' Proffering the background of the instant writ petition, petitioners' learned counsel has submitted that Shalimar Fabrics (Private) Limited (hereinafter referred to as the Shalimar Fabrics), the petitioners and Appolo Textile Mills (to be noted as the Appolo Textile), respondent No.3 had purchased through two different registered sale-deeds bearing Nos.538 and 537, on 2-11-1973, the Agricultural lands measuring 212 Kanals, 8 Marlas and 196 Kanals, 9 Marlas respectively, situated in Mauza Jasil Wain, Tehsil and District Muzaffar Garh, from Mian Ghulam Rasool and others, to establish two separate and independent industrial units as the names of both these petitioner and respondent No.3 depict the purpose, for which they had purchased the above noted lands. The pioneers of both these industrial private limited companies are inter se close relatives. The proprietors of the Appolo Textile got a suit for pre-emption instituted against the lands, which were purchased by the Shalimar Fabrics through registered sale-deed No.538, in the year- 1973, through Abdul Hakeem and others. The owners of the Shalimar Fabrics contested the suit for pre-emption and turned out successful as the suit was dismissed on 18-4-1990 from the Court of learned Senior Civil Judge and the appeal preferred there against was also dismissed. In this scenario of strained relations the owners of the Appolo Textile filed application for partition against the Shalimar Fabrics, which proceedings culminated into framing of two Wandas. Wanda No.1 was allocated to the Appolo Textile while Wanda No.2 was earmarked for Shalimar Fabrics. To give effect to this partition order, Mutation No.1026 was also sanctioned on 10-7-1996 in the Revenue Record.
Narrating facts further, the learned counsel for the petitioners has submitted that the owners of the Appolo Textile had always been making efforts that the owners of the Shalimar Fabrics could not set up the industry, as they thought it a rival company in the field to destroy their business. The suit for partition, the application for partition and thereafter the efforts to create obstacles/impediments in the way of the Shalimar Fabrics to get the loans from different institutions/banks and industrial promotion institutions were made by the owners of Appolo Textile.
Different manners and methods adopted by the proprietors of the Appolo Textile to deprive the proprietors of the Shalimar Fabrics to get the loans from the Industrial Development Investment Bank of Pakistan, The Investment Bank of Pakistan, The Industrial. Development Finance Corporation, The Bank of Credit and Commerce International and so many other institutions were referred to by the learned counsel and delineated in the writ petition to display that the proprietors of the Appolo Textile wanted that the Shalimar Fabrics might not be able to establish the industrial concern. As in all these attempts and efforts, the proprietors of the Appolo Textile failed, so, as a last resort, they came out through publication of two notifications, bearing Nos.1195 and 1196 issued on 10-9-2003 under section 4 of the Land Acquisition Act through the District Officer (Revenue)
Muzaffar Garh, published in the Punjab Gazette of 13th of September, 2003 with regard to the acquisition of lands of the Shalimar Fabrics to the extent of 71 Kanals, 5 Marlas and 80 Kanals, total land measuring 151 Kanals and 5 Marlas to be acquired. According to the learned counsel, these notifications under section 4 of the Land Acquisition Act are, therefore, based upon mala fides and are liable to be declared illegal and unlawful on the following grounds:--
(A) Both are private limited companies, so one company cannot get acquired the, lands of the other company.
(B) There was no public purpose as required by section 4 of the Land Acquisition Act.
(C) The object and intent of acquisition was clearly mala fide and with ulterior motives. The owners of the Appolo Textile have got issued these notifications. So, in these circumstances the remedy of writ was available. He has referred to 2000 YLR 1711/1712 (Ghulshan Hussain and another v.
Commissioner (Revenue), Islamabad/Deputy Commissioner, District Collector, I. C . T. /Assistant Commissioner, Saddar, Islamabad and another), 2000 MLD 322-324 (Nazir Ahmad and 8 others v.
Commissioner, Lahore Division, Lahore and 3 others), PLD 2002 SC 1079-1080 (Federal Government Employee's Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad), PLD 1966 SC 639 (Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another). Mala tide acquisition and with ulterior motive notification can be set aside. For this proposition, learned counsel has referred to 2000 MLD 322-324 (Nazir Ahmad and 8 others v. Commissioner, Lahore Division, Lahore and 3 others), 1991 CLC 1001 (Mst. Nasreen Zohra v. Multan Development Authority through Director- General and another).
(D) Acquisition of private land for purpose other than public purpose is not legal and such acquisition for personal benefit of particular class of employees would not be termed as for the public interest. He has referred to PLD 2002 SC 1079-1080 (Federal Government Employee's Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad), 2002 SCMR 1652 (Muhammad Ishaq and others v. Government of Punjab and others), PLD 1976 Lahore 747 (Muhammad Akbar (through Legal Representatives) and 7 others v. The Commissioner, Rawalpindi Division and 2 others) and PLD 2002 SC 1079 (Federal Government Employees Housing Foundation through its Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad).
(E) It has also been stated by the learned counsel that as no remedy is provided against the notification under section 4 of the Land Acquisition Act, therefore, this writ petition is maintainable.
He has relied upon the abovenoted decisions for this purpose.
(F) Learned counsel has produced the maps to show that the land which is proposed to be acquired is consisting of such Killa numbers so as to deprive the petitioners to establish the industrial concern. Some of the land which is being left from acquisition would become completely useless for the petitioners. This also shows the intent of the owners of the Appolo Textile as to how they intend to acquire the lands of the Shalimar Fabrics.
(G) Respondent No.3, the Appolo Textile has got excess land, which is lying vacant to the extent of 100 Kanals, which is not being used by respondent No.3, although it could be used by respondent No.3 for the purpose alleged and stated in the notification, issued under section 4 of the Land Acquisition Act.
3. Learned counsel appearing on behalf of respondent No.3, the Appolo Textile have replied that:--
(a) The filing of the suit of pre-emption by Abdul Hakeem and others cannot be linked with the owners of the Appolo Textile. It was an act of other persons, namely Abdul Hakeem and others. So, filing of the suit for pre-emption cannot be attributed to their intent.
(b) The maps being shown by the writ petitioners to prove that the land was being acquired in such a way so as to make the remaining lands of the petitioners useless cannot be brought on the record at this stage.
(c) The ground that 100 Kanals of excess land is being still retained by the Appolo Textile and the notification is a mala fide move, is incorrect as the excess land of 100 Kanals is being used for keeping the bales thereon.
(d) The petitioners having got alternate and efficacious remedy under section 5-A of the Land Acquisition Act to challenged the acquisition and make objections, the writ petition is not maintainable and is liable to be dismissed. To support his contention, learned counsel have referred to 1991 SCMR 1881 (Khalid Mahmood v. Collector of Customs, Customs House, Lahore), 2001 CLC 1853 (Zafeer Gul and 19 others v. N.-W.F. Province through Secretary, Government of N.-W.F.P., Revenue Department and Senior Member, N.-W.F.P., Board of Revenue, Peshwar and 5 others) and 1994 MLD 920 (Muhammad Shafi v. Collector, Land Acquisition, Mirpur and 19 others).
(e) The petitioners, the Shalimar Fabrics is not a company as no proof of its registration, etc has been brought on the record.
(f) This Court being a Court of appeal under section 54 of the Land Acquisition Act, cannot exercise its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. To get support for their arguments, learned counsel have referred to 2002 CLC 1257 (Mst. Razia Sultana and 2 others v. Chairman Evacuee Trust Property Board, Lahore and 13 others). Precise contention is that if an authority has got appellate/revisional power, it cannot exercise the other powers as it cannot become a judge twice of the same cause.
4. First Point for consideration is as to whether the Shalimar Fabrics is a private limited company or not? The registered sale-deed dated 2-11-1973, which was executed in favour of the Shalimar Fabrics (Pvt.) Limited, Muzafar Garh shows and, thereafter this name was appearing in all the judicial proceedings and even in the Revenue Record also with no objection ever raised by any one and the display of name of the Shalimar Fabrics (Pvt.) Limited itself gives the impression that this is a private limited company, because the word "limited" cannot be used by any group or class of persons who have not formed a limited company. The persons, who are the directors of that private limited company, have been noted and arrayed as petitioners in the writ petition. The same is the position of the Appolo (Pvt.) Limited. Both have not placed their memo. Of associations and other relevant documents to prove their being private limited company, as no objection was ever raised against each other by any one. So, I consider both these parties to be private limited companies. 'Therefore, this objection of the learned counsel for respondent No.3 is overruled.
5. As regards the acquisition,. The question arises as to whether a private limited company can get acquired the lands of other private limited company and whether this proposed acquisition can be termed and considered for the public purpose, as envisaged by section 4 of the Land Acquisition Act or for the intents and purposes entered into section 40 of the Land Acquisition Act? The notification bearing No.1195, dated 10-9-2003 has noted .The purpose of acquisition as "extension of building for installing the new machinery and storage" while in notification bearing No.1196, dated 10-9-2003 the purpose of acquisition has been mentioned as "extension of building for residential quarters of labour and storage". From these words, the purpose and intent of respondent No.3, owners of Appolo Textile is unveiled. From this it becomes evident that they wanted to extend their present buildings for installation of new machinery, storage and residential quarters for labour.
Meaning thereby the proprietors of Appolo Textile/respondent No.3 wanted the extension of their industrial unit and for building of residential quarters and storage. In other words, the industry is going to be expanded by them. This purpose of extension cannot be termed to be for public purpose. Extension or expansion of an already established concern, is not envisaged or covered by the provision of section 40 of the Land Acquisition Act. Moreover, if it is considered to be a public purpose, then the same is the case and purpose of the other i.e. Shalimar Fabrics. So, by causing the death of one company, the other would not gain life as it already has. But permission to acquire certainly would cause the death of Shalimar Fabrics. It would be therefore, unjust to give priority to the Appolo Textile upon the Shalimar Fabrics.
6. At this juncture, I wonder as to why the extension is being sought towards the lands of the.
Shalimar Fabrics? Why they are trying to get the lands of the Shalimar Fabrics from their South, when they have got sufficient opportunity to get the lands from their North? Learned counsel for the petitioners has shown me the maps of the lands proposed for acquisition by respondent No.3/the Appolo Textile, which if allowed, would make the remaining lands of the petitioners to .Be fruitless and useless. The Appolo Textile wants to acquire these lands of the Shalimar Fabrics which would strangulate the industrial concern of the Shalimar D Fabrics. The extension of the Appolo Textile in such manner and with such circumstances, towards lands of the ,Shalimar Fabrics would prove one proverb in the words of the learned Division Bench of this Court, to rob Peter to pay to Paul, which rule was held not to be based on the injunctions of Islam vide 2000 MLD 322-324 (Nazir Ahmad and 8 others v. Commissioner, Lahore Division, Lahore and 3 others).
7. Due to above noted circumstances, the proprietors of the Appolo Textile, who are at daggers drawn with the owners of the Shalimar Fabrics, cannot be allowed to cause the death of another sister industrial concern, namely, the Shalimar Fabrics, because both are sailing in the same boat.
Both these industrial concerns are working for the public purpose, if considered as such, so one cannot be given preference and superiority over the other to rob the other in such a way that the very existence of the other industrial concern might be converted into extinction. A private limited company cannot be,allowed to get the land of other private limited company, as it would have the effect of destruction/annihilation of the other private limited company. In 2000 MLD 322-324 (Nazir Ahmad and 8 others v. Commissioner, Lahore Division, Lahore and 3 others), it was clearly laid down that one cannot be enriched at the cost of other and for the purpose other than the public purpose, acquisition cannot be allowed. In 2000 YLR 1711/1712 (Gulshan Hussain and another v.
Commissioner (Revenue), Islamabad/Deputy Commissioner District Collector, I.C.T./Assistant Commissioner, Saddar, Islamabad and another), existence of public purpose was held open to judicial review. Acquisition for personal benefit of a person or class of persons was held ultra vires the others. In 1991 CLC 1001 (Mst. Nasreen Zohra v. Multan Development Authority through Director- General and another), mala fide, unjust unfair, oppressive, in an illegal manner, with ulterior motive, acquisition was held to be illegal. In PLD 2002 SC 1079 (Federal Government Employees Housing Foundation through its Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad) acquisition of land for a person other than public purpose, for personal benefit of a particular class of employees was held to be not in the interest of public. In PLD 1976 Lahore 747 (Muhammad Akbar (through Legal Representative) and 7 others v. The Commissioner, Rawalpindi Division and 2 others), "public purpose" was defined. In that decision, it was held that one cannot be allowed to rob Peter to pay to Paul. That may be Robin Hood's philosophy but not the part of the laws of this land. So was held in PLD 2002 SC 1079-1080 (Federal Government Employees' Housing Foundation through Director-General Islamabad and another v.
Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad).
8. As far as the alternate remedy against the issuance of notifications under section 4 of the Land Acquisition Act is concerned, no remedy has been provided by the aforesaid Act. The filing of objections and its hearing can be made under section 5-A of the Land Acquisition Act when the land has been notified under section 5 of the Land Acquisition Act. As admittedly, no notification under section 5 of the Land Acquisition Act, has been issued/made so the writ petition is maintainable. Moreover, this Court has got jurisdiction as noted above to review the purpose and intent for which the alleged acquisition is being proposed or made, as held in 2000 YLR 1711/1712 (Gulshan Hussain and another v. Commissioner (Revenue), Islamabad/Deputy Commissioner District Collector, I.C.T./Assistant Commissioner, Saddar, Islamabad and others). When the facts are apparent and the purpose is itself noted into the notifications, then no further inquiry into the purpose is needed. This Court has got ample jurisdiction to decide as to whether the purpose and intent of acquisition shown in the notification can be held to be of public purpose or not?
9. In the above noted circumstances, I consider it fit case for interference in the exercise of Constitutional jurisdiction. Therefore, by allowing this writ petition, I declare both the impugned notifications bearing Nos.1195 and 1196 dated 10-9-2003, issued by the District Officer (Revenue), Muzaffar Garh to be illegal and unlawful.