' This is a petition under Article 9 of the Provisional Constitution Order,. 1981, whereby Ilyas Khan and four others through amended petition, dated 17-12-1981 request this Court to declare the notification, dated 28-9-1981 (Annexure A/1) by the Collector, Dera Ghazi Khan, published on 3-10- 1981, notification (Annexure B) by the Commissioner, Multan Division, Multan, published on 4-11-1981, and notification, dated 12-11-1981 (Annexure C) issued by the Commissioner, Multan Division, Multan, published on 14-11-1981, to be without lawful authority.
' Learned counsel for the petitioners during the "arugments has also requested that the notification, dated 1-12-1981 issued by the Commissioner, Multan Division, Multan, may also be declared to have been issued without lawful authority and of no legal effect.
2. The facts giving rise to this petition as stated by the learned counsel for the petitioners are that the petitioners are owners of the land measuring 41 Kanals and 9 Marlas situated in Village Mauza Paigan, Chak No,3, Tehsil and District D.G. Khan. The land consists of Khasra Nos.7, 8, 13/2, 14, 17, 18/1, 24/1 and 26 min of Square No,92. On 28-9-1981, a notification by the Collector, D.G. Khan (respondent No,3) and published in the Punjab Gazette on 3-10-1981, was issued under section. 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), whereby the land in dispute was declared as likely to be required for the setting up of cultured Marble Manufacturing Unit in village Paigan Chak No,3, and that the officers for the time being engaged in the undertaking with their servants and workmen were authorised to enter upon and survey and land in the locality and do all other acts required or permitted by that section. Thereafter, a notification was issued by respondent No,2, Commissioner, Multan Division, Multan, which was published on 4th November, 1981, whereby an agreement under the provision of sections 41 and 42 of the Act entered into between the Government of the Punjab and the Chairman of Alhamd Marble Limited was notified.
Then, on 12-11-1981, respondent No,2 issued a notification under subsection (4) of section 17 of the Act, published in the Gazette of 14th November, 1981, whereby it was directed that the provisions of sections 5 and 5-A of the said Act shall not be applicable in the case of said land. Thereafter, a notice under section 9(3) of the Act was issued by the Collector, respondent No,3, and served on the petitioners, except Mst. Umda Sultana, petitioner No,5, whereby the petitioner were required to be present at the spot on 6-12-1981 when the possession of the land will be taken and they should present their claims for compensation. It is to be noted that service of notice was also effected through proclamation and affixation of one copy of the notice on the main gate of Ghazi Textile Mills, evidenced by Annexures R/5-14.
3. The petitioners thereupon filed a suit for declaration in the Court of Senior Civil Judge, D.G. Khan, against respondents Nos.1 to 4, challenging the validity of notifications Annexures A/1, B and C.
Alongwith the suit, application for the grant of temporary injunction was filed. Notice was issued for 2-12-1981. On 2-12-1981, it was observed by the Civil Judge that the representative of respondents Nos.1 to 3 present, whereas service of summons and notices on the remaining defendants had not been effected and, as such, hearing of the application was adjourned to 6-12-1981. It so happened that without waiting for the decision by the civil Court, the petitioners filed this writ petition, on 5-12- 1981. It is to be noted that after the filing of the suit and before filing of the writ petition, notification under section 6 of the Act marked as Annexures R/5-13 was issued by the Commissioner, Multan Division, Multan.
' Learned counsel for the petitioners informs that on 5-12-1981, an application for the withdrawal of the said suit was filed before the learned Civil Judge, who on 9-12-1981, permitted the same to be withdrawn under Order XXIII, Rule 1, C.P.C. The order of withdrawal to 19-12-1981 reads as follows:- {{URDU TEXT}} ' The statement of the counsel was as under:- {{URDU TEXT}} ' It is to be noted that on 5-12-1981, the status quo was ordered to be maintained by this Court and petition was admitted to regular hearing on 14-12-1981.
4. The petitioners in their petition have stated that the notification under section 4 of the Act was issued by respondent No,3 wherein an attempt was made to go through the formalities but not honestly and seriously, the circumstances reveal that the Company or for that matter its director motivated by some ulterior designs had selected the disputed land for the purpose of installing the industry and that no enquiry was made by the Government and without asking the owner of the land in dispute, the selection made by the Company on account of ulterior motive was accepted and an agreement was entered into between the Provincial Government and the Company. It has been mentioned that the petitioners understand that the Directors of the Company happened to be very influential persons and this apprehension is further supported by the fact that rules and regulations were violated and even the necessary formalities were not gone into. It has also been stated that on the ground of urgency the application of sections 5 and 5-A of the Act has been dispensed with and straight away possession has been directed to be taken.
5. As against this, the respondents in their paradise comments have denied the allegations.
Respondent No,2, Commissioner, Multan Division in his comments stated that since the acquisition was in favour of a Company, an enquiry was got held in terms of section 40 of the Act. It was held by the Assistant Commissioner/Land Acquisition Collector, D.G. .Khan. The enquiry said that the land needed urgently for setting up of the industry and dwelling houses for the employees and that it would prove useful for the purpose to the public. It was on this satisfaction that he entered into an agreement with the Company and that there was no male fide. On the point of urgency, the Commissioner stated that notification under section 17(4) of the Act was issued for the reasons of surgency. The area has been granted tax-holiday and the time was running out. It was considered in the national interest that intending interpreneurs should be extended all possible help in setting up industry in a backward area. As per letter of Intent No,P.L.H.C/50-66/81, dated 11-7-1981, supplied by the Chairman of Alhmad Marble Limited, the Company was extended fianancial assistance amounting to Rs,3,743 million for artificial marble Sanitaryware/tiles with a foreign currency loan of Rs,3,223 million by Pak-Libya Holding Company Limited. There was every risk of the withdrawal of this sanction vide condition No,16 of the Letter of Intent, dated 11-7-1981 issued by Pak-Libya Holding Limited, if legal formalities were not completed within six months from the date of the letter (11-7- 1981). Thus, the application of provision of section 17(4) was approved with full application of mind.
He further stated that in the instant case, the land has been acquired for a Company within the meaning of section 17 of the Act.
6. Learned counsel for the petitioners has raised the following points:-
(i) That the land is not being acquired for the public purpose as contemplated by sections 4, 17, 39 and 42 of the Act;
(ii) That the authorities concerned have not applied their minds to be sure whether the land- was being acquired for public purpose;
(iii) That there was no urgency involved as contemplated by section 17(4) of the Act, and as such the provision of sections 5 and 5-A of the said Act could not be dispensed with and that respondent No,2 has failed to apply his mind to ascertain the factum of urgency involved in the case;
(iv) That no enquiry as envisaged by section 40 of the Act has been held and if there be any, the same is inviolative of the mandatory provision of section 40; and
(v) That provision of section 39-A of the Act has not been properly complied with;
(vi) All proceedings are mala fide and taken in order to extend undue favour to respondent No,5 inasmuch as the respondent No,2 did not apply his mind to the facts of the case; the petitioners were not associated; the illegal course has been adopted by the respondents in order to deprive the petitioners of the valuable land which otherwise is under cultivation; the land is located just near Dera Ghazi Khan; the respondent has selected piece of land, which is situated on the Highway and the entire front of the land belonging to the petitioners measuring 15 Acres has been taken away thereby leaving no passage to the rear part of the land; that there is sufficient State land available nearby which could be earmarked for the purpose of this factory; moreover, there is sufficient barren land available just adjacent to the land in dispute which could be used for the said purpose and that respondent No,5 being a big industrialist commanding a lot of influence on respondents Nos.1 and 2; that is why respondents Nos.1 and 2 have tried to bypass all the legal provisions;
7. On the other hand, the learned Assistant Advocate-General and the learned counsel for respondent No,5 have vehemently defended the impugned notifications. They submit that the impugned notifications are not without lawful authority, the provisions of relevant law have been followed and the case-law laid down by the superior Courts has not been violated.
8. In order to appreciate the arguments and in the larger interest of justice. I have gone through the record maintained by the Commissioner pertaining to the acquisition of the disputed land (produced by the learned Assistant Advocate-General) and find:-
(i) That respondent No,5 (Messrs Alhamd Marble Ltd.) obtained a sanction from Pak-Libya Holding Company Limited (P . L .H .C . ) for a loan of Rs,3,743 million which included a substantial foreign exchange component. As will appear from the letter, dated 11-7-1981 issued by the P.L.H.C. One of the requirements or of the project was acquiring and taken possession of the land within a period of six months;
(ii) That the notification under section 4 of the Act was issued by the Collector, respondent No,3, and the same was published in the Gazette on 3-10-1981. The requirement of section 4 were fully met and a public notice of the notification was also given;
(iii) That an agreement in the terms of sections 39, 41 and 42 of the Act was executed after the Company had deposited a sum of Rs,1,07,950.55 which was cost of the land proposed to be acquired and that the requirement of these relevant provisions were fully met;
(iv) That on 19-10-1981, the Company made an application for invoking the provision of section 17(4) of the Act;
(v) That on 21-10-1981, respondent No,2 Commissioner, Multan Division, directed the Deputy Commissioner, Dera Ghazi Khan for appointing Assistant Commissioner, D.G. ,Khan to hold enquiry in the terms of section 40 of the Act;
(vi) That the enquiry under section 40 of the Act was held and its report was sent to the Commissioner /by the' Deputy Commissioner, Dera Ghazi Khan vide his letter, dated 31-10-1981.
(vii) That the report highlighted the fact that the land was urgently required by the Company for setting up of the industry and that a notice under section 17 of the Act was warranted in the peculiar circumstances; and
(viii) That the observation, dated 12-11-1981 of the Commissioner on his file reveal that he did apply his mind before issuing notice under section 17 of the Act. His observation reads as follows:- "Ordinarily this provision of Land Acquisition Act is not invoked for private Companies though section 17 ibid provides for such action. However, this is a case of emergency in the sense that the area has been granted tax-holiday and the time is running out. It will be in the national interest if intending entrepreneurs are extended all possible help in setting up of industry in the backward area of the country. Keeping these considerations in view, I have signed the notification. However, if the land is not put in the use for which it is being acquired within a period of one year from the date of publication of the notification, the notification will be cancelled."
9. After hearing the learned counsel for the parties and after having gone through the entire material relating to the acquisition of the disputed land, I am not inclined to exercise the writ jurisdiction of this Court in favour of the petitioners for the following reasons:-
(i) That respondent No,2 was legally competent to acquire the land under the Land Acquisition Act.
The allegations of the petitoner as mentioned in the petition and stated before me at the time o hearing are factually incorrect inasmuch as these stand belie by the record. The record shows that the requirements of sections 4, 17(4), 39, 40, 41 and 42 of the Act have been completed complied with. The record further shows that the Commissioner did apply his mind as to the urgency of the matter an dispensation of the provision of sections 5 and 5-A of the Act. A The record also indicates that the Commissioner applied his min to this aspect of the matter that the acquisition was for the public purpose. Even in the notification, dated 4-11-1981, I has been stated that the said industry is likely to prove useful to the public. This will show that the Commissioner, who is the judge of the urgency and that of public interest did apply his mind to this aspect of the matter. Since the assertions and allegations have not been substantiated by the petitioners rather the same have been found factually incorrect, I need not discuss the case-law cited by the learned counsel for the petitioners;
(ii) That the petitioners have come to this Court with uncleane hands inasmuch as they first filed a civil suit for declaration to the effect that the notifications Annexures B and C were illegal and mala fide. Alongwith the suit they filed an application for the grant of temporary injunction. The application was fixed for 2-12-1981 and was adjourned to 6-12-1981. On 5-12-1981 the petitioners moved this writ petition and in the end of the petition gave the following note:- "A civil suit was filed at Dera Ghazi Khan challenging the validity of the notifications but the same is being withdrawn. An application to that effect has been filed which is fixed for today.' It appears that after having obtained status quo order from this Court the suit was withdrawn. The conduct of the petitioner shows that in fact they have been playing hide and seek with the Senior Civil Judge and with this Court. Having once filed suit before a Court of competent jurisdiction where equal efficacious and speedy remedy was available, the petitioners for the reasons best known to them, withdrew the suit; and
(iii) That the petitioners have failed to make out a case of legal male fide against respondents Nos.1 to 4 and have also failed to substantiate the allegations of influence of respondent No,5 on them or that the proceedings were taken to extend undue favour to respondent No,5.
10. The upshot of the discussion is that assertions of the petitioners stand belied by the relevant record, the Commissioner has authority to acquire the disputed land; he has not flouted the provision of relevant law and has acted throughout within his authority without any n.Ala fide on his part. The respondents have acted in accordance with law. There is no force in the petition and the same is hereby dismissed with no order as to costs.