the official Gazette that it is customary for the Government." ' In the case of Lt.-Col. Muhammad Amin Khan v. Government of Pakistan and others (1), Mushtaq Hussain, J. (as he then was) at page 117 of the report has expressed :- "that one of the two words means or includes is generally employed to define the scope of a word in the interpretation Clause of a statute. The former is used to restrict the scope of the word to the four corners of what is stated in the clause and to deprive it of any other meaning that it may have in the English Language. The word "include" on the other band is used with a view to enlarging the meaning of the word, by also clothing it with the connotation given to it in the interpretation clause in addition to the sense which it conveys in common parlance." "Include" is not used in a sort of a conjective sense so as to make only such things correspond to the word "defined" as answer to the meaning given to the word in the ordinary language as well as the scope assigned to it by the definition. Since the purpose is to extend the scope of the word it will cover not only cases which are covered by the dictionary meaning plus the meaning given in the interpretation clause but also by either of them individually. To hold otherwise is to defeat the very purpose for which the word include is used in the interpretation clause." ' The question of what is public purpose has been considered by the {{FOOT NOTE}} (1) PLD 1966 (W. P.) Lab. 111
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{{FOOT NOTE}} ' Courts. In the words used by Mahajan, J. In State of Bihar v. Komsor Singh (1) :- "that "public purpose" is not capable of a precise definition and has not a rigid meaning. In other words the definition of the expression is elastic and takes it colour from the statute in which it occurs, the concept varying with the time and state of society and its needs. The point to be determined in each case is whether the acquisition is in the general interest of the community as distinguished from the private interest of an individual." ' Das, J in the same case has expressed the opinion that "with the onward march of civilization our notions as to the scope of the general interest of the community are fast changing and widening with the result that our old and narrow notions as to the sanctity of the private interests of the individual can no longer stern the onward following tide of time and must necessarily give way to the broader notions of the general interest of the community." ' In AIR 1960 SC 1023 buildings of residential quarters for industrial labours was declared as public purpose. The result of the authorities may thus be summed up. Acquisition of property for public purpose includes whatever results in advantage to the public and any work of which the public can in any way derive benefits whether by direct use of the work or by enjoyment of the fruits of activities carried on there will be a public purpose. It might be in favour of the individuals provided they are benefited not as an individual but in furtherance of a scheme of public utility. It follows that whetever furthers the general interests of the community as opposed to the particular interest of the individual must be regarded as a public purpose. 10. The proceedings begin with a Government notification, under section 4 of the Act that the lands in any locality is needed or is likely to be needed for any public purpose. On the issue of such a notification it is permissible for a public servant to enter upon the land to do certain things specified therein with a view to - ascertaining whether the land is adapted for the purpose for which it was proposed to be acquired as, also to determine the boundaries of the land proposed to be included in the scheme of the acquisition. Section 5 makes provisions for hearing of objections by any person interested in any land notified under section 4 and makes reference not only to public purpose, but also to a company. It is noticeable that section 5(a) of the Act predicates that the notification under section 4(1) of the Act may not only refer to land needed for a public purpose, but also to land needed for a company and after the enquiry as contemplated by C section 5(a) of the Act has been made and the Collector has heard objections, if any, by interested parties; he has to submit his report to the Government alongwith the record of the proceedings held by him and his recommendations on the objections. Thereupon, the Government has to make its mind whether or not the objections were well-founded, and the decision of the Government on these objections is to be treated as final. If the Government is satisfied that the land was needed for a public purpose or for a company, a declaration must be made to that effect and such a…
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