1986 PLP 686 (MLD)

(i) That the land is not being acquired for the public purpose as contemplated by sections 4, 17, 39 and 42 of the Act; (ii) That the authorities concerned have not applied their minds to ' be sure whether the land was being acquired for public purpose; (iii) That there was no urgency involved as contemplated by section 17(4) of the Act, and as such the provision of sections 5 and 5‑A of the said Act could not be dispensed with and that respondent No.2 has failed to apply his mind to ascertain the factum of urgency involved in the case; (iv) That no enquiry as envisaged by section 40 of the Act has been held and if there be any, the same is inviolative of the mandatory provision of section 40; and (v) That provision of section 39‑A of the Act has not been properly complied with; (vi) All proceedings are mala fide and taken in order to extend undue favour to respondent No.5 inasmuch as the respondent No.2 did not apply his mind to the facts of the case; the petitioners were not associated; the illegal course has been adopted by the respondents in order to deprive the petitioners of the valuable land which otherwise is under cultivation; the land is located just near Dera Ghazi Khan; the respondent has selected piece of land, which is situated on the Highway and the entire front of the land belonging to the petitioners measuring 15 Acres has been taken away thereby leaving no passage to the rear part of the land; that there is sufficient State land available nearby which could be earmarked for the purpose of this factory; moreover, there is sufficient barren land available just adjacent to the land in dispute which could be used for the said purpose and that respondent No.5 being a big industrialist commanding a lot of influence on respondents Nos.1 and 2; that is why respondents Nos.1 and 2 have tried to bypass all the legal provisions;

7. On the other hand, the learned Assistant Advocate‑General and the learned counsel for respondent No.5 have vehemently defended the impugned notifications. They submit that the impugned notifications are not without lawful authority, the provisions of relevant law have been followed and the case‑law laid down by the superior Courts has not been violated.

8. In order to appreciate the arguments and in the larger interest of justice. I have gone through the record maintained by the Commissioner pertaining to the acquisition of the disputed land (produced by the learned Assistant Advocate‑General) and find:‑ (i) That respondent No.5 (Messrs Alhamd Marble Ltd.) obtained a sanction from Pak‑Libya Holding Company Limited (P.L.H.C.) for a loan of Rs.3,743 million which included a substantial foreign exchange component. As will appear from the letter, dated 11‑7‑1981 issued by the P.L.H.C. one of the requirements or of the project was acquiring and taken possession of the land within a period of six months; (ii) That the notification under section 4 of the Act was, issued by the Collector, respondent No.3, and the same was published in the Gazette on 3‑10‑1981. The requirement of section 4 were fully met and a public notice of the notification was also given; (iii) That an agreement in the terms of sections 39, 41 and 42 of the Act was executed after the Company had deposited a sum of Rs.1,07,950.55 which was cost of the land proposed to be acquired and that the requirement of these relevant provisions were fully met; (iv) That on 19‑10‑1981, the Company made an application for invoking the provision of section 17(4) of the Act; (v) That on 21‑10‑1981, respondent No.2 Commissioner, Multan Division, directed the Deputy Commissioner, Dera Ghazi Khan for appointing Assistant Commissioner, D. G. Khan to hold enquiry in the terms of section 40 of the Act; (vi) That the enquiry under section 40 of the Act was held and its report was sent to the Commissioner by the Deputy Commissioner, Dera Ghazi Khan vide his letter, dated 31‑10‑1981. (vii) That the report highlighted the fact that the land was urgently required by the Company for setting up of the industry and that a notice under section 17 of the Act was warranted in the peculiar circumstances; and (viii) That the observation, dated 12‑11‑1981 of the Commissioner on his file reveal that he did apply his mind before issuing notice under section 17 of the Act. His observation reads as follows:‑

"Ordinarily this provision of Land Acquisition Act is not invoked for private Companies though section 17 ibid provides for such action. However, this is a case of emergency in the sense that the area has been granted tax‑holiday and the time is running out. It will be in the national interest if intending entrepreneurs are extended all possible help in setting up of industry in the backward area of the country. Keeping these considerations in view, I have signed the notification. However, if the land is not put in the use for which it is being acquired within a period of one year from the date of publication of the notification, the notification will be cancelled."

9. After hearing the learned counsel for the parties and after having gone through the entire material relating to the acquisition of the disputed land, I am not inclined to exercise the writ jurisdiction of this Court in favour of the petitioners for the following reasons:‑-- (i) That respondent No.2 was legally competent to acquire the land under the Land Acquisition Act. The allegations of the petitioners as mentioned in the petition and stated before me at the time of hearing are factually incorrect inasmuch as these stand belied by the record. The record shows that the requirements of sections 4, 17(4), 39, 40, 41 and 42 of the Act have been completely complied with. The record further shows that the Commissioner did apply his mind as to the urgency of the matter and dispensation of the provision of sections 5 and 5‑A of the Act. The record also indicates that the Commissioner applied his mind to this aspect of the matter that the acquisition was for the public purpose. Even in the notification, dated 4‑11‑1981, it has been stated that the said industry is likely to prove useful to the public. This will show that the Commissioner, who is the judge of the urgency and that of public interest did apply his mind to this aspect of the matter. Since the assertions an allegations have not been substantiated by the petitioners rather the same have been found factually incorrect, I need not discus the case‑law cited by the learned counsel for the petitioners; (ii) That the petitioners have come to this Court with uncleaned hands inasmuch as they first filed a civil suit for declaration to the effect that the notifications Annexures B and C were illegal and mala fide. Alongwith the suit they filed an application for the grant of temporary injunction. The application was fixed for 2‑12‑1981 and was adjourned to 6‑12‑1981. On 5‑12‑1981 the petitioners moved this writ petition and in the end of the petition gave the following note:‑ "A civil suit was filed at Dera Ghazi Khan challenging the validity of the notifications but the same is being withdrawn. An application to that effect has been filed which is fixed for today." It appears that after having obtained status quo order from this Court the suit was withdrawn. The conduct of the petitioners shows that in fact they have been playing hide and seek with the Senior Civil Judge and with this Court. Having once filed suit before a Court of competent jurisdiction where equal efficacious and speedy remedy was available, the petitioners form' the reasons best known to them, withdrew the suit; and (iii) That the petitioners have failed to make out a case of‑legal mala fide against respondents Nos.1 to 4 and have also failed to substantiate the allegations of influence of respondent No.5 on them or that the proceedings were taken to extend undue favour to respondent No.5.

10. The upshot of the discussion is that assertions of the petitioners stand belied by the relevant record, the Commissioner has authority to acquire the disputed land; he has not flouted the provision of relevant law and has acted throughout within his authority without any mala fide on his part. The respondents have acted in accordance with law. There is no force in the petition and the same is hereby dismissed with no order as to costs. H . B . T . Petition dismissed.