MIAN MUHAMMAD AJMAL, J.--The petitioner herein, through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has challenged the. Notification No. 12384 Rev-1/75 dated 4-6-1991 of. The Government of N.-W.F.P. Revenue Department, Peshawar to be illegal, void, without lawful authority and of no legal consequence.
2. The Deputy Commissioner Mansehra respondent No.2 herein, issued a Notification under section 4 of the Land Acquisition Act on 13-11-1988 for the expansion of tehsil Headquarter Hospital Balakot and thereafter a corrigendum Notification was issued on 28-3-1989 which also included Khasra .No.2573/2 allegedly owned by the petitioner and his brother. On the application of the petitioner the price of land was determined by negotiations. Consequently the land as prescribed in the corrigendum Notification was transferred to the Health Department through a registered deed dated 20-1-1990, the petitioner and his brother were paid the compensation. Thereafter it revealed that the petitioner and his brother have received. Compensation for the land of Shamilat-e-Deh fraudulently in connivance with Acquisition staff and consequently a case was registered against them under section 419/420/468/471/403/109, P.P.C. Read with section 5(2) of the Prevention of Corruption Act ,vide FIR No.65 dated 1-2-1990 and the petitioner was arrested. However, he was allowed interim bail on 14-3-1990 which was confirmed on 12-5-1990 by this Court. The petitioner was taken into custody by respondent No.2 on 11-6-1991 in exercise of the powers conferred under the Notification impugned herein, and was released subsequently.
3. The learned `counsel for the petitioner contended that the area -measuring 13 Kanals 16 Marlas has been acquired from the petitioner and his brother as envisaged by the corrigendum notification. Its compensation as worked out at the rate of negotiated price i.e. 2,70,000 per Kanal comes to Rs.37,26,000 which they have received. He contended that no, fraud has been committed by the petitioner and his brother; that the contract was entered into and executed through negotiation and, the price was paid through Treasury Challan. He further contended that the petitioner and his brother were the lawful owners of the land in dispute and therefore their title was not at all under shadow and they were entitled to receive the sale considerations in respect of the land sold by them. .
4. We have gone through the comments of respondents wherein it has been averred that the petitioner and his brother Ilyas Hussain were not lawful owners of the land measuring 13 Kanals 16 Marlas, bearing Khasra No.2573/2. Khata No.1285/2131 of Jamabandi for the year 1966-67 revenue estate Balakot shows that the area and Khasra was `Shamilat-e-Deh'. The father of the petitioner was `Hissadar' in `Khans Kasht' of Khasra No.2573/2 which he transferred as gift in the name of his two sons i.e. Mushtaq Hussain petitioner and Ilyas Hussain in equal share vide Mutation No. 5673 attested on 12-4-1975 which mutation was sub judice in Suit No.60/1 instituted on 12-3-1989, where the petitioner and his brother have made a statement through their counsel that they would not transfer the property through private negotiation. The respondents in their comments have also questioned the price fixed by negotiations and have stated that same is not based on genuine grounds. The petitioner and his brother were not the owners of land measuring 13 Kanals 16 Marlas and their title was under question in the Civil. Court when they negotiated the deal with the acquiring department. Legally where the title is under shadow the party cannot enter into valid transaction. As such the petitioner and his brother by concealing this fact have played fraud and forgery 'by showing themselves to be the absolute owners of the land in question and entering into the negotiations for the sale of it with the respondents.
5. This writ petition came up for hearing before the learned DB on 18-6-1991 and the learned counsel was heard in detail. The comments of respondents Nos.l and 2 were called for. On 8-12-1991 the petitioner made a statement in Court that he shall furnish Bank Guarantee in the sum of Rs.37,26,000 the total sum of money received by him and his brother Ilyas Hussain against the disputed transaction so that the writ petition may be admitted for hearing. He further stated that .In case he failed to furnish Bank Guarantee within the time given by the .Court, his writ petition may be dismissed. Consequently he was allowed to do the needful till 30-1-1992 and it was directed that the case be fixed for hearing in the first week of February, 1992. On 26-1-1992 the petitioner preferred an application (C.M. No.21 of 1992) through counsel which was posted for hearing on 28- 1-1992. The petitioner requested that he should be permitted to withdraw the writ petition as there are certain defects therein. On the said date notice to respondents was issued for a short date.
Today the case was fixed for hearing.
6. After hearing the learned counsel for the petitioner in .Detail and taking into consideration the available record of the case, we are of the view that the application to withdraw the writ petition is only a device to avoid the compliance of the order dated 8-12-1991 of this Court whereby in view of his statement he was directed to furnish Bank Guarantee in the sum of Rs.37,26,000 by 30th January, 1992. The learned counsel pressed the application for withdrawal of the writ petition which cannot be allowed in view of the unequivocal statement and undertaking of the petitioner that he would furnish Bank Guarantee equivalent to the amount which he and his brother has received with fraudulent means. The petitioner has failed to honour his undertaking by producing the Bank Guarantee within the stipulated period., The petitioner from his conduct appears to be in the habit of flouting and. B defying the Court orders. He did not keep to his words made in the Civil Court in a Civil Suit No. 60/1 and in violation thereto he entered into the transaction and made hay by pocketing Rs.37,26,000 and likewise hereto he attempted to softly back out from the commitment under the guise of application to withdraw the writ petition, for which he cannot be permitted to abuse the, process of the Court and to make mockery of the Court orders time and again. As such this writ petition is dismissed in limine, C.M. No.21/92 being frivolous is dismissed accordingly.
7. The officials who were associated with the acquisition proceedings and all those who have played any part in the transaction, appear to be equally responsible for the loss caused to the Government. They all should be proceeded against for their misconduct and misdeeds for causing loss to the Government Treasury, in accordance with law.