Mirza Vipas Rauf, J. The petitioners are the landowners in the village Khewal forming part of District Chakwal. In order to acquire land measuring 758-Kana l 3-Marla for the construction of 500 KV Grid Station New Chakwal in the revenue estates of Mahar , Adhwaal and Rabbaal, Tehsil & District Chakwal, notification under Section 4 of the Land Acquisition Act, 1894, hereinafter referred to as "Act, 1894" was issued on 21st December , 2021. Being offended from the said notification, the petitioners have approached this court through this constitutional petition canvassing therein that the impugned notification is the outcome of mala fide, which may be declared as illegal and unlawful. In response to this petition, respondents No.1 and 10 (who was initially not impleaded in the array of respondents but made party through order dated 7th June, 2022), submitted their report and parawise comments wherein they have justified the issuance of notification and raised multiple objections with regard to maintainability of this petition.
2. Learned counsel for the petitioners contended that initially a notification under Section 4 of the "Act, 1894" was published in the official gazette issued on 16th December , 2016, which was later on denotified on 23rd July, 2020.
He added that pursuant to the denotification another notification under Section 4 of the "Act, 1894" was issued on 17th November , 2020, which too was denotified on 21st December , 2021. While making reference to said denotification, learned counsel submitted that District Collector was not competent to denotify the notification under Section 4 of the "Act, 1894". Learned counsel, in support thereof, also referred Section 48 of the "Act, 1894" and submitted that it is only the Commissioner , who can issue denotification. Learned counsel emphasized that impugned notification, which is third of its series was notified on the same date, which reflects that it was only a mechanical instrument. It is argued that the respondents are not performing their functions in accordance with law and the proceedings in pursuance to the impugned notification are coram non judice . Learned counsel added that possession of the property in question was taken over by the respondents in pursuance to the notification. In order to supplement his contentions, learned counsel placed reliance on GOVERNMENT OF KHYBER PAKHTUNKHW A through Chief Secreta ry and others v. MUHAMMAD KHURSHID (2021 SCMR 369), Messrs DEW AN SALMAN FIBER LTD. and others v. GOVERNMENT OF N.-W .F.P., through Secretary , Revenue Department, Peshawar and others (PLD 2004 Supreme Court 441), QASIM ALI and 2 others v. PROVINCE OF PUNJAB through Secretary , Irrigation Department, Lahore (2021 YLR 1261 ) and MUHAMMAD NAWAZ v.
GOVERNMENT OF PUNJAB, through Chief Secretary , Lahore and others (2017 MLD 1719 ). In the last, learned counsel submitted that the respondents since did not file any written statement, so the facts stated in the petition shall be deemed to be admitted. Reference in this regard is made to COL. (R) SYED MUKHT AR HUSSAIN v. CHAIRMAN FEDERAL LAND COMMISSION ISLAMABAD and 3 others (PLJ 2004 Lahore 713 ).
3. On the other hand, learned Additional Advocate General, assisted by learned counsel for the official respondents submitted that the petitioners have concealed certain material facts from this Court as in the first instance they instituted a suit before the Civil Court, which was dismissed for non-prosecution. It is contended that in view of dismissal of the suit, this petition is not maintainable. He also seriously controverted the assertions of learned counsel for the petitioners that possession lies with the department. Learned Law Officer submitted that respondents No.1 and 10 have filed their report & parawise comments as called for by this Court. It is contended with vehemence that denotification was issued by the District Collector , who was competent under Section 21 of the General Clauses Act, 1897. Learned Law Officer added that Section 48 of the "Act, 1894" would only come into play when once the property has been acquired and possession has not been taken over in pursuance to the acquisition proceedings. In support of his contentions, learned Law Officer has made reference to FIDA HUSSAIN and 2 others v. PROVINCE OF PUNJAB through Secretary Settlement, Boar d of Revenue, Punjab, Lahore and 4 others ( 2001 CLC 239 ).
4. Heard. Record perused.
5. Right to property is one of the fundamental rights recognized and guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as "Constitution". Such right is, however , neither unfettered nor unbridled. Article 23 of the "Constitution" ordains that every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the "Constitution" and any reasonab le restrictions imposed by law in the public interest. Protection of property rights is provided under Article 24 of the "Constitution", which reads as under: - "24. (1) No person shall be deprived of his property save in accordance with law .
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of--
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or
(b) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner , contrary to law; or
(c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law); or
(d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property , or for the benefit of its owner; or
(e) any law providing for the acquisition of any class of property for the purpose of--
(i) providing education and medical aid to all or any specified class of citizens; or
(ii) providing housing and public facilities and services such as roads, water supply , sewerage, gas and electric power to all or any specified class of citizens; or
(iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or
(f) any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any court.
6. In furtherance to the above power to acquire land was bestowed upon Federation under Article 152 of the "Constitution". For the purpose of acquisition of land needed for public purposes and for companies and for determining the amount of compensation to be made on account of such acquisition, "Act, 1894" was promulgated, which was made operative in Pakistan after its inception. Part-II of the "Act, 1894" deals with the acquisition.
Section 4 of the "Act, 1894" authorizes the Collector of the District whenever it appears to him that land in any locality is needed or is likely to be needed for any purpose or for a Company , to publish in the official gazette a notification to that effect and cause public notice of the substance of such notification to be given at convenient places in the said locality . Preliminary investigation to this effect is to be made under Sections 4 and 5 of the Act ibid whereas objections from any person interested in any land which has been notified under Section 4 are to be dealt with under Section 5-A of the "Act, 1894". Declaration of intended acquisition is to be made in line with Sections 6 to 10 of the Act ibid.
7. The petitioners herein being landowners in the village Khewal being aggrieved of issuance of notification dated 21st December , 2021 issued under Section 4 of the "Act, 1894" are seeking annulment of the same being the outcome of mala fide. Before adverting to the question raised in this petition, it would be advantageous to observe that the notification in question is third of its series. First notification under Section 4 of the "Act, 1894" was issued on 16th December , 2016, which was published in the official gazette on 27th December , 2016. The said notification was, however , denotified by the Commiss ioner Rawalpindi Division, Rawalpindi. This followed another notification dated 17th November , 2020 with some minor changes whereafter a notification under Section 6 of the "Act, 1894" was though issued but it was also denotified on 21st December , 2021 by the District Collector , Chakwal. On the same day, notification in question was issued by the District Collector , Chakwal notifying that the land in question is likely to be required to be taken by Government for National Transmission and Dispatch Company Ltd (WAPDA) at the public expenses for a public purposes mainly for the construction of 500 KV Grid Station New Chakwal in Moza Sarkal Mahr , Adhwal and Rabal Tehsil & District Chakwal.
8. The main grounds for assailance to the impugned notification by the petitioners are that same is the outcome of mala fide on part of the respondents and furthermore District Collector has no power to denotify the acquisition proceedings in terms of Section 48 of the "Act, 1894", as such authority only vests with the Commissioner .
9. Adverting to the first limb of contentions of learned counsel for the petitioners, it is observed that mala fide is always a question of fact. In ordinary parlance, mala fide cannot be attributed to the Executive/ Government functionary performing functions in furtherance of a legal mandate. In absence of any cogent and convincing material in support of plea of mala fide, it shall be presumed that the act taken by the Executive/ Government functionary in pursuance to a lawful mandate is not tainted with mala fide. The petitioner (s) when once challenge
(s) the impugned action on the basis of mala fide, he/they is/are bound to plead the fact resulting into mala fide in a specific manner . Mala fide is one of the most difficult things to prove. When stance of the petitioners is examined on above touchstone, it becomes crystal clear that the edifice of the petitioners is without any sound basis. To this effect, guidance can be sought from Dr. AKHT AR HASSAN KHAN and othe rs v. FEDERA TION OF PAKIST AN and others ( 2012 SCMR 455 ). The relevant extract from the same is reproduced below:-
25. Question No. 2 has two dimensions i.e. (i) mala fides or collusion and (ii) violation of mandatory provisions of law and the rules framed thereunder . The allegations of mala fides and of the impugned exercise being collusive are questions of fact requiring factual inquiry . It is by now a well established principle of judicial review of administrative action that in absence of some un-rebuttable material on record qua mala fides, the Court would not annul the order of Executive Authority which otherwise does not reflect any illegality or jurisdictional defect. In Federation of Pakistan v. Saeed Ahmed Khan (PLD 1974 SC 151), this Court was called upon to dilate upon the mala fides as a ground for exercise of power of judicial review of administrative action and the Court observed as follows:-- "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begu m Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fides must be pleaded with particularity , and once one kind of mala fides is alleged, no one should be allowe d to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purpose s of fishing out some kind of a case.
"Mala fides" 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 motives either to hurt the person against whom the action is taken or to benefit oneself."
26. There is no allegation that any member of the CCOP or PC or the Financial Advisor had made some personal gain, or that any one of them wanted to help the highest bidder for mala fides reasons. The general allegations of being influenced by IMF or 'crony capitalism' are hardly sufficient to establish that the impugned privatization was tainted with mala fides warranting interference in judicial review .
The above laid principles were reiterated by the Hon'ble Apex Court in DOSSANI TRAVELS PVT. LTD and others v. Messrs TRA VELS SHOP (PVT) L TD. and others (PLD 2014 Supreme Court 1).
10. Coming to the second phase of controversy whereby learned counsel for the petitioners has mainly questioned the action of denotification being coram non judice, while pressing Section 48 of the "Act, 1894", it is observed that the terms "de-notification" and "de-acquisition" are entirely apart and distinct. Admittedly through notification dated 21st December , 2021, the District Collector , Chakwal proceeded to denotify earlier notification dated 17th November , 2020 whereas Section 48 of the "Act, 1894" lays down that except in the case provided for the Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
11. In the above prospective, it is the foremost contention of learned counsel for the petitioners that it is only the Government/Commissioner , who can withdraw from the acquisition but not the District Collector and that too when the possession of the land has not been taken. In order to understand the scope and object of Section 48 of the "Act, 1894" in better terms, one should be aware of the meaning and import of the word "acquisition" used therein.
The term "acquisition" is nowhere defined in the "Act, 1894", so in order to compr ehend the meaning, we have to advert to the ordinary legal meaning given in various law dictionaries, which are as under: - BLACK'S LA W DICTIONAR Y (TENTH EDITION)
Acquisition.
1. The process by which one gains know ledge or learns a skill.
2. The gaining of possession or control over something; esp., the act of getting land, power , money , etc. 3. Something acquired; esp., something one has obtained by buying it or being given it.
Oxford Advanced Learner 's Dictionary (International Student' s Edition, New 9th Edition)
Acquisition.
1. The act of getting sth, especially knowledge, a skill, etc:
2. Something that sb buys to add to what they already own, usually sth valuable:
3. A company , piece of land, etc. bought by sb, especially another company; the act of buying it: Cambridge Advanced Learner 's Dictionary (Fourth Edition)
Acquisition.
1. The process of getting something:
2. Something that someone buys, often to add to a collection of things:
3. Something such as a building, another company , or a piece of land that is bought by a company , or the act of buying it.
RANDOM HOUSE WEBSTER'S unabridged dictionary (SECOND EDITION)
Acquisition.
1. The act of acquiring or gaining possession.
2. Something acquired.
3. The act or process of achieving mastery of a language or a linguistic rule or element:
12. From the above referred dictionary meanings of the word "acquisition", it can safely be inferred that acquisition is not merely a step ahead for getting something but it is more than that. The move in terms of Section 4 of the "Act, 1894" is only an initial step for the purposes of preliminary investigation to determine the feasibility of the proposed land needed or likely to be needed for any public purpose. In other words issuance of notification under section 4 of the "Act, 1894" is though first step towards the acquisition but it is a move which relates to pre- acquisition proceedings. The act of acquisition would only mature when the Collector takes an order for the acquisition of the land in terms of Section 7 of the "Act, 1894", which reads as under: -
7. After declaration Collector to take order for acquisition.-- Whenever any land shall have been so declared to be needed for a public purpose or for a Company , the Provincial Government, or some Officer authorized by the Provincial Government in this behalf, shall direct the Collector to take order for the acquisition of the land.
It is thus concluded without any hint of doubt that Section 48 of the "Act, 1894" would only become applicable when a declaration for acquisition is made under Section 7 ibid.
13. It is though disputed by the petitioners that possession was also taken by the respondents in pursuance to the issuance of notification under Section 4 of the "Act, 1894" but they have failed to bring on record any tangible material to this effect. On the contrary , copy of the plaint annexed with report & parawise comments furnished by respondent No.10 pertaining to a suit instituted by the petitioners speaks otherwise as in the plaint the petitioners have clearly asserted that they are in possession of the property in question. Even otherwise, the factum of possession becomes immaterial when Section 48 of the Act ibid is not attracted to the instant matter . Needless to observe that factum of filing of suit and its dismissal for want of prosecution has also been suppressed by the petitioners which casts serious aspersions on their status as bona fide litigants before the Court. The petitioners are though seeking equity but they themselves are doing otherwise.
14. Notification under Section 4 of the "Act, 1894" falls within the competence of the Collector of the District when the Collector is empowered to issue the notification, he is also competent to deno tify the same in terms of section 21 of the General Clauses Act, 1897, which is reproduced below for ready reference and convenience: -
21. Power to make to include power to add to amend, vary or rescind, orders, rules, or bye-laws - Where by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power , exercisable in the like manner and subject to the like sanction and condition (if any) to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
15. So far contention of learned counsel for the petitioners that the respondents since did not file any written statement, so the facts stated in the petitio n shall be deemed to be admitted, suffice to observe that by way of order dated 22nd February , 2022, while issuing notice to the respondents, they were directed to submit report and parawise comments in terms whereof respondents No.1 and 10 submitted report and parawise comments wherein they have specifically controverted the factual assertions contained in the petition. This contention of learned counsel for the petitioners is thus not only ill-founded but mischievous.
16. So far judgment in the case of GOVERNMENT OF KHYBER PAKHTUNKHW A through Chief Secretary and others v. MUHAMMAD KHURSHID (2021 SCMR 369) heavily relied upon by learned counsel for the petitioners is concerned, it is noticed that the principles laid down in the said judgments are founded on entirely different facts and circumstances. Same is the case with Messrs DEW AN SALMAN FIBER L TD. and others supra .
17. Even in the cases of QASIM ALI and 2 others and MUHAMMAD NAWAZ supra , the facts are entirely distinct and apart. In the case of QASIM ALI and 2 others supra , the acquiring agency proceeded for acquisition after a decade of issuance of notification under Section 4 of the "Act, 1894" while issuing addendum acquisition notification including further land and also invoked emergency without issuing any notice under Section 5 of the "Act, 1894" whereas in the case of MUHAMMAD NAWAZ supra , after issuance of the award, the Executive District Officer on the application of one of the landowners proceeded to denotify the entire piece of acquired land while invoking Section 48 of the "Act, 1894", as such principles laid down therein are not attracted at all.
18. The nutshell of above discussion is that the petitioners have not been able to point out any mala fide on the part of the respondents in issuing of impugned notification under Section 4 of the "Act, 1894". The petitioners have also remained unable to highlight any illegality or perversity in the impugned proceedin gs. Resultantly , this petition fails and is dismissed with no order as to costs.