' The brief facts out of which the present writ petition arises are that the petitioner is the owner of the property in question No,SI-107-5-24 situated in Gowalmandi, Lahore. The petitioner originally rented out the premises in question to Union Islamia High School. The said Institution was nationalized under the provisions of Martial Law Regulation No,118 of 1972, Privately Managed Schools and Colleges (Taking Over) Regulation of 1972. The management of the said institution committed default in the payment of rent. The petitioner being aggrieved filed ejectment petition before the learned Rent Controller, Lahore on the ground of default. The learned Rent Controller accepted the ejectment petition vide order dated 19-11-1976. The management of the said Institution preferred an appeal before the learned Additional District Judge, Lahore, who dismissed the same vide judgment dated 304-1980. The management of the said school filed second appeal before this Court, which was also dismissed vide judgment dated 12-7-1980. The respondents filed a Writ Petition No,8505-1980, on the ground that land in-question was requisitioned under the provisions of the aforesaid Martial Law Regulation No,118 of 1972, therefore, learned Rent Controller has no jurisdiction to take the cognizance of the matter, therefore, order of the learned Rent Controller dated 19-11-1976, the judgment of the learned Additional District Judge, Lahore dated 30- 4-1980 and judgment in second appeal of the Court dated 12-7-1980 are not sustainable in the eye of law. This writ petition was also disposed of by this Court vide judgment dated 4--8-1980 with certain observations. The petitioner also challenged the vires of the requisition order of the respondents of the property in-question, in Constitution Petition No,3140- 1977 which was dismissed by this Court. Consequently the petitioner filed Intra-Court Appeal No,133 of 1977 which was accepted by the Division Bench of this Court vide judgment dated 8-4-1985. Thereafter the respondents initiated proceedings to acquire the land in question under the provisions of the Land Acquisition Act. The respondents issued notification under section 4 of the Land Acquisition Act, which was issued on 24-6-1987. Subsequently, corrigendum was also issued by the respondents on 4-7-1987. Thereafter another corrigendum was also issued by the respondents vide notification dated 1-8-1987. The possession of the property in question was taken by the respondents by issuing a notification dated 18-9-1988 under section 17(4) of the Land Acquisition Act. The petitioner being aggrieved filed this writ petition.
2. The learned counsel of the petitioner submits that after failing in establishing the requisition of the disputed school premises up to this Court in 1985, the respondent/Government has resorted to the acquisition of the disputed property which is a further manifestation of the mala fides of the authorities concerned to stick to their untenable possession and deprive the petitioner of her legal right thereto. He further submits that respondents failed up to this Court in the proceedings initiated by the petitioner for ejectment under the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. Thereafter the respondents had initiated proceedings for requisition of the property under the provisions of the Martial Law Regulation No,118 of 1972. The respondents failed to retain the property in-question as the action of the respondents qua requisition of the property in-question was declared without lawful authority by the Division Bench of this Court in I.C.A. No,133 of 1977 vide judgment dated 8-4-1985. The respondents did not challenge the judgment dated 12-2-1980 of this Court passed in second appeal in the rent side before any higher forum and also did not challenge the judgment of the Division Bench of this Court dated 8-4-1985 passed in I.C.A. No,133 of 1977, therefore, both the judgments attained finality. The action of the respondents to initiate proceedings under the provisions of the Land Acquisition Act, is termed as mala fide. He summed up his arguments that action of the respondents is mala fide and is not sustainable .In the eye of law. In support of his contentions, he relied upon the State v. Zia-ur- Rehman and others PLD 1973 SC 49 and The Province of Punjab v. Ch. Zahoor Elahi 1982 SCM R 173.
3. The learned Additional Advocate-General submits that action of the respondents is in accordance with law. The earlier litigation has no nexus qua the acquisition by the respondents under the'provisions of the Land Acquisition Act. He further submits that writ petition is not maintainable as the petitioner has alternative remedy under the provisions of the Land Acquisition Act, 1894. He further submits that the land in-question was acquired by the' respondents for public purposes for the welfare of the public, therefore, question of mala fide does not arise. He further submits that petitioner did not allege specific allegation against the respondents, therefore, action of the respondents is to be considered to be taken by the respondents bona fide and in good faith.
He further submits that judgments cited by the learned counsel of the petitioner are distinguished on facts and law as in the present case the property in-question was acquired by the respondents for the welfare of the general public.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:--
(i) The petitioner filed ejectment petition against the respondents before the learned Rent Controller, Lahore who accepted the ejectment petition vide order dated 19-11-1976.
(ii) The respondents preferred an appeal before the learned Additional District Judge, Lahore, who dismissed the same vide judgment dated 30-4-1980.
(iii) The respondents filed second appeal before this Court which was also dismissed vide judgment dated 12-7-1980.
(iv) The respondents filed a Writ Petition No,8505 of 1980, on the ground that the learned Rent Controller has no jurisdiction to take the cognizance of the matter, as the property in-question has been requisitioned by the respondents, which was disposed of vide order dated 4-8-1980.
(v) The petitioner challenged the vires of the requisition order of the respondents through Constitution Petition No,3140 of 1977 which was dismissed by this Court.
(vi) The petitioner being aggrieved filed Intra-Court Appeal No,133 of 1977 which was accepted by the Division Bench of this Court vide judgment dated 8-4-1985.
' It is pertinent to mention here that respondents did not challenge the judgment passed in second appeal on 12-7-1980 in rent side and judgment of the Division Bench of this Court passed in I.C.A.
No,133 of 1977 dated 8-4-1985 in requisition side, before the Hon'ble Supreme Court.
6. It is better and appropriate to reproduce the operative part of the judgment of the Division Bench of this Court passed in said I.C.A. To resolve the present controversy:-- "Some body's right cannot be denied because another, wit powerful can exercise power to keep the other out of his proprietary right. Judicial orders passed and maintained up to the High Court without being questioned any further cannot be set at naught by executive fiat by invocation of statutory power. If it were permissible, judicial decisions will be subverted by the losing party throwing equality before law principle to winds and that too by Government functionaries whose duty it is to carry out judicial orders. Learned Supreme Court of Pakistan in Province of Punjab v.
Civil Judge 1982 SCM R 692 has expressly upheld the finding of the learned Single Judge in the leading judgment that requisition to avoid eviction is a mala fide act. Explicitly the orders of requisition were to avoid eviction under the relevant law.
' In view of what has been stated above, the leading judgment of the learned Single Judge calls for no interference and appeals against that i,e, I.C.A.No,75 of 1977, I.C.A. No,76 of 1977, are dismissed with costs. So also the judgments of the other three learned Single Judges in which the former judgment is followed are upheld and appeals against their judgments i,e, I.C.A. No,266 of 1982, I.C.A.
No,264 of 1983 and I.C.A. No,265 of 1983, too are dismissed with costs. Contrary judgments by two other learned Judges in I.C.A. No,133 of 1977, I.C.A. No,268 of 1984 and I.C.A. No,269 of 1984 are set aside, requisition orders declared to be without lawful authority and of no legal effect. However, the parties are left to bear their own costs." (The aforesaid underlined is mine).
' The aforesaid operative part of the judgment of the Division Bench of this Court reveals that the requisition order was declared to be without lawful authority and of no legal effect. The respondents failed in the aforesaid litigation and initiated proceedings under the provisions of the Land Acquisition Act, by issuing a notification under sections 4 and 17(4) of the Land Acquisition Act, 1894. It is settled principle of law that manner of exercising a power is also termed as mala fide as per principle laid down by the Hon'ble Supreme Court in Agha Shorash Kashmiri's case PLD 1969 SC
14. It is also settled principle of law that public functionaries are also duty bound to act in accordance with law in view of Article 4 of the Constitution. The respondents can acquire the land/property of any citizen subject to the condition that acquisition proceedings must be in accordance with law in view of Articles 23, 24 read with Articles 4 and 5 of the Constitution. It is also admitted fact that requisition order was set aside by the Division Bench of this Court, therefore, respondents have no lawful authority to initiate proceedings under the provisions of the Land Acquisition Act in the garb of public interest and public purposes. It is also settled principle of law that once the action of the public functionaries is based on malice then the same is not sustainable in the eyes of law. In arriving to this conclusion, I am fortified by the following judgments:-- ' Saeed Ahmad Khan's case PLD 1974 SC 151, Aman Ullah Khan's case PLD 1990 SC 1092, Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26.
' I am also fortified by the law laid down by this Court in Mst. Nasreen Zohra v. Multan Development Authority 1991 CLC 1001. The relevant observation is reproduced hereunder:- "This being the position, the impugned notification and the entire proceedings/actions culminating in physical acquisition of the land of the petitioner will not, in accordance with the long line decision in Pakistan be treated as an order under the statutes. A mala fide act by its nature is an act without jurisdiction. The law does not contemplate mala fide exercise of powers. The arguments of the learned counsel for the Authority that the impugned action/notification is immune from judicial scrutiny by the High Court in exercise of its Constitutional powers, is an argument for the sake of argument. There remains no doubt that the High Court in exercise of its writ jurisdiction is always competent to examine the bona fides of the action taken by the Authority and the notification issued by the Deputy Commissioner. If the High Court finds that the Authority or the Deputy Commissioner had acted in a mala fide, unjust, unfair, oppressive and illegal manner then it has power to grant relief to the aggrieved party by declaring the acquisition proceedings/ notification, to be illegal and without lawful authority."
' It is also admitted fact that respondents did not challenge the aforesaid judgment passed by the Division Bench of this Court in I.C.A. No,133 of 1977 and judgment passed in second appeal in rent side before any higher forum, therefore, respondents are estopped to initiate proceedings under the provisions of the Land Acquisition Act, on the basis of well-known principle of waiver, estoppel and res judicata. In arriving to this conclusion, I am fortified by the law laid down by the Hon'ble Supreme Court in the following judgments:- ' Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145, Haji Ghulam Rasool and others v. The Chief ' Administrator of Auqaf West Pakistan PLD 1971 SC 376.
' In view of what has been discussed above, this writ petition is accepted with no order as to costs.