P L D 1997 Karachi 347 (PLP)

The petitioner has assailed show-cause notice dated 16-9-1996 and in the show-cause notice after narration of facts in first three paragraphs the fourth paragraph reads as follows: "

4. You are, hereby given this show-cause notice to appear in person or through your authorised agent/counsel to adduce any evidence in support of your right/title over the disputed land, before the Commissioner, Hyderabad Division, in his office situated in Shahbaz Building Block 'A' on 30th September, 1996 at 9-00 a.m. positively. Also please take notice that in case of your failure to attend the Court at the aforesaid date, time and place, the matter will be proceeded ex parse, and decided according to its merits." This show-cause notice was given in exercise of suo motu revisional proceedings in relation to the land area specified in the notice itself. This show- cause notice was issued under section 164 of Land Revenue Act. In the said section the power has been conceded exclusively to the Commissioner who has issued the show-cause notice. The petitioner urged that the show-cause notice has been issued with the mala fide intentions at the behest of the application of a party. We asked the learned counsel for the applicant as to the party on whose behest show-cause notice was issued has been made as party to which he replied. negatively. We asked the learned counsel for the petitioner as to whether the show-cause notice has been replied by the petitioner, again the learned counsel for the petitioner replied in negative. Under the Constitutional scheme which envisages trichotomy, the administration, the judiciary and the Legislature have been allowed specific functions and considerable independence to such functions within the parameters of the Constitution is mentioned. The balance between these organs in the Federal Scheme of the Constitution is delicate as one organ cannot interfere in the functioning of another organ provided that such organ functions within its alleged sphere. Again in the Constitutional scheme a guarantee has been provided to every citizen of the country that he shall be dealt with in accordance with law. When the administrative orders are challenged before the Courts, the function of the Court has always been to find out the legal authority by virtue whereof any action is taken and if the legal authority permits the State functionary to take an action the Court would not clip or tie the hands of the State functionary. In this case we find that the authority to issue show-'', cause notice is expressly embodied in section 164 of the Land Revenue Act, 1967. It is incumbent upon the petitioner to reply the show-cause notice and raise all pleas and objections in reply to the show-cause notice and contest the proceedings. The order of the State functionary is appealable and assailable before the Authorities mentioned in the Land Revenue Act. The final orders passed by the Land Revenue Authorities can be questioned in the Constitutional jurisdiction of this Court if there was any legal defect in final orders, but against the show-cause notice alone the writ jurisdiction may not be exercised as the show-cause notice is yet to be translated in .a concrete and final order. By interfering in the show-cause notice the Courts will be usurping the independence given to the administration in dealing with the matters, within their exclusive jurisdiction and based upon legal authority, which may not be permissible in the Constitutional jurisdiction. The petitioner assailed that the impugned show-cause notice has been issued with mala fide intention. In the case of the Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmed Khan and others PLD 1974 SC

151. The Hon'ble Supreme Court has defined the extent and scope of dealing with mala fide action and they are as follows: " 'Mala fides' literally means 'in bad' with'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or actions taken in fraud of the law are also mala fides. It is necessary therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introduction a more socialistic system cannot be characterised by the law but for the personal aggrandizement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken. In order to establish a case of mala fides, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession." From the pleadings we do not find that any case for action on the basis of male, fides has been made out. Consequently; therefore, we find that the petition is premature, misconceived and not maintainable as such is dismissed in limine. A.A./M-157/K Petition dismissed.