2017 PLP 7 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this judgment we intend to decide instant I.C.A. No.84 of 2014 as well as Writ Petition No. 10 of 2014, which has also been fixed before us due to pendency of this ICA as both these matters have nexus with each other.

2. In the instant Intra Court Appeal under section 3 of the Law Reforms Ordinance, 1972, the appellants have impugned the judgment passed by learned Single Judge of this Court dated 16.01.2014 whereby the Writ Petition No. 33471 of 2013 filed by the appellants was dismissed.

3. According to the brief facts of the case appellants on 23.12.2013 filed Writ Petition No. 33471 of 2013 with the following prayer:- (i) Respondent Government be directed to act in accordance with Part VII of the Land Acquisition Act, 1894. (ii) Respondent Government be directed specifically to indicate a time, date and place for holding an inquiry contemplated by section 40(1) of the 1894 Act, ibid. (iii) No statutory agreement as is contemplated in section 41 of the 1894 Act, ibid, be entered with the Respondent Company until proper satisfaction is obtained as a result of the inquiry in which process members of the Petitioner Anjuman have a right to participate so as to demonstrate that the impugned acquisition is repugnant to public interest. (iv) Any other relief deemed suitable to the peculiar facts of this Case may also be afforded to the Petitioner. The Writ Petition was heard by the learned Single Judge. Comments were filed by the respondents as well as re-joinder was filed by the writ petitioners. Further notable fact is that originally writ petition was filed by Anjuman Mutasareen Garments City Sheikhupura, a Society to be registered under the Societies Act, through its alleged authorized representative and subsequently through C.M. No.4 of 2014 which was filed under Order I, Rule 10 of the C.P.C., applicants were allowed to be impleaded as petitioner Nos. 2 to 16 vide order dated 10.01.2014 and the learned Single Judge vide order dated 16.01.2014 dismissed the writ petition. Feeling aggrieved petitioners have filed the instant appeal.

4. Writ Petition No. 10 of 2014 was also filed on 1.1.2014 by the same Anjuman Mutasareen Garment City Sheikhupura, which filed the ICA and subsequently C.M. No.3 of 2014 was accepted and applicants were allowed to be impleaded as Writ Petitioners Nos. 2 to

16. In Writ Petition No. 10 of 2014 following prayer has been made:- (i) "The impugned Notification under section 17(4) as also Section 6 of the Land Acquisition Act, 1894 be declared ultra-vires of Article 10-A of the Constitution of Pakistan. (ii) The entire acquisition proceedings initiated on the basis of the engineered summary got approved by the Chief Minister Punjab be set aside as an illegal and mala fide exercise which has violated statutory provisions. (iii) Respondents be restrained from making any entries in the revenue record to divert the title of the Members of the Petitioner Anjuman in the land targeted for compulsory acquisition in pursuance of the impugned Notification under section 4, ibid. (iv) All Respondents be restrained from taking over physical possession of any land owned by the members of the Petitioner Anjuman pursuant to the impugned Notifications. (v) Any other relief deemed suitable to the peculiar facts of this Case may also be afforded to the Petitioner."

5. For fair appreciation of the matter in issue the facts necessary to be noted are that Government of the Punjab (hereinafter called "the Government") established a Company for development of Punjab Industrial Estates and its management, the same was incorporated under section 42 of the Companies Ordinance, 1984 and was registered with the Joint Stock Companies, City District Government, Lahore vide order dated 18.09.2003 in the name of Punjab Industrial Estates Development and Management Company Lahore, (hereinafter called "the Company"). The Company in order to take the benefit for the Country as Pakistan was expecting the status of GSP Plus, with a plan to establish a Garment Industrial Zone initially by the name of "Garment City", afterwards it was renamed as "Apparel Park", therefore, moved for acquisition of the land for the said purpose for the Company, therefore, the 1st Notification under section 4 of the Land Acquisition Act, 1894 (hereinafter called as "the Act") was issued on 28.10.2013 for the land measuring 8845-kanals 12-marlas and a 2nd Notification under section 4 of the Act, was issued on 26.11.2013 for the land measuring 2554-kanals and 13-marlas. Notification under sections 17(4) and 6 of the Act was issued with regard to the land mentioned in the 1st Notification, on 23.12.2013.

6. The complete facts have been noted by the learned Single Judge while deciding the Writ Petition which is subject matter of the ICA but for clarity we note that the facts are correct with the clarification that on the basis of subsequent notification under section 4 of the Act issued on 26.11.2013 for additional land measuring 2554 kanals 13 marlas, admittedly, no further proceedings have been carried out yet, therefore, 2nd Notification issued under section 4 of the Act is not the subject matter of both the matters before this Court.

7. The grievance of the appellants in the Writ Petition which is subject matter of appeal was that since the acquisition was being undertaken for the benefit of a private limited company, therefore, the process of acquisition prescribed for a company under Part VII of the Act was mandatory and must have been followed whereas in the writ petition in hand i.e. Writ Petition No.10 of 2014 their attack is on issuance of Notification under section 17(4) and section 6 of the Act and their prayer was that same be declared ultra-vires of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.

8. Learned counsel for the appellants argues that if the judgment of learned Single Judge is accepted, Part VII of the Act becomes redundant; that the procedure adopted by the respondents while acquiring the land is violative of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 and the purpose of acquisition which is mentioned as "public purpose" is not a "public purpose"; that there is no distinction in the Act with regard to a company as has been mentioned in section 3(e) of the Act and there is no exemption with regard to the company owned by the Government from the procedure provided under Part VII of the Act; that this Company i.e. Punjab Industrial Estates Development and Management Company (PIEDMC) has not been formed in accordance with section 42 of the Companies Ordinance, 1984; that the case law relied by the learned Single Judge is absolutely not applicable to the facts of this case; that execution of agreement in accordance with section 39 of the Act was necessary and further, previous inquiry in accordance with section 40 was necessary, therefore, prayed for acceptance of this appeal as well as acceptance of writ petition and setting aside of the judgment passed by the learned Single Judge.

9. Learned Advocate General Punjab has argued that the impugned judgment is in accordance with law and states that the judgment is based on the previous judgments of this Court as well as august Supreme Court of Pakistan and the learned counsel for the appellants could not show any defect in the judgment passed by the learned Single Judge in Chamber. Further with regard to distinction of the company simplicitor and company for the benefits of public and public purpose argues while referring the judgments of this Court as well as august Supreme Court of Pakistan and that the company is in accordance with section 42 of the Companies Ordinance, 1984. Further that the new grounds taken before this Court while arguing this appeal are not tenable under the law as the same have not been agitated before the learned Single Judge. Lastly informs that the Government intends to give 25% compulsory acquisition charges along with the compensation to the owners of land.

10. Learned counsel representing the company i.e. respondent No. 5 in ICA and respondent No. 7 in Writ Petition has adopted the arguments of learned Advocate General Punjab.

11. While arguing the Writ Petition learned counsel for the petitioners argues that the purpose of establishing the "Garment City" or the "Apparel Park" (Industrial Estate) is not a "public purpose"; that if it is a "public purpose" the making of a new Industrial Zone is not a "public purpose" and further that making the Industrial Zone on the specific property which is owned by the petitioners is not a "public purpose"; that the proposed land for which Notification under section 4 of the Act has been issued is not required for the public purpose. Lastly argues that the provision of section 17(4) of the Act has been applied which is ultra-vires of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973; that the proposed compensation is not adequate and the same has been determined by the persons who were not competent to determine the same; that the "urgency" pleaded by the respondents while issuing Notification under section 17(4) is not an "urgency"; that the status of GSP Plus was given to Pakistan on 12.12.2013 and the issuance of Notification previous to that by the official respondents under section 4 of the Act shows that it was not for taking the benefit of the status given as GSP Plus; that the acquisition process is in violation of Rule 10(3) of the Land Acquisition Rules, 1983; that six Industrial Estates are already in existence and there is sufficient space in the said Industrial Estates for establishing garment industries. Further argues that at least three years will be required to construct the infrastructure and thereafter the industry can be established and alleged purpose for achieving the goals of the export of garments to take benefit of GSP Plus status cannot be achieved. Even learned counsel has argued with regard to the potential value, compensation and grant of compensation.

12. Learned Advocate General Punjab argues that notice under section 9(i) of the Act was issued and that ground No. (iii) of the Writ Petition is an admission in favour of the Company and against the case of the petitioners and further that policy decision has been challenged in the writ petition, which is not permissible under the law. Further argues that petitioners have contradicted the facts without any substance. While referring the feasibility report states that hectic efforts as well as labour was put by the concerned officials and departments by preparing the feasibility report which consists upon more than 100 pages and there are deliberations and experts' opinions from all relevant quarters and after that the site has been proposed. Argues that petitioners have no right to raise objection with regard to site of the land as well as purpose of acquisition and also the urgency as determined by the Government. Further argues that near about 20 to 25 million people will be accommodated in the "Apparel Park" and most of them will be females and that it is the responsibility of the Government that in accordance with the Conventions signed by the Government with the International Organizations, the Government is to take care that the industries established therein provide the facilities to their workers in accordance with the Conventions and further while refuting the arguments of learned counsel for the petitioners that the units of the Garment Industries can be established in already existing Industrial Estates established by the Government through the Company, learned Advocate General argues that admittedly in the already existing Industrial Estates there are various industries wherein the problem of pollution as well as setting off the complete infrastructure for the establishment of "Apparel Park" is not feasible, therefore, it was necessary that a fresh "Apparel Park" be established so as to take the benefit of status of GSP Plus which has been initially given to the Country for five years. Argues that after publication of Notification under section 17(4) and section 6 of the Act on 26.12.2013 a mutation has also been sanctioned in favour of the Company on 30.12.2013. Referred the case law of this Court as well as august Supreme Court of Pakistan, we will discuss the same in detail while recording our findings.

13. For better understanding the GSP Plus, we have downloaded the material from the internet, which is hereby quoted as under:- "The primary objective of the Generalized System of Preference, commonly called GSP is to contribute to the reduction of poverty and the promotion of sustainable development and good governance. Tariff preferences in the EU market enable Developing Countries to participate more fully in international trade and generate additional export revenue to support implementation of their own sustainable development and poverty reduction policy strategies. The European Union's GSP covers three separate regimes; (i) The standard GSP, which provides preferences to 90 (previously 177) Developing Countries and Territories on over 6300 tariff lines; (ii) The special incentive arrangement for Sustainable Development and Good Governance, known as GSP+, which offers additional duty free exports to support vulnerable developing countries (previously 16 now 25 countries - Including Pakistan) in their ratification and implementation of relevant international conventions in these fields, and; (iii) The Everything But Arms (EBA) arrangement, which provides Duty-Free, Quota Free access for the 50 Least-Developed Countries (LDCs)."

14. We have heard learned counsel for the parties, gone through the record available before us as well as findings recorded by the learned Single Bench and law cited before us.

15. The main attack in the appeal by the learned counsel for the appellants that the land has not been acquired in accordance with law, therefore, process of acquisition is violative of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973, though in the pleading the Company was referred as Private Limited Company but learned counsel submitted that the appellants admit that Company has been registered under section 42 of the Companies Ordinance, 1984 and it is a Company limited by guarantee. We have gone through the First Schedule to the Punjab Government, Rules of Business, 2011 wherein the Company is in the status of attached department of Industries, Commerce and Investment Department. For better understanding and appreciating the real position of Company we have the honour to go through the judgment reported as PLD 1975 Supreme Court 244 (Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others) and we borrow the following paragraphs and quote the same:- "Now, what is meant by the phrase" performing functions in connection with the affairs of the Federation or a Province." It is clear that the reference is to governmental or State functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e. by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in the belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities."

However private organizations or persons, as distinguished from government or semi-government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regulated by laws made by the State.

The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not." Further we have also gone through the judgment reported as PLD 1984 Lahore 295 (Raja Muhammad Amir and 40 others v. Province of Punjab and 2 others), same has been referred by the learned Single Bench and came to the conclusion that it is not a Company Simplicitor as it is wholly owned and controlled by the Government, therefore, in the light of the case law referred supra, the learned Single Judge came to the conclusion that as the company is wholly owned and controlled by the Government, therefore, the funds which have been given by the Government for the acquisition of the land remained to be public funds and fall within the meaning described under section 6 of the Act, therefore, it is a "public purpose". So far as prior agreement in accordance with Section 39 of the Act is concerned, the learned Single Judge came to the conclusion that this agreement is for ensuring the payment of cost of acquisition. In the case in hand for cost of acquisition the Government has already transferred the funds to the Company, therefore, there was no need for an agreement on this point to ensure payment to the Government by the Company. We do not agree with the arguments of learned counsel for the appellants that the judgment of learned Single Judge will make Part VII of the Act as redundant. As we have noted supra, the judgment of the learned Single Judge is based upon the judgments passed by the learned Division Bench of this Court as well as of august Supreme Court of Pakistan and there is absolutely no chance of redundancy of Part VII of the Act by the pronouncement of the judgment by the learned Single Judge. We also do not agree with the argument that the case law relied upon by the learned Single Judge is not applicable to the facts of the case, as except the argument learned counsel for the appellants could not show us that how the case law relied upon by the learned Single Judge is not applicable to the facts of this case.

16. Learned counsel for the appellants could not show any illegality in the judgment passed by the learned Single Judge, therefore, we are unable to disagree with the judgment of the learned Single Judge. Resultantly, this appeal being not maintainable stands dismissed.

17. While arguing on the writ petition, the contentions raised by learned counsel for the petitioners are mostly concerned with regard to the suitability of the land, which have been controverted by the other side, therefore, on the basis of disputed facts, this Court cannot adjudicate the matter in issue. So far as prayer that issuance of Notification under section 17(4) and Section 6 of the Act, same be declared ultra-vires of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, this prayer is based upon the fact that no notice under section 9(i) of the Act has been issued whereas it is the case of the other side that process of issuance of notice under section 9 has been completed. The argument of learned counsel for the petitioners that the issuance of notification under section 17(4) of the Act is violative of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel argues that after the insertion of Article 10-A in the Constitution, the issuance of Notification under section 17(4) of the Act is violative of this newly added Article. To dilate upon this question we must refer the argument of learned counsel for the petitioners, when learned Advocate General referred "Shahzada Khurram Nazir and another v. Province of Punjab through Secretary Industries, Punjab, Lahore and 4 others" (PLD 2011 Lahore 276) passed by the learned Single Judge of this Court whereby Rule 10(3) of the Punjab Land Acquisition Rules, 1983 was declared as inconsistent of Land Acquisition Act, 1894, learned counsel for the petitioners raised the objection that by perusal of reported judgment it is not clear whether the Federation of Pakistan was made party in that writ petition, learned counsel argued that as the Land Acquisition Act 1894 is a Central Statute though there are Provincial amendments in the Statute but while adjudicating upon any provision of that Statute the Federation of Pakistan is a necessary party and issuance of notice to the Attorney General is also necessary. We cannot say that these arguments have given benefit to the petitioners but we see that these arguments are fatal for the petitioners themselves as in this case when the petitioners require from this Court for a declaration that after the insertion of Article 10-A in the Constitution the provision of Section 17(4) of the Act are ultra-vires of the above said newly added Article of the Constitution. We have seen that the petitioners have not made the Federation as party as respondent in the Writ Petition, therefore, without impleading the Federation as party and without notice to the Attorney General the provisions of any Federal Statute cannot be scrutinized and adjudged ultra-vires of any Article of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, on the basis of disputed facts, issuance of notification under section 17(4) and section 6 of the Act, we are afraid how it can be declared ultra -vires of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.

18. The argument of learned Advocate General that the issuance of Notification by the Government under section 17(4) and section 6 of the Act is not justiciable. We have gone through the judgment referred by him i.e. "Muhammad Ashiq and another v. Water and Manpower Development Authority Lahore through Chairman WAPDA House and another" (PLD 2008 SC 335) and are fully agree with the same. We quote relevant observation i.e. paras 8 and 9 of the said judgment. "

8. We have found from the above noted para that the land was being acquired by the Government at the public expenses. Secondly, the land was being required for public purpose, namely, for the construction of WAPDA offices and official residential colony. This aim and purpose was again reiterated and declaration to that effect was also got published by the Provincial Government under section 6 of the Land Acquisition Act, 1894. According to subsection (3) of section 6 of the Land Acquisition Act, 1894, the said declaration has got the presumption of conclusive evidence of the fact that the land was acquired for the public purpose. After the publication of this declaration, the presumption was to be rebutted by the present petitioners through sound material and cogent evidence. Mere plea that the land of Seth Abid and his relative was not acquired although it was situated within the area surrounded by the area to be acquired, could not lead to this conclusion that the land was not being acquired for the public purpose or the acquisition was based on mala fides. The explicit words of acquisition of land in dispute, by the Government at the public expense in the Notification under section 4 of the Land Acquisition Act, 1894 are sufficient to hold that the land was being acquired by the Government for the purpose of construction of WAPDA offices and residential colony. The Government was to decide as to which land was suitable for its purpose. Therefore, no mala fides could be attributed to the Government merely on this plea. The plethora of judgments have found place in the judgments of the learned Division Bench as well as the learned Single Judge in Chamber of the Lahore High Court, Lahore which need not be repeated in this judgment.

9. As regard the contention of the learned counsel that emergency provision of section 17(4) of the Land Acquisition Act, 1894 was invoked for securing the possession of land to be acquired, although there was no urgency to proceed in such a manner was not an objectionable act because it was the subjective satisfaction of the competent authority to apply those provisions or not according to given circumstance, which was not to be allowed to be made available for scrutiny by this Court through the instant jurisdiction. The learned Division Bench of the Lahore High Court has dealt with this subject also in Para-8 of its judgment. It was noted that Central Testing Laboratories were to be established urgently as the project was being implemented with the consultative assistance of U.N.D.P. in WAPDA Thermal Scheme. Therefore, this being an urgent requirement of aforementioned organization/ department, the notification issued under section 17(4) of the Land Acquisition Act cannot be considered to be invalid proceedings." We have the honour to further quote Para 6 of judgment reported as "Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 others" (1997 SCMR 296) which is also relevant: "It was next contended by the learned counsel for the petitioners before us that the notification under sections 6 and 17 of the Act had been jointly issued which, besides being legally not permissible, were not sustainable as no notice thereof had been served upon the petitioners. The two pronged attack on the impugned joint notifications is devoid of substance. There is nothing in the Act against issuance of notifications under sections 6 and 17 ibid jointly nor any prejudice to the petitioners is shown to have thereby occasioned. Again the existence of urgency under section 17 of the Act is a matter solely for the determination of the Government and is generally not a subject of judicial review. In so far as the allegation of omission to serve notice upon the petitioners is concerned, it was neither grounded in the petition nor was it urged before the High Court. Similarly, the assertion noted earlier qua the property or legality of issuance of joint notifications under sections 6 and 17 of the Act had also been taken for the first time in this Court. These contentions having been raised for the first time have not impressed us, for, the point not raised before the High Court cannot be agitated before this Court." Learned counsel for the petitioners has mainly attacked the purpose of acquisition as well as urgency, against which the record of the respondents show that summary was initiated by the Secretary Industries on 30.8.2013 through the route of Senior Member Board of Revenue, same was approved on 1.10.2013, therefore, first Notification under section 4 of the Act was issued on 28.10.2013 and notice under section 9 was issued on 11.11.2013 for 26.11.2013 and the status of GSP Plus was given to Pakistan on 12.12.2013 and the same has been given initially for five years, therefore, Notification was issued under section 17(4) and Section 6 on 23.12.2013 which was published on 26.12.2013 in the official Gazette and the mutation was sanctioned in the name of the Company on 30.12.2013. As per august Supreme Court of Pakistan the question of "public purpose" can be adjudicated by the civil court, therefore, we can take light from the judgment reported as PLD 2009 Supreme Court 217 (Suo Motu Case No. 13 of 2007) and quote the following paragraph from the said judgment:- "Similarly, disputed factual questions regarding non fulfilment of conditions precedent for issuance of notification under the Act and the question as to whether acquisition is for public purpose or not, can be determined by the Civil Court. In the instant case, prima-facie laying of Housing Scheme for the utilityuse of public-at-large, as compared to some individuals, is a public purpose within the meaning of section 4 of the said Act which was published in official gazette and copies thereof were affixed at conspicuous places at the land under acquisition, thus, the requirements of law were sufficiently met." The objection that writ petition has not been filed in accordance with Article 174 of the Constitution as well as section 79 of the C.P.C. against the Provincial Government, therefore, same is incompetent. Reliance has been placed on "Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others" (2010 SCMR 115). We take light from the judgment and quote the following finding:- "No suit can be filed against Provincial Government without impleading the Province as a party and the procedural precondition is mandatory in nature and no relief can be sought without its strict compliance and such suit would not be maintainable." The objection of the learned Advocate General Punjab has weight, the writ petition has not been filed against the Province of Punjab. When writ petition has not been filed against the Province of Punjab no order can be passed in this writ petition against the Province of Punjab and without impleading Province of Punjab the writ petition is not competent. This is also a fatal defect in filing of the writ petition.

19. In the light of judgment reported as "Central Board of Revenue and another v. S.I.T.E" (PLD 1985 Supreme Court 97) we are of the view that company incorporated will be considered to be attached department of the Government under the law. Furthermore, under the Rules of Business this Company has a status of attached department of the Government.

20. On the basis of judgment of the august Supreme Court of Pakistan we are of the considered view that the purpose of acquisition is a public purpose and the "urgency" as stated by the Government for issuance of notifications under sections 17(4) and 6 of the Act is not justiciable by this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, we are of the view that all the notifications have been issued in accordance with law and there is no violation of any provision of the Constitution or law.

21. The last argument of learned Advocate General as well as learned counsel for the respondent is that Order II, Rule 2 of the C.P.C. is also a bar against filing of the present writ petition. As at the time of filing of earlier petition, alleged cause of action was available to the petitioners at that time and they did not include the cause of action on the basis of which this petition has been filed, therefore, Order II, Rule 2 of C.P.C. is a clear bar against filing of this petition also. We hold that as the procedure of C.P.C. is applicable upon the writ petition, therefore, on the basis of bar contained under Order II, Rule 2 of the C.P.C., when at the time of filing of first writ petition the cause of action on the basis of which present writ petition has been filed was available, therefore, present petition is also barred under Order II, Rule 2 of the C.P.C.

22. So far as matter of grant of compensation of the land acquired is concerned, in our view the arguments advanced by the learned counsel for the petitioners are overdoing, as yet no award has been announced, therefore, we do not comment upon this point.

23. In this view of the matter, we see no force in the writ petition, same stands dismissed. ZC/A-44/L Petition dismissed.