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Writ Petition No. 1797 of 1964, decided on 24th June 1965.
Ss. 3(a), 4, 5. & 17 Word "land"-Definition neither exhaustive nor restrictive, but extensive-Word "includes" used in interpretation clause does not restrict Government's power to acquire totality of interest in land-Government, being itself owner of land, can acquire other interests held by private persons.
The definition of land given in section 3 of the Land Acquisi tion Act is neither exhaustive nor restrictive but is extensive and besides the meaning with which it had been clothed in that section the word is capable of receiving its ordinary, popular and natural sense in which it is understood in the English language. The word "include" used in the interpretation clause does not restrict the power of the Government to acquire the totality of interest in land and it is open to the Government, in a given case where it is itself the owner of the land, to acquire such other interests in it as are held by private persons and which clog the rights of the Government to put the land to a particular public purpose.
The Government of Bombay v. Esufali Salebhai I L R 34 Bom. 618; Mangaldas Girdhardas Parekh v. The Assistant Collec tor of Prantij Prant, Ahmadabad I L R 45 Bom. 277; Collector of Bombay v. Nusserwanji A I R 1955 S C 298; Hari Chand and others v. Secretary of State A I R 1.939 P C 235; Halsbury's Laws of England, (Third Edition), Vol. 10, page 113 and Crips on Compulsory Acquisition of Land, (Eleventh Edition), Para. 4004, p. 674 ref.
Word "means" or "includes" used in interpretation clause of statute-Purpose-Meaning of particular words-Not to be found so much it: strict etymological propriety of language, as in subject or occasion on which used and object intended to be attained.
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 hand, 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 conjunctive 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.
Shyam Chunder Mardraj v. Secretary of State for India I L. R 35 Cal. 525; Dasarath Sahu and others v. The Secretary of State for India in Council 35 I C 97; Babujan v. The Secretary of State for India in Council etc.-4 C L J 256 and Crais on Statute Law, Sixth Edn., p. 212 ref.
The meaning of particular words used in statutes is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used and the object that is intended to be attained, Words used in statutes, of course, should not be so interpreted as to extend their meaning beyond their ordinary sense but there is no warrant for so restricting them as to exclude a case both within their object and within their ordinary sense, for the basic principle of interpretation that effect should be given to such intention of the Legislature as they have used fit words to express cannot be disregarded.
(
Ss. 3(a) & 22-Word "land"-Means totality of rights in land including tenancy rights , Suggestion that "tenancy rights" have no market value or that their market value is incapable of being interpreted in terms of money--- Not acceptable.
Purpose of enactment. The Government Grants Act, 1895, was enacted for the purpose of clarifying doubts as to the extent and operation of the Transfer of Property Act, 1882, and the power of the Government to impose limitations and restrictions upon grants. The whole purpose of the enactment, as would be evident from a bare read ing of it, is to make it abundantly clear that no provision contained in a grant would become ineffective or lose its validity simply on account of its running contrary to any provision of any law for the time being in force.
Ss. 3(a), 4, 6 & 17-Land granted under Colonization of Government Lands (Punjab) Act, 1912-Can be acquired by Government even before expiry of tenure of grant-Government Grants Act, 1895 does not act as a clog on such authority of Government-Future executive action of Govern ment-Cannot be fettered by it but must necessarily be determines by needs of community-Government cannot by contract hamper its freedom of action in matters concerning welfare of State Colonization of Government Lands (Punjab) Act (V of 1912), Ss. 10 & 11-Government Grants Act (XV of 1895), S. 3.
Thakur Jagannath Bakhsh Singh v. The United Provinces A I R 1946 P C 127; Rederiaktiebolaget Amphitrite v. Theking (1921) 3 K B 500 and Antonie Butrigieg v. Captain Stephen H. Gross etc. A I R 1947 P C 29 ref.
Ss. 4, 6 & 17 read with Colonization of Government Lands (Punjab) Act (V of 1912), S. 10 and Government Grants Act (XV of 1895)-Land let out by Government for Horse and Mule Breeding purposes-Mere fact that such land is already being used for public purpose-No bar to its being acquired for another public purpose.
West River Bridge Company v. Joseph Dix 12 Law Ed. 535; Basu's Commentary on the Constitution of India (Fourth Edn.), Volume 11, 1962, p. 207 and Fichols on Eminent Domain, Volume I, 1950 Edn, p. 150 ref.
Ss. 4 & 6-Notifications under both sections published simultaneously in correct sequence in same issue of Gazette-Such publication, held, legal.
Abut A'la Maudoodi v. Government of West Pakistan P L D 1964 S C 673 ref.
Ss. 4, 6 & 17-Actions of Government must be regarded as having been taken bona fide unless contrary is established-Decision of administrative authority acting completely within its powers-Cannot be excluded on ground of that power having been abused.
Sai Muhammad v. West Pakistan Province and others P L D 1958 S C (Pak.) 181; Imtiaz Ahmad v. Ghulam Ali etc. P L D 1963 S C 382 and Carner in his book "Administrative Law", p. 118 ref.
A. K. Brohi, Khalid M. May, A. H. Najafi, Zain-ul-Abe Din and Mian Mah mood Ali Qasuri on (13-5-b5 and 17-5-65) for Petitioners.
S. Nazir-ud-Din A.-G., Sh. Ata Ullah Sajjad, Addl. A.-G., S. M. Bashir, A. A.-G. and Ihsan-ul-Haq for Respondents.
Dates of hearing: 5th, 6th, 7th and 13th May 1965.
.-This writ petition has arisen out of Notification Nos. 16078/Rev: and 16082/Rev., dated the 28th of October 1964, whereby land mentioned in them was acquired for a "public purpose".
2. The land in dispute, which measures 1,509 acres situated in Chak No. 221/R. B., Tehsil and District Lyallpur and is commonly known as Nazar Stud Farm, was let out to the petitioners under section 10 of the Colonization of Government Lands (Punjab) Act, of 1912 for a period of ten years ending with Kharif, 1968. The lease was renewable for another period of ten years at the option of -the tenants. The Statement of Conditions was contained in a, Notification No. COL-5/4-57 (1933) of the 20th of May 1958, and was duly incorporated in the lease deed (Annexure A') which was got registered at Lyallpur on the 14th of June 1958.
3. The West Pakistan Government (Colonization Depart ment) by their Notification No. 5426-63/3865 C. G. I., dated 6th November 1963, ordered the resumption of the aforesaid land as the same was required by its Agricultural Department for-"Nuclous Seed Procurement Programmed of the Ayub Agricultural Research Institute, Risalwala (Lyallpur) in the public interest."
A notice of resumption was served upon the petitioners who challenged it before this Court by Writ Petition No. 1382 of 1963. That writ petition was disposed of on lst October 1964, by a Bench consisting of Ortcheson and Shakirullah, JJ., in the following words:-
"The impugned notification is stated by Mr. S. M. Bashir to have been withdrawn. In view of this statement the petition has become in fructuous. In, the circumstances we consider it appropriate to grant the petitioner costs against respondent No. 1."
Respondent No. 1 was the Government of West Pakistan.
4. The case of the petitioners in that petition, shortly stated, was that resumption could be effected only under section 24 of the Colonization of Lands (Punjab) Act of 1912 and the condition precedent for such an action was the commission of a default, by the tenants, which, admittedly, was not the Government's case and at any rate it was the Collector only who could take such action while in that instance the order had been issued by the Deputy Secretary to the Government and the Collector was acting only as an executing authority.
5. Having thus cancelled the order of resumption the West Pakistan Government published the Notification for the acquisition of the same land under the Land Acquisition Act in the Gazette (Extraordinary) of the 29th of October 1964, which are the subject-matter of this petition.
6. Mr. A. K. Brohi, who appeared for the petitioners, assailed the Notifications on the following five grounds:-
(a) The tenancy of the petitioners was not covered by the definition of "land" given in the Land Acquisition .Act and since 'that was the only right which was the subject-matter of acquisition, the Government being itself the owner of the land, the proposed action was not authorized by this Act.
(b) If it be assumed for the sake of argument that tenancy rights simpliciter could be acquired under the law, in the present case they were protected against acquisition under the Act by reason of section 3 of the Crown Grants Act, 1895 and the conditions of the Indenture of 1942.
(c) The land in dispute having been let out to the petitioners for a public purpose, could not be acquired for still another public purpose under the Act.
(d) At any rate, section 17 of the Land Acquisition Act was not attracted to the facts of the case because (i) there is no urgency, and (ii) the land was neither waste nor arable.
(e) The impugned action was malafide since the machinery of law had been put into gear for the pursuit of a purpose, i.e., political victimization, collateral to the one for which power was granted, i. e., public purpose.
(a);
7. An indenture made on the 16th of April 1942 to which the Governor-General-in-Council and the Government of the Punjab were parties provided that the land in dispute along with other similar land-"is vested in His Majesty for the purpose of the Federation and was formerly used for Cavalry Runs and is now let out for Horse and Mule breeding purposes under the Colonization of Government Lands (Punjab) Act, 1912, and WHEREAS since the coming into force of the Government of India Act, 1935, the said Act of 1912 has been provincialised and the Central Government may find it more difficult to let the land on similar terms in future than the Provincial Government so in consideration of the Provincial Government agreeing to arrange matters as hereinafter set out the Central Government have agreed to transfer the said land to the Provincial Government on the terms and conditions hereinafter mentioned."
Paragraphs (3) and (4) of this indenture provide that-
"If the Central Government shall certify in writing under the hand of a Secretary to that Government that any of the said land is no longer required for Horse or Mule breeding purposes the aforesaid conditions shall no longer apply thereto and the title thereto vested in His Majesty for the purpose of the Government of the Punjab shall thenceforth be absolute and unconditional.
Nothing herein shall affect existing tenancies of the said land so long as same are in force."
8. The tenancy in question was created under a lease deed on the 20th of May 1958, by the Provincial Government acting as the agent of the Central Government under the indenture of 1942.
9. The Government of Pakistan issued a certificate under paragraph (3) and surrendered the land in dispute on the ground that it was no longer required for the purpose of Horse and Mule breeding.
10. Section 10 of the Colonization of Government Lands (Punjab) Act authorizes the Provincial Government to grant land in a colony to any person and to issue a statement of the conditions on which it is willing to grant the land, and also declares that after possession has been taken the grant shall be held subject to the conditions declared applicable thereto. Section 11 of the same Act provides that the grant of any tenancy under the Act shall be deemed to be a transfer of land within the meaning of the Crown Grants Act, 1895, and shall be governed by the provisions of the said Act.
11. Section 3 (a) of the Land Acquisition Act defines "land" as follows:-
"The expression land' includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth."
12. It was contended that the definition of land did not envisage a situation wherein the benefits arising out of land could be the subject-matter of acquisition without the terra firms being acquired. The intention was that when land in sulido was acquired the benefits arising out of it would be covered by the process and that it will not be open to a person entitled to the letter, for example, a tenant, to say that it was only the soil that vested in the Government and not the tenancy rights. The converse was not true, that is to say, where the land, properly so-called, belonged to the Government it would not be open to it to acquire the tenancy rights only. Stress was laid in this connection on the presence of the word "includes" in support of the argument and it was sought to be made out that when Land was acquired all that was included in it, by virtue of the definition clause, would pass to the acquiring authority, and it was not open to it to acquire only the benefits because if that were so, the word "includes" would not have been used.
13. In Shyam Chunder Mardraj v. Secretary of State for India (I L R 35 Cal. 525), a case concerning the acquisition of fishery rights under the Land Acquisition Act, an objection was raised to the Government taking up fishery, rights, that is, incorporeal rights without acquiring the land which, in fact, it had already acquired and was, therefore, its own property. It was contended that the Government could not do so under the Land Acquisition Act. The objection was upheld by the Court in the following words:-
"Land is defined in the Act as including benefits arising out of land, etc. But land is not defined as meaning benefits arising out of land. Therefore, fishery rights are not land, and it is only land, including the rights arising out of it, but not the rights detached from the land, that can be acquired under the Act."
This case was quoted with approval in a decision of the Patna High Court in Dasarath Sahu and others v. The Secretary of State for India in Council (35 1 C 97). In that case the subject-matter of the acquisition were two houses situated upon plots of land appertaining to the Bankipore Jail, and the property of the Secretary of State. Kingsford, J. observed that:
"The proceedings appear to have been misconceived from the outset. No doubt the definition in section 3 (a) of the Aet includes in the word land' thing attached to the earth, but the Act does not contemplate the acquisition of things attached to the land without the land itself. The law upon this point has been clearly laid down in Shyam Chundar Mardraj v. Secretary of State, where it was held that Govern ment could not use the Land Acquisition Act for the purpose of acquiring fishery rights over land which was already the property of Government. It was pointed out that it is only the land including the rights which arise out of it, and not merely some subsidiary right, which is capable of acquisition under the Act."
14. In an earlier case from the Calcutta High Court, Babujan v. The Secretary of State for India in Council etc. (4 C L J 256) it was held that:-
"What has to be acquired in every case under the Land Acquisition Act, is the aggregate of rights in the land, and not merely some subsidiary rights, such as that of a tenant."
On perusing the whole judgment and particularly the following observation in the penultimate paragraph it becomes clear that while making the first observation their Lordships were simply taking note of an argument pressed before them and were not expressing their opinion for otherwise it becomes difficult to reconcile these two observations:-
"The language of the Act is sufficient to refute the appellant's contention. and we see no reason for limiting the scope of the Act, so as to exclude from its operation all cases in which a Municipality or other local authority, for whose ultimate benefit the Government may wish to take action, happens to have some interest in the land to be acquired."
Their Lordships' considered opinion is laid down in this last paragraph and runs contrary to the thesis propounded for the petitioner in the instant case. With all respect we find it difficult to agree with the proposition laid down in the first two cases. 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 A have in the English language. The word "include", on the other hand, 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.
15. This is an accepted principle of interpretation and needs no authority to support it and if one be needed the discussion at page 212 of Craies on Statute Law, Sixth Edition, sets all doubts at rest. "Include" is not used in a sort of a conjunctive sense so as to make only such things correspond to the word defined a e 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.
16. Reference may be made to a decision of the Bombay High Court in The Government of Bombay v. Esufali Salebhai (I L R 34 Bom, 618). In that case, Macleod, J sitting in Single Bench had held that "Land Acquisition Act does not apply to land of which Govern ment are, or claim to be, owners" and a Division Bench was hearing an appeal against that order. It was held that: -
"To acquire a land is not necessarily the same thing as to purchase the right of fee-simple to it, but means the purchase of such interests as clog the right of Government to use it for any purpose they like.
" . . . . . The object is to get at the land for a public purpose: and the word "land" has a definition expressly given to it in the Act, which is not exhaustive, because the Act says: The expression land' includes benefits to arise out of the land, and things attached to the earth, or permanently fastened to anything attached to the earth. The use of the inclusive verb includes' shows that the Legislature intended to lump together in one single expression viz., land' several things or particulars, such as the soil, the buildings on it, any charges on it, and other interests in it, all which have a separate existence and are capable of being dealt with either in a mass or separately as the exigencies of each case arising under the Act may require."
17. The dictum laid down in this case was confirmed by the same Court in Mangaldas Girdhardas Parekh v. The Assistant Collector of Prantij Prant, Ahmadabad (I L R 45 Bom. 277). It was a case in which the Government owned land situate in a cantonment and the superstructure of the bungalow constructed on it belonged to the appellant. One of the questions agitated before the Court was that the Government was bereft of all power to acquire the superstructure under the Land Acquisition Act and this plea proceeded on grounds identical with those raised before us and discussed above. It was urged that the view taken by Macleod, J. in "re. Eusufah Salebhai" laid down the law correctly and that the judgment delivered in appeal by the Division Bench in The Government of Bombay v. Eusufali Salehbai being incorrect should not be followed. This argument was repelled by their Lordships in no uncertain terms when they observed: -
"We have considered the arguments on both sides and the decided cases bearing on the question; and after a careful consideration of the provisions and the scheme of the Land Acquisition Act in the light of the arguments urged on both sides I do not see any reason to doubt the correctness of the view taken by this appellate Court in Esufali's case, nor do I see any reason to refer the matter to a Full Bench as suggested by Mr. Campbell in his argument. The view taken by the appellate Court has been followed in this Presidency as would appear from the several unreported cases to which Mr. Coyajee has referred in the course of the argument. It is quite true that under the Land Acquisition Act what is acquired is the land which includes all that is stated in clause (a) of section 3 of the Land Acquisition Act, -But in the case of any land with superstructure thereon, in which either the Government have an admitted interest or wherein that interest is a matter of dispute between a claimant and the Government, it seems to me that it is open to the Government to acquire that property under the Act."
Esufali's case was considered and approved by the Supreme Court of India in Collector of Bombay v. Nusserwanji (A I R 1955 S C 298) and it was laid down that when the Government itself has some interest in the land proposed to be acquired it was competent for it to proceed to acquire under the Land Acquisition Act any other interest in it which was owned by a third party.
18. This question was raised before the Privy Council in Hari Chand and others v. Secretary of State (AIR 1939 P C 235), a case in which a piece of land belonged to the Government while the buildings upon it which were sought to be acquired under the Land Acquisition Act belonged to the appellant. Although their Lordships were of the opinion that the particular point had been raised at a very late stage and should, therefore, not be countenanced they, however, considered the question incidently and came to the conclusion that the Notification was not open to objection as it would have been "manifestly idle" for the Government to acquire the site which was already theirs and the Government acted rightly when acquiring the building on the land which was not their property.
19. It should not be forgotten that the meaning of particular words used in Statutes is to be found not so much in a strict etymological propriety of language, nor even in popular use as in the subject or occasion on which they are used and the object that is intended to be attained. Words used in Statutes, of course, should not be so interpreted as to extend their meaning C beyond their ordinary sense but there is no warrant for so restricting them as to exclude a case both within their object and within their ordinary sense, for the basic principle of interpretation that effect should be given to such intention of the Legislature as they have used fit words to express cannot be disregarded.
20. Our attention was adverted to section 11 of the Land Acquisition Act which provides for the holding of an enquiry by the Collector and making of an award. It was contended that under this section the duty of the Collector was to make an award (a) of the true area of the land, and (b) the compensation which in his opinion should be allowed for the land ..It was suggested that compensation which was to be determined by the Collector and which was to be apportioned amongst all the persons known or believed to be interested in the land was to be calculated by reference to the value of the land particularly because section 23 of the said Act, which details the matters to be considered in determining compensation, provides, inter alia, that in doing so the Court shall take into consideration the market value of the land at the date of the publication of the Notification. An inference was sought to be drawn from it that the Collector had the power only to determine the market value of the land and not of the tenancy because the tenancy had nothing to do with its market value as such and since no provision has been made for evaluation of tenancy rights the Legislature did not' contemplate their acquisition under the Act.
21. This argument proceeds on the assumption, which has, already been negatived by us above, that the word "land" means the totality of Rights in Land and cannot be used to indicate the tenancy rights or any such other interest in land simpliciter To suggest that the tenancy rights do not have any market value or that their market value is not capable of being interpreted in terms of money is to suggest something which we are not prepared to accept.
22. A fair reading of section 23 of the Land Acquisition Act leaves no manner of doubt that not only is the value of the tenancy rights of a lessee for the un-expired portion of the lease capable of being computed but the impression created by this section is that such a computation has of necessity to be made, inter alia because a duty is cast upon the Collector to apportion the compensation between the different persons interested in the land. There is, of course, no doubt about the fact that a tenant of a land, the period of whose lease has not expired, is a person interested within the meaning of the expression given by the Land Acquisition Act as he is entitled to continue in possession of the land and enjoy its profits for a definite period under the lease.
23. Take the case of land which is owned by A and is held by B, and say, four years out of whose period of tenancy remained un-expired on the date of acquisition. There is no denying the fact that the tenancy is an interest in the land. Section 9 would require the serving of a notice upon the occupier or the tenant of the land as a person interested, i.e., B in the instant case, and under section 11 after the market value of the land has been assessed by the Collector, it is his duty while making the award to apportion the said compensation among all the persons known or believed to be interested in the land. The Collector will, therefore, necessarily have to apportion the market value of the land between A, the owner, and B, the tenant who is also a person interested, and for that purpose shall have to evaluate his tenancy rights for the un-expired period of the tenancy. In fact, while determining the market value of the land the market value of the tenancy rights shall also have to be assessed because, after all, in accordance with this definition, admittedly, tenancy rights are also land.
24. The following passage from Halsbury's Laws of England (Third Edition), VOI. 10, page 113, paragraph 187 may be quoted with advantage: -
" . . In the case of the lease the value of the land will be the capital value of the profit rental which he enjoys; Le., the difference between the rent under the lease and the market rent at the date of the notice to treat calculated by reference to the number of years un-expired at the date of the notice."
25. We might as well refer to Paragraph 4004 at page 674 Of Cripps on Compulsory Acquisition of Land, (Eleventh Edition):
"If a notice to treat is given to a lessee having an interest greater than a tenancy for a year or from year to year, the lessee is entitled to compensation for the value of his interest at the date of the notice to treat on the same principles as are applicable to notice to treat for the freehold, and will be entitled to compensation for disturbance as part of the value of his interest to him."
26. Reference was also made to the definition of land in the Land Clauses Act of 1845 and it was contended that it was much wider in scope than the one contained in the Act of 1894 and although the Legislature while enacting the later Statute was aware of the said definition the mere fact that it did not choose to adopt it should be construed to imply that the intention of the framers of the law was not to give the word "land" such an extensive scope as was given in the Act of 1845. In England even the Act of 1845 was held not to be an authority for the acquisition of easement simpliciter without acquiring the totality of rights in land and it was sought to be made out that the same could not be done in Pakistan where the scope of the word was much more limited. This argument ignores the fact that most of the notions of the English Law pertaining to land were not imported into the Indian Law. Left to us, we would say that the scope of the word "land" as used in the Act of 1894 is much wider than that of the Act of 1845.
27. Our conclusion on this point is that the definition of land given in section 3 of the Land Acquisition Act is neither exhaustive nor restrictive but is extensive and that besides the meaning with which it had been clothed in that section the word is capable of receiving its ordinary, popular and natural sense in which it is understood in the English language. The word "include" used in the interpretation clause does not restrict the Power of the Government to acquire the totality of interest in land and it is open to the Government, in a given case where it is itself the owner of the land, to acquire such other interests in it as are held by private persons and which clog the rights of the Government to put the land to a particular public purpose,
(b):
28. The Government Grants Act of 1895 is admittedly applicable to the lease, in question. Section 3 provides that: ---
"All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding."
29. Learned counsel for the petitioner submitted that the grant made in his favour by the Government and evidenced by the lease deed was for a period of ten years and that this tenure was contained is one of the provisions of the deed as a condition of the grant and that the Land Acquisition Act cannot be pressed into service for acquiring the same since it would operate as a clog in the way of the grant taking effect according to its tenor.
30. The Government Grants Act, 1895, which is a short enactment consisting of three sections was enacted, as is clear from the preamble and the enacting clause, for the purpose of clarifying doubts as to the extent and operation of the Transfer of Property Act, 1882 and the power of the Government to impose limitations and restrictions upon grants. The whole purpose of the enactment, as would be evident from a bare reading of it, is to make it abundantly clear that no provision contained in a grant would become ineffective or lose its validity simply on account of its running contrary to any provision of any law for the time being in force. We have failed to find any provision in the Land Acquisition Act which contravenes or is in collision with any of the provisions of the grant in question. At the same time, we also do not find any stipulation in the grant which lays down that it will not be open to the Government to acquire the land in dispute. The mere fact that the tenure has not yet expired does not mean that it cannot be acquired for the un-expired period. In fact, the action of acquisition, far from being at cross purpose with the grant recognises and honors the same by making it incumbent upon the Government to pay compensation to the petitioners for the damage caused to them by way of loss of profits for their not being able to enjoy the grant for the remaining period.
31. Learned counsel for the petitioners relied upon a decision in Thakur Jagannath Baksh Singh v. The United Provinces (AIR 1946 P C 127) and he particularly wanted us to note the observations made in paragraphs 16, 19 and 20 of the judgment. This is a case in which a talukdar who was a grantee of a sanad filed a declaratory suit for having the U. P. Tenancy Act, 1939, declared ultra vires of the Provincial Legislature, as by creating rights and interests in the land covered by the sanad in favour of other persons, this piece of legislation went contrary to the provisions of the grant itself. Far from strengthening the case of the petitioners, it knocks the bottom out of it in so far as the point sought to be made on the basis of the Crown Grants Act, 1895, is concerned. After reproducing the words of section 3 of the Act their Lordships observed as follows:-
"The general words cannot be read in their apparent generality. The whole Act was intended to settle doubts which had arisen as to the effect of the Transfer of Property Act, 1882, and must be read with reference to the general context and could not be construed to extend to the relations between a sanad holder and his tenants. Still less could they be construed to limit the statutory competence of the Provincial Legislature under the Constitution Act."
32. Our conclusion on this point is that the Government Grants Act, 1895; does not act as a clog on the authority of the Government to acquire property which is a subject-matter of a grant even at any time before the tenure of the grant has expired and that the effect of the Government Grants Act is only to maintain the validity of provisions made in a grant in spite of the same being in contravention of any law and particularly the Transfer of Property Act.
33. The Government of West Pakistan became the lessor of the petitioners under the authority vested in it under clause (1) of the Indenture of 1942. This authority was subject to the said Government observing the conditions laid down by the Central Government from time to time. After the certificate mentioned in clause (3) of the Indenture is issued by the Central Government the aforesaid conditions shall cease to be applicable and' the title to the land shall thereafter vest in the Central Government absolutely and unconditionally for the purpose of the Government of West Pakistan. Clause 4 of the Indenture provides that:-
"Nothing herein contained shall affect existing tenancies of the said land so long as same are in force."
It was contended that since the tenancy in question was in existence at the time the certificate was issued under clause 3 it could not be affected by the same and that the petitioners would, therefore, continue to enjoy the protection granted by clauses 1, 2 and 4 of the Indenure and the Provincial Government would have no power to divest them of their rights.
34. The reference to existing tenancies in the clause is ostensibly only to these tenancies which were in existence on the date the Indenture was executed and the one in dispute was admittedly created about sixteen years after that. Clause 4, therefore, does not confer any immunity upon the petitioners. Even if it were to be assumed that the one in dispute is an existing tenancy within the meaning of clause 4 it is now settled law that: ---
"It is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State."
Rederiakticbolaget Amphitrite v. Theking (1921) 3 K B 500 followed in Antonic Butaigieg v. Captain Stephen H. Cross etc., A I R 1947 P C 29.
(c):
35. It is Mr. Brohi's case that the land in dispute was granted to the petitioners not merely for the purpose of enabling them to make a profit for themselves but for breeding of horses and mules which were to be sold exclusively to the Government in the Defence Department for fulfilling the needs of the defence of the country. Since the paramount purpose was the full-fillment of a, high public need the land was in fact granted for a public purpose, and as it was being so held and utilised, it could not be taken away for another so called public purpose.
36. No authority was cited before us in support of this proposition and we must say that the provisions of the Land Acquisition Act do not lead us to any such conclusion. Even on the face of it, such a submission is devoid of any force, for one can visualise a number of instances in which a land being used for a public purpose may be required by the Government for another public purpose and there may be circumstances in which it may be incumbent upon the Government to give preference to the latter over the former. Will it be open in such a case to a person who happens to be an existing beneficiary to say that the land cannot be taken away by the Government for the other public purpose even if it be of such paramount importance that the very existence of the country as a sovereign State may be dependent upon it. The answer would naturally be "no".
37. The learned Advocate-General referred to the decision of the United States Supreme Court in West River Bridge Company v. Joseph Dix (12 Law Ed. 535 at page 542).
"Every grant of this kind is made subject to the right of eminent domain, and of course upon the implied condition that the property may be resumed for public use whenever the public necessities require it. This is universally admitted in respect to land, and I shall endeavour to show that there is no difference in this respect between land and a franchise like the one in question. The resumption, therefore, whenever the public exigencies require it, is in harmony with the original intent and tenor of the grant.
It is not an attempt to repeal or annul the grant, but the proceeding recognises its validity and the rights derived from it. It is on this ground that compensation is made.
It is a purchase by the State of the plaintiffs' franchise and may be illustrated by its analogy to a purchase by a granter of a title derived originally from his own conveyance."
"The general power of the State to reclaim, for public use, lands which have been granted to individuals, will not be questioned; but the question has been agitated elsewhere, and may be started here, Whether a franchise granted to private persons for their private emolument, and yet for a public use, is, not beyond the reach of that power. These cases being of a mixed character, combining private right and emolument with public convenience, the question resolves itself into two others, viz.,
first, are private rights thus conferred of any superior sanctity and,
second, does the partial, qualified, and limited appropriation of the property to public use exclude the further exercise of the right of eminent domain
Whether, therefore, we have regard to the fact that the property is private, or to the qualified public use, there is no impediment to taking it absolutely for a more enlarged and beneficial public use, on the one hand, and modifying or changing the use, on the other."
38. At page 207 of Basu's Commentary on the Constitution of India (Fourth Edition), Volume Two 1962, the learned author has observed that property already dedicated to a public use, can always be acquired for another public purpose and has cited several cases in support of it. Similarly at page 150 of Eichols on Eminent Domain, Volume I, 1950 Edition, we find that:-
"There is now no question that the Legislature, in the absence of constitutional prohibition, has the power to authorize the taking of land devoted, to one public use for a different public use."
39. This provides a complete answer to the point raised by the petitioners and our conclusion is that the mere fact that all land is being used for a public purpose is no bar to its being acquired for being utilised for another public purpose.
40. Mr. Ata Ullah Sajjad, learned Additional Advocate -General, who was assisting the Advocate-General, submitted that the petitioners pleawas wholly misconceived as even if it was assumed for the sake of argument that the land was being used for a public purpose by virtue of the lease deed dated the 14th of June 1958, it ceased to be so used the moment the Central Government certified to its provincial counterpart under clause (3) of the Indenture dated 16th April 1942, that the said land is no longer required for horse and mule breeding. The petitioners were, therefore, not holding it for a public purpose any longer. The petitioners have not been able to give any answer, much less a satisfactory answer, to this point, we are, therefore, of the view that since the land is not being any longer used for any public purpose the further question that it cannot be acquired for any other public purpose does not arise.
(d) (i):
41. We have seen that the impugned Notification No. 16082/Rev. provides in paragraph 4 that "the acquisition of the said land is urgently required", and goes on to require the Collector under section 17 (1) to take possession of all the waste or arable land specified in it on - the expiration of 15 days of publication of the notice under section 9(1). Mr. Brohi contends that there was no urgency and that under the Act a Notification under section 4 has to be issued before a declaration under section 6 can be made which was not done in this case. A perusal of the Gazette of West Pakistan (Extraordinary) of the 29th of October 1964, shows that the Notification under section 4 bears No. 16078/Rev. while that under section 6 is numbered as 16082/Rev. It is, therefore, clear that the latter Notification has been published after the former. A reference may in this connection be made to the following observations by S. A. Rehman, J. in Abul A'la Maudoodi .v. Government of West Pakistan (1):-
"The juxta-position of the notifications applying the impugned Act to the Province and declaring the Jamaat an unlawful association, in the same Gazette, is not enough to invalidate the second notification which in fact followed the first, in its publication. There also appears to be no sound objection to the validity of the notification issued in East Pakistan under section 16 of the 1908 Act by which the Jamaat-i-Islami was declared unlawful and simultaneously places were notified under section 17-A of the Act. If a notification under the latter section could legitimately follow the first under the Act, the two could as well be combined in one notification."
No grievance can, therefore, be made out of the fact that both the Notifications, though published in the correct (sequence, happened to be printed in the same issue of the Gazette.
42. We may also mention that since the procedure under section 5(a) and section 5 were not to be followed in the instant case because the provisions of these two sections had been made inapplicable to it by the Commissioner acting under section 17 (4) of the Act no prejudice could in any case have been caused to the petitioners by the publication of the two Notifications in the same Gazette. We have, however, already held that the publication in the instant case is in compliance with the provisions of the law.
(d) (ii):
43. An argument was addressed on the basis of the fact that the impugned Notification did not separately give the Killa numbers of waste land and arable land. It was contended that under section 17(P L D 1964 S C 673 at page 738) the Collector could be authorized by the Commissioner to "take possession of any waste or arable land needed for public purpose . . . ."
It was, therefore, a condition precedent to the exercise of such power that it should be determined and notified as to which part of the land was avaste and which arable. Section 17(1) and (4) have suffered an amendment in February 1965, by Land Acquisition (West Pakistan Amendment) Ordinance, 1965. By section 2(b) the words "waste or arable" have been omitted from section 17(1) of the Land Acquisition Act, 1894, and since these words were relatable to the taking possession of land, which has admittedly not so far been done, in the present case, the omission of the Commissioner to separately mention these two classes of land in the impugned Notification does not invalidate the same. We may make it clear that we should not be understood as holding that the Notification would have been invalid but for the amendment, we are only withholding the examination of that question since we are o f the opinion that even if the objection had any force it has lost it by the amendment in the law.
44. We are for the same reason not taking notice of the argument that since the land had standing crops on it, it could not be called arable land.
45. We may in the context of these two points refer to the following observation in Sh. Rehmatullah v. The State and another (P L D 1963 S C 633 at p. 645).
"The Court will not grant a writ to produce a certain effect when the law provides power to one of the parties affected by the writ, to nullify the Court's writ unilaterally and the circumstances enabling such action are found to be present."
46. Mr. Brohi lastly submitted that the action has been taken not because the land was required for a public purpose but because one of the petitioners, Mr. Ghulam Jilani Khan, who was a member of the Opposition Party in the National Assembly, made speeches in the House in which he used strong language in criticizing the Government, the Head of the Province and the Head of the State. He referred to these speeches. The learned Advocate-General in his reply stated that there were others who had made speeches which were more vituperative in nature than those made by the petitioner but still no action had been taken by the Government against them. It could, therefore, not be said that the petitioners were being penalized for the acts of one of them. Be that as it may, we may refer to the decision in Sai Muhammad v. West Pakistan Province and another (P L D 1958 S C (Pak.) 181).:-
"The correct attitude in estimating the actions of Government is indeed that they must be regarded as having been taken bona fide until and unless the contrary is established."
This observation was quoted with approval in Imtiaz Ahmad v. Ghulam Ali etc. (P L D 1963 S C 382 at p. 387).
47. In the case before us, there is no doubt that an Agricul tural Research Institute came into existence at Lyallpur much before speeches alleged to have been made by Mr. Ghulam Jilani were delivered by him. It is also not in dispute that the Nucleus Seed Procurement Programme of the said Institute was similarly sponsored earlier than these speeches. It can also not be denied that the land in dispute is contiguous to the Institute and suitable for the said Programme. The mere fact that there is other land also which is contiguous to the Institute and is not being acquired would not clothe Government action with mala fide.
48. There is another aspect that may be noticed in the words of Garner in his book "Administrative Law" page 118:-
"Another, and what appears to be more appropriate name for this variety of ultra vires, is wrong motive it is sometimes described as abuse of power, but if the inferior administrative authority is acting completely within its powers, there seems to be no question of its decision being excluded on the ground of that power having been abused."
49. The result is that we find no force in this petition and dismiss the same, but leave the parties to bear their own costs.
S. Q.
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