MUHAMMAD AFZAL BHATTI And 17 Others vs PROVINCE OF PUNJAB Through Collector, Rawalpindi And 4 Other

ORDER

MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This is a petition for special 1 ave to appeal arising from the judgment of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dismissing a Constitutional petition filed by the petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to call in question an order of the Collector, Land Acquisition, Rawalpindi, issued under section 4 of the Land Acquisition Act, 1894 for acquiring the disputed land on the ground of its being mala fide.

2. The facts of the case forming its background noted in the impugned order of the High Court are that vide Notification No.22/LAC dated 12-1-1994 issued by the Collector, Rawalpindi, under section 4 of the Land Acquisition Act (I of 1894), hereinafter called as the Act), land measuring 82 Kanals 7 Marlas bearing Khasra Nos. 111, 121, 130, 133, 134, 135, 240 and 547 situate in Village Sood Gangal, Tehsil and District Rawalpindi, owned by the petitioners was acquired for 'defence purpose'. The petitioners had seriously objected to the acquisition of the disputed land on the ground that it had not been acquired for 'defence purpose' but factually it had been acquired for respondent No.4 who had already purchased land lying adjacent to that in dispute through private negotiation after the petitioners had declined to sell it to respondent No. 4.

3. In their parawise comments filed to the averments made in the petition, it had been urged by respondents Nos.1 and 2 that a request for the acquisition of land under reference for. 'defence purpose' was received from Military Estate Officer, Rawalpindi, (respondent No.5) vide his letter dated 22-7-1993. It was further urged that prior to the issuance of: notification under section 4 of the Act, the propriety of the public purpose of the land was sought to be verified through letter dated 27-7-1993 which was duly verified by the HQ Civil Works Organization, an Army Formation under the G.H.Q,,, Rawalpindi and Ministry of Defence by virtue of a letter dated 12-8-1993 and that, therefore, notification under section 4 of the Act had been validly published. The allegation that the land in dispute had been acquired for K.R.L. Employees Cooperative Housing Society was specifically controverted in the comments urging vehemently that it had been acquired for the 'defence purpose'.

4. The aforementioned plea of the petitioners was reiterated before the High Court but it was not entertained, for, the entire correspondence exchanged between the acquiring authority and the Civil Works Organisation indicated "that land in dispute was being acquired for 'defence purpose' and that there was nothing on record to suggest that the land in dispute was being acquired for the benefit of respondent No.4" as the allegation aforesaid had remained unsubstantiated by any material. The learned Judge in Chambers of the High Court also noticed that prior to the issuance of notification under section 4 of the Act respondent No.2 (Assistant Commissioner, Rawalpindi acting .As Land Acquisition Collector) had sought clarification from the concerned quarters on the three points, namely, (i) whether the Civil Works Organisation was a Government department or a body organized privately for monetary gains? (ii) Can the Organisation itself move for acquisition of any land for defence purpose of its own? (i.e) Whether the site had been selected by the Defence Forces for the use of defence installation or otherwise? The learned Judge in the High Court also found that after full-fledged inquiry, the Land Acquisition Collector was satisfied that the impugned notification was issued under section 4 of the Act disclosing that the disputed land was being acquired for defence purpose. The learned Judge had also noticed that in Annexure-I annexed with the written statement filed by respondents Nos. l and 2 it had been specifically urged that the land was required for defence purpose for the establishment of: (a) Medical Centre, (b)

Parking area, retile station and maintenance of Park for Mechanical Transport, (c) Security Check Posts and (d) Living Accommodation for the above detachments whereby the bona fide of acquisition of the land for defence purpose was established beyond any shadow of doubt. From all this factual background, the learned Judge found that acquisition of the said land could not be held to be without lawful authority or for the benefit of respondent No.4. In consequence, the petition filed by the petitioner was dismissed.

5. Khawaja Muhammad Farooq, learned senior counsel appearing on behalf of the petitioners, seeks leave to appeal on the same grounds as were urged before the High Court. His submission is that acquisition of the land in dispute was not for what had been described as 'defence purpose' but the real beneficiaries were the K.R.L. Employees Cooperative Housing Society, therefore, the notification under section 4 of the Act was mala fide. The ground taken by the petitioners before us was duly considered by the learned Judge in the High Court who came to the conclusion that the allegation of mala fide raised by the petitioners had remained unsubstantiated on the record of the case. We tend to uphold the findings of the learned Judge in the High Court not only on the grounds which weighed with him but would additionally reiterate this Court's dictum in Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151) that allegations of mala fide though easy to level are difficult to prove, the burden whereof heavily lays on the petitioners. Again this Court would not go behind a finding of fact recorded by the subordinate Court or the High Court unless it can be shown that the finding on the face of it is against the evidence or is patently improbable or perverse.

6. It was next contended by the learned counsel for the petitioners before us that the notifications under sections 6 and 17 of the Act had been jointly issued which, besides being legally not permissible, were not sustainable as no notice thereof had been served upon the petitioners. The to-pronged attack on the impugned joint notifications is devoid of substance. There is nothing in the Act against issuance of notifications under sections 6 and 17 ibid jointly nor any prejudice to the petitioners is shown to have thereby occasioned. Again the existence of urgency under section 17 of the Act is a matter solely for the determination of the Government and is generally not a subject of judicial review. In so far as the allegation of omission to serve notice upon the petitioners is concerned, it was neither grounded in the petition nor was it urged before the High Court. Similarly, the assertion noted earlier qua the property or legality of issuance of joint notifications under sections 6 and 17 of the Act had also been taken for the first the in this Court. These contentions having been raised for the first the have not impressed us, for, the point not raised before the High Court cannot be agitated before this Court.

7. In this view of the matter, in our opinion, the High Court has correctly considered the points in the case and has come to the right conclusion that the impugned notification under section 4 of the Act was not proved to be mala fide. Accordingly, we see no merit in this petition for leave to appeal and dismiss it.