1982 PLP 173 (SCMR)

Date of hearing ; 16th December, 1981. SHAH NAWAZ KHAN, J.‑The order in this petition will also dispose of C. P. S. L. A. No. 19 of 1981, C. P. S. L. A. No. 20 of 1981, C. P. S. L. A, No. 21 of 1981 and C. P. S. L. A. No. 22 of 1981, because the points involved are common and all these cases have arisen out of the same judgment and decree passed by the Courts below. These involve similar questions of law and fact. Land measuring about 42 acres situated in Gujrat City was acquired by the Provincial Government of Punjab under the provisions of the Punjab Acquisition of Land (Housing) Act, 1973, vide Notification issued on 27‑2‑1973 for the purpose of providing Cheap Housing Scheme for Low Income Group within the municipal limits of Gujrat City. Respondents challenged the bona fide of that Notification before the Senior Civil Judge, Gujrat, on the ground that Ch. Zahoor Elahi respondent No. (P L D 1977 S C 109 P L D 1977 S C 109 P L D 1977 S C 109) (since dead to whom the respondents of the other petitions are closely related, was politically opposed to the then Government headed by late Mr. Zulfiqar Ali Bhutto. It was contended that although the Scheme for which the land was being acquired was intended to provide housing facilities within the municipal limits of Gujrat city but the fact was that the land in question was situated outside the municipal limits. On account of that objection the Notification issued by the Provincial Government in 1973 was withdrawn, but the Provincial Government issued afresh notification extending the municipal limits of Gujrat city and the land in question was included therein. Another notification was then issued under section 4(1) of the Land Acquisition Act on 19‑2‑1975 acquiring about 82 acres of land including the land in question. Validity of the notification was again challenged by the respondents who filed a civil suit in Gujrat. The main plea, which was taken in this case and the connected files was that the acquisition order was mala fide, because Ch. Zahoor Elahi was politically opposed to the then Government in power, and they were being victimized by that acquisition. The case was contested from the side of the Provincial Government. The learned trial Court after considering the evidence of the parties decreed the suits of the present respondents with costs. The Provincial Government and other defendants were, however, allowed to remove the superstructure, if any, raised over the suit land. The present appellants then filed appeals before the learned District Judge, Gujrat, but these appeals were dismissed by an Additional District Judge, Gujrat on 20‑7‑1978. The Province of the Punjab through the Secretary concerned filed second appeal before the High Court (R. S. A. No. 885 of 1978), but a Single Judge of the Lahore High Court also dismissed those appeals with costs. The Province of Punjab, Deputy Commissioner, Gujrat and Land Acquisition Collector concerned have now submitted these civil petitions for special leave to appeal. We heard the learned Advocate‑General, Punjab (Sh. Riaz Ahmed), who appeared on behalf of the petitioners. The learned Advocate‑General submitted that it was in the year 1972 that the Government of Punjab formulated a policy in connection with providing 3 lacs residential units to the Low Income Group Schemes to that extent were put into effect. According to the relative requirements at district/ sub‑division headquarters level in the Province of the Punjab and the Area Development Scheme at Gujrat symbolised one of the said Schemes. He submitted that there was no indication whatsoever regarding the selection of the area owned by the respondents. According to him in the beginning one area at Bhimber Road, opposite Zamindara College, was selected for this purpose. But since this track involved a large number of small owners, it was abandoned. Consequently two more sites were selected one at Jalalpur Jattan Road and the other at Shadiwal Road, Gujrat, but these were not considered suitable. After considering all aspects as to the suitability and the location of the area, the area belonging to the respondents at Rehman Shaheed Road, which was close to the industrial area, was selected and the main consideration was that employment shell be available to the people of Low Income Group if settled at that place. He submitted that there after the regular proceedings were taken, and when the cases were instituted in the Court of Senior Civil Judge, Gujrat, these were consolidated by order dated 3‑12‑1977, when the learned counsel for both the parties agreed to such consolidation. In evidence the present petitioners, then defendants, wanted to produce Ali Zulqurnain, Deputy Commissioner, Gujrat, as their witness, but according to the learned counsel for the petitioners it was not allowed and the evidence of the petitioners/defendants was closed. Deputy Commissioner, Gujrat, was a defendant in those cases and acquisition proceedings were taken during the period when Mr. Ali Zulqurnain was the Deputy Commissioner, Gujrat. According to the Senior Civil Judge opportunities were given to the defendants to produce Deputy Commissioner, Gujrat in the witness‑box, but he was not produced. The trial Court concluded that his evidence was to be considered as the best evidence in the case, but he was not produced as a witness in the case. He stated that "My order dated 17‑12‑1977 shows that the learned Government Pleader did not make any request for further adjournment for his evidence". It, therefore, negatives the allegations of the learned counsel for the petitioners that they were not allowed by the trial Court to produce the Deputy Commissioner of Gujrat as their witness. The learned Advocate‑General was not in a position to press this objection before us. Raja Munawar Ahmad (P. W.7) who was the Adviser to the then Chief Minister from May 1974 to July, 19s15 and was the founder member of the Pakistan People's Party and who had been elected as M. P. A. in 1970 General Elections stated that he knew about the acquisition proceedings of the suit land. Mr. Ghulam Mustafa Khar was then the Governor and Chief Minister of the Province of the Punjab and in the second phase Mr. Hanif Ramay was the Chief Minister of the Province and he (witness) was hi Adviser on political affairs. He submitted that Mr. Ghulam Mustafa Khar, who was his personal friend had told him in 1973 that he was directed by the then Prime Minister that Ch. Zahoor Elahi should be politically squeezed and for this purpose some administrative and political measures should be taken against him. According to him, several actions were there after taken against Ch. Zahoor Elahi. In the second phase, according to him, the Prime Minister of Pakistan had given directions to the Provincial Government to take positive measures against Ch. Zahoor Elahi and his family members. The acquisition proceedings of the property of Ch. Zahoor Elahi and others was one of the chains of actions in that connection. He further stated that in June/July, 1974 the then Prime Minister who was on tour to Lahore summoned him and directed him to proceed against Ch. Zahoor Elahi for political reasons. In this connection the files pertaining to the acquisition proceedings of the land were summoned by them. The then Deputy Commissioner, Gujrat, stated that there were certain bottlenecks in the acquisition proceedings and that he was facing a lot of opposition. He further stated that the Deputy Commissioner, Gujrat, has also stated that some other state land was available for the needful and the people were insisting to have that land acquired. The witness further deposed that he directed the Deputy Commissioner in clear terms that it was the order of the Prime Minister and the suit land shall have to be acquired in all circumstances. Similar instructions were given to the then Minister for Housing and Physical Planning. Failure of the Deputy Commissioner, Gujrat, appear as a witness of the present petitioners in the trial Court and the categorical evidence of Raja Munawar Ahmad (P. W.7) would lead to an irresistible conclusion that the Deputy Commissioner acting under the instructions of the Prime Minister. Moreover, no approval of the People‑District Works Council had been obtained for such Scheme nor it could be produced before the trial Court. While passing the decree in favour of the plaintiffs, the trial Judge observed that the proceedings initiated and all the actions taken for purposes of acquiring the land belonging to Ch. Zahoor Elahi ‑etc. are mala fide, as such of no legal effect. A mala fide act is by its nature an act without jurisdiction. It is a fraud on the statute. The Additional District Judge, Gujrat, while hearing Civil Appeal No. 75 of 1978 observed that the entire acquisition proceedings of the suit land were treated with mala fide and as such were highly illegal, irregular and without jurisdiction. He consequently concurred with the findings of the trial Court and dismissed the appeal of the present petitioners with costs. In R. S. A. No. 885 of 1978, the same grounds were repeated, but the, learned Judge observed that "The evidence with regard to mala fides ha been duly considered by the learned Civil Judge as well as the learned District Judge and both have come to the conclusion that the order passed against the respondents being mala fide is not sustainable in law. The two Courts having concurred and each judgment supported by careful and elaborate consideration of the evidence adduced in the case, the appellant cannot be permitted to challenge the concurrent finding of fact". The appeal was consequently dismissed with costs. The conclusion of the Courts below that the provisions contained in section 7(iv)(c) of the Court Fees Act would be applicable in the present case has not been challenged before us in this petition and the main issue involved is whether the acquisition of the site in question at Rehman Shaheed Road is mala fide and was made by the then Provincial Government in order to cause harm and lose to the respondent and his relations. On this question of fact, as indicated above, the trial Judge, the District Judge and the High Court have arrived at a concurrent finding that the act of acquisition of the suit land was mala fide and was taken with a view to cause harm and lose to the respondent and his relatives. Failure of the Deputy Commissioner to appear as a witness for the present petitioners or failure of the present petitioners to produce him as a witness should have been for obvious reason. In view of the prevailing circumstances, the Deputy Commissioner had expressed his willingness to abandon Rehman Shaheed Road Scheme. The Deputy Director, Housing and Physical Planning, Jhelum, while addressing letter dated 11‑2‑1975 (Exh. 28) intimate the Director at Rawalpindi that the Deputy Commissioner, Gujrat, in a meeting with him appeared to have resiled from his previous commitments to the effect that since the Housing Scheme at Rehman Shaheed Road had not been approved by the Council, therefore, it could not be implemented. It was, however, contended that as the Deputy Commissioner had already been authorised by the Council at its meeting to select the site for Low Income Scheme, therefore, site in question was validly selected. In fact, the Chairman of the Council had directed the Housing and Physical Planning Department to select a site for the Scheme in consultation with the Deputy Commissioner. It, therefore, did not mean that the Deputy Commissioner had been authorised to select any site, and, in any case, formal approval was to be given by the Counsel. The enmity between Ch. Zahoor Elahi, respondent and late Mr. Z. A. Bhutto, the Pakistan's Prime Minister, stands fully proved on record. The important feature in this case is that the land in dispute at the time of issue of first notification for‑acquisition purposes was outside the municipal limits and as such it could not be acquired for a housing Scheme to be implemented 41 within the municipal limits. It was after this fact was discovered, a notification was issued extending the municipal limits in order to include the land in question. The earlier notification was withdrawn and thereafter fresh notification was issued. It was for this reason that all the Courts below have arrived at a concurrent finding of fact that all this was done with mala fide intention to cause harassment and damage to Ch. Zahoor Elahi and his relatives. This Court normally would not go behind a concurrent findings of fact recorded by the Courts below and as observed in Malik Muhammad Ishaque v. Messrs Erose Theatre and others (P L D 1977 S C 109), "unless" it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuate a grave miscarriage of justice, or if there has been any misapplication of a principle relating to appreciation of evidence or, finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of the Court in civil appeals, the burden lies rather heavily on the appellants to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us". We, therefore, find no force in this petition. It is consequently dismissed in limine. Petition dismissed.