This detailed judgment containing of facts and reasons for the short order written and announced in two connected Civil Revisions No. 23-D of 1986 (Muhammad Khalid. v. Sabir Hussain and others) and Civil Revision No. 77 of 1986 (Province of Punjab. v. Sabir Hussain and others), shall be read as a part and in continuation of the said order dated 23-2-1994, whereby both the petitions have been accepted and the impugned orders have been set aside, as they arise out of the same suit and orders.
2. Briefly stated facts of the case out of. which these revision petitions have arisen are that Sabir Hussain and other respondents Nos. 1 to 12 filed a suit against the petitioner and respondent No. 13 seeking a declaration to the effect that act of respondent No. 13 acquiring land bearing Khasra Nos.1419, 907 Min, 1469/2/1, 1470/1 situate in village Kahli Dhamonha, Tehsil Kahuta, District Rawalpindi for the purpose of construction of a road, as being illegal, without jurisdiction, mala fide, fraud on the statute, not in public interest, in collusion with and for the benefit of Muhammad Khalid petitioner. Besides the prayer for grant of decree for declaration referred to above as a consequential relief a decree for permanent injunction has also been prayed seeking a restraint order against the acquisition of the suit land. This suit was filed on 15-10-1985, wherein notification of Acquisition Act dated 16-9-1983 and published in Gazette Notification dated 18-9-1993 has been challenged on the aforementioned grounds. It is alleged in the plaint that there already exist a District Council Road which sufficiently connects boy school of Kahli Damonha and the villages situate in surrounding areas and that there is absolutely no need of any other road at a short distance therefrom which in fact is being constructed for the sole benefit of Muhammad Khalid petitioner who is MPA and an Ex-Minister from that area. Alongwith the suit the plaintiff filed an application under Order XXXIX, Rules 1 and 2, C.P.C. seeking grant of temporary injunctive restraint order against the respondent from acquiring the land in question. The suit as well as the stay application have been contested. Learned Civil Judge First Class, Rawalpindi vide order dated 30- 10-1985 dismissed the stay application on the ground that the allegations regarding legality and vires of the acquisition proceedings can be determined after the evidence is recorded and as the notification under section 6 of the Act has also been issued on 7-10-1985 and the acquisition proceedings have been finished, therefore, no temporary injunction can be granted under section 56 of the Specific Relief Act as it would amount to interference with the functions of a competent public authority, who has acquired the land in dispute for the purpose of execution of a project of public utility. Learned trial Court further observed that the ostensible purpose of the acquisition of the disputed land is the construction of a link road covering an area of 44 Kanals and 17 Marlas out of which 34 Kanals and 3 Marlas have been donated by the inhabitants of the area whereas the disputed land measures only 10 Kanals and 14 Marlas, and, hence, in case the injunctive order is passed and ultimately it is found that there was no malice or illegality involved in the acquisition proceedings irreparable loss will be suffered by the public at large as they will be deprived of user of a mettled road and that the funds sanctioned and reserved for the construction of the road in question shall also lapse, hence the balance of inconvenience does not lie in favour of the plaintiffs.
The part played by the petitioner who was defendant No. 2 in the suit has also commented upon observing that he being a member of Provincial Assembly made a recommendation to the Government of the Punjab stressing the need of a mettled road for the use of inhabitants of the area, which request was granted and acquisition proceedings were initiated and completed by the functionaries of the Provincial Government. Therefore, there does not appear to be any malice or collusion in the acquisition proceedings of the land in dispute.
3. Aggrieved of this order, respondents filed first appeal against the order in the District Court of Rawalpindi which was entrusted to the Court of Mr. Muhammad Hussain Naqshbandi, learned Additional District Judge, Rawalpindi. Alongwith the memo. of appeal an application under Order XXXIX, rules 1 and 2, C.P.C. was also filed seeking a restraint order against the respondents from acquiring the land in question. The appeal as well as the stay application came up for hearing before the learned Additional District Judge on 4-11-1985. The appeal was admitted to regular hearing and an order of status quo was passed in regard to the disputed land. It may be mentioned here that the order of status quo was passed in absence of the petitioner without giving him opportunity of being heard and was also not subjected to the issuance of notice in stay matter. Order dated 4-11-1985 is reproduced as under:--
Mr. Bashir Ahmad Ansari, Advocate for the appellant.
The learned counsel for the appellant contends that the impugned order is against law and facts on record and has been wrongly passed and has ignored the relevant law applicable in this case.
Contention needs consideration. Admit. Notice to the respondents for 17-11-1985.
In the meanwhile the status quo is directed to be maintained with regard to the disputed property.
(Sd.)
4-11-1985. Addl. District Judge, RAWALPINDI.
Petitioner thereafter filed an application for appointment of Local Commissioner for the purpose of site inspection and obtaining a report with regard to the situation of Zila Council Road in the vicinity at a short distance of 5 miles from the site of the proposed road and to report about the distance of the house of the petitioner from the road in question as well as the number of other houses situate in the vicinity. This application was contested and was allowed by the learned Additional District Judge vide order dated 23-12-1985. The Local Commissioner was appointed to report on the following questions:--
(i) What is the distance between the existing District Council Road and the proposed road which runs parallel to it?
(ii) Whether the existing District Council Road which connects Kahli Dhamonha, Chamak, Samote, Bewal and Gujar Khan is unmattalled and what is the approximate length of the road?
(iii) Whether the proposed road provides access road to the house of respondent No. 2?
(iv) How many houses exist on the way of the proposed road? .
The only reason which has been mentioned in the order of acceptance of the application for appointment of the Local Commissioner is that the appellants alleged that the proposed road is being constructed with a mala fide intention, therefore, it will be in the fitness of things and in the interest of justice that the Local Commission be appointed to report regarding the abovesaid fact.
4. Order dated 23-12-1985 has been challenged by two separate civil revisions one filed by the petitioner-defendant No. 2 and the other by Province of Punjab who is defendant No. 2 in the suit.
Both the civil revisions were admitted to regular hearing and are pending decision since 1986.
Operation of the impugned order of the appointment of Local Commission having been suspended further proceedings in the appeal have also been stayed which is still pending adjudication. Suit is also pending. Record of both the matters has been summoned by this Court. Hence, suit has also not been finalised so far.
5. Both the civil revisions came up for final hearing before me on 9-2-1994 when the learned counsel for the petitioner in both the cases stated that they are not only aggrieved of order of appointment of the Local Commission but are also aggrieved of the order dated 4-11-1985 directing maintenance of status quo and that inadvertently this order could not be specifically challenged in the civil revision, hence they may be allowed to file amended memo of civil revision, so as to challenge the aforementioned order as well. Learned counsel for the respondents objected to the grant of prayer on the ground that the order dated 4-11-1985 cannot be allowed to be challenged after a delay of about seven years by amending the memo. of civil revision. Amended memo. was allowed to be filed subject to the objections which may be raised by the learned counsel for the respondents. In pursuance of the aforementioned order, the petitioners have filed amended memo of civil revisions wherein order dated 4-11-1985 has also been challenged with an advance copy to the learned counsel for the respondents who has not filed any objection there against and hence the arguments in both the matters have been heard on 23-2-1994.
6. M/s. Raja Muhammad Anwar, Advocate and Syed Sajjad Hussain Shah, Assistant Advocate- General have appeared on behalf of the petitioner. Farhat Munir SDO, Highway Department has also appeared alongwith the lay out plan and other documents concerning the construction of the road in question. Mr. Bashir Ahmad Ansari, Advocate has appeared on behalf of the respondents.
Learned counsel for the petitioners have vehemently argued that the respondents have challenged the notification under section 4 of the Land Acquisition Act alone although after the issuance thereof notification under section 17(4) was issued by the Commissioner of the Division and thereafter Notification under section 6 of the Land Acquisition Act was also issued and possession was taken at site. Award has also been rendered wherein the compensation has been determined. Major portion of the road in question has also been constructed and it is only a portion of about one kilometre thereof which requires construction and therefore, as a result of the stay order issued by the Court, the road already constructed is not being formally commissioned due to non-construction of missing link of one kilometre which passes through the land of the respondents. It is argued that the project of a great public importance which will provide the transport facility of a metalled road to lot many village on the way from Gujar Khan and will also connect the Dispensary and a Boys School, is being hampered due to the passing of the impugned order .and that the road is being constructed by the funds of Provincial Government after duly acquiring the land in dispute. Hence, the impugned order of status quo could not have been passed. Learned counsel contends that interest of an individual cannot be preferred to the interest of public at large, therefore, the learned trial Court having discussed all the facts and circumstances of this case in exercise of his discretion following the law declared by superior Courts for the determination of controversy in question dismissed the application for grant of stay order but the learned Additional District Judge without even giving an opportunity of being heard to the petitioners passed an order of status quo without judicious application of mind to the facts of the case-law on the subject and without being conscious of the implications of the impugned order. Therefore, the impugned order is arbitrary, whimsical and is liable to be set aside in view of the law declared in case of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139).
7. Regarding allegation of mala fide learned counsel contends that it is not denied that the petitioner was and is MPA of the area in question and it is due to his efforts that the funds have been sanctioned for the construction of a road and further that the house of the petitioner is also at a distance of about 200 feet from the road in question and he will also be benefited from this road but the above facts per se do not establish that the road in question is being constructed exclusively for his benefit.
Elaborating the above arguments learned counsel contends that if a public representative who is living in the area gets some work of public utility sanctioned and executed, it cannot be said to be a mala fide act on the part of the Government if he is also a beneficiary of the said utility. Learned counsel contends that the road in question will connect lot many far flung small villages including a Boys School as well as a Dispensary, therefore, no grievance can be raised on the ground that this road passes beside the house of the petitioner who is a local MPA of the area. It is contended that allegations of mala fides are to be specifically alleged and proved by tendering of evidence, therefore, unless and until after holding of trial and recording of evidence, it is held that the acquisition proceedings are based upon mala fides, it cannot be prima facie said that the said proceedings are not meant for a public purpose as every effort has to be made to uphold acquisition proceedings as held in case of Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1971. SC 811) . wherein at page 837 of which report it has been held as under:-- "Another principle attracted in the case is 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 powers conferred on the authority in pursuance to which the impugned order has been passed. See the Chairman, East Pakistan Railway Board, Chittagong and another v.
Abdul Majid Sardar, Ticket Collector (PLD 1966 SC 725). It was remarked in this judgment: `Acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their functions explained and only then if it is found that the act done, order made or proceedings undertaken is without lawful authority should the Courts declare them to be of no legal effect'."
8. As regards the appointment of the Local Commission, learned counsel contend that the order passed by the learned Additional District Judge is uncalled for and cannot be said to have been passed in a bona fide exercise of jurisdiction. The respondents had filed a petition against the order of dismissal of the application for grant of stay order against the further continuance of acquisition proceedings which in fact had already been completed. The facts almost are admitted. It is nobody's case that at a distant there does not exist a road of the District Council but it is also not disputed that the said road does not connect majority of the areas which are to be connected by the road in eastern. The said road is not being properly maintained and as per lay out of the road in question, so many portions of Zila Council Road have also been utilized as a site of the present road. There is absolutely no law prohibiting the construction of a parallel road within the radious of five miles from the existing road. This is also not denied that the disputed road shall pass beside the house of the petitioner. Therefore all the questions for determination whereof the Local Commission has been appointed are almost admitted, hence, the impugned order of appointment of Local Commission is uncalled for, is an exercise in futility which has resulted in delaying the disposal of appeal, hence stoppage of project of public utility for a long time and may further result in delay and lapse of sanctioned funds. It is, hence prayed that both the orders passed by the learned Additional District Judge being absolutely illegal both the civil revisions may be accepted and the impugned orders may be set aside, with a direction to the learned lower appellate Court, to decide the appeal expeditiously. .
9. As against the above arguments, Mr. Bashir Ahmed Ansar, Advocate, learned counsel for the respondents has contended that the respondents are entitled to remain in possession of their land and retain the ownership rights therein as per provisions of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 and that the acquisition proceedings being not for public purpose are liable to be struck down as being illegal and mala fide. It is contended that from the documents placed on record by the petitioner himself, it stands established that the construction of the road in question as well as the funds for the construction thereof have been sanctioned on the request of the petitioner who is a Local MPA and is an Ex-Minister, whose house also abuts on the road in question, hence it cannot be said that the road is being constructed for benefit of public at large who according to the learned counsel are not in need of the road at all. I have asked the learned counsel as to whether the road in question provides approach exclusively to the house of the petitioner or can it also be t7sed by inhabitants of various villages which fall on or nearby the same and also school for boys and the dispensary, learned counsel states that the road in question can be used by all such persons and organization but according to the learned counsel it is sheer waste of money as a similar approach road is already in existence at a short distance. Learned counsel contends that the civil revision is pending since 1986 and the appeal against the stay order as well as the main suit are pending adjudication, therefore, it will not make much difference if the stay order is allowed to remain in force for another couple of months and the local commission is allowed to conduct the reference and submit his report after collecting necessary evidence which will prove beyond doubt that the proceedings are mala fide and are being conducted for the benefit of the petitioner and not for public purpose. He, therefore contends that the civil revisions may be dismissed directing expeditious disposal of appeal and the suit. Learned counsel however is not in a position to deny that after issuance of notification under section 4 of the Act which has been challenged in the suit after issuance of notification under section 17(4), notification under section 6 of the Act has been issued, award has rendered the possession has been taken at site by the Province of Punjab and the major portion of the road in question has been constructed is under construction on both sides of the strip in question which is about one kilometre in length.
9. Mr. Farhat Munir SDO, Highway Department who is possessed of a site plan as well as the lay out plan of the road in question has stated and explained before me that some of portion of the road has already been constructed whereas on remaining portions work is in progress. It is only the strip in question which remains unconstructed due to the order of status quo passed by the learned lower Appellate Court. According to him due to the abovementioned unconstructed portion road is not being officially commissioned and the public at large is suffering a lot and further that the allocation of funds for the constructions of the road for the current year expiring on 30-6-1992 shall also lapse the funds are not utilized within the current financial year in pursuance to the impugned order. He has stated that the road does pass beside the house of the petitioner but according to him it also connects so many other villages, Boys School and Dispensary and that District Council Road does not provide similar and wide facilities to the people lot many areas which the road in question if completed shall provide.
10. 1 have considered the arguments addressed by the learned counsel for the parties, have perused the record of this case as well as the record produced by the SDO. In order to decide the question of grant of temporary injunction, following are the legally-settled principles which have to be kept in view:
(1) In order to get a stay order in his favour the plaintiff-petitioner must show--
(a) that he has a prima facie case;
(b) that he will suffer an irreparable loss if the stay is not granted;
(c) that the balance of inconvenience is in his favour. Refer case of Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139).
(2) While exercising discretion in the matter the Court is to be conscious that interest of the individual is to give way to the interest of the public at large. Refer case of Pakistan Water and Power Development Authority through its Project Director v. Pakistan Atomic Energy Commission Employees Cooperative Housing Society Ltd., Islamabad (PLD 1993 Lahore 237).
(3) In case application for grant of stay order is refused/granted by the learned lower Court in exercise of the discretionary jurisdiction after ''application of judicious mind to the facts and circumstances of the case as well as the legal principles laid down for decision of the stay applications by the Superior Courts, the Appellate Court shall have to apply his mind judiciously and to determine as to whether the discretion has been properly exercised by the learned trial Court or not and till the decision of the appeal interim order which is in the nature of ultimate order should be sparingly passed particularly when result of such an order will be the stoppage of a project of public importance.
(4) Bona fides of the acquisition proceedings which are being conducted by the public functionaries are presumed in law and every effort has to be made to uphold the same unless and until after recording of evidence it is established that the proceedings are either mala fide or coram non judice. Refer case of Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1971 SC 811).
(5) Allegation of mala fide is to be specific and is to be proved by evidence.
(6) The interim stay should not ordinarily be granted which will interfere in the internal working of a public department and performance of lawful duties of public functionaries. Refer case of Shalizada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139).
(7) Merely because a project of public utility is got sanctioned by a public representative which shall also benefit him, is not a sufficient circumstance to hold that the proceedings being conducted by the public functionaries are mala fide and hence without jurisdiction and that the same are also not for `public purpose'
11. In the case in hand it stands established on record that the suit was filed to challenge the notification under section 4 of the Land Acquisition Act alone and subsequent Notifications and award have not been challenged. Possession at site has been taken. Public funds have been spent and major portion of the road has already been constructed at site. It is only a strip of one kilometre which is, in dispute and is yet to be constructed, which links the constructed portions of the road on both sides. It is not denied that this road besides passing near the house of the petitioner shall also connect certain other villages, Boys School as well as the Dispensary. Prayer for grant of stay order before the Appellate Court is to stop further acquisition proceedings which have already been completed.
Examined the case in the light of the aforementioned facts, I am of the view that the learned Additional District Judge passed the order of status quo in a mechanical manner without keeping, in mind the aforementioned principles and the overall facts and circumstances of this case. He was not even conscience about the consequences of the interim stay which he was going to pass.
The impugned order was neither passed after notice to the petitioner nor was made subject to notice, therefore, the same is patently arbitrary and whimsical.
As regards the plea of mala fides regarding the acquisition proceedings, without expressing any opinion on merits of the disputed acquisition proceedings, lest it may effect the merits of the suit as well as the appeal which are pending adjudication before the lower Courts, I am of the view that a person who is elected as an MPA or MNA is presumed to be a most respectable citizen of the locality and the country. He has respectable national, and international status. While judging bona fides of his acts double standard should not be adopted. Beside being representative, he is also a human being, therefore, if due to his efforts some service of public utility is provided in the area of which he is also a beneficiary per se, may not be conclusive evidence of mala fides on the part of the public functionaries who have sanctioned that project and are executing the same particularly when prima facie it appears to be work of public utility. In order to build strong national character it is the duty of the Courts as well to discourage baseless imputation of bad faith and mala fides to the public representatives, who are respectable citizen of the country, hence, the allegation of mala fide leveledagainst them or regarding their acts of public nature have to be judged keeping in view the fact that there is also a strong probability of the same being false and frivolous keeping in view the possibility of the same being result of strong political rivalry and just for sake of leg pulling, therefore, the question of mala fide shall have to be decided conscientiously keeping in view the overall facts and circumstances of each case. Argument of the learned counsel of the respondents that stay order having remained in force since 1986, is a proof of the fact that there is no urgency involved and it will not make any difference in case it remains in force for another couple of months, is also misconceived as delay in disposal of the civil revisions being not due to the fault of the petitioners, cannot be made as a valid and lawful ground to maintain an order even for a moment after the same is found to be illegal. In view of above I hold that the order of status quo passed by the learned Additional District Judge dated 4-11-1985 is illegal and has been passed in an irregular exercise of jurisdiction and as such is not maintainable.
13. As regards the order of appointment of the Local Commissioner is concerned, the same is also illegal and has been passed without any lawful justification. The prayer for appointment of Local Commissioner was made on the ground that there is also a District Council Road nearby the road in question and that the house of the petitioner abuts on the road in dispute, hence, factual report is necessary. Alleged facts are almost admitted by both the sides. It is nobody's case that District Council Road do not pass near that area or that the house of the petitioner is not beside the road in question. The project has been got sanctioned to provide approach by a metalled road also to the areas which are not connected by the District Council Road. This road will also connect a Boys School and Dispensary and this fact is also admitted on all sides. Appellate Court while deciding the question of legality of an order to grant of stay is to examine these documents which are placed on record of the trial Court on the basis whereof the application has been decided. Local Commission cannot be appointed by the Appellate Court just in routine without judicious application of mind to the facts of a particular case. The very fact that due to passing of this order the litigation has not beep finalized for the last seven years and the project of great public importance is still incomplete speaks volumes about the contention that the order of appointment of the Local Commission was absolutely uncalled for and has resulted in an I inordinate delay in disposal of the appeal, hence, the same having been passed illegally and with material irregularity is not maintainable.
14. Resultantly, I accept both the civil revisions, set aside the impugned orders dated 4-11-1985 and 1-12-1985 and vacate the stay order as well as the order of appointment of Local Commission and direct that the appeal pending before the learned Additional District Judge shall be decided on or before 30-4-1994. The parties are directed to appear before the learned lower Appellate Court on 3-3-1994. The parties are left to bear their own costs.
15. Before parting with the judgment, it is made clear that any observation made in this order regarding merits of the case shall be considered to have been made for the purpose of decision of legality of interim orders challenged in these civil revisions and both the Courts below shall decide the matters pending before them on merits strictly in accordance with law.