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‑‑ Ss. 36 & 48‑Provisional Constitution Order (1 of 1981), Art. 9 Acquisition proceedings‑Government alone at liberty to withdraw from acquisition proceedings of any land of which possession has not been taken‑Secretary, Revenue Department, held, can competently pass order on behalf of Government for withdrawal of acquisition under S. 48‑Board of Revenue Punjab, held further, not Government‑Mere fact that in office memorandum, Member ,Board of Revenue was not described as Secretary to Government of Punjab, Revenue Department (who is ex officio Secretary to Government of Punjab) would not in any way affect validity of impugned proceedings‑Memorandum suffered from no legal infirmity warranting interference in exercise of constitu tional jurisdiction of High Court in circumstances.

Piao Gul v. The State P L D 1960 S C 307 ref.

(b) Land Acquisition Act (1 of 1894)

‑

Ss. 36 & 48‑Provisional Constitution Order (1 of 1981), Art. 9 Withdrawal from acquisition proceedings by Secretary to Government Revenue Department‑Plea of mala fide‑Petitioner failing to dis close names of interested persons and land‑owner in Secretary's office who had been allegedly using influence in matter‑High Court in constitutional jurisdiction, held, cannot hold any inquiry on basis of vague and indefinite allegations nor a roving inquiry into files of Government can be launched for purposes of fishing out some kind of case‑Petitioner failing to establish personal mala fide against Secretary to Government of Punjab, Revenue Department‑High Court can give no credence to surmises and bare allegations of mala fide‑Failure of petitioner, to implead interested persons allegedly having influenced Secretary to Government, Punjab, Revenue Department‑‑He/d further, fatal for plea of mala fide‑Such persons, if impleaded as party, would have had opportunity to rebut mala fide impugned to them.‑[Mala fide].

Fauji Foundation v. Shamim‑ur‑Rehman P L D 1983 S C 457 ref.

Bashir Ahmad Ansari for Petitioner.

Ch. Muhammad Ibrahim for A.‑G. for Respondents.

Date of hearing: 25th January, 1984.

This petition under Article 9 of the Provisional Constitution Order (1 of 1981) challenges validity of the Memorandum No. 2871‑81/1924‑SIV, dated 19‑8‑1981 issued by the Member, Board of Reveiue, Punjab, Lahore.

< [if supportLists]>1. Facts relevant for disposal of this petition may be briefly enumerated. The petitioner is a Society registered under the Co‑operative Societies Act (VII of 1925). The Punjab Government issued Notification No. 3347/ LAC, dated 10‑1‑1979, published in the Punjab Gazette dated 24‑1‑1979, for the acquisition of land in respect of an area measuring 105 Kanals situated in Dhok Safoo, Tehsil and District Rawalpindi for the construction of housing Colony for Police Personals represented by the petitioner‑Society. Later, land measuring 15 Kanals and 16 Marlas was deleted from the said Notifica tion and another Notification No. M‑VII‑575/AC‑3460, dated 17‑3‑1980 was issued for the acquisition of land measuring 98 Kanals and 4 Marlas. The land‑owners challenged the acquisition proceedings by means of Writ Petition No. 3842 of 1979 which was disposed of as premature with the direction to the Collector to hold inquiry on the objections of the land‑owners among other things necessary on the question of public purposes after affording them a reasonable opportunity of being heard and adducing evidence whatsoever they wanted to produce in support of their respective claim. In consequence, the District Collector, Rawalpindi, rejected the objections after hearing the parties by order dated 5‑3‑1981. After publication of Notification under section 4 of the Land Acquisition Act (I of 1894) (hereinafter called the Act) on 24‑1‑1979, the petitioner‑Society was asked to deposit a sum of Rs. 17,38,850 by the District Collector. This direction was allegedly complied with and the money is stated to be still lying with the Government. The Government of the Punjab vide Memorandum No. 1467‑‑81/1040/SIV, dated 27‑4‑1981 issued by the Secretary to Government of the Punjab, Revenue Department, Lahore, accorded approval for acquisition of the land, in question. Mr. Habib‑ur‑Rehman, Managing Director of the petitioner‑Society wrote a D. O. letter No. C/33‑NPF/812449, dated 19‑7‑1981 to Mr. S. M. Nasim, Senior Member, Board of Revenue, Punjab, Lahore, requesting therein to finalize the acquisition proceedings expeditiously. Concluding portion of the letter, in question reads thus:‑

"Some members of the Society also brought to my notice that one O.S.D. in the M.B.R's. office was interested in this case and the delay was because of his interference. I had assured them not to worry after I had spoken to you on the phone."

The acquisition proceedings were, however, withdrawn under orders, dated 19‑8‑1981 of the Member (Revenue and Colonies), Board of Revenue, Punjab, which reads thus:‑

No.2271‑81/1924‑SIV‑Board of Revenue, Punjab, Lahore, dated 19th August, 1981.

From

The Secretary (Settlements) Board of Revenue, Punjab.

To

The Deputy Commissioner, Rawalpindi.

Subject: Acquisition of Land in village Dhok Safoo, Tebsil and District Rawalpindi for the Construction of low cost houses for the members of National Police Foundation Co‑operative Housing Society Limited, Islamabad.

Reference: Correspondence resting with your Memorandum No. 650/ LAC, dated 30‑5‑1981.

Mr. S. M. Nasim, Member (Revenue and Colonies) Board of Revenue, Punjab.

Memorandum

National Police Foundation Co‑operative Housing Society Limite9, Islam abad, had moved for acquisition of land situated in the Revenue Estate Dhok Safoo, Tehsil and District Rawalpindi, for, construction of low cost houses. The land‑owners 240 in numbers likely to be up rooted made a representation seeking cancellation of the proceedings on the ground that the area in question was requested for the construc tion of their own houses. Apart from this from the very location of the area being situated on the back of the Government transport Bus Stand was by and large under utilisation both for commercial and industrial purposes. In the event of acquisition their consequential displacement would reduce them to the status of nomades, leaving no possibility for the availability of a suitable substitute similarly circum stances the acquiring concern on the other hand could succeed in having some other suitable area acquiring for this purpose.

2. Member (Revenue and Colonies) Board of Revenue Punjab to be able to arrive at an objective decision, decided to visit the spot himself. After a visit to the spot the Member (Revenue and Colonies) Board of Revenue, Punjab felt convinced that acquisition of the said resi dential/commercial area was to result in the complete dislocation and uprooting of 240 affectees with bleak prospects of no hope of ever finding suitable land for their residential purpose. As such the decision taken on purely humanitarian grounds and to avoid unprecedented hardship to the affected is that acquisitions proceedings be withdrawn.

(Sd).

Secretary (Settlement) Board of Revenue.

Punjab

No. 2271-81/1925-SIV

A Copy is forwarded to the commissioner. Rawalpindi Division, with reference to his communication in the margin for information and necessary action.

D.O. No. 942/LAC dated 30-7-1981

(Sd).

Secretary (Settlement)

Board of Revenue Punjab

No. 2271-81/1926-SIV

A copy is forwarded to the Managing Director. National Police Foundation post Box No. 1244 Islamabad with reference to his communication noted in the margin for information.

S.O. N.o. C 33/NFP/81/249 dated 19-3-1981

(Sd).

Secretary (Settlement)

Board of Revenue Punjab

3. Mr. Bashir Ahmed Ansari learned, counsel for the petitioner, contended that no provision of the Act empowered the Board of Revenue pass the impugned order. The, power to withdraw from acquisition solely vests with the Government ruder section 48 of the Act which was never exercised in this' case. The submission was that scheme of the Act is that it is the District Collector and the Commissioner who issue necessary , Notification and after the award has been given under section 11 ibid, a reference under section 18 ibid alone is competent. An appeal lies to the High. Court from an order passed under section 18 of the Act. The Board of Revenue does not figure anywhere in the land acquisition proceedings. There is no cavil with. the proposition that under section 48 of the Act except in the cases provided in section 36 thereof, Government alone is at liberty to withdraw from acquisi tion proceedings of any land of which possession has not been taken and the Board of Revenue is not the Government. Here admittedly, the acquisition proceedings were withdrawn before possession bad‑ been taken. Under the Rules of Business of the Punjab Government, .the Secretary Revenue Department of Government of the Punjab. Can competently pass an order on behalf of the Government for withdrawal of acquisition under section 48 of they Act. Mr. Bashir Ahmad Ansari s objection, however, is that in the instant' case, the acquisition has been withdrawn under the express orders of the Member Board of Revenue and not by the Secretary to the Government of the Punjab. The objection is unfounded. It is not denied that Mr. S: M. Nasim learned Senior Member, Board of Revenue is ex officio Secretary to the Government of the Punjab Revenue Department, therefore, the mere fact that in the impugned memorandum the Member Board of" Revenue was not described as Secretary to the Government of the Punjab Revenue Department, would not in any way affect the validity of the impugned proceedings. My vie is fortified by the dictum Of the supreme court in Piao Gul v. The State (P L D 1960 S C 151).

4. Mr.Bashir Ahmed Ansari next connected that the impugned order was mala fide and had been passed at the instance of interested persons. It is submitted that a land owner holding an important post in the Member Board of Revenue's office had been using hr's influence in the matter and this fact was duly brought to the notice of the learned Member Board of Revenue, by the Managing Director of the petitioner‑company vide a D.O letter dated 19‑7‑1981 referred to above. He strongly relied on, The Federation of Pakistan v. Saeed Ahmad Khan (P L D 1974 S C 151) Abdul Rauf v. Abdul Hamid Khan (P L D 1965 S C 671) and Ahbab CO-operative Housing Society v. Commissioner Lahore Division, Lahore (P L D 1978 Lah. 273) to contend that where an order is passed for 'collateral purposes and not for the benefit of the public under section 48 of the Act, it: is a nullity, and fraud on the statute. He further submitted, that an evasive reply has been given on behalf of the Member Board of Revenue regarding, plea of mala fide, therefore, the same' tantamounts to acceptance. The plea is not sustainable. The petitioner has, failed, to disclose names, of. The interested persons and a land owner purported to hold an important post in the Board of Revenue who had been. Allegedly using his influence in the matter.‑ This Court, therefore cannot hold any inquiry on the basis of vague and indefinite allegations nor a roving inquiry into the files of the Government can be launched for the purpose of fishing out. Some kind of case. The ratio laid down in Saeed Ahmad Khan and Abdul Rauf s cases relied upon by the petitioner s counsel, rather go against him. It, is also incorrect that an evasive reply was filled by the Member Board of Revenue on the allegation of mala fide. It is categorically stated in the reply that the orders were legally passed and without prejudice to any party or under influence of, any person. The petitioner has failed to establish personal mala fide against Mr. S M. Nasim, therefore; I can give no credence to surmises and bare allegation of mala fide. Furthermore this plea cannot be examined without imp leading as party a person who allegedly influenced .the Member Board of Revenue. Mr. Bashir Ahmad Ansari made a statement at the Bar that one O.S.D. Had influenced the learned Member Board of Revenue who is mow a practicing lawyer. The learned counsel was reluctant to disclose his name. If the petitioner had impleaded him a party, then hell would have had an opportunity to rebut the mala fide impugned to him. The petitioner having failed to do so, the omission is fatal. Refer Fauji Foundation V.Shamium-ur-Rehman (P L D 1983 S C 457): The case‑ of Ahbab‑ Co-operative Housing Society is distinguishable in that mala fide was established there and here it is not. The impugned, memorandum does not' suffer from any legal infirmity warranting interference in the exercise ‑of constitutional jurisdiction of this court.

For the foregoing reasons the writ petition is dismissed but there shall be no order as to costs.

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