NAZIR AHMAD Versus COMMISSIONER, LAHORE DIVISION, LAHORE

IHSAN-UL-HAQ CHAUDHRY, J.---The petitioners through this constitutional petition have prayed that Notification. No.LA/646/645, dated 19th November, 1977 issued by respondent No. l and published in the official Gazette, dated 30th November, 1977 and order, dated 24th September, 1978 and all other notifications acquiring the. land of the petitioners for the respondent No.4 Society be declared illegal, void, mala fide, inoperative, without lawful authority and of no legal effect.

2. The relevant background of the dispute as ascertained from arguments of the parties and record is that respondent No.4, a Cooperative Housing Society, moved application, dated 12th September, 1970 to respondent No.2 for acquisition of the private land for establishment of Boys and Girls College' in collaboration with the Qur'anic Education Society. Respondent No.2 issued Notification, dated 16th February, 1971 under section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred as "Act, 1894. ") in respect of land measuring 213 Kanals and 17 Marlas situated in Hanjarwal and Niaz Baig villages of District Lahore. Thereafter; No.2 issued Corrigendum, dated 12th November, 1971, Annexure D, with the petition whereby purpose of the acquisition was changed to that of construction of 'residential college for boys and girls in collaboration with Qur'anic Education Society (Regd.) and for a small Township apartments and subservient to those institutions to make themselves sufficient in all respect' while the purpose was changed from public purpose' to 'Company Purpose'. This was followed by Notification under section 3 of the Act, 1894 inviting the objections and appended as Annexure-E with the writ petition. This was followed by another corrigendum, dated 29th March, 1973 whereby the last mentioned Notification was amended substituting the words "for construction of residential college for boys and girls in collaboration with the Qur'anic Education Society" for establishment of Qur'anic Research Center and residential colony in collaboration with the Qur'anic Society (Regd.)." Thereafter, agreement under section 41 of Act, 1894, which was published in official Gazette on 3rd August, 1973 was executed. This was followed by the award, dated 10-5-1995 by the Collector. Noor Muhammad etc, at this juncture filed Writ Petition No.2343 of 1974. In the meanwhile Sadiq Hussain filed an application, dated 19th June, 1975 under section 48 of Act 1894, which was accepted and Notification, dated 9-7-1975 was issued. In this view of the matter Writ Petition No.2343 of 1974 was withdrawn. The Society challenged the same through Writ Petition No.2746 of 1975, which was accepted on 3-10-1977. The result was that Notification under section 4 of Act, 1894 was set aside and acquisition was restored. The respondents in the writ petition filed C.P.S.L.A, which was dismissed on 21st June, 1978 by the Hon'ble Supreme Court and consequently a fresh Notification, dated 19th November, 1977, Annexure-J, rescinding the notification dated 9-7-1977 was issued. Thereafter, Writ Petition No.4485 of 1978 was filed. In the meanwhile second application under Section 48 was dismissed on 24th November, 1978, therefore, this writ petition was withdrawn while the present petition had already been filed and was pending. The same came up for limine hearing on 3rd October, 1978 when report was sent for and ultimately notices were issued to the respondents, who have appeared and contested the writ petition.

3. Learned counsel for the petitioner argued that the purpose of acquisition was not included in aims and objects of respondent No.4 'Society, therefore, the land could not be acquired for the Society, therefore, all the acquisition proceedings were coram non judice and void. The Society while applying for acquisition of the land for this purpose had exceeded its authority. The next argument was that it was clear from Notification under section 4 as amended subsequently that the land was not being acquired for any need of respondent No.4 but for namely Qur'anic Education Society. It was explained that the whole scheme of Act, 1894 did not provide and permit proxy acquisition. The same was a fraud on the statute, therefore, bad in law. In this behalf it was argued that according to section 4 of Act, 1894 a preliminary inquiry into the need was to be conducted. It was thereafter the Notification under section 5 of the said Act was to be issued. In the present case the inquiry into the need was to be conducted to be under section 40 of Act, 1894 and on the conclusion of the said inquiry if the need was established then it was to be followed by, Agreement under section 41 of the Act, 1894. It was clear from application; Annexure A, that respondent No.4 was not in need of the land, therefore, the whole basis of the acquisition disappeared. It was explained that even in the application, Annexure A, respondent No.4, while referring to financial position, had referred to Qur'anic Education Society as was clear from para. 9 of it. The next argument was that with the promulgation of Martial Law Regulation No. 118, on 1st April, 1972 the establishment of privately managed institutions was not possible without permission of Government. Respondent No.4 wrote letter, dated 25-9-1972 to the Collector explaining the factual and legal position. The respondent No.4 being fully conscious of its limitation had referred to the aims and objects of the Qur'anic Education Society and not of its own. It was argued that, thus, it became clear that the acquisition was not for respondent No.4 but for the other society. It was argued that the provisions of law were being used as a clog to achieve illegal and ulterior purpose. Learned counsel in this behalf referred to Maxim: Expressum facit cessare taciturn (if doing of a particular thing is made lawful, doing of something in conflict of that will be unlawful). In this behalf reliance was placed on E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536) and Government of West Pakistan through Collector, Gujranwala v. Land Acquisition Collector, District Gujranwala (PLD 1979 Lahore 54). Thereafter, he referred to Maxim Expression Unius Est Exclusio Alterius (Express mention of a thing excludes thing which is not mentioned). In this behalf reliance was made on Divisional Personnel Officer, Pakistan Railways, Lahore v. Chairman, Punjab Labour Appellate Tribunal, Lahore (1987 CLC 1397) and Chairman WAPDA etc. v. Advisory Board, Punjab Lahore 1987 CLC 1503. It was therefore, maintained that the acquisition of the land for the benefit of Qur'anic Research Centre by respondent No.4 was illegal,, void and fraud on the statute.

4. It was argued that the purpose of establishment of college this way became unlawful on 1st April, 1972, therefore, the Notification under section 4 issued for acquisition of the land for this purpose automatically came to an end. The same could not be processed further. It was maintained that the fresh Notification had to be issued and without which all further proceedings based on Notification, dated 16th February, 1971 were void ab initio. It was next argued that initially the purpose of the acquisition as given in the 1st Notification under section 4 of Act, 1894 was for residential college for boys and girls. The same was totally substituted vide Notification, dated 29th March, 1973 for establishment of Qur'anic Centre and residential colony. It was added that no Notification under section 5 was issued after making the preliminary inquiry for the college. If the Notification, dated 25th January, 1971 was treated as Notification under section 5 of the Act, 1894 then the moment the purpose was changed, a fresh inquiry was to be held and fresh Notification was required. Neither any fresh inquiry was held nor fresh Notification was issued. The earlier proceedings had no nexus with the new purpose, therefore, all proceedings from this stage onward were illegal and of no legal consequence as the statutory requirement was not complied with. In this behalf reliance was placed on the case of E.A. Evans (Supra). It was re-asserted that all this necessitated a de novo acquisition proceedings and fresh Notification under section 4 of Act, 1894 was required. The previous proceedings were no longer available, therefore, could not be continued. The next argument was that the proposed Qur'anic Research Centre was for propagating the teaching of Ghulam Ahmad Pervaiz, who was highly controversial religious figure as he did not believe in Ahadith (did not believe in Hazrat Muhammad (p.b.u.h.) and he was bracketed with other Ghulam Ahmad, whose followers were later on declared non-Muslim in the Constitution of 1973. He thereafter referred to a letter of , Majlis-e-Aamal-e-Tahafuz Khatim-e-Nabuwat and book "Sunat KI AAINI HAISIAAT" by Syed Abu ul Aala Madoodi. He also relied on a report according to which there was unrest in the area on account of proposed acquisition for ' Pervaizi' Sect. It was explained that it was reason to keep the Qur'anic Research Centre in the background. This fact alone was sufficient to prove that the proceedings were fraud on the statute. It was argued that according to Rule 46 of the Cooperative Societies Rules, 1927, the Cooperative Societies were prohibited from involving themselves in controversial matters of religious character. The need, therefore, of respondent No.4 was not legal.

5. The next argument was that the acquisition was to rob the owners of their valuable lands. It was explained that in para. 4 of Annexure-A respondent No.4 had stated that it had already purchased land measuring 17 Kanals for Rs.111,078.50. It meant that the land was purchased at the rate of Rs.6,553 per Kanal whereas Land Acquisition Collector had assessed the compensation m collusion with respondent No.4 at the rate of Rs.1,564 and Rs.1,955 per Kanal for the village Niaz Baig and Rs.275 and Rs.1,564 per Kanal for village Hanjarwal. This amounted to rob Peter to pay paul. This trick was held illegal in recent judgment of this Court in I.C.A. No.257 of 1993 decided on 28-6-1999. It was argued that whole of the acquisition proceedings were mala fide. The purpose was to benefit respondent No.4 at the cost of poor landowners. It was added that the followers of Ghulam Ahmad Pervaiz were very influential. The action was mala fide and without jurisdiction. In this behalf learned counsel had relied on Abdul Rauf v. Abdul Hamid Khan (PLD 1965 SC 671), judgment in I.C.A. No.257 of 1993, Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), The Sate v. Zia ur Rehman (PLD 1973 SC 49). The Murree Brewery Co. Ltd., v. Pakistan through the Secretary to Government of Pakistan, Works Division (PLD 1972 SC 279), The Province of Punjab through Secretary to the Government of Punjab, Housing and Physical Planning Department v. Ch. Zahoor Elahi (PLD 1981 Lah. 696) and Malik Ghulam Mustafa Khar v. Pakistan (PLD 1988 Lah. 49).

6. It was argued that the whole acquisition proceedings lack transparency from first stage to the last, therefore, the same were liable to be struck down being illegal, mala fide and fraud on the statute. In this behalf reliance is placed on Collector Customs, Excise and Sales Tax, Peshawar v. M/s. Flaying Kraft Paper Mills (Pvt.) Ltd. Charsada, District Peshawar (1999 SCMR 709). It was argued that the last mentioned purpose of acquisition had not been implemented mala-fidely. It was explained that according to Clause-A of the agreement, Annexure G, land was to be utilized only for the purpose of establishment of Qur'anic Research Centre and for its small township apartments and subservient to those institutions to make themselves sufficient in all respects. It was argued with reference to the Auditor's Report of the respondent Society for the year 1991 that 83 plots had been allotted to different persons by the Society. The land reserved for Qur'anic Reseach Centre was only 64 Kanals while the remaining other 100 Kanals had been converted into plots, both residential and commercial. This was got approved from L.D.A. again deceitfully. This meant that the acquisition was in fact for the benefit of some individuals and exactly in similar circumstances the acquisition was set aside by this Court in I.C.A. No.257 of 1993. It was further added that the change in purpose was clear from the brochure titled 'Qur'anic Reseach Centre and Cadet College' wherein Qur'anic Research Centre only covered small piece of land. This proved beyond any shadow of doubt that the real intention was to acquire the land on cheaper rate through the official agency for the benefit of individuals. It was next argued that the acquisition proceedings were mala fide and to usurp the land of small owners as was clear from the fact that the original scheme also included land of Dr. Bashir Ahmad and others, who filed application under section 48 of the Land Acquisition Act before Commissioner. The same was accepted vide order, dated 7th January, 1986, which was never challenged by respondent No.4 and the land was excluded from acquisition. This also proved that the acquisition was not for purpose recognized by law rather there was no genuine need or purpose at all.

7. On the other hand, learned counsel for respondent No.4 argued that writ petition was pending before the Single Bench and the same should have been allowed to be decided by the Single Bench but was got entrusted to this Bench. The net result would be that the party loosing has to straightaway challenge the judgment in the Hon'ble Supreme Court. It was argued with reference to Chapter 3-B, Vol-V that it was Single Bench matter, therefore, may be returned to the learned Single Bench for decision as decision by Division Bench would deprive one party of the right of appeal in High Court. In this behalf reliance was made to Idrees Ahmad v. Hafiz Fida Ahmad Khan (PLD 1985 SC 376). It was added that the order for putting up petition before Division Bench was passed by the Hon'ble Chief Justice on 5th July, 1999 while I.C.A. No.257 of 1993 had already been decided on 28th June, 1999, therefore, there was no purpose in sending this case to the Division Bench. It was argued that there was no similarity between the case in I.C.A. No.257 of 1993 as well as connected matters and the present writ petition. It was added that there were large number of Single Bench decisions according to which acquisition was valid.

8. It was next argument that Sadiq Hussain filed Writ Petition No.4716 of 1978. The same was dismissed. It was argued that the matter had been finally decided by the Hon'ble Supreme Court, therefore, the present petition was not competent. In this behalf reliance was placed on Ahbab Cooperative Housing Society Ltd. v. Commissioner, Lahore Division, Lahore (PLD 1978 Lahore 273),) C.P. No.678 of 1977 and C.P. No.11 of 1977 and Ahbab Cooperative Housing Society, Ltd. v. Commissioner, etc. 1990 ALD 612(2). Thereafter, Writ Petition No.2343 of 1978 raising the same question was filed but that was withdrawn unconditionally on 17-10-1978 while another Writ Petition No. 4485 of 1978 was again withdrawn on 15-10-1978 unconditionally, therefore, the present petition was legally not competent in view of the provisions of Order XXIII, Rule 1 (3) and Order II, Rule 2, C.P.C. In this behalf reliance was placed on Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (PLD 1970 SC 1), Malik Khanan v. Malik Baz Muhammad Khan (PLD 1983 Quetta 30), Muhammad Bakhsh v. Member, Board of Revenue, Lahore (PLD 1992 Lah. 420), Abdul Rehman v. Member (Revenue), Board of Revenue, Punjab, Lahore (PLD 1989 SC 246) and Sardar Chakar Khan v. Commissioner, Sibi Division, Sibi (1979 CLC 829). It was argued that the matter having attained finality with the decision of Hon'ble Supreme Court could not be reopened. In this behalf reference was made to Asif Jah Siddiqi v. Government of Sindh (PLD 1983 SC 46), Muhammad Shafi v. Ataullah (1984 SCMR 1124), Mrs. K.P. Boga v. Ejaz Ahmad Khan, Deputy Settlement Commissioner, Lahore (1991 MLD 835), and Abdul Majid v. Qazi Abbas Hussain Shah (1995 SCMR 429).

9. It was argued that the acquisition of respondent No.4 was not affected by M.L.R.-118. The land could not be restored to the owners especially after dismissal of C.P.No.ll of 1977 and 678 of 1977 on 21st June, 1978 by the Hon'ble Supreme Court. It was argued that petitioner No.2, Muhammad Yousaf, was also agitating the matter before the Revenue Authorities and at the moment an appeal was pending before the Additional Deputy Commissioner (General), Lahore, therefore, the present petition was not maintainable. It was argued that scope of Section 48 was examined in the judgment in those proceedings reported in the case of Ahbab Cooperative Housing Society, Ltd. (supra). It was argued that the purpose of acquisition was an executive function and this Court could not look into the same being a matter of policy. In this behalf reliance was placed on Mian Muhammad Nasrullah v. District Magistrate, Lahore (1970 SCMR 214), Raja Muhammad Amir v. Province of the Punjab (PLD 1983 Lah. 355) and Ghulam Bhik v. Government of West Pakistan through Secretary, Revenue Department, Lahore (PLD 1973 Lah. 617). It was argued that before striking off on order of a public authority, Court must explore all possible avenues for its validity. In this behalf reliance was placed on Syed Muhammad Khurshid Abbas Gardezi v. Multan Development Authority (PLD 1983 SC 151), Lahore Improvement Trust, Lahore through its Chairman v. The Custodian. Evacuee Property, West Pakistan, Lahore (PLD 1971 SC 811) and The Chairman, East Pakistan Railways Board, Chittagong v. Abdul Majid Sardar, Ticket Collector, Pakistan Eastern Railways, Laksam (PLD 1966 SC 725). It was argued that the public purpose does not cease to be so simple because incidental benefits would ensure to private individuals. Reliance in this behalf was placed on Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. (PLD 1983 Lah. 552). It was argued that after the notice under section 9 of Act, 1894 the remedy of the land owners was to make a reference under section 18 of the Act, 1894. In this behalf reference was made to Muhammad Sharif v. Afsar Textile Mills Ltd. (1985 SCMR 1181). It was argued that the purpose of acquisition was not justifiable in Court. In this behalf reliance was placed on Brij Nath Sarin v Uttar Pardesh Government (AIR 1953 Allahbad 182), Sheo Badan Tewari v, Mt. Sahebzadi Kuer (AIR 1923 Allahabd 523), Somawanti v. State of Pun tab (AIR 1963 SC 151) and the case of Dr. Muhammad Nasim Javed (Supra).

10. It was argued that the Housing was a 'public purpose'. In this behalf reference was made to Article 24(3)(e)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 and section 40(2)(aa)(b) and section 41(4) of the Act, 1894. It was added that the purpose was fully justified where there was shortage of dwelling houses. In this behalf reliance was placed on Bhagwat Dayal v. Union of India (AIR 1959 Pb. 544) and the case of Dr. Muhammad Nasim Javed (supra). It was argued with reference to sections 11 and 12 of Act, 1894 that the award was conclusive. In this behalf reference was made to case of Muhammad Sharif (supra). It was argued with reference to sections 11 and 16 that after the award the land vested absolutely in the Government. In this behalf reliance was placed on F.K. Abbasi v. M.I. Malik (1985 CLC 1603;) The arguments were concluded with the submission that the acquisition matters cannot be challenged through Constitutional petition. In this behalf reference was made to the cases of Raja Muhammad Amir and Dr. Muhammad Nasim Javed (supra).

11. Learned counsel for the petitioners while summing up the arguments submitted that the matter went to the Hon'ble Supreme Court only in respect of the Notification under section 48 of the Land Acquisition Act whereby the application of Sadiq Hussain Qureshi was accepted and acquisition proceedings rescinded. The matter of acquisition itself was never agitated by any of the parties in the Hon'ble Supreme Court, therefore, the preliminary objection was without any merit. Learned counsel in this behalf had referred to Allah Ditta v. Province of Punjab PLD 1997 Lahore 499, (at page 517). It was explained that the learned Full Bench had held that as the vires of the rules were not considered earlier, therefore, second petition was competent. It was argued that the objection that this petition may not be heard by Division Bench was fallacious and self-contradictory, therefore, even not worth consideration. It was explained that on one hand it was argued that the matter be referred to the learned Single Bench while on the other hand it was argued that there are number of judgments of Single Bench touching the same matter and if the learned Single Judge did not agree with those then the petition had to be heard by a Division Bench. It was argued that the allegation that the petitioners have suppressed the factum of filing of W.P. No.2343 of 1974 and W.P. No.4485 of 1974 were incorrect. These writ, petitions have been clearly mentioned in paras. 8, 18 and 20 of the present writ. There was absolutely no concealment of facts. It was added that the petitioners have no knowledge about the writ petition filed by Sadiq Hussain Qureshi. In reply to the argument that the petition was withdrawn without permission to file fresh one, therefore, the second petition was barred under order XXIII, Rule 1, C.P.C., it was explained that the Writ Petition No.2343 of 1974 was withdrawn on 17-10-1975 as during its pendency application under section 48 of the Act, 1894 of Sadiq Hussain Qureshi for withdrawal of the acquisition was accepted on 9-7-1975 and Notification of withdrawal from acquisition was issued. Thereafter, there was no purpose to continue with the writ petition. The same had become infructuous. It was not covered by mischief of Order XXIII, Rule 1 of C.P.C. It was explained with reference to Writ Petition No.4485 of,1975 that it was withdrawn with permission to file fresh one and this fact was clearly stated in para. 20 of the writ petition, therefore, the withdrawal was not hit by the provisions of Rule 1 of Order XXIII, C.P.C. and for the same reason provisions of Order II, Rule 2, C.P.C. were not attracted. The preliminary objection was also without any merit. In the last it was argued that the appeal of Muhammad Yousaf, petitioner No.2, was pending before the Additional Deputy Commissioner (Consolidation), Lahore, this was in connection with the consolidation of land in revenue estate of Niaz Baig, Teshil and District, Lahore and the same had nothing to do with the acquisition proceedings.

12. We have given our anxious consideration to the arguments, gone through the record, precedent cases and relevant provisions of law. Before proceedings any further, it is worth while to refer to the different notifications issued under section 4 of the Act, 1984 in this case:

(i) Notification, dated 16th February. 1971 .---The purpose was for construction of residential college for boys and girls and for a small township apartment and subservient to those institutions to make them self-sufficient in all respects ' a Public Purpose.'

(ii) Notification, dated 12th November, 1971. The purpose was 'for construction of residential college for boys and girls and for a small township apartment and subservient to those institutions to make them self-sufficient in all respects ' a Company Purpose.'

(iii) Notification, dated 29th March, 1973 . The purpose was for establishment of Quranic Research Centre and a residential Colony in collaboration with the Quranic Research Society (Regd.) Company Purpose' .

It was argued on behalf of the petitioners that neither land was required for respondent No.4 nor it had funds nor the acquisition was covered by its, purpose. The bye-laws of the respondent Society were placed on the record. The same did not permit it to undertake any such venture, therefore, the acquisition was beyond the scope of the Society, therefore, illegal. In this behalf reference can be made to Fida Ali Yusufali v. Graxali Refineries Ltd. (PLD 1967 Karachi 637), secondly, the M. L. R. 118 was promulgated w. e. f. 1-4-1972 prohibiting the establishment of privately managed institutions, therefore, purpose has become unlawful as it amounts to defeat the purpose of law. Thirdly, it was clear from the whole scheme of the Land Acquisition Act, 1894 that there could not be a acquisition for a third party. The Land Acquisition Act caters for two types of acquisition; firstly for the public purpose; and secondly for the Company or a registered Society. In case of acquisition for second category the company or the society had to enter into an agreement with the Government under section 42 of Act, 1894 whereby it undertook to abide by the terms and conditions of acquisition. Now the acquisition as was clear even from application Annexure-A with the writ petition, was basically for the Qur'anic Society which was, also to finance the project. The agreement, Annexure-G, was executed between respondent No.4 and Government but as the land would be utilized by Qur'anic Society, which was under no obligation to abide by the terms and conditions of this statutory agreement. There was no concept of proxy acquisition in the Act, 1894. It would not only be against the provisions but also to defeat the purpose of law, therefore, it was fraud on the statute and liable to be struck down on this short ground.

13. Learned counsel for respondent No.4 has placed on record a chart of land acquisition proceedings. The second step is Notification under section 5 of Act, 1894, notifying the purpose of the acquisition. The same could be either Public purpose' or 'Company purpose. No such Notification was relied or produced by the _ respondents. This was to furnish basis for further acquisition proceedings. In the absence of this foundation the whole edifice of acquisition tumbled down to the ground. The proceedings were without legal sanctity. It was clear from the above chart that first Notification was issued on 16th February, 1971 for the "Public purpose". Then purpose was subsequently changed to "Company Purpose" vide Notification, dated 12th November, 1971. A Notification dated 4th February, 1971 was available on record, which purportedly was issued under section 3 but if in para. 2 thereof this figure is read as ' 5' instead of ' 3' then question would rise whether this would meet the legal requirement? It was notified therein that the land was needed by the Ahbab Cooperative Society Limited, Lahore at their expenses for Company purpose . It seemed that the Notification was issued mechanically, without any inquiry and satisfaction. This became clear from the following facts incorporated in it:-- '

(i) Respondent No.4 is not a limited company. It is a society registered under Cooperative Societies Act but referred as Company;

(ii) it was notified in paras. 1 and 2 that acquisition was at its expenses It was incorrect and

(iii) for company purpose (for itself), which was again incorrect.

None of the above factors on which the satisfaction of the 'Government' was based were it-, existence. It proved there was no inquiry under section 40 and non-compliance of sections 5 and 5-A of the Act, 1894. This vitiated entire proceedings.

14. Learned counsel for the respondent No.4 argued that the satisfaction was sacrosanct and same could be looked into. It was added that the purpose of acquisition was not justifiable. "What was a public purpose' its determination was with the Executive and the same could not be subject- matter of the Constitutional petition. The argument was without merit because this theory of divine rights, which was taken refuge by the Executive was not available now after 1973 Constitution and judgments of the Superior Courts. This point was specifically raised in I.C.A. and the relevant paras. reads as under:--

"6. It is true that the Provincial Government or the Commissioner, as the case may be, is to be judge of the fact as to whether the land is required for public purpose and also that there is urgency within the meaning of section 17 of the Act, as held by the learned Single Judge on the basis of the pronouncement relied upon by him in the impugned judgment. However, it is equally true that the Courts will always be duty bound to see that during the course of said procedure the authorities concerned have applied their mind or not. In the above referred case reported as 1993 SCMR 1673. It was, thus, observed at page 1679 by the Supreme Court:--

'Under section 6, on consideration of a report submitted to the Commissioner under section 5-A or section 40 and compliance with other provisions of Part VII of the Act (which included sections 39 and 40) if he is satisfied that the land is needed for public purpose or for a company he may make a declaration to that effect. It is noteworthy that enquiry under section 40 is factual in nature in which hearing is given to the objectors. It is a channel to place information before the Commissioner for the satisfaction to enable him to have a correct perception of the situation before making a declaration that the land is needed for a public purpose and consequently its acquisition is warrantable, but the satisfaction of the Commissioner should be deliberated and arrived at after due care and proper application of the mind to the facts appearing on the record'."

15. The Hon'ble Supreme Court in the case of Fouji Foundation etc. v. Shamim ur Rehman (PLD 1983 SC 457) while explaining the object of Article 2 of the Constitution, 1962 observed that the administrative powers are to be exercised in accordance with the elementary principle of fair procedure so that these are treated as implied in the statute.

16 It is interesting to note that the rights which were claimed by at one time by King but were surrendered under democratic set up with the passage of time are being taken refuge by Executive. There is no place for such a rule in Islamic Republic of Pakistan. Now Executive is answerable and every order or action of it must not lack transparency. Theory had to be buried deep so may not find its way at further lower level. The acquisition was not for a "public purpose , therefore, illegal.

17. The need of the respondents Society was corner stone and was never determined at least we have not been shown any record by the respondents where this need had been determined and found genuine. In fact there could be none in view of the application Annexure-A, particularly paras. 3, 8 and 9. The same read as under: --

"3.It was intended that the petitioner society should acquire land for the said colleges and also for a small township apartment and subservient to these institutions to take them self-sufficient in all respects, and then to transfer the site for colleges, hostels, play grounds etc. etc. to the said Qur'anic Education Society."

"8.To introduce the aims and objects of said Qur'anic Education Society, their memo. and Articles of Association are appended herewith alongwith a booklet published by them which speaks for itself. The sincere and ambitious programme towards imparting a genuine and real type of education to our coming generations is the crying need of our country and the Society has courageously dedicated themselves for this project."

"9. That the financial position of the said Qur'anic Education Society is very sound. On the initial appeal for funds, the Society has so far been donated Rs.2,70,000 by the public. Besides these contributions there are genuine promises for construction of. nine rooms and for providing the entire science section with latest scientific apparatus. "

18. It was clear from the above that in reality the land was being acquired for the Qur'anic Education Society and was not the need of respondent No.4. It was interesting to note that respondent No.4 was under legal disability under Rule 46 of the Cooperative Societies Rules, 1927 to undertake such a venture. This would further add to the grounds for holding, this acquisition proceedings illegal. It seemed that the real sponsor was afraid of public re-action for acquisition of the land for Qur'anic Research Centre as it was known to be institution of Ghulam Ahmad Pervaiz, who according to the learned counsel for the petitioner yielded great influence both in the Executive and the political circles but was highly controversial religious figure. Learned counsel in this behalf has referred to resolution of Khatm-e- Nabowat and also a book by Moulana Abu-ul-Madoodi, who traced out the history of the disbeliever of the Ahadees and then referred to the Ghulam Ahmad Pervaiz as under:--

URDU PARAGRAPHS

19. Learned counsel for the petitioner rightly argued that a purpose, which could not be achieved directly under the law should not be allowed to achieve in an indirect, fraudulent and under hands mean.

20. It was next argued that the whole acquisition proceedings were mala fide, firstly, for the reason that the land was not needed by respondent No.4 who had even no financial source noted above. It was an admitted position on record that respondent No.4 had earlier purchased the land measuring 17 Kanals for a price of Rs.1,11,407.50. It was realized that if they purchased the land by negotiation then they have to pay market price, so they thought of using State Machinery for getting the land. This was clear from the fact that the lands-owners were being paid at the rates ranging Rs.275 to Rs.1,955 per Kanal whereas respondent No.4 had itself purchase the land at rate of Rs.6,553 per Kanal earlier to the acquisition. We need not to proceed any further with this argument because the issue was clinched by para. 4 of the application, Annexure-A. The same reads as under:--

"4. That with the above purpose in view, the petitioner Society purchased land measuring about 17 Kanals bearing Khasra No.984 of village Niaz Beg and Khasras Nos.1005 and 1006 of village Hanjarwal on payment of Rs.1,11,407.50 which was subsequently found out to be fantastically higher that a value of the land ever paid in that area. "

21. The point of mala fide was also considered in the judgment of .C. A. It held as under:--

"Mala fide or malice, of course, is not an abstract phenomena. There is no cavil with the proposition that the mala fides are to be specifically alleged and proved. However, there are cases where distinction has been sought to be drawn between malice in law and malice in fact. Whatever is done in violation of law cannot be said to be done in good faith and what is not done in good faith is mala fide. Reliance is placed on the case of Malik Ghulam Mustafa Khar and others v. Pakistan and others (PLD 1988 Lahore 49). "

This was not market price. We may in this behalf may refer to the judgment of the Hon'ble Supreme Court in case of Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. 1993 SCMR 1700.

The case in hand is a classic example of misuse of the State machinery for benefit of individuals, which was not the purpose of the Land Acquisition Act. We may observe here that with the fundamental rights guaranteed in the Constitution of 1973 and particularly Articles 23 and 24, according to which no person shall be deprived of the property except ill due scourse of law and there shall be no compulsory acquisition save for the public purpose and the authority of law, which provided for compensation either fixing the amount of compensation or satisfied by the principal and the manner for determination of compensation. The present acquisition offended provisions of Article 24 of Constitution, therefore, the same was ultra vires `G including provision of. Land Acquisition Act. There was no scope for acquisition other than for public purpose and that too under law, which ensured proper compensation. Whereas the Land Acquisition Act is based on the rule to rob Peter to pay Paul. There was no scope for its type of action in an Islamic State as offended the injunctions of Islam. The rule to enrich privileged one at the cost of poor is legacy of imperialism and had no place in an ideological State like Pakistan. We may refer in this behalf Jibendra Kishor Achharyya Chodhary v. The Province of East Pakistan (PLD 1957 SC (Pak.) 9 and Muhammad Akbar v. The Commissioner; Rawalpindi Division (PLD 1976 Lahore 747). The provisions of Land Acquisition Act (sic) as acquisition for a company are in that way repugnant and vehicle of oppression. This type of acquisition liable to be struck down. Citizens are entitled to equal protection of law. Now the rule is that a citizen should be paid gold for gold and silver for silver.

22. We may mention here that purpose of Notification under section 4 of the Land Acquisition Act was simply to notify the intention of the Government that the land was likely to be acquired for the particular purpose, therefore, there was no scope for changing the purpose of acquisition by substituting the same through corrigendum. The Notification under section 4 of 16th February, 1971 was issued for a specific purpose. The moment respondent No.4 decided to change the purpose that file should have been closed and case processed afresh as earlier Notification stood impliedly withdrawn. We in this behalf may refer to judgment of Hon'ble Supreme Court in the case of Sahib Dad Khan v. The Commissioner, Rawalpindi Division (1969 SCMR 317).

23. The whole acquisition proceedings in our view were mala fide. The purpose was to deprive the small landowners of their holding without proper compensation. This was crystal clear inter alia from the fact that the land acquired included that of Dr. Bashir Ahmad, Neurosurgeon and his five family members, who moved application under section 48 of the Act, 1894, which was accepted and their land was excluded from the scheme while the application moved by the petitioners for the same purpose was rejected without any justification. It was interesting to note that respondent No. 4 did not contest the application of Dr. Bashir Ahmad and others. This also proved that need of respondent No.4 was not genuine. While the change of the purpose thrice proved that it had no definite scheme or purpose. Secondly, the scheme was limited to the land of the down-trodden class. The Constitution did not permit two standards. Discrimination is not possible now in view of the guarantee given by Article 25 of the Constitution Of 1973. We in this behalf may refer to the judgment of the Hon'ble Supreme Court in the cases of I.A. Sherwani and others v. Government of Pakistan (1991 SCMR 1041) and Jibendra Kishore Achharyya Chodhury (supra).

24. Learned counsel for the petitioner argued that the last 'purpose' as incorporated in the Notification, dated 29th April, 1972 was 'for the establishment of Qur'anic Research Centre and residential colony'. It was argued that this was again a false pretext because for Qur'anic Centre they had already acquired 17 Kanals of the land at the same place. The real purpose was to establish a Housing Scheme for the benefit of the few individuals. It was clear from the record that it was not need of the society but the land was acquired for the purpose of establishment of a residential colony that, too, after committing the dacoity on the valuable rights guaranteed by Articles 23 and 24 of the Constitution, 1973. We may also refer in this behalf, judgments in the cases of Province of Punjab and 2 others v. Ch. Zahoor Elahi etc. (1982 SCMR 173), Pakistan v. Nawabzada Muhammad Umer Khan (1992 SCMR 2450) and Nawabzada Muhammad Umar Khan- v. Pakistan (PLD 1982 Peshawar 1), where the acquisition was set aside being mala fide and beyond the purpose of law. The point of acquisition for a Cooperative Society was considered in the judgment of I.C.A. and acquisition was set aside. The relevant portion of the judgment reads as under:--

However, we have to see as to whether the machinery of law, which but for the Constitutional protection provided to it under proviso to Article 24 of the Constitution, is a process for depriving a citizen of his property compulsorily, can be allowed to be invoked by group by whatever name called, for personal benefit. The answer is certainly no and we seek support from the observation of Mr. Justice Irshad Hasan Khan (as his Lordship then was) -in para. 14 of the said report at page 562, which is to the following effect:--

'In view of the ratio laid down in the aforementioned cases, the legal position which emerges is that the acquisition for Cooperative House Building Society may serve a public purpose. It, however, depends upon circumstances of each case whether or not such an acquisition is for a public purpose. "

Learned counsel for the respondent No.4 simply remarked that the judgment of the I.C.A. was not relevant as there is no resemblance of fact. The argument was utterly, misconceived. The judgment had taken care all of precedents upto date and this was the only way to brush aside this judgment. The argument was without merit:

25. Learned counsel for the petitioners had placed on record copies of the audit report and minutes book of respondent No.4, according to which 83 plots have been allotted to different persons by respondent No.4 Society while the land reserved for Qur'anic Research Centre is only 64 Kanals and the remaining land had been converted into residential and commercial plots as per scheme submitted to the Lahore Development Authority (LDA). In order to prove this the petitioners had produced list of the allottees issued by respondent No.4. Learned counsel for the petitioners in order to show that the acquisition was for the Qur'anic Education Society (Regd.) and not for the petitioner, had placed on record Brochure of the said Society and especially referred to the Site Plan of the Scheme which tally with the scheme submitted by respondent No.4 to the L.D.A. It is interesting to note that the L.D.A. was kept in dark as to this litigation and scheme got approved. But no development was incurred all these years.

26. It is relevant to mention here that counsel for Dr. Bashir Ahmad Neurosurgeon and five others had argued that there was no justification to allow acquisition of land in excess to the requirement of the respondents. The other argument was that they were not served with any notice or heard at any stage about acquisition proceedings in favour of the respondent Society, therefore, not aware of the acquisition proceedings. The Commissioner, respondent No. l after noting the contention observed that the perusal of the arguments advanced and statement of Consolidation Officer left no ambiguity. Learned counsel for the respondent Society admitted the claim of the applicants, therefore, he proceeded to accept the application under section 48 of Act, 1894 and ordered withdrawal of the acquisition of land vide order, dated 7-1-1986. The total land involved was 6 Kanals and 6 Marlas. This way two contradictory orders had been passed by the Commissioner. This way it was conceded that land was acquired without determining the genuineness of the need and in any case its extent.

27. The main thrust of the argument of the learned counsel for respondent No.4 was on the preliminary objections: firstly, that the writ be sent to learned Single Judge for decision. It is interesting to note that the writ petition was being heard by one of us (Ihsan-ul-Haq Chaudhry, J.) who was also a Senior Member of the Division Bench which had decided the I.C.A. No. 257 of 1993, therefore, there was no purpose in sending the petition to Single Bench. Moreover, the argument was self-contradictory as it was argued with reference to precedents that there were number of decisions of Single Bench contrary to the view of the learned ,Division Bench. The moment this was argued that there was difference of opinion between learned Single Benches it necessitated reference to a larger Bench. Above all in view of the decision of I.C.A. in which the Single Judge (Ihsan-ul-Haq Chaudhry, J.) was member, there was no purpose to send back the case to the Single Bench. The argument was self-contradictory and without any merit.

28. The next preliminary objection was that the matter had attained finality with the judgment of the Hon'ble Supreme Court, therefore, the writ was not competent. The objection was not only without merit but mis leading. We have noted while recording the facts that one Sadiq Hussain moved application under section 48 of Act, 1894 for withdrawal from the acquisition proceedings. The same was accepted. This order was challenged by respondent No.4 through Constitutional petition. The decision is reported as Ahbab Cooperative Housing Society, Ltd. (supra.) The landowners filed two C.Ps. in the Hon'ble Supreme Court, which were dismissed, therefore, the decision was only to the extent of the proceedings under section 48 of the Act. 1894. The third legal objection was that the present petition was barred under Order XXIII, Rule 1 (3) and Order II, Rule 22, C.P.C. The objection was again without merit. It was explained that the Commissioner dismissed the application under section 48 of the Land Acquisition Act, on 24-9-1978. The same was pending with him at the time of filing of that writ petition, therefore, it was withdrawn with permission to file fresh one and ultimately the present writ petition was filed. The present petition was filed during the pendency of W.P. No.4485 of 1974, which was subsequently withdrawn on 17-10-1978, therefore, it will not be hit by the provisions of Order XXIII, Rule 1, C.P.C.

29. The petitioner could maintain a writ as the acquisition proceedings were not valid. In this behalf, reference can be made to the judgment in the case of Mst. Sardar Begum v. Lahore Improvement Trust, Lahore (PLD 1972 Lahore 458). The action of Government functionaries only protected if it was valid and not otherwise. In this behalf reference can be made to the cases of Haji Ghulam Zamm v. A.B. Khondkar (PLD 1965 Dacca 156) and Ch. Muhammad Anwar v. Government of West Pakistan (PLD 1963 Lahore 109). The case in hand if looked in the above background the acquisition proceedings were ultra vires, mala fide, fraud on statute, therefore, could not be allowed to stand on some technicalities. We may refer to the judgments of Hon'ble Supreme Court in the cases of Sultan Mir v. Umer Khan (1992 SCMR 1206) and Noorul Amin v. Muhammad Hasham (1992 SCMR 1744). The rules of procedure are meant to advance justice and preserve rights of litigants and are not meant to entrap them in blind corners so as to frustrate the purpose of law and justice- as held in Mir Mazar v. Azim (PLD 1993 SC 332). We may also refer in this behalf to Allah Ditta v. Barkat Ali and 3 others (1992 SCMR 1974), Dr. Zia Suleman Farooqi v. Punjab Public Service Commission and others (PLD 1994 Lahore 55) and Nazir Ahmad and another v. Muhammad Tahir and another (PLD 1992 Lahore 89).

30. Rana Muhammad Arif, learned Addl. A.-G argued that in the circumstances of the case the second petition was competent. In this behalf reliance was placed on Wasi Ahmad Rizvi v. Government of Pakistan PLD 1972 Karachi 589). It was rightly argued that points raised in this petition have not been earlier raised and decided. Rather there was no occasion for that.

31. Now coming to the last legal objection that the proceedings were also pending before the Additional Commissioner (Consolidation), Lahore. Suffice it is to say that the dispute is about the consolidation proceedings and not the acquisition proceedings which have been challenged in this petition.

32. The upshot of his discussion is that this writ petition is accepted with costs. The result is that all notifications and acquisition proceedings are declared ultra vires, illegal, without jurisdiction and mala fide and set aside.

Q.M.H./M.A.K./N-178/L

Petition allowed.