2003 PLP 1510 (CLC)

(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 SCMR 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 o. 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. S.M.B./S-640/L Petition accepted.