MIAN FASIH-UL-MULK, J.---Facts relevant for the purpose of petition in hand are that through award announced on 3-1-1990 an area measuring 2623 kanals, 5 marlas situated in village Dingi, Tehsil Haripur was acquired, including khasra Nos.412 and 495 measuring 31 kanals, 7 marlas. Khasra Nos.412 and 495 were previously owned by District Council. Out of the above acquired land, 140 Acres were leased out to the petitioner, namely Dewan Salman Fibre Ltd. For 99 years vide lease deed dated 29-3-1990 for establishment of Industrial Unit.
2. Petitioner after taking possession of the land so leased out to it, started development and raised construction over it. On 31-1-1994 the acquisition of land comprising of khasra Nos.412 and 495, having been leased out to petitioner, was withdrawn being Ghair Mumkin Rasta belonging to District Council Haripur. Petitioner challenged the validity of aforesaid notification, whereby the said area was de-notified through Writ Petition No.35 of 1994. This court vide its judgment dated 26-2- 1999 accepted the writ petition. Two Civil Petitions for leave to appeal were filed by District Council Haripur and Professor Abdul Rehman and others against the aforesaid judgment of Peshawar High Court. Leave was granted in both petitions. On 16-6-1999 when the appeals came up for hearing before august Supreme Court of Pakistan, the parties arrived at a compromise. The Supreme Court of Pakistan disposed of both the appeals in terms of compromise.
3. One Haji Muhammad Ashraf, Nazim Union Council Dingi submitted application/complaint before District Nazim Haripur (hereinafter referred to as respondent No.2) for removal of encroachment made on khasra Nos.619/313 and 495. Respondent No.2 on 5-5-2009 passed the order of removal of encroachment and on the same day issued notification directing Legal Advisor of District Government to remain present on the occasion to assist Tehsil Administration and Police on 6-5- 2009 at 10-00 a.m. Pursuant to the said order of respondent No.2, the iron gate of petitioner was eradicated/broken by respondents Nos.2 to 6. Petitioner filed an application under sections 22-A and 22-B, Cr.P.C. But could not succeed before. Justice of Peace, Haripur. Hence, the instant writ petition.
4. Learned counsel for the petitioner contended that once the matter was settled up to the level of Supreme Court, respondent No.2 could not pass the impugned order dated 5-5-2009. The subsequent actions taken were also without lawful authority as in presence of judgments of High Court and Supreme Court, respondents Nos.2 to 6 had no locus standi to take any action. It was further argued that the property in question was no more property of District Council, the acts of respondent No.2 and subsequent actions initiated for taking possession under the garb of public property were illegal and without lawful authority. It was finally argued that impugned order of respondent No.2 and acts/proceedings conducted subsequent thereto are based on malice, bad for want of notice and in violation of principles of natural justice.
5. On the other hand, learned counsel for respondents objected to the maintainability of writ petition on the ground of having other remedy available to the petitioner and supported the impugned orders/actions of respondents. Learned counsel, however, could not controvert the arguments, so advanced by the petitioner on merits of the case.
6. We have heard learned counsel for the parties at great length and gone through the record with their able assistance.
7. Perusal of record would reveal that on 31-1-1994 the acquisition of land measuring 31 kanals, 7 marlas comprising of khasra Nos.412 and 495 having been leased out to the petitioner was withdrawn being Ghair Mumkin Rasta belonging to District Council Haripur. Petitioner challenged the validity of aforesaid notification whereby the said area was de-notified through. Writ Petition No.35 of 1994. This Court vide its judgment dated 26-2-1999 heard and accepted the writ petition. It would be advantageous to quote the operative part of judgment which is as follows:-- "The possession of the acquired property has been taken by the SDA in the year 1989 and the property was leased out to the petitioner in the year 1990 and possession of the property so leased was also delivered to the petitioner in the year 1990. Throughout the acquisition proceedings and also till the impugned notification in the year 1994 i.e. For the last four years no objection was taken on behalf of the District Council or the Government or any authority on its behalf during this long period with regard to the acquisition of the property. Now when after taking the possession the property has been developed with huge costs by the petitioner and decisive steps have been taken now it is not open for the Government to withdraw the acquisition order or de-notify the same at this stage.
In view of above discussion, this writ petition succeeds and the impugned order of withdrawal passed by respondent No.2 is declared as without lawful authority, illegal and not enforceable. The parties are directed to bear their own costs."
8. Two Civil Petitions for leave to Appeal No.761 of 1999 filed by District Council Haripur and 815/99 filed by Professor Abdur Rehman and 14 others were filed against the aforesaid judgment of Peshawar High Court. Leave was granted in both petitions. The concluding para of leave granting order is as under:-- "After hearing learned counsel for the parties and perusing the record at considerable length, we hold that the respondent-Company has in clear terms undertaken to construct Pacca road for the use of the people of the village Dingi although they are not under any legal obligation to do so. Let them build the pacca toad which should be of high quality standard for the use of the villagers.
Needless to observe that the pacca road so constructed shall be completed within two months as undertaken by the respondent-company. In order to do the needful, District Council, the petitioner in C.P.761 of 1999 is directed to immediately return the amount of Rs.3,50,000 to the respondent, company for the construction of the aforesaid road. It is, of course, subject to all just exceptions. An intimation shall be conveyed to the District, Council on telephone. This direction was given to them in the court as well.
For further proceedings, these cases shall come up on 16-6-1999 as part heard. For the purpose of final disposal of these petitions, this order shall mean that leave has been granted to the petitioners in both the petitions. The appeals shall be fixed before the court on the date fixed. No further adjournment shall be granted to the parties who shall be present with full preparation on the next date of hearing."
Both the appeals came up for hearing before august Supreme Court on 16-6-1999 when parties arrived at a compromise in the following terms:--
(1) We at our own expense and on the land leased to us shall construct an alternate metal road along the boundary wall of the factory;
(2) We shall complete construction of the road within two months and will hand over the same to District Council, Haripur.
2.5 We shall also maintain the road.
(3) We shall ensure that the road shall be of good quality and for this purpose we are willing to work under the supervision of District Council Engineers or any other technical expert that the honourable Court deems fit for this purpose."
Having found the compromise in public interest, the same was accepted and both the appeals were disposed of in terms thereof.
9. Petitioner in compliance with the order of Supreme Court of Pakistan in Civil Appeals Nos.630 and 631 dated 16-6-1999 constructed metalled road and two certificates dated 8-1-2002 were issued by Tehsil Nazim and District Nazim Haripur respectively to this effect which are available on file. As stated earlier, on the complaint of one Haji Muhammad Ashraf, Nazim Union Council Dingi, the learned District Nazim respondent No.2 made an endorsement on the application to the following effect:-- "DPO Haripur/TMO Haripur.
The encroachment has to be removed with immediate effect. They have installed a gate on our District Road".
Sd/- 5-5-2009 On the same day respondent No. 2 issued a notification and on 6-5-2009 Iron Gate of petitioner was eradicated/broken by respondents Nos.2 to 6.
10. Learned counsel for petitioner rightly pointed out that the property was no more a public property and respondent No.2 was not within his rights to interfere in the matter. The impugned order is bad in law for two counts. (i) Even if, in view of respondent No.2 it was a public property he could not have taken any action without first invoking the provisions of sections 3 and 5 of N.-W.F.P.
Public Property (Removal of Encroachment) Act, 1977. (ii) The impugned order amounts to annul the findings of High Court upheld by august Supreme Court of Pakistan. It is apparent from the record that the impugned order and all actions taken subsequent thereto are based on malice and in violation of principles of natural justice. Adverting to the question of maintainability of writ petition, suffice it to say that no doubt petitioner could go to Civil Court for challenging the impugned order/notification/actions but resort to a civil court in the circumstances of the case was not speedy and efficacious remedy. It has been held in numerous cases that High Court in exercise of writ jurisdiction must come to help aggrieved persons falling victims of high handedness of officers of Government/ public office holders acting illegally and depriving petitioners of their lawful possession through unlawful means.
11. Consequently, this writ petition is allowed. Impugned order dated 5-5-2009 issued by respondent No.2 and all proceedings conducted subsequent thereto are declared illegal, without jurisdiction, without lawful authority and of no legal effect.