' MAULVI ANWARUL HAQ, J.---This judgment will dispose of I.C.As. Nos.257, 354, 475, 476, 477 and 642 of 1993 as the same have arisen out of judgment, dated 16-6-1993 passed by the learned Judge in Chamber dismissing the writ petitions filed by the appellants alongwith several other writ petitions.
2. The respondent No,6, stated to be a society registered under the Co-operative Societies Act, 1925, applied on 16-12-1987 to the District Collector, Lahore, for acquisition of an area of 6312 Kanals, 11 Marlas of land situate in villages Malikpur, Shajpal and Shevepura, Tehsil Lahore Cantt. In pursuance of this application a notification under section 4 of the Land Acquisition Act was issued by the Collector, Lahore, on 30-8-1988 informing the likelihood of acquisition of 1385 Kanals, 5 Marlas land in the said three villages. Later on the said notification was modified vide notification, dated 22-2-1989 and area, proposed to be acquired was enhanced to 3091 Kanals 6 Marlas. This comprises of 1547 Kanals, 16 Marlas in Shevepura and 1543 Kanlas, 10 Marlas in Malikpur. This was followed by another notification issued on 5-4-1989 and this time the area proposed to be acquired came to 4326 Kanals, 17 Marlas comprising 2221 Kanals in Malikpur and 2105 Kanals, 17 Marlas in Shevepura. Thereafter, another notification was issued on 17-8-1989 whereby 474 Kanals, 22 Marlas of land in Malikpur and 12 Kanals, 19 Marlas of land in Shevepura were excluded. It appears that the Commissioner, Lahore was convinced about the urgency of the matter and vide notification, dated 27-8-1989 it was declared under section 17(4) of the Land Acquisition Act, 1894 that provisions of sections 5 and 5(A) of the said Act shall not be applicable. This notification was issued in respect of a total area of 3506 Kanals, 12 Marlas comprising 1583 Kanals, 4 Marlas in Malikpur and 1923 Kanals, 8 Marlas in Shevepura. A declaration was issued under section 6 of the said Act by the Commissioner vide notification, dated 5-9-1989. At this juncture the appellants herein filed writ petitions questioning the said acquisition as also the mode in which it was proceeded with. During the pendency of the writ petitions the Land Acquisition Collector announced and published Award No,3 of 1990 on 27-5-1990 whereby he assessed compensation. A perusal of the award reveals that ultimately a total area of 2533 Kanals, 4 Marlas was acquired comprising 1491 Kanals in Malik and 1042 Kanals, 4 Marlas in Shevepura. This shortfall in the area to be acquired, occurred as according to the award out of the area proposed to be acquired 345 Kanals, 3 Marlas in Shevepura, was found to be owned by the Central Government while the said Society reported to have purchased 628 Kanals, 5 Marlas by private negotiation and on its request this area was also excluded. As stated above the writ petitions, filed by the appellants, were dismissed by a learned Single Judge of this Court vide the impugned judgment.
3. Syed Mansoor Ali Shah, Advocate, led the arguments on behalf of the appellants. He argued that setting up of a private housing scheme is not a public purpose for which land would be acquired under the provisions of Land Acquisition Act, 1894. With reference to the bye-laws of the respondent No,6 it was argued that it has been set up by private individuals with a motive to make profit. It was particularly argued by the learned counsel that the said bye-laws enable a member to have more than one plot. This according to the learned counsel, is an attempt at enrichment by abuse of the process of law. Learned counsel also questioned the invoking of section 17 of the said Act by the Commissioner as, according to him, in the circumstances of the case, there was no urgency involved. In the course of his arguments the learned counsel also sought to distinguish the various judgments referred to and relied on by the learned Single Judge in Chamber in the impugned judgment. Sh. Zia Ullah, learned counsel appearing for the respondent Society tried to support the judgment under appeal relying upon the various pronouncements referred to therein.
4. We have gone through the records with the assistance of the learned counsel for the parties. The argument that setting up a private housing scheme is not a public purpose within the meaning of the Land Acquisition Act, 1894, was also pressed before the learned Single Judge, who was pleased to repel the same bring upon the following cases:--
(i) Muhammad Mushtaq Ahmad Khan and 2 others v. The Assistant Commissioner, Sialkot and 3 others (PLD 1983 Lahore 178).
(ii) Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. Through the Secretary, Fortress Stadium, Lahore Cantt. And 2 others (PLD 1985 Lah. 552).
(iii) Mullah Ghulam Ali and others v. Commissioner of Karachi and 2 others (PLD 1983 Kar. 602).
(vi) Ratilal Shankara Bhai v. State of Gujarat and other (AIR 1970 SC 984).
' Learned counsel for the appellants has taken us through the said judgments. We find that in the case of Muhammad Musthaq Ahmad Khan (supra) the acquisition was for the purpose of construction of a grid station by WAPDA and not for a private house scheme. In Mullah Ghulam Ali's case (supra) the land was acquired for the construction of a road. In Ratilal Shankara Bhai's case (supra) the appeal to the Supreme Court had been filed against a matter decided by the High Court of the State of Gujarat. The Legislature of the said State had enacted Gujarat Unification and Amendment Act, 1965 and therein public purpose for acquisition of land was defined to include a housing scheme which the said Government from time to time undertook for the purpose of increasing accommodation for citizens. He was further provided that the definition will also include by such scheme undertaken from time to time with the previous sanction of the Government by a local authority or company. It was on the basis of said legislative enactment that the said case was decided. However, the case of Dr. Muhammad Nasim Javed (supra) pertains to a housing society and a learned Single Judge of this Court held therein that setting up of a housing only is a public purpose. We may here refer to the case of Federation of Pakistan v. Province of Punjab (1993 SMR 1673), wherein Mr. Justice Muhammad Afzal Lone (as his lordship then was) was pleased to observe at page 1678 of the report "there is no doubt that the acquisition of the land for a housing scheme formulated by the Board of Revenue Employees Housing Society Ltd. Is a public purpose".
His lordship further observed "by public purpose is meant an object or aim in which the general interest of the community as compared with the interest of an individuals is involved". In view of the said observations of the Supreme Court which somewhat confirms the observation of this Court in the case of Dr. Muhammad Nasim Javeed supra, the argument that the setting up of a private housing scheme is not a public purpose by itself does not hold water. However, we have to see as to whether the machinery of law, which but for the Constitutional protection provided to it under proviso to Article 24 of the Constitution, is a process for depriving a citizen of his property compulsorily, can be allowed to be invoked by a group by whatever name called, for personal benefit. The answer is certainly no and we seek support from the observations of Mr. Justice Irshad Hassan Khan (as his lordship then was) in para. 14 of the said report at page 562, which is to the following effect:-- "In view of the ratio laid down in the aforementioned cases, the legal position which emerges is that the acquisition for Cooperative House Building Society may serve a public purpose. It, however, depends upon circumstances of each cash whether or not such an acquisition is for a public purpose."
' The detailed facts leading to the filing of the writ petition by the appellants have already been stated above. The Commissioner feeling satisfied about urgency of the matter issued the notification holding that provisions of sections 5 and 5(A) of the Land Acquisition Act shall not apply and directed issuance of a declaration under section 6 of the said Act. The effect of the said notification is that the appellants were deprived of their right to file objections to the proposed acquisition. A perusal of the comments filed by Commissioner, Lahore Division would show that the Collector expressed his concern about the provisions of bye-laws of respondent No,4 authorising purchase of 20 shares by any member of the society. The Collector was assured by the society vide letter, dated 30-8-1989 that a resolution has been passed on 16-8-1989 to the effect that no member of the society was going to be allotted more than one plot. It was on this assurance that the Collector forwarded the case to the Commissioner for issuance of a declaration under section 6 of the said Act. Respondent No,4 has also, in its comments, relied upon the said resolution. We called upon the learned counsel for the respondent No,4 to lay information was to what is the actual position regarding the plots and their allotment. We must note here that the learned counsel has been very fair in laying the correct information, according to which there are 1294 plots of one Kanal each and 1971 plots of two Kanals each. These plots stand allotted to 224 members. It will, thus, be seen that notwithstanding the sizes of the plots even going by the number and assuming that the plots have been equally distributed amongst the said 224 members, each member is holding 15 plots. This is manifestly against the assurance given by respondent No,4 to respondent No,2, which led him to bypass procedure under sections 5 and 5(A) of the Act and straightaway issued a declaration under section 6 of the Act. It will further be seen that it was the said assurance which led the Land Acquisition Authorities to the conclusion that the acquisition was for a public purpose and this is apparent from the comments filed by the Commissioner as well as respondent No,4.
6. It is true that the Provincial Government or the Commissioner, as the case may be, is to be judge of the fact as to whether the land is required for public purpose and also that there is urgency within the meaning of section 17 of the Act, as held by the learned Single Judge on the basis of the pronouncement relied upon by him in the impugned judgment. However, it is equally true that the Courts will always be duty bound to 'see that during the course of said procedures the authorities concerned have applied their mind or not. In the above-referred case reported as 1993 SCMR 1673, it was, thus, observed at page 1679 by the Supreme Court:- "Under section 6, on consideration of a report submitted to the Commissioner under section 5-A or section 40 and compliance with other provisions of Part VII of the Act (which included sections 39 and 40) if he is satisfied that the land is needed for public purposes or for a company he may make a declaration to that effect. It is noteworthy that enquiry under section 40 is factual in nature in which hearing is given to the objectors. It is a channel to place information before the Commissioner for his satisfaction to enable him to have a correct perception of the situation before making a declaration that the land is needed for a public purpose and consequently its acquisition is warrantable, but the satisfaction of the Commissioner should be deliberate and arrived at after due care and proper application of mind to the facts appearing on the record.'
7. On the admitted facts of this case, we find that the Commissioner allowed himself to be misled by respondent No,4 on the basis of a report submitted by Collector to him which in its turn was based on misrepresentation on the part of respondent No,4. The learned Judge in Chamber was impressed by the factum of publication of the award during the pendency of the writ petitions, however, no gainsaying the fact that the present lis commenced before the publication of the award and ultimately after the notification issued by the Commissioner under section 17(4) of the said Act.
8. Another fact apparent on the face of record is that the Land Acquisition Authorities moved in the matter in a mechanical manner and the only urgency, as apparent on record, was for pushing through the process of acquisition without complying with the duties imposed upon them by law. It is really a matter of concern that the Collector and the Commissioner faithfully following the former's report gave a declaration that the land is required for public purpose when no less than 345 Kanals in the revenue estate of Shevepura was owned by the Central Government. It is true that a note is normally made in the relevant notification that said land will be excluded but does it mean that this provision absolves the said functionaries of the duty of applying their mind and looking into the matter with open eyes. Our answer is in negative. Involvement of a few Kanals of land scattered here and there and the omission of officials to note the same is understandable, but where the land not to be included comes to almost 10% of the land notified, then the only inference that can be drawn is that the officials did not even care to go through the records, what to speak of making an enquiry in the manner prescribed by law.
9. Mala fide or malice, of course, is not an abstract phenomena. There is no cavil with the proposition that the mala fides are to be specifically alleged and proved. However, there are cases where distinction has been sought to be drawn between malice in law and malice in fact.
Whatever, is done in violation of law cannot be said to be done in good faith and what is not done in good faith is mala fide. Reliance is placed on the case of Malik Ghulam Mustafa Khar and others v. Pakistan and others (PLD 1988 Lahore 49).
10. In the present case, we find that right from the start the process was invoked and carried on maliciously. Respondent No,4 did not even wait for initial process to be completed and in all probability being assured that the process will be carried through, issued invitations through attractive brochures to join hands to share the windfull of profits that was expected, without any limits. The said functionaries did express concern but by misrepresentation, the concern was smothered and the process was pushed through. The factual position very fairly stated by the learned counsel for the respondent No,4 leaves no manner of doubt that the entire process suffers from malice in fact as also malice in law. We also find that no enquiry was conducted within the meaning of Rule 10 of the Punjab Land Acquisition Rules, 1983, as confirmed by the learned Additional Advocate-General, on our query during the course of arguments. The said Rule is couched in mandatory language and requires the Commissioner to hold an enquiry when a company asserts urgency for invoking the provisions of section 17 of the said Act. No explanation has come forward on the record for the said lapse.
11. For all that what has been stated above, the impugned proceedings appear to be, to use the quotation in the case of Muhammad Akbar and 7 others v. The Commissioner, Rawalpindi Division and 2 others (PLD 1976 Lahore 747), tantamount to robbing Peter to pay Paul, which as expressed by his lordship in the said report is Robinhood's Philosophy but is not part of the law. We may also refer here to the observations of Supreme Court in the case of Collector Customs,, Excise and Sales Tax, Peshawar and 3 others v. M/s. Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda (1999 SCMR 709), which although given in a matter pertaining to taxation, yet are aptly applicable to the present case as well. It has been observed therein "the situation, thus, exhibiting lack of transparency in the process of decision-making, the power of judicial review, under Article 199 of the Constitution, does extend to see whether or not such had been arrived at by the public functionaries concerned in manner which did not contravene the fundamental rights or the Constitutional guarantee".
Resultantly, we allow these I.C.As. And setting aside the impugned order, accept writ petitions of the appellants and declare the impugned notification to be without lawful authority and as such void.