ZAKIUDDIN PAL, J.-This judgment will also dispose of R. S. As. Nos. 886, 887, 888 and 889 of 1978, as they have arisen out of the same judgment and decree passed by the learned lower appellate Court ; are more or less between the same parties ; and involve similar questions of law and facts.
2. The dispute relates to land measuring 42 acres, situated in Gujrat City in the area of Seomandowal and Nawan Shahpur. This land was acquired by the Provincial Government under the relevant provision of Punjab Acquisition of Land (Housing) Act, 1973 vide notification issued on 27-2-1973 for the purpose of providing cheap housing scheme fer low income group within municipal limits of Gujrat City. The validity of the notification acquiring ~ the land was challenged through a civil suit filed at Gujrat mainly on the ground that the order of acquisition was based on mala fide, Ch. Zahoor Elabi, one of the respondents and closely related to the other respondents being politically opposed to the then Government headed by late Mr. Zulfiqar A.I Bhutto. It was further contended by the plaintiffs-respon--dents that though the scheme was intended to provide housing facility within the municipal limits of Gujrat City yet the fact remained that the land in question at that time was situated outside the municipal limits. The learned trial Court by its order dated 17-4-1974 granted interim injunction in favour of the plaintiffs-respondents as the land in question was not situated within the municipal limits. It appears that on account of this objection the first notification issued in 1973 was withdrawn. Consequently the Provincial Government issued a notification extending the municipal limits of Gujrat city in order to include the land of the plaintiffs-respondents. Later on a notification was issued under section 4(1) of the Act on 19-2-1975 acquiring about 82 acres of land, including the land in question. The validity of this notification was challenged by the plaintiffs-respondents .By filing civil suits at Gujrat.
The main plea taken in all the suits was that the acquisition order was mala fide on account of Ch. Zahoor Elahi being politically opposed to the then Government. The other respondents, who were his close relations, had also been victimized by this acquisition order because of him.
4. The plaintiffs-respondents also filed applications for grant of ad interim injunction which was granted restraining the appellants from taking any further step under the acquisition proceedings.
This order was challenged in appeal before the learned District Judge, who by his order dated 24- 7-1976 vacated the interim injunction and as a consequence of that the appellants took possession of the suit land on 26-7-1976.
The plaintiffs-respondents applied for amendment of their plaints as a result of the aforesaid order praying for possession as a consequential relief. This application - was allowed by the learned trial Court by its order dated 8-11-1977 and the amended plaints were accordingly filed on 12-11-1977 incorporating para. 16-A.
5. The appellants in their written statements filed in all the suits controverted the main allegations with regard to mala fides. They also pleaded that the suits had become infructuous after the possession of the suit land was taken over. They denied any cause of action having accrued to the respondents, who according to them were also estopped by their conduct to file the suits. They also raised the plea of nc3-maintainability of the suits after the plaintiffs-respondents had been dispossessed of the suit land. It was also pleaded in the written statements that considerable improvements in the suit land had been effected at the expense of more than rupees four lacs.
6. As many as seven issues were framed on the basis of the pleadings of the parties. Out of them only three have been pressed before this Court by the learned counsel for the appellants and the remaining have been given up. They relate to estoppel on the part of the plaintiffs-respondents in filing the suits : valuation for the purposes of court-fee and jurisdiction ; and the proceedings being mala fide and aiming at causing wrongful loss and damage to the plaintiffs-respondents for the reasons mentioned in the plaints. The learned trial Court after considering the evidence of the parties decided all the issues in favour of the plaintiffs-respondents and as such decreed their suits with costs. The trial Court allowed the appellants to remove their superstructure, if any, raised over the suit land. The appeals filed by the appellants before the learned District Judge, Gujrat also failed. They have now approached this Court challenging the validity of the judgment and decree passed by the lower appellate Court through the present Second Appeals.
7. It has been contended by the learned counsel for the appellants while relying upon Exhs. D. 70 to D. 77/1 that since the plaintiffs-respondents, except Ch. Zahoor Elahi and Ch. Manzoor Elahi, had accepted the factum of acquisition unconditionally, therefore, they were estopped from challenging the validity of the same by filing civil suits. According to him they have no locus standi to file the civil suits in view of their admissions made in their applications addressed to the Land Acquisition Collector. It is sub--mitted that the compensation amount deposited by the Government in the Treasury having been withdrawn by the aforesaid respondents, though under protest, they are now estopped to challenge the acquisition proceedings.
8. Exh. D. 70 is an application dated 18-5-1977, alleged to have been addressed to Land Acquisition Collector by one of the respondents, Ch. Tajammal Hussain. It was stated in the application that since `the price of the land assessed by the department was far less than the market price, therefore, the same was not acceptable to him. He, therefore, prayed that `A' & B' category plots might be given to him in lieu of the price of the land assessed by the Government. This application was replied by the Land Acquisition Collector by his letter dated 23-6-1977, Exh. D. 71, admitting the receipt of the application and stating that compensation in terms of cash amount assessed by the department could be collected by Ch. Tajammal Hussain while his option for plots would be considered in due course of time.
Exh. D. 72 is a statement- alleged to have been made jointly by Ch. Tajammal Hussain, Ch. Muhammad Aslam, Ch. Nadir Khan and some other persons, adversely affected by the acquisition proceedings, on 12-10-1976 before the Land Acquisition Collector stating that either compensation should be paid to them in cash according to the market value or in the alternative plots of land out of the Government land available in the vacinity might be given to them in lieu thereof..
Exh. D. 73 is also a joint statement alleged to have been made by Muhammad Khan and Tajammal Hussain, respondents, besides some other persons, on 2-10-1976 that they mainly depended on cultivation, therefore, they should be given plots of land out of Government land in lieu of the land in question. It was further stated that the price of the land had been assessed at a rate less than the market value.
Exh. D. 74 is an application addressed by Ch. Nadir Khan, one of the respondents, to the Land Acquisition Collector on 13-12-1876 stating that civil suit filed by him challenging the validity of the acquisition of his land was pending in the Court of Senior Civil Judge, Gujrat, the price of his land assessed by the department concerned was very low and in the circumstances he was prepared to accept the assessed price under protest without any prejudice to` the suit proceedings already pending. He also prayed for allotment of plot of land in lieu of the price of the land. According to Exh. D. 74/1, Ch. Nadir Khan received the amount of cash compensation under-protest. e~test.
Similar position obtains in Exhs. D. 75, D. 75/1, D. 76, D. 76/1, D. 77 and D. 77/1. These applications were addressed to the Land Acquisition Collector by respondents Ch. Muhammad Aslam Cheema, Muhammad Khan and Ch. Muhammad Shafi, respectively. All of them accepted cash compensation under protest stating that their civil suits challenging the validity of the acquisition proceedings were still pending and even otherwise the assessed price of their lands was very low.
9. Ch. Tajammal Hussain,-, respondent, while appearing as P. W. 9 has denied his signatures Exh. D.
70/A on Exh. D.
70. He has stated that be never affixed his signatures on any such application. The application was Exh. As D. 70 in the statement of D. W. 1, Muhammad Nawaz Sukhera, Land Acquisition Collector, who stated that the aforesaid application was made' by Ch. Tajammal Hussain. He never stated that the signa--tures Exh. D. 70/A were that of Ch. Tajammal Hussain.
There is no mention of Ch. Tajammal Hussain's signatures Exh. D. 70/A having been affixed at Exh. D: 70 in the presence of the witness. The appel--lants, after the denial of Ch. Tajammal Hussain never tried to prove his signatures in a lawful manner by producing some person in whose; presence the signatures were made or otherwise by producing, a handwriting expert. As such his alleged signatures have been- illegally and wrongly, exhibited and the order passed in this behalf is hereby set aside. Ch. Nadir Khan, one of the respondents; while appearing as P. W. 10 was suggested by the learned counsel for the appellants that Ch. Tajammal Hussain put his signatures Exh. D. 70/A on Exh. D. 70 in his presence. This suggestion was denied by him. There is nothing on record to show that the aforesaid signatures were ever proved in a lawful manner.
10. Ch. Tajammal Hussain has also stated that he never appeared before the Land Acquisition Collector on 2-10-1976 for the purpose of making any statement and never signed any statement alleged to have been made by him. His signatures Exh. D 73/A on Exh. D. 73, statement alleged to have been made by Ch. Tajammal Hussain, Muhammad Khan respondent and others, have been denied by Ch. Tajammal Hussain. D. W. 1, the Land Acquisition Collector never testified in his statement that the aforesaid signatures were made by Ch. Tajammal Hussain in his presence. He simply stated that Exh. D. 73 contained statement made jointly by Ch. Tajammal Hussain, Ch. Muhammad Aslam and Ch. Nadir Khan. Since the execution correctness .Of Exh. D. 73 was denied by Ch. Tajammal Hussain in unequi--vocal terms and the document had been relied upon by the appellants --defendants, according to law it was their obligation to prove its correctness/ genuineness qua Ch. Tajammal Hussain. There is nothing on record to show that the aforesaid signatures were put on Exh. D. 73 -by Ch. Tajammal Hussain in the presence of any witness. As mentioned above, suggestion made in this behalf to Ch. Nadir Khan, who appeared as P. W. 10, was vehemently denied by him. Even otherwise, comparison of the signatures Exh. D. 70/A and D. 73/A, both alleged to have been made by Ch. Tajammal Hussain, shows that they differ materially with each other.
Since the signatures Exh. D. 73/A also have not been proved in a lawful manner, therefore, they could not be exhibited and as such no reliance can be placed upon them.
11. It is admitted on, record `1 as well as by the learned counsel for the parties that neither Ch. Zahoor Elabi nor Ch. Manzoor Elahi ever made any application to the Land Acquisition Collector for payment of cash compen--sation or otherwise in the form of plots in lieu of the cash compensation for their acquired lands, nor they ever appeared before the Land Acquisition Collector in that behalf. It is also admitted that Ch. Tajammal Hussain never collected cash compensation deposited by the Government regarding the acquisition of his land nor any plot of land was given to him in lieu thereof.
12. It has been argued by the learned counsel for the respondents that since the cash compensation was received by the said respondents under protest, therefore, they never acquiesced into the factum of acquisition nor they were estopped to challenge the validity of the acquisition through their civil suits.
13. According to law, estoppel itself does not create any cause of action. It may assist a plaintiff to enforce a cause of action by prevention a defendant from denying the existence of some fact essential to establish the cause of action. He can also prevent a defendant from asserting the existence of some fact the existence of which would destroy the cause of action. It is a rule of evidence which comes into operation if a statement of the existence of a fact has been made by the defendant or an authorised agent of his to the plaintiff or some one on his behalf with the intention that the plaintiff should act upon the faith of the statement. Accordin to law, waiver is contractual and may constitute a cause of action. It I an agreement to release or not to assert a right. A statement with regard to estoppel must be clear and unambiguous and further that a representation allegedly constituting an estoppel must be with regard to an existing far or a past event and must be some thing more than a mere promise to do something in future. A mere statement of intention to do some thing in future does not create any estoppel. Estoppel has been described in Halsbury's 1l;nd Edition, Volume 13 as a disability whereby a party is precluded from alleging or proving any legal proceeding that a fact is other--wise than it has been made to appear by the matter giving rise to that disability. Any representation made by a party alleged to be bound by some admission on its part must be shown to have been made with the intention of producing certain state of belief in the mind of represented. Reliance in this behalf can be placed upon Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish (A I 8 1935 P C 79 ), Ghasia v. Thakur Ramsingh and others (AIR 1927 Nag. 180), West Punjab Government v. Messrs Pindi-Jhelum Valley Transport Ltd.,. Rawalpindi and others PLD 1960 SC (Pak.) 88), Haji Ghulam Rasool and others v.
The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 376), Government of West Pakistan v. Ch. 'Muhammad Saddlq (PLD 1968 Kar. 697), Sultan v. Lt.-Col. Dost Muhammad and another (PLD 1976 Lab. 318
14. The document which was in question in AIR 1935 P C was a statement made by Bamaw : whether the rice subject-matter of that document was stated to be free from encumbrances. The contention of the appellant --Bank before the Privy Council was that it was never stated by Bamaw that the rice was free from encumbrances. This contention was accepted to be correct by their Lordships of the Privy Council on due appraisal of the document. It was held that a statement to prove an estoppel must be clear and unambiguous. This observation was made in view of the fact that Bamaw had not admitted the rice to be free from all encumbrances.
R 1927 Nag. The point involved was whether the plaintiffs were estopped to agitate the matter with regard to construction having been raised by the defendant. It was observed that if defendant's improvements were in progress to the knowledge of the plaintiffs, the law had cast on them a duty to raise voice and restrain the defendant. If at that stage they remained quiet or abstained from objecting and after the improvements were complete they raised their head and sought court's help for issuing mandatory injunction to then defendant to dismantle the structure and deliver possession of their site in a vacant state, the Court might reasonably be justified in view of the altered situation in thinking that the plaintiffs were equitably estopped from raising their belated objection for the first time in the form of suit on the ground that it was not preceded by a prior admission at the earlier moment when they became aware of the infringement of their right in the village site. The case was ultimately remanded to the trial Court for fresh decision as the point involved had not been decided satisfactorily.
15. In PLD 1960 SC it was emphasised by the respondents that the associating individuals comprising Pindi-Jhelum Valley Transport Ltd. Had been misled because they were told that if they formed them--selves into a company the same would be allowed to operate. It was alleged that there was a definite promise which on being accepted constituted an enforceable agreement. It was observed that there was no reference in the plaint to any such agreement or contract and all that was stated was that the Government and the Regional Transport Authority persuaded the associating individuals to start or join a company and held out to them an assurance that the company would be permitted to function as a transport company. It was further held that the associating individuals could not successfully establish estoppel because representation in order to amount to an estoppel must relate to an existing fact, circumstance or thing or any past event and a mere statement of an intention to do something in future was not such a representation as would give rise to an estoppel. The appeal filed by the West Punjab Government against the Transport Company was allowed mainly on, this ground.
16. In PLD 1971 SC according to the entries made in the relevant revenue record for the year 1901-02 the lands attached with the shrine of Hazrat ate Ganj . Bakhsh had been recorded as being in the ownership of the shrine. It was pleaded by the appellants i.e. Mujawars of the shrine, against the acquisition of the same as wakf property ; .That they were not bound by any such entries and as such there was no acknowledgement or admission on their part. That the attached lands were the property of the shrine. The High Court, had taken the view that, the aforesaid acknowledgment constituted a representation to the world that the aforesaid properties- belonged to the holy shrine and, therefore, the principle of estoppel was applicable against the appellants. It was observed by the Supreme. Court that it could not be believed and also not alleged by the Mujawars that they were unaware of the fact that in various settlements from 1891-92 the land had been recorded as being owned by the shrine.1f that had not represented the true state of affairs then the Mujawars were obliged to take necessary steps to have these entries corrected. Since they had not done so, therefore, they could not be permitted to deny that they were the properties of the shrine. It was held while -referring to the principle of estoppel that the properties of the shrine were clearly wakf properties and since the shrine was a public institution its properties were also a public wakf.
17. In PLD 1968 Kar. Amount of compensation in ?Fear of acquisition of his property was received by the respondent on 1st of July 1960 without any protest having been lodged. Notice under section 12 of the Act was issued on 30-6-1960 while compensation was paid to the respondent on 1st July, 1960 at his house in great hurry. It was observed that in the circumstances it was impossible to believe that notice of 30-6-1960 was served upon him on the same day and the respondent as such would have appeared before the Land Acquisition Collector on the next day, i.e. 1st July, 1960 for the purpose of receiving the amount of compensation. Since the respondent was not given any chance to make a protest against the amount of compensation awarded to him by the Land Acquisition Officer, it was held that no exception could be taken to his subsequent protect when he realized that in terms of requirement of section 12 of the Act lodging of protest was essential before a claim for enhanced compen--sation could be filed or entertained. The contention raised by the appellant before the High Court with regard to estoppel on the part of the respondent in this behalf was repelled op the aforesaid ground.
18. In PLD 1973 Lab. Respondent's application for allotment of the disputed land under the Horse Breeding. Scheme was pending before the Revenue Authority concerned when the land was allotted to the petitioner before the High Court under the Scheme for Re-Settlement of Displaced Persons from an area of land acquired by the Government. The respondent filed appeal against this order which was accepted and the allotment in favour of the petitioner was cancelled. The petitioner challenged the order .Of the appellate Revenue authority contending that the respondent, before the acceptance of his appeal, had agreed to the allotment of alternate land and, therefore, at the time of hearing of the appeal he had no claim left for the disputed land. It was held that in all cases of representation capable of raising an estoppel, the representation must be shown to have been made with the intention of producing certain, state of belief in the mind of the representee. It was held that since the respondent had not made any statement in unequivocal and definite terms relinquishing his right for the allotment of the disputed land and: had - continued and pursued .'his appeal diligently instead of surrendering .,his claim to; the allotment of land, therefore, it could not be assumed. That the petitioner was led to believe to the contrary by his conduct of securing an alternate allotment. It was held that in the circumstances question of waiver or estoppel on the part of the respondent did not arise.
19. Similar view was taken in Abdul Wahid Khan v. The Custodian of Evacuee Properly, West Pakistan, Karachi and others (PLD 1962 Quetta 72
20. In the present case much reliance has been placed by the learned counsel for the appellants on the statements of some of the respondents made before the Land Acquisition Collector on 2-10- 1976, Exhs. D. 72 and D. 73: that since they received the assessed price of their acquired land without any condition, therefore, they were estopped to agitate the matter with regard to validity or otherwise of the acquisition proceedings. As mentioned above, Ch. Tujammal Hussain has denied to have ever appeared before the Land Acquisition Collector or made any statement or ever signed the same. Since his appearance and signatures have not been proved in a lawful manner, therefore, the aforesaid statement is not binding on him.
So far as Ch. Muhammad Aslam and Nadir Khan, respondents, are concerned, they have .Admitted as P. Ws. In their respective statements that they appeared before the Land Acquisition Collector and signed the aforesaid statements. They have, however, alleged that before signing the statements, the same were not read over to them. As discussed above, Exhs. D. 74 to D. 77 are the applications submitted by Nadir Khan, Muhammad Aslam, Muhammad Khan and Ch. Muhammad.Shafi, respondents before the Land Acquisition Collector. The contents of their applications have already been referred to above.
21. The question which arises for consideration is as to whether the representation of aforesaid respondents in the form of their statements or applications was so clear, unequivocal and unambiguous which amounted to relinquishment of their right to agitate the matter with regard to validity or otherwise of the acquisition of their lands. It is admitted on record that the aforesaid respondents had instituted their suits challenging the validity of the acquisition proceedings in May, 1975 while the statements were made in October, 1976 and the aforesaid applications were submitted on 13-12-1976. It is also admitted that they never withdrew their civil suits ; rather on the contrary they contested the appeals filed by the present appellants not only before the District Judge but also before this Court. Careful perusal of the contents of the statements as well as of the applications does not lead to the conclusion that the respondents ever gave any impression or led the appellants to believe that they bad acquiesced into the matter of acquisition of their lands and had waived their right, so far as the acqusition proceedings were concerned. The principle of law as laid down in the authorities referred to above if applied to the circumstances of the present case in - context of respondents' statements dated 2-10-1976 and their applications addressed to the Land Acquisition Collector would show that they never waived their right to challenge the validity of the acquisition proceedings. In all their applications they asserted in unambiguous terms that since their suits, challenging the validity of the acquisition proceedings were still pending and the assessed price of their acquired lands was low, therefore, they were accepting the assessed amount under protest without prejudiee to their claim initiated in their suits. Their conduct at all stages does not estop them from' challenging the validity of the acquisition proceedings.
22. It has been contended by the learned counsel for the appellants that since the possession of the suit property was taken away from the respondents during the pendency of the suits and the respondents applied for amendments of their plaints in order to pray for grant of relief of possession, therefore, they were obliged to pay court-fee according to the value of the property under section 7(v) of the Court Fees Act.
This contention has already been repelled by both the Courts below on the ground that at the time of filing of the suits the respective respondents were in possession of the suit land and on account of the change in the' l position they were obliged to amend their plaints. At the time when the suits were filed further remedy as contemplated by section 42 of the Specific Relief Act was not open to the respondents.
23. The learned counsel has relied upon Karamat All and another v. Muhammad Younis and others (PLD1963SC191in support of his contention referred to above. In that case the appellants before the Supreme Court were admittedly not in possession of the suit property at the time when they filed their suit and insisted that the suit in that form was not barred under section 42 of the Specific Relief Act. Their Lordships of the Supreme Court while relying upon the judgment of the Judicial Committee of the Privy Council held that the Supreme Court had undoubtedly full power to allow such amendments even where a legal right had accrued by lapse of time if the special circum-- stances of the case outweighed such considerations. The case was remanded to the trial Court enabling the appellants to make necessary amendment in the plaint. They were also directed to pay the deficient court-fee as in a suit for possession. The facts of that case are quite different from the facts of the present case and as such it cannot be relied upon by the appellants.
24. It has been held in Harkishun Lai v. Barkat All and others (AIR 1942 Lah. 209that Courts must look at the substance of the plaint in each case to determine whether the suit is really one for declaration with a consequential relief or merely a camouflage attempt in words to disguise a specific relief claimed in the garb of a suit for declaration coupled with a consequential relief. It has been held that it cannot be said that in all suits where possession is one of the reliefs claimed the suit must of necessity fall within section 7(v) of the Court Fees Act ; it will depend on the facts and circumstances of each case whether a relief by way of possession or any other relief is or not con-- sequential on the declaration sought. In that case the suit was filed by a son for declaration that the sale of Joint Hindu Family land effected by his father was not made for family necessity and was not binding upon him and for joint possession of the property sold. It was held that the possession so claimed flew from and was necessary consequence of the relief claimed, namely that the document did not stand in the way of the plaintiff. It was .Held that the remedy of possession was, therefore, necessarily a consequential relief flowing from and arising from the declaration sought by the plaintiff.
25. In the present case, "validity of the notification acquiring the property in question has been challenged on various grounds as discussed above. The relief of possession is a consequence of the declaration prayed for, as held in AIR 1942 Lah. The present case, therefore, falls under section 7(iv)(c) of the Court Fees Act. .
26. It has been held in Abdul Manaf v. Abdul Haque Talukdar and others PLD 1961 Dacca 191) that the reliefs that are prayed for in a suit are not always a criteria by which a correct decision can be arrived at as to whether it comes under one category or other of suits for the purpose of court-fees ; it is the substance of the plaint that is to be looked into.
27. In Mian Niaz Hussain and another v. Imdad Hussain (PLD 1965 Lah. 172the plaintiffs were not in possession of the suit property at the time of the institution of the suit. The defendant was also not in possession of the same. It was with another person who had obtained the same in pursuance of the order of a Magistrate under section 145, Cr. P. C. The case of the plaintiffs as put in the plaint was that they were in constructive possession of the property, through the aforesaid third person, whom they termed as their Karinda. He had at no time claimed any hostile title against the plaintiffs. As such, so far as the contents of the plaint,were concerned, it was held by the High Court, suit for declaration was required to be filed under the law. It was observed that necessity to claim a specific relief for possession arose only during the pendency of the suit when the order of the Magistrate whereby possession had been restored to the third person was set aside in revision by the High Court and possession was given according to that order. It was held that the plaintiffs in the circumstances of the case could ask only for a declaration against the defendant and could not ask for possession against him, the property being in possession of a third person, who was alleged to have held the property on behalf of the plaintiffs. It was held that further relief contemplated in the proviso to section 42 of the Specific Relief Act was a relief which was available to the plaintiffs at the time of the institution of the suit. It was held that the aforesaid proviso to section 42 of the Act contemplated the position as obtaining at the time when the suit was filed and not subsequently. It was; therefore, held that the plaintiffs' right to amend the suit for declaratory decree was not affected by the fact that during the pendency of the suit right to possession had also accrued to them. The facts of this case are similar to the facts of the present case. Since further relief for possession was not available to the plaintiffs-respondents at the time when they filed their suits and relief for possession was sought during the pendency of the suits, therefore, nature and character of the suits did not change on account of the amendment allowed by the trial Court. Since the nature of the suits remained declaratory, therefore, court-fee was rightly paid under section 7(iv)(c) of the Court Fees Act.
28. By the substitution of the relief of possession for one of declaration there can be no question as to the change of the suit ; it remains the same. The mere fact that possession was delivered to the.
Appellants .During the pendency of the suits did not cause any defect in the form of the suits originally instituted. Similar view has been taken in Nawab Humayun Begum v. Nawab Shah Muhammad Khan (AIR 1943 PC94) ; Sunder Singh-Mallah Singh Sanatan Dharam High School Trust, Indaura v. Managing Committee, Sundar Singh--Mallah Singh Rajput High School, Indaura (AIR 1938 P C 73); Giribala Chaudhary and others v. Ushangini Debi (AIR 1955 Assam 177), Fateh Shah v. Bahan Shah and others (AIR 1927 Lab. 128), Govinda v. Parumdevi ((1889) 12 Mad. 136), Hurmat A.I Shah v. Tufail Muhammad and others ((1889) 12 Mad. 136), Singh--eshwar Jha v: Ajab Lai Mandar AIR 1941 Pat. ,142) and Mahant Indra Narain Das v. Mahont Ganga Ram Das and another AIR 1955 All. 683).
29. In the present case if the acquisition of the property in question I not declared null and void as prayed for, then question of possession of the same by the plaintiffs-respondents cannot arise. In the circumstances both the Courts below have rightly held that the provision as contained in sec-- petition 7(iv)(c) of the Court Fees Act would be applicable in the present case.
30. The main issue involved in this case is : whether the acquisition of the site in question at Rehman Shaheed Road is mala fide and was made by the then Provincial Government in order to cause harm and loss to the respondents, Cb. Zahoor Elahi and his relations.
31. We would first like to refer to a circular letter dated 9-2-1974, Exh. P. 22, issued by the Director- General, Housing and Physical Planning Department, Lahore, to the Directors, Housing and Physical Planning Circles in the Province laying down certain guidelines for the purpose of selecting suitable sites for development schemes for low income housing. Some of the guidelines are as follows :-
(a) While selecting suitable sites for the aforesaid scheme priority should be given to the State land and private land should be selected only when there is no suitable State land available.
(b) Barren or less productive land should be preferred while considering alternate sites.
(c) After the sites have been selected, after satisfying the above-mentioned requirements, and approved by ,the Site Selection Committee and People's District Works Council, the scheme should be then drawn up on Form PC-I alongwith the site plan.
32. It is admitted that prior t6 the acquisition of the site in question for Low Income Housing Scheme at Gujrat a site at Bhimber Road, near Zamindara College was selected. It was dropped when the inhabitants of Madina represented to the then Advisor, Revenue, late Ch. Muhammad Anwar Samman, against the selection of the site vide Exh. P. 13 mainly on the ground that the site was mostly owned by the small land-holders and if area of 804 kanals was acquired for housing scheme then the land-holders would become completely landless. , The representation was accepted by the Minister and it was directed that some other site might be selected. Thereafter a meeting was held by the Site Selection Committee in the month of June, 1972 under the chairmanship of Deputy Commissioner, Guirat and was attended by the Director, Town Planning, Punjab, Director, Physical Planning Cell, Punjab. And representatives of various departments concerned, such as P. W. D., Electricity, WAPDA, Town. Planning, Buildings, Public Health and Rural - Works. The relevant document, Exh. P. 19 shows that the Director, Town Planning told the meeting that two sites situated at old Jalalpur Jattan and Gujrat-Shadiwal Road had been selected.
According to the minutes of the meeting as contained in the aforesaid document, all the members of the Committee visited the aforesaid two sites and as a result of the same, the site at number one was dropped on the ground of danger of its being affected by flood-water from the nullah, situated nearby. The site at GuJrat--Shadiwal Road was; however, selected. According to the guidelines as well as the instructions contained in Exhs. P. 22, PC-I Form was drawn up. Since the People's District Works Council did not approve of the scheme at the aforesaid site, therefore, it remained pending for a long time The record contains lot of correspondence between the Housing and Physical Planning Department as well as the District authorities with regard to Gujrat-- Shadiwal Road Scheme.
33. Thereafter a meeting of the People's District Works Council was held on 10-3-1973 under the chairmanship of late Ch. Muhammad Anwar Samman, then Irrigation Minister. The Director, Housing and Physical Planning, who attended .The meeting, told the members of the Council that scheme for low income housing had been prepared in five cities of Gujrat. According to the minutes of the meeting, he disclosed the details thereof. He further disclosed that a scheme of that type had been prepared for Gujrat city as well and site for that purpose had been , selected at Gujrat--Shadiwal Road. The Chairman of the Council, however, interrupted and gave direction to the Director that site for the scheme might be selected in consultation with the Deputy Commissioner, Gujrat. It is significant to notice, as observed by both the Courts below, that Gujrat- Shadiwal Road Scheme was never dropped. By the People's District Works Council, Gujrat at its aforesaid meeting.
34. On the basis of the aforesaid resolution adopted by the People's District Works Council, Gujrat, the District authorities took up the stand that since the Deputy Commissioner was authorised by the council to select the site for low income housing scheme, therefore, the site in question was validly selected by him. After the site at Gujrat-Shadiwal Road was selected, an amount of Rs.
10,00,000 was sanctioned for the development of the scheme for the period 1973-74 vide Exh. P. 28.
It has been mentioned in the aforesaid document that shifting of the site for the purpose of imple-- menting the housing scheme at that stage would delay the scheme as much work with regard to survey and preparation of the scheme had already been carried out in relation to Gujrat-Shadiwal Road Scheme.
35. In spite of the fact that the People's District Works Council had at its meeting held on 10-3-1.973 never dropped Gujrat-Shadiwal Road Scheme, the Deputy Commissioner, Gujrat, vide Exh. P. 23, selected four sites as mentioned in the document and issued preliminary notification under section 4 of Punjab Land Acquisition (Housing) Act, 1973. The aforesaid sites were within the revenue estates of : (1) Nawan Rangpur (Bhimber Road), (2) Nawan Shahpur (Rehman Shaheed Road and
(3) Seo Mindowal (Jinnah Road). According to the said document, a meeting was held at Gujrat on 15-9-1973, which was attended by the Deputy Commissioner, Deputy Director, Housing & Physical Planning, Jhelum, Deputy Director, Housing & Physical Planning, Rawalpindi and Assistant Director, Local Government, Gujrat. According to the minutes of the meeting as contained in Exh. P. 23, all the members of the Site Selection Committee visited the aforesaid sites and finally selected the site in question situated at Rehman Shaheed Road. It has been mentioned in the document that the aforesaid selection was made in compliance with the resolution dated 10-3-1973 of the People's District Works Council, which authorised the Deputy Commissioner to select any site suitable for the scheme.
36. Since, according to the Housing & Physical Planning Department, approval to the housing scheme at Rehman Shaheed Road had not been granted by the Council, therefore, it agitated the matter with the District Authorities on different occasions through correspondence, Exhs. P. 24, P. 25, P. 26, P. 27 and P. 28 and impressed upon the aforesaid authorities to get the approval of the council so as to enable the Department to implement the scheme, as in the absence of such approval its implementation was not possible according to the instructions as contained in Exh. P.
22.
The Deputy Director, Housing & Physical Planning Division, Jhelum in his letter dated 14-11-1974, addressed to the Director, Housing and Physical Planning Circle, Rawalpindi wrote that all possible efforts for getting the approval of the council had failed ; the issue was also discussed with the Deputy Commissioner, Gujrat as well as the Commissioner, Rawalpindi Division, both of them showed their inability to get the approval from the council, as they described the scheme raising a political problem. According to the letter, the Deputy Commissioner was hesitant to notify the area under the Punjab Acquisition (Housing) Act, 1973, as the Council did not approve the scheme.
Similar position was discussed in Exh. P. 25, a letter dated November, 1974, addressed to the Commissioner, Rawalpindi Division by the Director, Housing and Physical Planning, Rawalpindi. By another letter, Exb. P. 26, addressed to the Director-General, Housing and Physical Planning Department, Punjab, Lahore by the Director, Housing and Physical Planning, Rawalpindi, reference was made to a meeting held between the author of the letter and the Deputy Commissioner, Gujrat on 17-1-1975. The Deputy Commissioner in view of the circumstances prevailing at that time showed his willingness to abandon Rahman Shaheed Road Scheme and to consider the Gujrat- Shadiwal Road Scheme. In that meeting the Deputy Commissioner was requested to get approval from the council with regard to the Gujrat-Shadiwal Road Scheme, which had already been surveyed and progress with regard to its implementation had been made. The Deputy Director, Housing & Physical Planning, Jhelum by his letter dated 11-2-1975, Exh. P. 28, addressed to the Director, Housing and Physical Planning Circle, Rawalpindi, intimated him that the Deputy Commissioner, Gujrat in a meeting with him appeared to have resiled from his previous commitments to the effect that since the housing scheme at Rehman Shaheed Road had not been approved by the council, therefore, it could not be implemented and bad in stead stated that site at Rehman Shaheed Road had already been approved by the Council. It was mentioned in the aforesaid document that since no approval in writing of the council was made available on record by the authorities concerned, therefore, it could not be presumed that such approval had been granted.
37. The learned counsel for the appellants, when confronted with the situation as discussed in the aforesaid documents, argued while relying upon the resolution of the People's District Works Council, dated 10-3-1973, that since the Deputy Commissioner had been authorised by the council at its aforesaid meeting to select the site for low income housing scheme, therefore, the site in question was validly selected.
Apart from other aspects of this matter, which will be discussed later on, it is pertinent to notice that it was only the Chairman of the council who directed the Director, Housing & Physical Planning to select a site for the scheme in consultation with the Deputy Commissioner. It did not mean that the Deputy Commissioner was authorised to select any site himself. Even if he was to be consulted by the Director concerned, the scheme, in any case, was to be approved by the council and in the absence of that selection of a site for any scheme cannot be called to be valid. Further the Council itself never passed any resolution to the effect that the Deputy Commissioner was authorised to select any site for the scheme, it was only an observation made by the Chairman of the council that the Deputy Commissioner might be consulted by the Director, Housing and Physical Planning.
According to the instructions as contained in Exh. P. 22, confirmation of the selection of the site was to be made by the Council, in any case. As such, selection of the site in question by the Deputy Commissioner cannot be held to be valid and that being so further proceedings with regard to its acquisition, based upon an illegal act would fall to the ground.
38. Further, the meeting of the Site Selection Committee held on 15-9-1973 was attended by the Deputy Directors, Housing & Physical Planning, Jhelum and Rawalpindi, and Assistant Director, Local Government, Gujrat in addition to the Deputy Commissioner whereas the meeting of the Site Selection Committee, which selected the site at Gujrat-Shadiwal Road as well as other places was, as envisaged by the relevant instructions, also attended by the representatives of various Departments concerned, such as P. W. D., Electricity, WAPDA, Town Planning, Buildings, Public Health and Rural Works, in order to properly assess the value of the site to be selected. It appears that the meeting held on 15-9-1973 was held to push through the matter without the consultation of the Departments concerned. Both the Courts below have, therefore, rightly held the aforesaid meeting to be irregular. Since the selection of the site in question at Rehman Shaheed Road was never approved by the Council, which was necessary as laid down in Exh. P. 22, in any of its meetings and the proposed housing scheme at Gujrat-Shadiwal Road was never dropped finally by the council, therefore, as held above, the selection of the site in question cannot be considered to be valid.
39. Keeping in view the chain of incidents discussed by both the courts below, involving Ch. Zahoor Elahi in various criminal as well as political cases by the then Government, acquisition of the site in question in an arbitrary manner clearly appears to be mala fide. The involvement of Ch. Zahoor Elahi, as such who appeared as P. W. 8, has not been denied by the appellants. Their plea has been that since he committed crimes, therefore, he was involved in such cases and since he acted in a prejudicial manner against the then Government, therefore, he was put under detention many a time.
40. Ch. Zahoor Elahi was elected as Member of the National Assembly on Muslim League's ticket in 1970 and it is admitted on record that he occupied the Opposition Benches. The Opposition parties in the Assembly made a United Front of which he was an office-bearer. The meeting of the Opposition parties in which they formed United Front was held at his residence. He was elected Deputy Leader of the United Front in the National Assembly. Before the Constitution of 1973 was adopted by the National Assembly, Ch. Zahoor Elahi and other members of the Combined Opposition opposed the same and introduced several amendments in various articles of the Constitution. According to him, at the time when hundreds of Government Servants were retired without giving an opportunity of being heard, he opposed this act of Mr. Zulfiqar A.I Bhutto; then President of Pakistan. Later on, when various amendments were introduced in the Constitution curtailing the powers of the superior judiciary and appointing Special Tribunals to try political leaders and workers, having been detained for the alleged offences, Ch. Zahoor Elahi, according to him, put up great resistance against this movement. According to him, all such activitie3 on his part were taken exception to by Mr. Zulfiqar A.I Bhutto, who later on became Prime Minister of the country. He tried to take revenge from the witness on account of his opposition to him in one form or the other. Ch. Zahoor Elahi while appearing in the witness-box has stated that some amount of loan was found to be due to the Central Co-operative Bank from Japan Cotton Company of which his brother was a partner. The Gujrat Central Co-operative Bank made a claim against the said concern which was investigated by the Martial Law authorities as well as the Registrar, Co- operative Societies. The said authorities decided that nothing was due from the aforesaid to the bank. However, later on the matter with regard to that was again agitated, when Ch. Zahoor Elahi started opposing Mr. Bhutto, who was in power at that time. The Registrar, Co-operative Societies found the aforesaid amount of loan due from the said concern to the Bank and in order to realize that amount action was taken only against Ch. Zahoor Elabi's brother. Ibis bungalow at Lahore was auctioned for realizing the amount of loan in spite of the fact that the said concern was owned by other two persons as well in addition to Ch. Zahoor Elahi's brother.
41. The C.E.B.E.E. Industries Ltd. Claimed to be family concern of Ch. Zahoor Elahi, purchased Shahdara Weaving Centre from the Govern--ment, which later on . Changed its mind and refused to sell the same. A dispute, therefore, arose between the C.E:B.E.E. Industries and Government which resulted in an agreement between the parties whereby the dispute was to be decided through arbitration. A regular arbitration deed was executed nominating Syed Jamil Hussain Rizvi, Ex-Judge of the High Court as sole arbitrator. Both the parties referred the matter to him, who issued notices to the, parties for the purpose of representing their respective cases before him. The matter was in progress when all of a sudden special Martial Law Order No. 258 was issued by Mr. Ghulam Mustafa Khar, then Governor, Punjab, as well as Martial Law Administrator, Zone `C' nullifying the said arbitration proceedings. This was the last Martial Law Order issued on that date as the Martial Law was lifted in the country the same day. It has been alleged by Ch. Zahoor Elahi that this order was issued only to cause harm to him. The fact that dispute arose between the parties with regard to sale of Shadara Weaving Centre and the same was referred to the arbitration is fully proved on record by many documents produced by the plaintiff's-respondents.
42. The Modern Floor Mills, Lahore and Modern Floor Mills, Rawal--pindi, owned, by the family of Ch. Zahoor Elahi, in addition to C.E.B.E.E. Industries, had dealings with the National Bank of Pakistan. All the three concerns had secured big amounts of loan from the Bank against suffici--ent securities and guarantees, According to P. W. 8, it was on 3/4th May, 1974, when notices were issued to all the three concerns through their Directors to repay the amounts of loan within a week. This order was challenged in the civil Court by a regular civil suit.
43. According to the witness, his house at Gujrat was raided and searched on the night between 13/14th February, 1973 by the police without order of any competent authority. He secured bail before arrest from the High Court vide -Exh. P.
35. According to him, in spite of the fact that nothing incriminating was recovered from his house, it was announced at Radio Pakistan as well as on Television, at the instance of the Government, that illicit arms belonging 'to the Government of Iraq had been recovered from his house. A case was registered in this behalf against him but no further action was taken as there was nothing in the case. All this was done to harm his person and property.
44. Ch. Zahoor Elahi was arrrested in February, 1973, near Gujjar Khan when he was, going to Islamabad to attend the session of the National Assembly. The arrest was effected under section 16 of the West Pakistan Maintenance of Public Order Ordinance and section 124-A, P. P. C. Since the case had been registered in this behalf at Police Station, New Anarkali, Lahore, therefore, he was brought to Lahore. He was allowed bail by the learned Additional Sessions Judge on 21-2-1973, but the Superintendent, Jail, Lahore did not release him. He thereupon moved a habeas corpus petition in the High Court and in spite of the order passed by the then Chief Justice for his release at 12-30 p.m. The Superinten--dent, Jail did not release him till 5-30 p.m., when he was again arrested by the Police in connection with a case registyred against him for the alleged theft of a buffalo. He was again released under the orders of the High High Court in that case, but in spite of that order he was again taken to Gujrat by the Police wherefrom he was brought to Police Station, Phalia. On the following day, he was produced before a Magistrate, who had already received orders from the High Court with regard to his release on bail. He was, however, not released as the P. S. I. Informed the learned Magistrate that the witness was required in connection with a case registered against him vide F. I. R. 336, dated 11-9-1972 at Police Station, Sadar, Gujrat. His release on bail was prayed but the learned Magistrate declined to interfere as a result of which he was removed to Police Station Sadar, Gujrat. He was released by the Police after the complainant in the buffalo theft case informed the police that his buffalo had been recovered. Ch. Zahoor Elahi ultimately moved the High Court for quashment of the said case and necessary order to that effect was passed on 17-6- 1974.
45. Ch. Zahoor Elahi has further stated that Municipal Committee, Gujrat issued him a notice in the month of February, 1974 for the demoli--petition of the boundry wall of his family graveyard. Ch. Tajammal Hussain, his close relation, challenged the validity of the notice through a civil suit and obtained stay order. The Municipal Committee again issued him a notice on 27-2-1974 to show cause as to why his Textile Mills be not demolished for want of sanctioned plan with regard to its construction in spite of the fact that the mills premises were in existence for the last more than 25 years A civil suit was filed in the civil Court challenging the validity of the notice and stay order was issued in the same. According to him, the shops belonging to his wife, daughters and nephew were demolished by the Municipal Committee, Gujrat, in February, 1973. In order to harass him. Notices were issued by the then District Magistrate, Gujrat to him, his son, nephew and Private Secretary for the cancellation of their arms licences and directing them to surrender their arms. A writ petition was filed challenging the validity of the aforesaid order. The writ was accepted by the High Court.
46. The Deputy Director, Food, Lahore Region passed an order on 1-3-1973 for stopping the supply of the wheat quota from the Government stock to the Floor Mills owned by Ch. Zahoor Elahi at Lahore and Rawal--pindi. The order passed in this behalf was, challenged in the High Court through a writ petition which was accepted. An application was filed in the High Court for winding up the C.E.B.E.E.
Industries, which was one of-the major sources of his and his family's livelihood, but the same was not pursued by the Government. The Deputy Director, Food, Lahore Region again suspended the food grain licences concerning the Floor Mills owned by Ch. Zahoor Elahi and his family but the operation of the order passed in that behalf was suspended by the High Court. A case under section 124-A, P.P.C. Was registered against him at Peshawar and the Peshawar High Court allowed him pre-arrest bail in that case.
47. Thereafter, as stated by the witness while being examined as P. W. 8, he was detained under rule 52 of the Defence of Pakistan Rules in Sind, was involved in a case registered against him under section 112-A, P. P. C. And 49, D. P. R. In which case he was granted bail by the Supreme Court, was involved in a case under M. L. O. 241, registered against him by the Crimes Branch, Lahore in 1973, was involved in a similar case at Guirat, and was involved in a case under section 411, P. P. C.
But was released on bail by the High Court, his house was surrounded by a Superintendent of Police accom--panied by D. S. P. And about one hundred Police Constables in order to restrain him from attending the., National Assembly session commencing from 4th of September, 1973, but since he was not present in the house, therefore, be could not be arrested. Later on he was admitted to bail before arrest by the High Court. According to him, he was later on removed to Moblu (Baluchistan) in connection with a case registered against him there. The order passed in this behalf was challenged by him before the High Court of Sind as well before the Supreme Court. He was ultimately released on bail by the Supreme Court. According to him, he was removed to Kohlu unsettled areas in order to deprive him access to the High Court against illegal acts 'and orders passed by the Executive authorities against him. Ch. Zahoor Elahi has further given details of the cases registered against him at different places under different offences. According to him all such false cases were registered in order to harass him and stop him from oppositing the then Government in power.
48. Mr. Muhammad Anwar Samman, some time Minister, Government of Punjab, was murdered in broad daylight in District Courts premises at Gujrat. His assailants were arrested on the spot. The F.
I. R. Lodged in that behalf did not contain the name of Ch. Zaboor Elabi being one of the culprits, but in spite of that he was arrested after many days of the registration of the case. He was granted bail before arrest by the High Court for a day, but the same was not confirmed on 4-2-1976 with the result that he was arrested by the Gujrat Police. He remained in Jail till 12-9-1976, when he was allowed bail by the Supreme Court. It is significant to notice that after his release on bail by the Supreme Court, he was not allowed to appear before the High Court on 13-9-1976 but was removed to Karachi in connection with many cases registered against him. There. The detail of such cases has been men--tioned by the witness in his statement. In some of the cases he was tried by a Special Tribunal appointed to hear and decide the cases registered against him. In one of the cases he was tried and sentenced to undergo rigorous imprisonment for a period of four years. He has stated that in view of his involvement in many cases in quick succession by the then Government in power, he was adopted by the Amnesty International and declared as "Priso--her of Conscience" vide its report marked `L'.
49. The Flour Mills belonging to Ch. Zahoor Elahi and his family at Lahore and Rawalpindi were taken into possession by then Government after it failed to get their licences cancelled on account of the intervention of the High Court. He was restrained from alienating his land .Situated at Faisal--abad, but the order passed in that behalf was ch4llenged before the High Court by means of a writ petition, which was accepted.
50. As mentioned above, after Ch. Zahoor Elahi was arrested under rule 42(6)(e) read with rule 49 of the Defence of Pakistan Rules, 1941 and the Special Tribunal, Sind had taken cognizance of both the cases, he applied for bail to the Sind & Baluchistan High Court, which was rejected on 17-8-1976.
He then filed petition seeking leave to appeal from the afore--said orders. 7 he Supreme Court by majority allowed him bail holding that the relief in that regard could not be denied under section 498, Cr. P_ C., in spite of the fact that similar relief could be granted by the Special Tribunal under the special law. Mr. Justice Salah-ud-Din Ahmed while discussing the mala fides with regard to the involvement of Ch. Zahoor Elahi in various cases in quick succession held as follows :- "In order to have a proper appreciation of the case, it seems necessary to keep certain features of the case in mind. The averments made in the petitions have not been challenged. Between the period 6th of February, 1976, and now the petitioner has been in custody in respect of several cases including a murder case. He was denied the benefit of bail granted by this Court in the murder case. The offence under section 16 of the M. P. O. Ordinance is punishable with a maximum of three years' imprisonment, or with fine, or with both, and although the offence is non-bailable it is in the discretion of the Court to release the accused on bail and normally bail is granted in such offence.
In fact the petitioner had been allowed bail in the case by the Additional Sessions Judge. Similarly, offences under sections 189 and 506 of the Pakistan Penal Code are both bailable. There remains the offences under rules 42/49 of the Rules, which are not only non-bailable but also there are stringent conditions put on release of an accused on bail. The quick succession in which one case after another was registered against the petitioner, even when the petitioner was in custody is noticeable. The petitioner is an MNA and a Deputy Leader of the Opposition and an outspoken critic of the Government for several years. It was unlikely that he would abscond.
It will not be out of place to mention here that even before the start of recent cases the petitioner had been previously arrested or taken into custody in dubious circumstances. The case of Manzoor Elahi v. Federation of Pakistan (PLD1975SC66was one such case of the petitioner in which he had challenged the validity of his arrest and detention. In this case, too, the petitioner had asserted that a large number of his relations and friends had been arrested and harassed and particulars of the cases were mentioned.
The facts speak for themselves, and hardly need any comment. The petitioner has on the basis of the aforesaid facts and circumstances asserted that the proceedings against him and the orders passed against him are mala fide, and misuse of the powers under the Ordinance or the Rules. This assertion prima facie appears to be not altogether unfound--ed, if considered along with the fact that the two offences under rule 42 (6) (e) & (g) of the Rules are substantially the same as provided in sections 124-A and 153-A, respectively of the Pakistan Penal Code and no compelling reason appears why the Emergency Law was preferred to the ordinary law of the land. In fact under sec--petition 124-A of the Code the maximum punishment is transportation for life/life imprisonment, which is much more than that prescribed for an offence under rules 42 and 49 of the Rules, namely, five years' rigorous imprisonment. The only apparent reason,. For charging the petitioner with the offences under the Rules instead of under the Pakistan Penal Code is to bring him within the rigours of bail under rule 210 of the Rules, and denying him the advantage of bail in the ordinary course under the Code of Criminal Procedure. At any rate the facts stated in the petitions prima facie called for examination and this should not have been denied to him."
51. The plaintiff-respondents have examined 11 witnesses in all in order to prove their case, particularly with regard to mala fide, so far as acquisition of the suit land, is concerned. P. W. 1 is Muhammad Shari f, Patwari, Halqa Gujrat. He has given location and description of the land in question and has stated that in-between Chowk Rehman Shaheed and the land in question there is a large tract of land under cultivation which is owned by the Government. According to him, it is lying vacant. On the south of Rehman Shaheed Road there is Service Industries while. On the southern-western side of the land in question again there is Service Industries. He has stated that in Nawan Rangpur, land measuring 124 kanals 11 marlas is owned by the State. He has again stated that there is yet another area in addition to the above-mentioned land which is owned by the State in that village. He has admitted that State land extends to G. T. Road and measures about 80/85 acres. This area is connect--ed with the City by two roads on the eastern side. According to him, this area is closer to the city than the land in question. He has further stated that tube-wells stand installed in the land in question and a pucca house and a pucca khal have been built therein. He has also stated that fruit bearing trees are in abundance in the land in question. P. W. 7, Raja Munawar Ahmad, Ex-Advisor to the then Governor of Punjab has stated that acquisition of the land in question is mala fide on account of the ill-will and enmity between Ch. Zahoor Elahi and late Mr. Zulfikar A.I Bhutto, then Prime Minister of the country.
52. The appellants have examined as many as three D. Ws. And out of them statement of D. W. 2, Mr. Maqbool, Deputy Director, Housing & Physical Planning, Rawalpindi is important. The statement of P. W. 1, Patwari Halqa with regard to tracts of land owned by the State, lying vacant near the land in question, has been admitted to be correct by D. Ws. 2 and 3. D. W. 2 has admitted in cross-- examination that the location on Shadiwal and Jalalpur Road was only seen by the Site Selection Committee and the sites were actually not examined. According to him, only the location of the disputed site was seen by the Committee whereas the site in question was not examined particularly. He has further admitted that the site of the land in question as well as the afore--said two sites were never examined by any member of the Committee in order to find out whether the sites previously selected at Shadiwal Road and Jalal--pur Road were actually under flood water.
He has admitted in cross--examination that members of the Committee were told by the Deputy Commis--sioner that Shadiwal Road area was flooded with flood-water which spread on major part of the land. He has further admitted that he could not say whether water on the land was on account of rain or flood in 13himber Nullah or River Cbanab. He has stated that members of the Committee did not inquire about the cause of flood on the land at Shadiwal Road. He has again admitted that River Chanab is at a distance of about five miles from Shadiwal Scheme towards Lahore. The statements of P. Ws. 1, D. W. 2 and D. W. 3 are further corroborated by Ex. P. 4, showing the State land in large tracts lying vacant on western-eastern side of the site in question situated on Rehman Shaheed Road. The Industrial Estate, Gujrat as well as Fan Industries have also been shown to be near the aforesaid vacant sites.
53. The evidence discussed above as well as the document Exh. P. 4 proves the case of the plaintiffs-respondents that at the time when the site in question was acquired, the instructions as contained in Exh. P. 22 to give preference to State land for housing schemes, were ignored. The main reason as given by the appellants for abandoning the previous schemes at Shadiwal Road and Jalalpur Road is that since the sites there were visited by floodwater during the rainy season, therefore, they were not suitable for being selected. As discussed above, it is interesting to notice that no representative of any other department was invited to participate in the meeting of the Site Selection Committee held on 15th September 1973, Further, D. Ws. 2 and 3 have admitted that the actual sites at Rehman Shaheed, Jalalpur and Shadiwal Road were never visited and examined from the point whether they were visited by flood water. The localities where they were situated were just si.En by the members of the committee. It is admitted on record that the first notifica-- petition with regard to acquisition of the land in question belonging to Ch. Zahoor Elahi and his close relations, was issued on 27th February, 1973 vide Exh. P.
66. At the time of issue of the notification the land in question was not included within the Municipal Limits, Gujrat whereas the housing scheme was to be implemented within the said limits. The vires of the notification were challenged by the plaintiffs-respondents through a civil suit and stay order was issued in their favour by the civil Court mainly on the ground that since the land was not situated within the Municipal Limits, therefore, the scheme could not be implemented on the basis of the aforesaid notification. At this a notification was issued extending the limits of the Municipal Committee covering the land in question and thereafter another notification was issued under the relevant provision of law in 1975 acquiring the land in dispute.
54. It is really strange that in spite of the fact that State land was lying vacant around the disputed land, the same was not acquired and instead the land in question was acquired by extending the Municipal Limits. It means that the disputed land was to be acquired at any cost in order to cause harm to the respondents. If this had not been the intention then the site in question would have been given up the moment it was brought to the notice of the appellants that the same was outside the Municipal Limits. Further there is no satisfactory evidence on record to show that the sites previously selected for housing scheme were subject to floodwater. Mere statements on this point of D. W. 2 and D. W. 3, who cannot go behind the orders of acquisition, can--not be relied upon in the given circumstances.
55. It has been argued by the learned counsel for the appellants while relying upon The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector, Pakistan Eastern Railway, Laksam (PLD 1966 SC 725), Lt.-Col. Muhammad Amin Khan and 3 others v. Government of West Pakistan and others () PLD 1966 Lab. 111) ; Mian Abdul Wahid and another v.
Collector, Sheikhupura and 2 others (PLD 1973 Lab. 739.) ; Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296); Sad Muhammad v. West Pakistan Province and another (PLD 1958 SC (Pak.) 181) ; Lahore Improve--ment Trust, Lahore v. Custodian of Evacuee Property, West Pakistan (PLD 1971 SC 811and Muhammad Tota Mia v. Province of East Pakistan and others (PLD 1962 Dacca 181) that before an order passed by a public authority is struck down, it is the duty of the Court to explore every possible explanation for its validity and examine the entire field of power conferred on the authority in pursuance to which the impugned order has been passed. The correct attitude in estimating the actions of the Government is indeed that they must be regarded as having been taken bona fide, until and unless the contrary is established. The Court while dealing with a case like the present one is merely concerned with seeing as to whether the officer empowered to acquire had acted bona fide in the discharge of his duties and as to whether there was any material upon which the subjective satisfaction of that officer with regard to the necessity and expediency of the acquisition could have been founded. It is not concerned with the adequacy or the sufficiency of those reasons nor has it any power to sit in appeal over his actions.
56. The point involved in the PLD 1966 SC was whether a person having been temporarily promoted as Ticket Collector, his reversion to his former post of Tally Clerk amounted to reduction in rank within the purview of Article 181 of the 1956 Constitution. The facts of the case as discussed in the judgment do not show that any mala fide or bad motive was claimed on the part of the authorities concerned by the respondent Abdul Majid Sardar, Ticket Collector before the Supreme Court in reducing him in rank. He was holding the post of a Tally Clerk and was temporarily promoted as Ticket Collector. He was later on reverted to his former post. He challenged the order passed in this behalf by the Railway authorities concerned. In the con--text of the above- mentioned facts of the case, it was observed by the Supreme Court that if it was found that the act done, order made or proceeding under-. Taken was without lawful authority, then the Courts may declare them to be of no legal effect. As such, the facts of this case are quite different from the case under discussion.
57. In PLD 1966 Lah., land measuring 1,509, in Chak No. ' 221/ R. B. Tehsil and District Lyallpur, commonly known as Nazar Stud Farm was involved. It was let out to the petitioners before the High Court under section 10 of the Colonization of Government Lands (Punjab) Act, 1912, for a period of 10 years ending in Kharif, 1968. The lease was renewable for another period of 10 years on the option of the tenants. The West Pakistan Government (Colonization Department) by their notification dated 6-11-1963 ordered the resumption of the aforesaid land as the same was required by its Agriculture Department for Nucleus Seed Procurement Programe of the Ayub Agriculture Institute, Risalwala (Lyallpur) in the public interest. After the notice of resumption was served upon the petitioners, they challenged the same before the High Court through writ petition. It was contended, inter alia, before the High Court that the impugned action was mala fide since the machinery of law was 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. After having dealt with other contentions Mr. A. K. Brohi, learned counsel for the petitioners submitted his arguments with regard to the last contention with regard to mala fide. It was held while relying upon Sai Muhammad v. West Pakistan Province and another, that the correct attitude in estimating the actions of the Government was indeed that they must be regarded as having been taken bona fide until and unless contrary was established. It was observed that in that case there was no doubt that Agriculture Research Institute came into existence at Lyallpur much before the speeches alleged to have been made by Mr. Ghulam Jilani Malik, one of the petitioners, were delivered by him. According to the High Court, it was also not in dispute that the Nucleus Seed Procurement Programme of the said institute was similarly sponsored earlier than the speeches. It could also not be denied that the land in dispute was contiguous to the institute and suitable for the programme. The mere fact that there was other land also which was contiguous to the institute and was not being acquired would not clothe the Government action as mala fide. In that case no evidence was led or taken to prove the charge of mala fides while in the present case volume of evidence has been brought on record in the civil suit before the trial Court to prove the charge which has not been rebutted so far as the factum of involvement of Ch. Zahoor Elahi in large number of criminal and civil cases by the then Government is concerned. Further, it is proved on record that prior to the acquisition of the land in dispute two sites were acquired for implementing the housing scheme, but later on abandoned without any sufficient reason as discussed above. The most distinguishing feature in the case under discussion is that the land in dispute at the time of issue of first notification for acquisition purposes was outside the Municipal Limits which could not be acquired for a housing scheme to be implemented within the Municipal Limits. As soon as this fact was brought to the notice of the administration through a civil suit they withdrew the notification, extended the Municipal Limits in order to include the land in question and then again issued notification acquiring the land in question. All this was done with mala fide intention to cause harassment and damage as mentioned above.
Similarly, PLD 1958 SC (Pak.) is also not applicable to the facts of the present case. As discussed above, the dictum of law laid down in this case is that the actions of Government should be regarded as having been taken bona fide until and unless the contrary is established. In the present case, as discussed above, the action of the Government in acquiring the land in question, owned by the plaintiffs-respondents, has been held to be mala fide in view of the evidence brought on record to the effect that selection of the site in question was on account of the ill-will and enmity between the then Government and Ch. Zahoor Elahi, one of the respondents.
58. In PLD 1973 Lab. 739, PLD 1971 SC 811 and PLD 1963 SC 296 mala fide intention on the part of the authorities concerned in passing the orders in question was not alleged by the petitioners/appellants before the Courts concerned. The facts of those cases are quite different from the case under discussion.
There is no doubt that the Court is mainly concerned with seeing as to whether the Officer empowered to requisition or acquire has acted bona fide in the discharge of his duties, but if the contrary is established on record, as held by the Supreme Court, through sufficient evidence that the action on the part of the Officer concerned in requisitioning or acquiring the property would have no value in the eye of law. mala fide intention of the appellants to acquire the land in dispute.
59. It was contended in PLD 1962 Dacca that the order of requisition in respect of the petitioner's property was malaffde as his property was obviously requisitioned under the provisions of East Bengal (Emergency) Requisition of Property Act, 1948, with a view to pay him lesser compensation than what he would have been entitled to if the same had been acquired under the Land Acquisition Act, 1894. It was submitted that the object of proceedings under the East Bengal (Emergency) Requisition of Property Act, 1948, was merely to give lesser rate of compensation and as such the order passed in that behalf was mala fide. This argument was repelled on the ground that the law authorised the Requisitioning Authority to requisition or acquire the property for a public purpose under any of the two different pieces of Legislation or enactment and on that ground the order in question could not be held to be mala fide in the absence of further material on which. The Court might be asked to come to some other conclusion. mala fide on the part of the appellants to acquire the land in question is quite sufficient to prove the charge.
60. As to what constitutes mala fides has been discussed in Government of West Pakistan v. Agha Abdul Karim Shorish Kashmiri (PLD1969SC14). The relevant para. Of the report is as follows: "The real question, to my mind, in every case of mala fides is: Did the authority or Officer concerned reasonably believe that his duty as such Officer required him to act as he did? A person acting in- pursuance of a statute cannot be said to be acting bona fide if he has no reasonable ground for believing that the statute justifies him in what he does. If the case, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute then that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner."
It has been held in State v. Ziaur Rehman (PLD 1973 SC 49that a mala fide fact stands in the same position as an act done without jurisdiction because no Legislature when granting a power to do an act can possibly contemplate the perpetra--petition of injustice by permitting the doing of that act mala fide. A mala fide order is a fraud on the statute. It has been further explained that mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order but for some other collateral or ulterior purposes. It has been held that the words "Purported to be done or done in the purported exercise of powers" cannot cover the acts which were not done by the persons empowered under the statute or the legislative measure to so act or work clearly beyond the scope of the powers given by the statute or were done mala fide or by practising a fraud upon the statute, for a colourable purpose. By this judgment, the Supreme Court up--held the judgment of the High Court that clause 2(2) of Article 281 of the Interim Constitution of Pakistan did not validate the acts which were coram non judice or without jurisdiction or done mala fide. It has been held 'in Muhammad Jamil Asghar v. Lahore Improvement Trust (PLD 1965 SC 698), that jurisdiction of the civil Court can never be taken away with respect to mala fides, for a mala fide act is in its very nature illegal and void act and the civil Court can always pronounce an act to be mala fide and, therefore, void. All the aforesaid judgments have been referred to and followed in Ameer Hussain Gilani v. State (1977 P Cr. L J 1018whereby it was held that there was no reasonable basis for the Police Officer to have initiated, nor for the Assistant Commis--sioner, to have entertained the proceedings under the Goondas.
Ordinance against the detenus. It has been held in Zafarul Ahsan v. Republic of Pakistan (PLD 1960 SC 103that where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken, though it purports to have been taken under the statute, the order will, in accordance with the long line of decisions in England and in this Sub--continent, not be treated as order under the statute.
61. It means that any act or order passed in colourable exercise of power by any authority would not be valid if it is proved on record to be mala fide. In the present case, as discussed above, it has been proved on record that the act of acquisition of the property in question was taken in colourable exercise of power by the authorities concerned. There was no reasonable ground or justification to give up the sites already selected for the implementation of the housing scheme and instead selecting the disputed site.
62. Similar view was taken in Saeed Ahmad Khan v. The Federation of Pakistan Establishment Division, Government of Pakistan, Rawalpindi (PLD 1974 Lab. 18and Federation .Of Pakistan v. Saeed Ahmad Khan and others PLD 1974 SC 151). In Sharaf Fridi and 2 others v. M. A. Shahani and 16 others PLD 1975 Kar. 59), it has been held by late Mr. Tufail A.I Abdur Rehman, then Chief Justice of Sind High Court, that mala fide literally means in bad faith. Action taken in bad faith is usually action taken maliciously in fact that is to say in which the person taking the action does so out of personal motive either to hurt the person against whom the action is taken or to benefit one's self.
Action taken in colourable exercise of power, that is to- say for collateral purposes- not authorised by the law under which the action is taken, or the actions taken in fraud of the law are also mala fide. The above observations were made by the High Court while deciding the applications moved by the petitioners on behalf of the Karachi Bar Association praying for transfer of a suit which they filed against the opponents in the Court of the 7th Civil Judge, Ist Class, Karachi to the original side of the High Court. It was alleged by the respondents that since the applications had been moved mala fide, therefore, they were not entertainable. It was held that since the applica--tions had not been moved with bad faith, therefore, they were competent.
63. In the present case, as held above, the order of acquisition having been passed in bad faith against the respondents, the same being illegal and void cannot sustain in law.
64. It has been argued by the learned counsel for the appellants that since water and gas facilities have been provided to the site in question and plots have also been earmarked, therefore, in the case of dismissal of appeals the appellants would suffer irreparable loss. It is, however, admitted that no construction, whatsoever, has been raised on the site. The tubewells installed by the respondents still stand intact there. It has been argued that since lacs of rupees have been spent in providing the aforesaid facilities, therefore, they should not be allowed to go waste.
There is nothing on record to show that any amount has been spent in providing the aforesaid facilities. Further, no claim for damages or compensation has been raised by the appellants in their written statement, nor any evidence has been produced on record on this point.
65. It is not denied by the appellants that the aforesaid facilities, if any, were provided during the pendency of the suit, after the stay already granted by the trial Court was vacated. It means that section 52 of the Transfer of Property Act will be applicable in the given circumstances, which provides' that during the pendency of any suit or proceeding in any Court, which is not conclusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. It has been explained in this very section that pendency of a suit or proceeding shall be termed to commence from the date of presentation of the plaint or institution of proceeding in a Court of competent jurisdiction and to continue until suit or proceedings has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
66. It vas contended in Narain Singh v. Imam Din and another (AIR 1934 Lah. 478that section 52 of Transfer of Property Act was only applicable to transfers made during the pendency of a suit and was not applicable to a case where buildings were erected on land, with respect to which one of the parties had claimed a right of passage. It was held that this contention had no force as the principle involved in section 52 of Transfer of Property Act was clearly applicable to the facts of the case. It cannot be contemplated that a defendant would be at liberty to erect building on a piece of land which formed the subject-matter of the litigation and thus compel the plaintiff to file another suit for the removal of the obstruction, which carne into existence after the suit had been filed. Similar view was taken in Pir Abdullah Shah and 8 others v. Hamayun and S others (PLD 1957 Lab. 1054and Haider A.I and another v. Akbar A.I and another (PLD 1973 Lab. 546).
67. The facts of the case under discussion which constitute mala fides on the part of the appellants, have not been rebutted and they, therefore should be accepted as correct as held in Syed Jamilul Hassan Mazloom v.' District Magistrate Gujranwala and 3 others (PLD 1976 Lab. 183).
The evidence with regard to mala fides has been duly considered by the learned Civil Judge as well as the learned District Judge and both have come to the conclusion that the order passed against the respondents being mala fide is not sustainable, in law. The two Courts having concurred and each judgment supported by careful and elaborate consideration of the evidence adduced in the case, the appellants cannot be permitted to challenge the concurrent finding of fact. Reliance in this behalf can be placed upon Shamshad A.I Shah and others v. Syed Hassan Shah and others (PLD 1964 SC 143) and Pathana v. Mst. Wasai and another (PLD 1965 SC 134).
68. As a result of the above discussion, there being no force in the appeals the same are hereby dismissed with costs.