TABLE OF CONTENTS
CHAPTER-I ...................................................................................................................... 5
PRELIMINARY............................................................................................................. 5
COMMENTS.................................................................................................................. 7
1. Compensation principles for ................................................................................... 7
2. Modification of award............................................................................................. 8
3. Improvements ......................................................................................................... 8
4. Un-Islamic............................................................................................................. 10
5. Determination of market value. ............................................................................ 10
COMMENTS;............................................................................................................... 11
Levy Of Electricity Duty. ......................................................................................... 11
CHAPTER-II................................................................................................................... 12
CONSTITUTION OF THE AUTHORITY.................................................................. 12
CHAPTER III ................................................................................................................. 15
POWERS AND DUTIES OF THE AUTHORITY...................................................... 15
11. Master Plan And Master Programme...................................................................... 15
12 Preparation Of Schemes By Local Bodies Or Agencies.......................................... 15
Synopsis ........................................................................................................................ 17
1. Lease Of Public Park ............................................................................................ 17
2. N.O.C.................................................................................................................... 19
3. Establishing Housing Scheme By A Private Organization In A Sector Other Than
The One Specific For Such Scheme ......................................................................... 19
13. Preparation of schemes by Authority:- ............................................................. 20
14. Manner and Form Etc. of Scheme:-………………………………………… 21
Synopsis ........................................................................................................................ 21
1. Acquisition of land included in the master plan ................................................... 21
2. Master plan............................................................................................................ 21
3. Manner And Form, Etc Of .................................................................................... 21
15. Power of the Authority:- ....................................................................................... 21
15 –A Municipal Functions.- .................................................................................... 22
Synopsis ........................................................................................................................ 23
1. Jurisdiction and functions ................................................................................. 23
2. Nature of property......................................................................................... 23
3. Levy of Property Tax........................................................................................... 24
16. Borrowing powers................................................................................................... 24
17. Execution of scheme ............................................................................................... 24
18. Utilization of Building material:-............................................................................ 25
19. Amendment of Schemes: ........................................................................................ 25
20. Removal, etc of buildings after hearing. ................................................................. 26
CHAPTER IV.................................................................................................................. 27
ACQUISITION OF LAND........................................................................................... 27
22. Liability to acquisition: ........................................................................................... 27
1. Powers of Authority.......................................................................................... 28
2
2. Reasons for acquisition..................................................................................... 28
3. Acquisition for limited period........................................................................... 28
4. Boundaries of the capital area........................................................................... 28
5. Land acquisition................................................................................................ 29
6. Powers of Capital Development Authority and jurisdiction of the Court. ....... 29
23. Entry upon land, preliminary survey, etc:- ............................................................. 29
24. Compensation for damage. ..................................................................................... 30
25.Power to acquire land: ............................................................................................. 30
Synopsis. ....................................................................................................................... 31
1. Power of acquisition ......................................................................................... 31
2. Mala fide acquisition: ........................................................................................... 31
3. Safeguard the ownership of land and proprietary rights of property. ............... 31
26. Land to be marked out, measured and planned....................................................... 31
27. Enquiry and award of Deputy Commissioner......................................................... 32
Compensation: .......................................................................................................... 33
Synopsis. ....................................................................................................................... 33
1. Compensation at rates equal to that fixed for other similar land ...................... 33
2. New plea in Supreme Court .............................................................................. 34
Matter to be considered in determining compensation:-........................................... 34
Synopsis ........................................................................................................................ 34
1. Compensation-Factors to be considered. .......................................................... 35
2. Actual expenses incurred by owner are immaterial ......................................... 36
3. Classified land................................................................................................... 36
4. Potential value................................................................................................... 36
5. Loss of business. ............................................................................................... 36
6. Unauthorized structures on land ....................................................................... 36
7. Review of order of predecessor Commissioner ................................................ 36
Factors to be ignored in determining compensation: .................................................... 37
34. Power of Deputy Commissioner to call for information: ................................. 40
35. Power of Authority to give directions to Deputy Commissioner. .................... 40
Appeal and review:- .................................................................................................. 40
Synopsis ........................................................................................................................ 41
1. Review after appeal is filed............................................................................... 41
2. Miscellaneous petition if may be converted into Constitutinal petition. .......... 42
3. Review proceedings: ......................................................................................... 42
4. Contempt of Court ............................................................................................ 42
5. Constitutiional petition...................................................................................... 43
6. Jurisdiction of Commissioner to review order more than once. ....................... 43
36A. Deputy Commissioner and Commissioner to have powers of civil court, etc. .... 44
36B. Fees on applications:- ....................................................................................... 44
CHAPTER V................................................................................................................... 45
ESTABLISHMENT...................................................................................................... 45
37. Appointment of officers and servants etc ......................................................... 45
38. Recruitment conditions of service and disciplinary powers:-........................... 45
39. Members, officers, experts – public servants.................................................... 45
3
40. Indemnity. ......................................................................................................... 45
41. Delegation of powers to Chairman, etc............................................................. 46
CHAPTER VI.................................................................................................................. 46
FINANCE ..................................................................................................................... 46
42. Capital Development Authority Fund:- ............................................................ 46
43. Budget. .............................................................................................................. 46
44. Audit and accounts............................................................................................ 47
45. Consultaion with the Financial Advisor ........................................................... 48
CHAPTER VII. ............................................................................................................... 48
PENALTY AND PROCEDURE.................................................................................. 48
46. Penalty:- ............................................................................................................ 48
47. Cognizance of offences by Courts:-.................................................................. 49
CHAPTER VIII .............................................................................................................. 49
MISCELLANEOUS. .................................................................................................... 49
48. Submission of yearly reports and returns etc.................................................... 49
49. Power to dispose of land................................................................................... 50
Synopsis ........................................................................................................................ 50
1. Minister’s powers qua allotment of property..................................................... 50
2. Allotment of plots by Prime Minister from the discretionary quota................. 50
3. Constitutional jurisdiction of High Court ......................................................... 50
4. Allotment of public property to Parliamentarians at Islamabad. ...................... 51
5. Alloment of land/plot in Capital Area. ............................................................. 51
50. Power to make rules.......................................................................................... 54
51. Power to make regulations:............................................................................... 54
Synopsis ........................................................................................................................ 54
1. Framing of regulation: ...................................................................................... 55
2. Reservation of plots. ........................................................................................ 55
3. Imposition of property tax ................................................................................ 55
52. Dissolution of the Authority and transfer of its assets and liabilities to the
Federal Government and other agency determined by that Government:-................... 56
THE SCHEDULE........................................................................................................... 57
LIMITS OF THE SPECIFIED AREAS ....................................................................... 58
4
THE CAPITAL DEVELOPMENT AUTHORITY ORDINANCE 1960
27th June, 1960.
An Ordinance to establish a Capital Development Authority
COMMENTS
Objective of Ordinance, Firstly, planning and development of Capital
(Islamabad), secondly completing or authorizing Capital Development Authority to
perform functions of a Municipal Committee and to provide for cleanliness, health,
education of inhabitants, supply of goods, articles of food and mild, to promote interest of
different sections of public. All provisions are for advancing interest and public good.
Such statutes not repugnant to Sharia (PLD 1985 FSC 221).
Capital Development Authority being a statutory body is expected to deal
with citizens fairly, and honestly and conduct its all actions transparently (2003 CLC
1684).
WHEREAS it is expedient to establish a Capital Development Authority
for making all arrangements for the planning and development of Islamabad within the
frame-work of a regional development plan;
NOW, THEREFORE, in pursuance of the Proclamation of the seventh day
of October, 1958, and in exercise of all powers enabling him in that behalf, the President
is pleased to make and promulgate the following Ordinance:-
5
CHAPTER-I
PRELIMINARY
1. Short title, extent and commencement. (1) This Ordinance may be called the
Capital Development Authority Ordinance, 1960.
2. It extends to the Specified Areas.
2) It shall come into force at once.
2. Definitions. In this Ordinance, unless there is anything repugnant in the subject or
context ---.
(a) “Agency” means any department or organization of the (Federal) or
Provincial Government and includes a corporation, or other autonomous
or semi-autonomous body set up by the (Federal) or Provincial
Government.
(b) “Authority” means the Capital Development Authority established under
Section 4:
(c) “Board” means the Board constituted under section 6;
(d) “building” includes any factory, industrial or business establishment, shop,
godown, warehouse, house, outhouse, hut, hutment, shed, garage, stable,
well or platform, and any other structure, whether meant for residential or
business purposes or not, made of masonry, bricks, wood, mud, thatch,
metal or any other material, but does not include a temporary structure
made for purposes connected with agriculture;
(e) “Capital Site” mean s the part or parts of the Specified Areas declared to
be the site for the Pakistan Capital under section 3;
(f) “Chairman” means the Chairman of the Authority.
6
(g) “Commissioner” means the Commissioner of the Division concerned, and
includes any other officer appointed by the Authority to exercise the
powers of the Commissioner under this Ordinance.
“Deputy Commissioner” means the Deputy Commissioner of the District
concerned, and includes any other officer appointed by the Authority to
exercise all or any of the powers and discharge all or any of the functions
of the Deputy Commissioner under this Ordinance;
(i) “land” includes buildings and benefits arising out of land and things
attached to the earth or permanently fastened to anything attached to the
earth;
(j) “local body” means (the local body) the local council or the municipal
body as defined in clauses (23) (24) and (27) of Article 3 of Basic
Democracies Order, 1959 (P.O. 18 of 1959), or the Cantonment Board,
having jurisdiction in the area concerned, and includes an Improvement
Trust within such area;
2
(K) “market value” means,__
(i) in relation to land acquired before the first day of January, 1968,
the average market value thereof prevailing during the period
commencing the first day of January, 1954, and ending on the
thirty first day of December, 1958; 3
(ii) in relation to land acquired on or after the first day of January,
1968, the aggregate of the average market value as aforesaid
determined with reference to its classification recorded in the
Register of Haqdaran Zamin as in force on that day and twenty
five percent of such value 4 and
5 (iii)in relation to land acquired on or after the first day of January, 1996,
the market value as may be determined in accordance with the provision
7
of the Land Acquisition Act, 1894 as applicable in the Province of the
Punjab
COMMENTS
Synopsis
1. Compensation, principles for 2. Modification of award
3. Improvements 4. Un-Islamic
5. Determination of market value
________________________
1
Ins. by the Capital Development Authority (Amdt.) Act. 1966 (22 of 1966),s.2..
2 Subs. by the Capital Development Authority (Amdt.) Ordinance, 1968 (7 of 1968),S.2, for
clause (k)
3 Omitted by the Capital Development Authority (Amdt.) Act. 1999 (3 of 1999),S.2.
4 Subs. Ibid., for full stop.
Added ibid.
8.
1. Compensation principles for. Owners whose lands are acquired should be paid
compensation which should be just and equitable keeping in view the consideration of
land at the time of acquisition on the basis of guidelines gives by Superior Courts (2002
SCJ 189) There was a difference between what is called technical definition of the word
“market-value” as contained in Section 2(K)(i) and 2(K)(ii) of the Ordinance on the one
hand and “the compensation amount” to be paid to the land owners on the other hand.
Compensation amount was total and overall amount whereas market value was simply
one of the items to be take note of in fixing or claiming the compensation amount. The
market value in other words was just a base and start and not the end of the process of
compiling the compensation value (PLD 1977 Lab.1200=PLJ 1977 Lab.605). IN subsection
(2) the sentence “the aggregate of the average market value as aforesaid
determined with reference to its classification recorded in the Register of Haqdaran
8
Zamin as in force on the that day and 25% of such value” refer back to clause (i) of
section 2(K) where 1968, the average market value there of prevailing during the period
commencing the first day of January 1954 and ending on the 31st date of December 1958.
Thus the aggregate value would be the sum total of average price during 1954-1958
period plus 25% over and above that (2002 SCJ 189: PLD 1977 Lab.1200 = PLJ 1977
Lab.605). While determining market value relevant transaction of the land acquired and
of the similar land of neighborhood. locality is also to be taken into consideration (2002
SCJ 189). The date of acquisition is the relevant date for determining compensation
(PLR 1977 Lah.1200-PLJ 1977 Lab. 605).
2. Modification of award. Any award of compensation made before the
commencement of the Ordinance in respect of any land acquired on or after the first day
of January,1968, shall be modified so as to raise the amount of compensation specified
therein to the amount which would have been awarded had the award been made after the
commencement of this Ordinance (Ord,No.7 of 1968, S. 3).
3. Improvements. The owner of the land is entitled to the value of the property in
“its actual condition at the time of expropriation” with all its existing advantages. The
indeed is the general law. There is nothing in section 28 read with section 2(k) or in any
other provisions of the Ordinance in force to warrant the conclusion that the Deputy
Commissioner was not required to award compensation for the land according to
existing classification on the date of the expropriation of the owner thereof. Therefore,
the directions, if any, issued by the Authority under section 35 of the Ordinance to the
effect that in awarding the compensation bona fide improvement made by the land
owners to their lands after 1958, but before their acquisition must be ignored, were ultra
vites and in excess of the powers vested in the Authority under the Ordinance. Even the
amendment introduced subsequently into section 2(k) by the Capital Development
Authority (Amendment) Ordinance VII of 1958, but before their acquisition must be
ignored, were ultra vites and in excess of the powers vested to the Authority under the
Ordinance. Even the amendment introduced subsequently into section 2(k) by the
Capital Development Authority (Amendment) )Ordinance Vii of 1968) had no effect on
this state of affairs on the lands acquired before 1.2.1968 (PLD 1976 SC-752f).
9
Before amendment of definition of “market value” in relation to land
acquired on or after 1.1.1968 as inserted by amending Ordinance,1968, pegging
classification of land as recorded in Register of Haqdaran Zamin as criterion for
assessment of compensation of acquired land, no such pegging of classification of lands
existed nor any restriction imposed by statute in that direction. Nothing in definition of
land as given in Ordinance XXIII of 1960 either expressly or by necessary intendment
warranted conclusion that embargo against award on account of any reside in level of
prices operated in any other decision as well and precluded landowners from claiming
compensation for bonafide improvement effected in qualify of their acquired lands during
1954 to 1988. M.L.R 82 of 1960 imposed no bar against landowners in effecting
improvements to their agricultural lands by improving upon their classification and
agricultural potential as such..
By the introduction of section 2(k) in the Capital Development
Authority Ordinance 1960, defining the term “market value” the Legislature has simply
pegged up the average prices generally prevailing during 1954 to 1958 in respect of the
different kinds of land in general in the locality. There is nothing in the definition, either
express or by necessary amendment to warrant the conclusion that this embargo against
the award on account of any rise in level of prices, was operative in any other direction
as well and precluded the landowners from claiming compensation for the bonafide
improvements effected in the quality of their acquired lands made during this period.
Under clause 4 (1)(a)(ii) of the Martial Law Regulation No. 82 (known as Pakistan
Capital Ordinance 1960) a restriction was imposed to the effect that no person shall
within the Capital site convert any land being used for purposes of agriculture to any
other use. Similarly under clause 4(1) (b)(ii) of the Regulations it is laid down that no
person shall outside the Capital site convert any land used for purposes of agriculture to
any other purpose, except in accordance with directions, issued by Deputy
Commissioner. In these provisions, there was no bar imposed against a landowner in
effecting improvements to his agricultural land by improving upon its classification and
agricultural potential as such. There is nothing in section 2(k) or any other provisions of
the Ordinance in warrant the conclusion that compensation could not be allowed for any
such development to the land effected upto and as on the date of its acquisition. In
10
practical terms the value of any interest in land which is a compulsorily acquired under
the Ordinance must be ascertained by reference to the average market values prevailing
generally during the period from 1954 to 1958 and for that purpose the interest in land
actually acquired at the material time on the date of expropriation must be deemed to be
subsisting during 1954 to 1958. For the first time under 1968 amendment in relation to
land acquired on or after the first day of January,1968, a further clause was inserted in the
definition and this had the effect of pegging the classification of the land as recorded in
the Register of Haqdaran Zamin as in force on that day, as the criterion for the
assessment of the compensation of the acquired land. But before it, there was no such
pegging of the classification of the lands. There was no restriction imposed by the staule
in that direction and the compensation for the acquired land had to be assessed on the
basis of its subsisting classification on the date of acquisition (PLD 1976 SC 752).
4. Un-Islamic. The provisions of section 2(k) and 30 (j) of the Ordinance declared as
repugnant to the injunctions of Islam. The Federal Shariat Court, directed, that the
required amendment be made in the said Ordinance (PLD 1992 FSC -361).
5. Determination of market value. Authority declined award with regard to
compensation of land acquired in 1968 under pro visions of Capital Development
Authority Ordinance,1960, as per classification of land entered in Revenue Record.
Owners of land so acquired disputed award of the Authority contending that market value
of land should have been calculated in accordance with Section 23 & 24 of Land
Acquisition Actm1894 taking into consideration potential value of land. Validity
Authorities while determining amount of compensation if land to be made to the owners
were possessed of jurisdiction to rely upon law as compensation of land to be made to the
owners were possed of jurisdiction to rely upon law as contained in Section 2(k) of
Capital Development Authority Ordinance 1960. Authorities, thus were not bound to take
into account potential value of land in question at the time of award of compensation was
delivered. In absence of any “legislation by incorporation” making provisions of Section
23 & 24 of Land Acquisition Act,1894 applicable with retrospective effect. Owners of
acquired land could not press into service said provisions. Orders by Authority with
regard to determination of market value of land under provisions of Capital Development
11
Authority Ordinance,1960 having not been shown to be suffering from any defects in
law, could not be interered with (1999 SCMR 1589)
(i) “Members” means a member of Authority.
(m) “regulations” means regulations made under this Ordinance..
(n) “rules means rules made under this Ordinance.
(c) “scheme means a planning scheme or a development scheme made
under this Ordinance.
(p) “Specified Areas” means the areas specified in the Schedule and
such other area or areas as may from time to time be included
therein by the “Federal Government) by notification in the official
gazette.
COMMENTS;
Levy Of Electricity Duty. Area of Islamabad already being part of
Province of Punjab on promulgation of Establishment of West Pakistan Act,1955 became
part of West Pakistan and remanded so even after declaration of area of capital by
Section 2 of Capital of the Republic (Determination of Area) Ordinance 1963, Province
of west Pakistan stood dissolved through Province of west Pakistan (Dissolution ) Order
1970, whereafter Constitution (1973) was promulgated and Punjab assembly could not
legislate with respect to Capital Area of Islamabad. By virtue of Article 268 of the
Constitution Section 13 of West Pakistan Finance Act,1964 being an existing law and no
force in Capital Area of Islamabad was to continue in force Section 13 of Finance Act,
1964 as substituted by Section 5 of Punjab Finance Ordinance,1978 would apply to
Capital Area of Islamabad with effect from 27.6.1978 (PLD 2008 Ist.30).
(q.) “Vice-Chairman” means the Vice Chairman of the Authority.”
12
3. Declaration of Capital Site:- The {Federal Government may, from
time to time, by notification in the official Gazette, declare any part or
parts of the Specified Areas to be site for the Pakistan Capital.
(2) Notwithstanding any thing contained in this Ordinance or in any
other law, any such notification as aforesaid may be made so as to be
retrospective to any day not earlier than the first day of June,1959, and
where a notification is so made, the provisions of the Ordinance shall, in
so far as they effect the Capital Site, apply as if this ordinance were
promulgated on the day to which the notification is made retrospective to
any day not earlier than the first day of June,1959 and where a notification
is so made, the provisions of the Ordinance shall, in so far as they affect
the Capital Site, apply as if this Ordinance were promulgated on the day to
which the notification is made retrospective.
CHAPTER-II
CONSTITUTION OF THE AUTHORITY
(1) There shall be established an authority to be known as the
Capital Development Authority for carrying out the purposes of
this Ordinance.
(2) The Authority shall be a body corporate, having perpetual
succession and a common seal, with power, subject to the
provisions of this Ordinance, to acquire and hold property, both
movable and immovable and shall by the said name sue and be
sued.
(5) Management.(1) The general direction and administration of
the Authority and its affairs all vest in the Board, which may
exercise all powers and do all acts and things which may be
exercised or done by the Authority.
13
(2) The Board in discharging its functions shall act on sound
principles of development, town planning and housing and shall be
guided on questions of policy by such directions as the {Federal
Government) may from time to time given.
(3) If any question arises as to whether any matter is a matter of
policy or not the decision of the {Federal Government) shall be
final
6. Constitution of the Board:- (1) The Board shall consist of not
less than three members to be appointed by the {Federal
Government}
(2) The {Federal Government) shall appoint a Chairman, a Vice
Chairman and a Financial Advisor from amongst the members.
(3) The Chairman and other members shall hold office during the
pleasure of the {Federal Government) and unless sooner removed
the Chairman and the Financial Advisor shall hold office for a
period of five years and other members shall hold office for a
period of four years
(4) Any person ceasing to be Chairman, Vice Chairman or member
of the Board by reason of the expiry of the terms of his office, shall
be eligible for reappointment for another term or for such shorter
term as the {Federal Government) may decide.
(5) No act or proceeding of the Board shall be invalid merely on
the ground of the existence of any vacancy in p or any defect in the
constitution of the Board.
(6) The Chairman or any member may at any time resign. Provided
that his resignation shall not take effect until accepted by the
{Federal Government)
(7) Remuneration and conditions of service:- The Chairman and
each member shall receive such salary and allowances and shall be
subject to such conditions of service as may be determined by the
{Federal Government).
(8) Disqualification of the members: No person shall be or shall
continue to be a member who:-
(a) is or, at any time, has been convicted of an
offence involving moral turpitude or
14
(b) is or, at any time, has been adjudicated
insolvent: or © is found to be a lunatic or of unsound mind or
(d) is a minor, or
(e) has a financial interest in any scheme or a
conflicting interest directly or indirectly between his interests as a
member and his private interests and has failed to disclose such
interest in writing to the (Federal Government):
(f) If he is for the time being disqualified for
membership of any body established by or under any law for the
time being in force of which the constituent members are wholly or
partly chosen by means of election.}
‘Subs. By F.A.O(1975, Art 2 and Table for “Central Government.”
‘Substituted by the Federal Laws (Revision and Declaration)
Ordinance,1981(XXVII of 1981)‘s. 3 and Sch.II.
(9) Duties and functions of Chairman and other members
1) The Chairman and other members shall discharge such
duties and perform such functions as are assigned to them by or
under this Ordinance.
2) Until the Board is duly constituted, the Chairman shall,
subject to such directions as the {Federal Government_) may from
time to time give, exercise the powers, discharge the duties and
perform the functions of the Board
3) The Vice-Chairman shall have such powers, duties and
functions as may be delegated to him by the Chairman.
(10) Headquarters of the Authority and meetings of the Board
15
1) Until the Authority establishes its headquarters
elsewhere within the Specified Areas, its headquarters shall be
situated at Rawalpindi.
2) The meetings of the Board shall be held at such times
and places and in such manner as the regulations may provide.
Provided that until regulations are made in this behalf, the
meetings of the Board shall be held as and when convened by the
Chairman.
CHAPTER III
POWERS AND DUTIES OF THE AUTHORITY
11. Master Plan And Master Programme
The Authority shall [re[are a master plan and a phased masterprogramme
for the development of the Capital Site, and may prepare a
similar plan and programme for the rest of the Specified Areas, and all
such plans and programmes shall be submitted to the {Federal
Government) for approval.
12 Preparation Of Schemes By Local Bodies Or
Agencies
(1) The Authority may, pursuant to the master plan and the master
programme, call upon and local body or agency operating in the Specifed
Areas to prepare, in consultation with the Authority, a scheme or schemes
in respect of matters ordinarily dealt with by such local body or agency
and thereupon the local body or agency shall be responsible for the
preparation of the scheme or schemes within a reasonable time.
(2) Such schemes, may relate to:
16
(a) Land use, zoning and land reservation.
(b) Public buildings.
(c) Industry.
(d) Transportation and communications, highway,
roads, streets, railways, aerodromes.
(e) Telecommunication, including wireless, television,
radio, telephone.
(f) Utilization of water, power and other natural
resources.
(g) Community planning housing slum clearance
amelioration.
(h) Community facilities including water supply,
sewerage, drainage, sewage, disposal, electricity
supply6, gas supply and other public utilities
(I) preservation of objects or places of historical or
scientific interest or natural beauty.
(3) The {Federal Government) ,by notification in the official
Gazette, add to alter or amend the list of subjects given in sub
section (2) and any such addition alteration or modification
shall take effect as if it had been enacted in this Ordinance.
(4) The expenditure incurred on the preparation of any such
schemes as aforesaid shall be borne as greed to between the
Authority and the local body or agency, and in the even of
disagreement between them as may be determined by the
{Federal Government)
(5) No planning or development scheme shall be prepared by any
person or by any local body or agency except with the
concurrence of the Authority.
Subs. By F.A.O 1975. Art-2 and Table for Central Government”
Subs. By the Capital Development Authority.(Amdt) Act.1966(22
of 1966 )s.3.
COMMENTS
17
Synopsis
1. Lease of public park
2. N.O.C
3. Establishing housing scheme by a Private organization in a
sector other than the one specific for such scheme.
1. Lease Of Public Park
Contentions of the petitions were that wherever, a Scheme under the provisions of
Section 12 of the Capital Development Authority Ordinance 1960 was prepared
by the Authority, amenity plots including the plot for public park, playing field,
graveyard and incident open places, etc were earmarked separately, that under
Regulation 3 of the Islamabad Land disposal Regulation, 1993 for the purpose of
establishing Mini Golf Course on the public park, no permission was sought from
the Federal Government nor objections were invited in this behalf in accordance
with section 19 read with section 20 of the Capital Development Authority
Ordinance,1960 that the transaction of leasing the plot had been made by the
Capital Development Authority with the private party without any lawful
authority and jurisdiction as such in this manner the fundamental rights of general
public enshrined in Articles 9 & 26 of the Constitution had been denied, that a
public park, citizens, including children were not required to purchase tickets and
once Mini Golf Course, was established, the entry of general public would be
obstructed in term of imposing ordinances including purchase of tickets and to
enjoy other amusement against payment and that Development Authority was
committed to provide a public park for the residents of the sector concerned
which would be maintained by the Authority itself and could not be allowed so
he converted into a commercial project by the third party in terms of Regulation
12(3) of Islamabad Land Disposal Regulation if a piece of land had been
earmarked for the purpose of public park, same could not be leased out and
Capital Development Authority itself was bound to develop the same. Neither the
permission was sought to convert the public park into the Mini Golf Course nor
before doing so objections were invited from the general public in terms of
Section 21, Capital Development Authority Ordinance 1960. Production of
original documents with regard to the plot in question for purpose of examining
the examining the exact position of the lease and status of the plot by the Supreme
Court was denied by the Capital Development Authority stating in writing that the
same were not available and were being traced out and will be produced before
the Court when the same were found out, Public park if earmarked in a housing
Scheme created a tight amongst the public and that right included then right of
entry in the park without any obstacle, being fundamental right as enshrined in
Article 26 read with Article 9 of the Constitution Liberty of a person, to have
access or utilize a right available to him could not be taken away by converting
such facility into commercial one, for the purpose of extending benefit to a third
18
person, as in the present case, considerably a big plot of land measuring five acres
had been handed over to a third person at a throw away lease money causing huge
loss to the public exchequer therefore, tax payers had a right to inquire from
Capital Development Authority, as to how a right of life and liberty could be
denied to them. Facts of the case were admitted by the Capital Development
Authority, no formal evidence therefore was required to prove the same. Deal
between Capital Development Authority and the third person had not been made
in a transparent manner, coupled with the fact that the lease of a public park had
been given for 15 years at a rate of Rs. 2.55 million per annum to be paid after
about 20 months with clear delegated authority to the lessee that it could issue
license to the local or international parties for a purpose of providing
amusement/commercial activities etc. Such delegation to private person to watch
its financial interests of the high degree would tantamount to depriving the Capital
Development Authority as well as the public from their valuable rights, for whose
benefits such Authority had been created and apparently such action had no legal
sanctity. Law on the subject, on the other hand was, that such parks were to be
developed to be maintained by the Capital Development Authority itself, Park
was earmarked in the original Scheme of the sector, as it was meant for low
income group, who were deprived of the benefits of the having their own private
gardens. Comparing to higher income groups, therefore, converting such plots for
commercial activity with the collaboration of multinational companies would
deny the people rights guaranteed to them. Functionaries, exercising statutory
power, like Capital Development Authority were bound to discharge their
functions strictly in accordance with law, otherwise the action contrary to law
would not be sustainable and such Authority shall expose itself for disciplinary
action. Without obtaining no objection certificate from the general public, such
plot could not be used for any other purpose. Capital Development Authority in
such like situation, if at all was interested to leave out the public park instead of
developing the same, might have invited fresh proposal instead of calling the third
person to enhance the lease money because in granting contracts for the purpose
of fetching money to support the public exchequer, the competent authority had
an obligation to adopt such devices on the basis of which more money could be
procured. Capital Development Authority as per record, was only interested to
grant lease to the third party, mala fide. In concluding the transaction with the
third party not transparent. Allowing the third party to avail benefit of the lease, in
circumstances, would tantamount to perpetuate the unlawful/illegal acts of both
Capital Development Authority and the third party. Constitutional petition was
accepted by the Supreme Court with directions that lease agreement executed by
Capital Development Authority for the development of Mini Golf Course was not
sustainable in the eye of law, being contrary to law and fundamental rights of the
general public, enshrined under Article 26 of the Constitution, that third party was
to hand over vacant pubic, enshrined under Article 26 of the Constitution, that
third party was to hand over vacant possession of the plot, lease of which had
been obtained by him from the Capital Development Authority within a period of
four weeks in its original condition. Subject to complying with the directions of
the Court, Capital Development would refund Rs. 5 lacs to the third party
19
deposited by it as security, that enquiry report shall be sent to the Registrar
Supreme Court within three months for Court’s perusal in Chamber and passing
further order, if need, be, that Board of the Capital Development Authority shall
exam e the case thoroughly to explore possibility of initiating disciplinary/penal
action before the competent forum against the delinquent officers/officials
responsible for executing the lease with the third party, in view of the law laid
down by Supreme Court in the case of Pervaiz Oliver PLD 1990 Sc 26, that
Board of Capital Development Authority will take steps to find out the relevant
record of the part, and if record was not made available, then report shall be
lodged before the competent law enforcing agency according to aw and the
Capital Development Authority shall be free to develop the public part itself for
the purpose of providing entertainment to the public of Islamabad in discharge of
duties under the law (PLD 2006 SC 394).
2. N.O.C
No objection Certificate from Capital Development Authority, no covering entire
land sought to be acquired by Acquiring Agency, Validity, not obligatory for
Acquiring Agency under Section 12(5) of Capital Development Authority
Ordinance 1960 to obtain ‘No Objection Certificate’ from C.D.A for every piece
of land proposed to be acquired through notification from time to time, if
aggregate of land was required for same comprehensive scheme {2004 YLR
629}.
Acquisition of land in capital area by Army Welfare Trust for establishing
housing scheme. Trust had obtained 60% land fro landowners through private
negotiations. Trust after lapse of original notification had issued fresh successive
notifications to acquire remaining land not purchased earlier privately. No delay
in acquisition proceedings, which could defeat or demolish acquisition process
itself. Mention of only one village in “No Objection Certificate” would make no
difference. No objection certificate issued by CDA was in respect of whole
scheme, which would cover all or any acquisition of land forming part and parcel
of development scheme as a whole. Description of purpose in original
notification as “defense purpose” and in later notifications are establishment of
Housing Scheme for Army Personnel. Judicial notice could be taken of acute
shortage of accommodation and rehabilitation facility for beneficiaries of Trust.
High Court dismissed Constitutional petition (2004 YLR 629)
3. Establishing Housing Scheme By A Private Organization In A
Sector Other Than The One Specific For Such Scheme
Housing Foundation was a registered company having senior Federal
Government Officials as ex-officio office-bearers of the Foundation. Foundation
acquired lands owned by the petitioners in public interest and notification under
Section 4 & 17(4) of Land Acquisition Act. 1894, was issued by the Government.
Land so acquired was to be allotted only to the employees of federal Government
on ownership basis. Validity, Housing Foundation like such other companies
20
could establish a housing scheme in the specified zone for its members but could
not establish such scheme in the are of remaining residential sector. Housing
Foundation could not be allowed to establish a private scheme in regular sectors
for individuals interests of civil servants in violation of general policy as a special
case and privilege. Housing Foundation without enlarging the purpose of
acquisition of land to the general use for benefit of public at large, could neither
establish such scheme out of the specified zone nor could use the machinery of
law and Government for such purpose. Where acquisition of land for a Housing
Scheme introduced by the respondent. Foundation was executed for benefit of
public at large and was not confined to a limited class of persons, such scheme
would definitely advance the spirit of the Constitution. High Court directed the
Housing foundation to include certain categories of persons who could also be
benefited from the scheme. When all categories of persons referred by High
Court cold be benefited from the acquisition of the land by the Housing
Foundation, the acquisition could be for public purpose and the same would not
be in violation of Article 24 of the Constitution as the same did not prevent
establishment of housing colonies in public interest(2000 YLR 1711).
13. Preparation of schemes by Authority:-The Authority may,
pursuant to the master-programme, itself prepare, when it considers it desirable to do
so in the public interest, schemes for the Specified Areas relating to the maters
enumerated in sub section (2) of section 12.
COMMENTS
Synopsis
1. Acquisition of land included in the
2. Master plan
3. Manner and form, etc of scheme
1. Acquisition of land included in the master plan. Acquisition of land
without preparing a scheme or disclosing the public purpose for which the land was
acquired Validity. Where the master plan had been prepared for the development of the
capital site, the Authority, subject to the rights of people, could acquire the land under
Capital Development Authority Ordinance, 1960, for the purpose of implantation of
different schemes prepared hereunder. Capital Development Authority in its discretion
could not acquired any land in the specified area without preparing a scheme or
disclosing the public purpose for which the land was to be acquired (1999 YLR 247).
Land of petitioner was acquired on the basis of its being shown in the master plan as an
area for the National Park. No scheme of Nation al Park had been prepared and defined
anywhere and acquisition was made on the basis of mere earmarking o f that area through
a notification under Islamabad Wildlife (Protection, Preservation, Conservation and
Management) Ordinance, 1979. Validity, Land in question was a private land, unless a
proper scheme of National Park was prepared by the Central Government or the Capital
21
Development Authority under Sections 11,12,13 & 14 of the Ordinance, partial
acquisition of land in the name of National Park could not be justified (1999 YLR 247).
2. Master plan Land owners had raised construction on their lands after getting
approval of building plans from the Union Council. Capital Development Authority
objected to such constructions and attempted to get the said constructions demolished on
the pretext that master plan for the city of Islamabad was duly approved earmarking the
lands in question as a national Park and Scheme. Capital Development Authority, though
can earmark an area for a particular purpose in the master plan, but scheme a decision
cannot be implemented unless a scheme as contemplated by Sections 12 & 13 of Capital
Development Authority Ordinance 1960 is prepared by the Authority. Authority has to
take steps to acquire the land as provided by Chapter IV of the Ordinance before taking
of any concrete steps for implementation of such Scheme. Without taking steps for
acquisition of the property, action of Authority would be violative of the Constitutional
rights of the landowners on account of restrictions placed on them to use the property in
the manner they like. Supreme Court directed that Capital Development Authority will be
entitled to initiate acquisition proceedings of the property in question or any other
property after farming a proper scheme and if any other law authorizes the Authority to
regulate the construction of the buildings in the disputed area, it will be open to the
Authority to take action according to law for enforcing the said law or regulations B(1999
SCMR 2636).
3. Manner And Form, Etc Of scheme All schemes under section 12 and section 13
shall be prepared in such manner and form as the (Federal Government) may specify, and
shall contain among other things the following information, namely:-
(a) description of the scheme and the manner of its execution;
(b) estimate of costs and benefits;
Subs.by F.A.O. 1975, Art-2 and Table, for “Central Government”
(c) allocation of costs to the various purposes to be served by the scheme;
14. MANNER AND FORM ETC. OF SCHEME.
All schemes under section 12 and section 13 shall be prepared in such manner and
form as the Capital Government may specify, and shall contain among other things the
following information namely:-
(a) description of the scheme and the manner of its execution;
(b) estimate of costs and benefits;
(c ) allocation of costs to the various purposes to be served by the scheme.
15. Power of the Authority:-
(1) Subject to the other provisions of this Ordinance and the rules, the Authority may take
such measures and exercise such powers as may be necessary for the carrying out of the
purposes of this Ordinance.
22
(2)Without prejudice to the generality of powers conferred by sub-section (1), the
Authority may.
(i) acquire any land in the specified Areas in accordance with the procedure
laid down in Chapter IV.
ii) undertake any works in the Specified Areas in pursuance of any scheme
prepared under Section 13;
iii) incur any expenditure.
iv) procure plant, machinery, instruments and materials required for its sue;
v) enter into and perform all such contracts as it may consider necessary;
vi) cause studies, surveys, experiments and technical researches to be made or
contribute towards the cost of any such studies, surveys, experiments or technical
researches made by any other agency at the request of the Authority;
vii) issue interim development orders for areas for which a master plan is under
preparation and restrict or prohibit by general or special order any change in the
use of land and alteration in buildings, structures and installations;
viii) cause removal of any works obstructing the execution of its scheme.
ix) seek and obtain advice and assistance for the preparation of any planning
scheme or for the execution of any scheme from any local body or agency and
such local body or agency shall gives the advice and assistance sought by the
Authority to the best of its ability, knowledge and judgment, and the additional
expenditure, if any, involves in giving such advice or assistance shall be borne by
the Authority
15 –A Municipal Functions.-
(1) During such period and for such areas within the Islamabad Capital Territory
as the (Federal Government) may by notification in the official Gazette, specify,
the Authority may, notwithstanding anything contained in any other law for the
time being in force, exercise, and perform such powers and functions as a
Municipal Committee may exercise and perform in relation to a Municipality
under the Municipal Administration Ordinance, 1960.
(2) For the purpose of sub section (1), the provisions of sections 18,33 to 73, 77
to 106,109,115 to 118 and 122 of the Municipal Administration Ordinance, 1960
(X of 1960), and the second. Third and Fifth Schedules thereto shall, so far as
may be, apply to the Islamabad Capital Territory as they apply to a municipality,
references therein.
23
a) to or to the powers and functions of, the Controlling
Authority being omitted; and
b) to Municipal Committee and Government being
construed respectively as references to the
Authority and the (Federal Government).
COMMENTS
Synopsis
1. Jurisdiction and functions. 2. Nature of property.
3. Levy of property tax.
1. Jurisdiction and functions Capital Development Authority has been
authorized to perform functions and exercise powers of Municipal Committee under the
Municipal Administration Ordinance, 1960 (2001 SCMR 809).
2. Nature of property. Appellants being owners of hotels, motels and
restaurants were aggrieved of levy of property tax on commercial rates and claimed to be
industry.
-----------------------------------
1 Section 15A ins. By the Capital Development Authority (Am dt.) Act. 1966 (22
of 1966) s.4
2 Subs by FAO 1975. Art.2 and Table, for “Central Government”.
3 See S.R.O 805 (1)/91 dated 20th Aug, 1991 as amended by S.R.O. 1(1)/99 dated
1st January, 1999.
Subs. By F.A.O. 1975. Art.2 and Table, for “Central Government”.
on the plea that authorities were charging electricity and gas dues on industrial
rates from them. Validity No statutory enactment had been made in the Capital
Development Authority Rules whereby hotels/motels situated in the jurisdiction
of Capital Development Authority were included in the term ‘industry’ industrial
or institution, as such appellants could not claim such relief. Appellants were
allotted commercial plots for construction of hotels. Order or notifications of
Federal Government under other laws declaring business of hotel as industry
would not affect the nature of building or use of plots as defined in the Regulation
3 of Islamabad Land Disposal Regulation,1993. Amendment had also been made
in Notification No.24(1)/2001, dated 11.1.2001, through Notification No.783
(1)/2003, dated 9.8.2003, whereby non-residential properties outside commercial
areas were included in the heading ‘commercial’ Finding of High Court that until
no statutory enactment declaring hotel/motels and restaurants located in
24
Islamabad Capital was made by competent authority, appellants could not, as a
matter of right, claim to be charged at such rate was unexceptionable. Appeal was
dismissed {2006 SCMR 1738 }
Leave to appeal was granted by Supreme Court to consider
whether property tax on hotels, motels and restaurants, establishments would be
charged at commercial rates or industrial one {2006 SCMR 1738}
3. Levy of Property Tax Competency of Capital Development Authority to
levy property tax on properties situated within area of Islamabad Capital Territory in
exercise of its power under Section 15-A. Capital Development Authority
Ordinance,1960 challenged. Petitioner’s contention was that some of the functions of
Municipal Committee which Authority performed under provisions of Municipal
Administration Ordinance,1960 were assigned to Capital Development Authority
within specified limits of Islamabad Capital Territory. Petitioners claimed that no
power was available to Municipal Committee to levy property tax on urban
immovable property which was levied under provisions of West Pakistan Urban
Immovable Property Tax Act.1958. Leave to appeal was granted to consider
petitioner’s contention that Capital Development Authority having been assigned
only functions of Municipal Committee under Municipal Administration
Ordinance,1960 had no authority to levy tax on urban properties alongwith other
contention raised {1997 SCMR 466 }. Capital Development Authority under the
provisions of Schedule-III, Entry No.1 of Municipal Administration Ordinance 1960,
has been empowered to levy property tax {2001 SCMR 809 2001 S CJ 541}
16. Borrowing powers
(1) The Authority may, with the previous approval in writing of the {Federal
Government}, raise funds for the purpose or raising its working capital by issuing
bonds and debentures carrying interest at such rates as may be approved by the
*{Federal Government}.
(2) The repayment of the principal and the payment of interest due on the bonds
and debentures issued by the Authority shall be guaranteed by the {Federal
Government}.
Subs.by F.A.O 1975 Art,2 and Table for “Central Government.”
17. Execution of scheme etc. through local bodies and agencies.
(1) The Authority may require a local body or agency within whose
jurisdiction any particular area covered by a scheme lies to execute a
scheme in consultation with the Authority.
(a) To take over and maintain any of the works and
services in that area.
25
(b) To enforce regulations, on behalf of the Authority.
(2) The expenditure incurred on the execution of any scheme, or on the
taking over or maintenance of any work, or the enforcement of a
regulations, under this section, shall be borne as may be agreed to
between the Authority and the local body or agency and in the event
of disagreement, as may be determined by the {Federal Government).
18. Utilization of Building material:- Notwithstanding anything
contained in any other law for the time being in force or in any contract or
agreement, no person shall without the prior concurrence of the Authority
allocate, exploit or in any manner utilize, except for the purpose of his own
personal use, such natural resources used as building material as the Authority
may, by notification in the official Gazette, specify in this behalf}
19. Amendment of Schemes: any scheme prepared under section 12 or
section 13 may at any time be amended or modified:-
(a) In cases where the amended where the amended or
modified scheme should exceed the financial powers of the
Authority by the authority with the previous approval in
writing of the {Federal Government) and
(b) In other cases, by the Authority” 3* *
* *
COMMENTS.
‘Subs by F.A.O,1975, Art 2 and Table, for “Central Government”
1‘Subs. By the Capital Development Authority (Amdt) Act 1966 (22 d 1966 ) a.5
for section 18
2*Subs, ibid, s.6 for colon Proviso omitted ibid.
26
Appellant, an allottee/lessee of plot for setting up manufacturing cold storage had
set up cold storage in his plot, respondents allowed by Authority to set
up/construct cooling rooms in their basement of plot allotted to them. Appellant’s
claim was that respondents had no right to construct cooling units and that
Authority was not competent to grant such permission. Appellant failed to point
out his vested right to be the sole authorized person to set up the cold storage.
Permission to respondents to set up cooling rooms for storage of their vegetables
and fruits did not in any hamper the use of Appellant’s storage plant. Authority,
held was competent to prepare any scheme or phased scheme and could also
amend or modify the same at any time. Authority had not given undertaking to
appellant that no other cooling unit would be set up in the area, Factual position
was that four other cold stage units were already functioning in the area.
Appellant, thus could not claim monopoly of being the sole authorized person to
set up such plaint {1989 CLC 1532)
20. Removal, etc of buildings after hearing. The Authority shall
not order or cause any building in the Specified Areas, excluding the Capital Site,
to be removed or demolished unless an opportunity of being heard has been given
to the owner or occupier thereof and his objections, if any, have been duly
considered and the Authority is satisfied that removal or demolition of the
building is essential to the execution of its schemes.
COMMENTS.
Construction of petition over the land owned by him was
demolished and land was acquired without completion of legal formalities and
without payment of compensation. Validity, such construction could not have
been demolished merely by issuing notice under Section 27(1) of the Ordinance.
Residents of the area were not supposed to be dislocated without approval of a
proper scheme and giving them reasonable opportunity to file objections, thereto.
Acquisition of land for a scheme without proper notice under section 27(1) of the
Ordinance and the payment of compensation according to prevailing market value
27
of land including he built up area as residential houses, was not legal. Non
preparation of any scheme and forcible dispossession and initiation of
proceedings without compliance of legal formalities, rendered the action of the
Capital Development Authority. Unlawful and all proceedings after such action
were illegal {1999 YLR 247}
Schemes to be executed after calling objections: The Authority
shall not execute or cause to be executed any scheme in the Specified Areas,
excluding the Capital Site, unless the persons whose rights and interests are
thereby affected have been given a reasonable opportunity to file their objection
to such execution and the Authority has heard such of them as it considers
necessary.
COMMENTS.
Setting up fruit and vegetable market. Amendment/modification of
a scheme. Objection to amendment or modification of a scheme to be invited only
in specified areas. Federal Government from time to time by notification in the
official Gazette could declare any part of the specified area to be the site for the
capital under section 3. Fruit and vegetable market not located in ‘specified area’
inviting of objections was thus not necessary for amendment and modification of
such scheme { 1989 CLC 1532).
CHAPTER IV
ACQUISITION OF LAND
22. Liability to acquisition: All land within the Specified
Area shall be liable to acquisition at any time in accordance with the
provisions of this Chapter.
COMMENTS.
28
1. Powers of Authority 2. Reasons for acquisition
3. Acquisition for limited period. 4. Boundaries of the capital area
5. Land acquisition. 6. Powers of Capital
Development Authority and
jurisdiction of the Court.
1. Powers of Authority: The powers of the Authority to
acquire land within the specified areas, are not unlimited. Any requisition within
these areas must have a reasonable reference to the purpose of the Ordinance and
must be carried out strictly in accordance with the provisions (PLD 1972 SC 279).
2. Reasons for acquisition. It is not within the domain of a Court of
law to analyze the sufficiency of the reasons which prevail with an Authority to
acquire property, and if apparently the acquisition is for a public purpose, the
Court will not interfere unless a question of mala fide is raised (PLD 1970 Lah.
821 )
3. Acquisition for limited period. The fact that the public purpose for
which the land is being acquired is for limited duration does not affect the powers
of acquisition of the Auditor (PLD 1970 Lah. 821}
4. Boundaries of the capital area. Plea for inclusion of certain
village lying on the boundary between District Rawalpindi and Islamabad the
capital territory. Validity Boundaries which had already been settled in view of
the acquisition of land under section 22, Capital Development Authority
Ordinance,1960 and Capital of the Republic (Determination of Area)
Ordinance,1963 and other relevant laws, could not be now altered without
following the provisions of Article 239, Constitution of Pakistan and therefore
any directive or notification requiring any change could not be enforced now.
Petitioner, in his alternate plea stated that even with respect to the boundaries
were only made in the plans and in the papers High Court, while disposing of the
Constitutional petition observed that the Capital Development Authority and the
District Coordination Officer of Rawalpindi should hold a meeting for
determining a date for joint demarcation of the boundaries in accordance with law
and to effect the physical demarcation of the boundaries within a period of three
29
months from the announcement of the judgment while submitting a compliance
report to the High Court ensuring that the same reaches the High Court by the Ist
of March,2003 (PLD 2003 Lah. 55 }
5. Land acquisition. Resumption of acquired land from company in
event of its non utilization for restoring the same to previous owners. Initiation of
such proceedings under Rule 15 of Punjab Land Acquisition Rules,1983 in
respect of land within Islamabad Capital Territory (Administration ) Order, 1980
does not make applicable Punjab Land Acquisition Act,1886 in its entirity in
Islamabad Capital Territory, Punjab Land Acquisition Act 1886 and Punjab Land
Acquisition Rules, 1983 are not applicable to Islamabad Capital Territory, which
is given district Constitutional status and is a separate area from the Province of
Punjab Land Acquisition Act,1894 is not a law applicable for purpose of
acquisition within Islamabad Capital Territory. Compulsory acquisition of land
within Islamabad Capital Territory is effected under Capital Development
Authority Ordinance,1960 and Land Acquisition Regulations 1961. General
Standing Order No. 28 issued under Land Acquisition Act,1894 is not applicable
in Islamabad Capital Territory premise for initiating proceeding under Punjab
Land Acquisition Rules 1983 by Chief Commissioner Islamabad was not legally
available {2004 CLC 145).Government’s power to acquire land for public good
though unquestionable, such power generally to be exercised on payment of full
compensation equal to market value of land (PLJ 1983 FSC 298}
6. Powers of Capital Development Authority and jurisdiction
of the Court. Acquisition of land merely with the label of public purpose will
not be enough to make acquisition of land under the Ordinance. Law does not
given unfettered powers to the Authority to acquire any land at any time in the
specified area. Acquisition must be in pursuance of some scheme approved by the
Competent Authority. No restriction could be placed on the jurisdiction of the
court to go into the question of legality of the acquisition of lands {1999 YLR
247 )
23. Entry upon land, preliminary survey, etc:- (1) It shall be
lawful for the Authority, and any member thereof and for the Deputy
Commissioner, and any such person as may either generally or specially be
authority by the Authority, in this behalf:-
30
(a) to enter and survey and take levels of any land.
(b) to dig or bore into the subsoil.
(c) to do all other acts necessary6 to ascertain whether land is
adopted for the purposes of this Ordinance.
(d) to set out the boundaries of the land proposed to be acquired and
the intended line of the work, if any proposed to be made thereon.
(e) to mark such levels, boundaries and line by placing marks and
cutting trenches and
(f) where it is necessary for the purposes of the survey, taking of
levels or marking of line, to cut down and clear away any part of
any standing crop, fence or jungle.
(2) No person shall enter into any building or upon any enclosed court
or garden attached to a dwelling house (unless with the consent of the occupier
thereof ) without previously giving such occupier at least twenty four hours notice
in writing of his intention to do so.
24. Compensation for damage. Where any damage is caused to any
land in consequence of anything done in pursuance of section 23 there shall be
paid compensation, the amount of which shall be determined in the manner and in
accordance with the provisions hereinafter set out, that is to say:-
(a) where the amount of compensation can be fixed by
agreement, it shall be fixed in accordance with such
agreement and
(b) where no such agreement can be reached, it shall be fixed
by the Deputy Commissioner.
25.Power to acquire land: (1) Subject to the other provisions of this
Ordinance, the rules made thereunder and the directions of the Authority, the
Deputy commissioner may by order in writing acquire any land the purposes of
this Ordinance.
31
(2) No order under sub section (1) shall be issued except on
the receipt by the Deputy Commissioner of specified directions
from the Authority:-
COMMENTS.
Synopsis.
1. Power of acquisition 2. Mala fide acquisition
3. Safeguard the ownership of land and Proprietary rights of
property.
1. Power of acquisition: Since 25 of the Ordinance gives the powers to
acquire land. Section 25 has categorically provided that the land can be acquired for the
purposes of the Ordinance subject to the other provisions of this Ordinance, the rules
made there under and the directions of the Authority. This naturally takes back, inter alia,
to the provisions of the sections 11,12,13 and 14 of the Ordinance. Apart from the
purpose of the Ordinance however, the acquisition under the Ordinance has to be made in
pursuance of a scheme framed under the Ordinance (PLD 1972 SC 279) Capital
Development Authority in its direction could not acquire any land in the specific area)
without preparing a scheme or disclosing the public purpose for which the land was to be
acquired {1999 YLR 247 }
2. Mala fide acquisition: The Court would not uphold a mala fide acquisition.
The acquisition was held to be mala fide in the following circumstances:- (i) Different
reasons were given at different times for the acquisition of property. (ii) The land was
allegedly acquired for Presidential Secretariat but the Master Plan did not show that the
land acquired by the property in dispute was earmarked for setting up the Presidential
Secretariat, on the contrary the pan showed quite a different place at a considerable
distance from the property in dispute, as earmarked for setting up the Presidential
Secretariat (iii) No scheme appears to have been framed under the Ordinance which is
applicable to the acquisition of the property in question (iv) The scheme was produced at
a very belated stage of the writ petition (v) The acquisition of the property when it was
already under requisition and in use for the same purpose (vi) The unseemly hurry in the
process of the acquisition (PLD 1972 SC 279 ).
3. Safeguard the ownership of land and proprietary rights of
property. Authority had deprived the petitioner of such rights through urgent
acquisition of land without any scheme and compensation to the petitioner. Validity,
Authority had power to acquire the land but where the land of the petitioner was
acquired without acquiring the land of the land owners in the same vicinity having the
same effect on the Rawal Lake and falling in the same area, acquisition of the petitioner’s
land was unconstitutional in circumstances (1999 YLR 247 ).
26. Land to be marked out, measured and planned. Where any land is
proposed to be acquired under Section 25 of Deputy Commissioner shall cause the land
32
(unless it has been already marked out ) to be marked out and measured and if no plan
has been made thereof, a plan to be made of the same.
26. Notice to persons interested: (1) The Deputy Commissioner
shall then cause public notice to be given at convenient
placed on or near the land to be taken, stating that the
{Federal Government} intends to take possession of the
land, and that claims to compensation for all interests in
such land may be made to him. Such notice shall state the
particulars of the land so needed, and shall acquire all
persons all persons interested in the land to appear
personally or by agent before the Deputy Commissioner at
a time and place therein mentioned (such time not being
earlier than ten days after the date of publication of the
notice) and to state the nature of their respective interests
in the land and the amount and particulars of their claims to
compensation for such interest, and their objections if any,
to the measurements made under section 23 and the Deputy
Commissioner.
Subs. By F.A.O 1975 Art 2 and Table for “Central
Government”
May require any such statement to be made in writing and
signed by the party or his agent.
(2) The Deputy Commissioner shall also serve notice to
the same effect on the occupier, if any of such land
and on all such persons known or believed to be
interested therein, or to be entitled to act for persons
so interested.
COMMENTS.
Notice to party. The Act provided that notice of acquisition must be given to the
party interested. The object of law is that the party may be heard and justice be done to
him. Therefore, where the party was not given notice by DC, but was heard by Appellate
Authority. It was held that even if the petitioner was not given a hearing at the initial
stage, he was heard by the appellate authority and all his contentions were taken note and
the order of the Deputy Commissioner was modified and the rate of compensation was
enhanced from Rs.76 to Rs.112. Therefore, the principles of natural justice have
sufficiently been completed with and the impugned order cannot be set aside for that
reasons alone (PLD 1968 Lah. 938-PLR 1968 (2) W.P. 432).
27. Enquiry and award of Deputy Commissioner. On the day so fixed,
or on any other day to which the enquiry has been adjourned, the Deputy Commissioner
shall proceed to enquire into the objections, if any, which any person interested has stated
33
pursuant to the notice given under Section 27, and into the market value of the land and
into the respective interests of the persons claiming the compensation, and shall make an
award of:-
(i) the true area of the land.
(ii) The compensation which in his opinion should be allowed
for the land.
(iii) The apportionment of such compensation among all the
persons known or believed to be interested in the land of
whom, or of whose claims, he has information, whether or
not they have appeared before him.
COMMENTS.
Dispute between the parties related to apportionment of compensation i.e. as to
whom it was payable. Deputy Commissioner under Section 28(iii) of Ordinance is
invested with powers to decide the q2uestion of apportionment of compensation amongst,
claimants and his order could be assailed under Section 36 of Ordinance before
Commissioner, whose order would be final. Commissioner could not evade his
responsibility to decide the question of apportionment of compensation between parties
and shift the same in Civil Court. Civil Court had jurisdiction only to see, whether order
was passed in accordance with the provisions of Ordinance or not {2001 YLR 2751}.
Compensation: where any land is acquired under this Ordinance there shall be paid
compensation, the amount of which shall be determined by the Deputy Commissioner
who shall be guided by the provisions of section 30 and 31.
COMMENTS.
Synopsis.
1. Compensation a rates equal to that fixed for other similar land.
2. New plea in Supreme Court.
1. Compensation at rates equal to that fixed for other similar land.
Where petitioner’s counsel urged Commission to award at least same rates of
compensation as awarded by him in a specified case. Commissioner while accepting such
plea, cannot be said to have acted whether lawful authority by not adverting to an order
neither placed before him nor relied upon {1981 SCMR -21-PLJ 1981 SC 198}.
Compensation of market value to be assessed on value prevailing at time of acquisition
and not to the notified value fixed in relation to time before such acquisition (PLD 19854
FSC 221 PLJ 1983 FSC.298).
34
2. New plea in Supreme Court. A plea which could have been raised before
Commissioner but not raised before cannot be raised for the first time before High Court.
The plea was not allowed to be raised in Supreme Court (1981) SCMR 21-PLJ 1981 SC
198}
Matter to be considered in determining compensation:-
(1) In determining the amount of compensation to be awarded for land acquired under
this Ordinance the Deputy Commissioner shall take into consideration:-
First the market value of land {on the date of order of its acquisition made under section
25}.
Secondly the damage sustained by the person interested, by reason of dispossession of
any standing crops or trees which may be on the land.
Thirdly, the damage, if any sustained by the person interested at the time of taking
possession of the land by reason of severing such land from his other land.
Fourthly, the damage, if any sustained by the persons interested at the time of taking
possession of the land by the acquisition injuriously affecting his other property movable
or immovable, in any other manner or his earning and;
Fifthly, if in consequence of the acquisition of the land the person interested is completed
to change his residence or place of business, the reasonable expenses, if any, incidental to
such change.
(2) In addition to the value of the land determined as aforesaid, the Deputy
Commissioner shall in every case award a sum of fifteen per centum on such value in
consideration of the compulsory nature of the acquisition.
(3) In relation to land acquired on or after the first day of January,1996 in addition to
the value of land determined as aforesaid, the deputy Commissioner shall in every case
award a sum of twenty per centum on such value in consideration of the compulsory
nature of the acquisition.}
COMMENTS.
Synopsis
1. Compensation-Factors to be 2. Actual expenses incurred by
considered. owner as immaterial.
3. Classified land 4. Potential value.
5. Loss of business. 6. Unauthorized structures on
35
land.
7. Review of order of predecessor
commissioner.
1. Compensation-Factors to be considered. Compensation for
acquired land Factors to be considered are (1) market value of the land. (2)
damage caused by reason of dispossession, besides the value of land so
determined is to include 15% per annum of such value in consideration of
compulsory nature of acquisition. In terms of section 31, these factors are not to
be ignored while determining compensation (2002 SCJ 189 ). The principles for
fixing compensation may now be summed up as follows (i) The Deputy Com
missioner is first to determine and find out as to what is the classification of land
acquired as recorded in the register of Haqdaran Zamin as in force on 1.1.1968 (ii)
he is there to determine and find out as to what was the average market value
thereof during the period 1.1.1954 to 31.12.1958. While so doing it may be
noticed that the classification recorded in the Register of Haqdaran Zamin which
was in force on 1.1.1968 has to be given retrospective effect and it is to be
considered as if the classification of 1.1.1968 was in force during the period
1.1.1954 to 31.12.1958 (iii) to the average value so Sub section (iii) added by the
Capital Development Authority (Amdt ) Act 1999 (III of 1999 ) s.3. Determined
he is then to add 25% thereof; (iv) the aggregate so obtained by adding (ii) and
(iii) will thus come out and constitute the ‘market value ‘ of the land within the
meaning of section 2(k)(ii) of the Ordinance, which the Deputy Commissioner in
inter alia required to keep under consideration while awarding and assessing
compensation under section 31(v) the material date for compensation however is
the date of acquisition and not any other date (vi) that while compiling the
compensation amount, the potential value of the land as on the acquisition day is
not to be lost sight of and is to be duly taken into consideration for whatever
worth it may be (see the deductions made while interpreting section 31. fourthly
and other analogous provisions ) (vii) he is also not to exclude from consideration
the individual merits of a particular land acquired within the same classification to
which that land belongs or in other words without affecting or changing the
general classification of that land (vii) as per section 3 of the Capital
Development Authority Amendment ) Ordinance VII of 1968 any award of
compensation made before the commencement of this Ordinance in respect of any
land acquired on or after the first day of January,1968 shall be modified so as to
raise the amount of compensation specified therein to the amount which would
have been awarded had he award been made after the commencement of the
Ordinance 2002 SC 189 PLD 1977 Lah. 1200=PLJ 1977 Lah.605) It follow that
where village C was situated 3-4 miles away from village ‘B’ and its had were
nearer to urban area of “R” and were more valuable. Compensation assessed for
village ‘C’ cannot be awarded to petitioners (1982 SCMR 1136 }.
36
2. Actual expenses incurred by owner are immaterial. In land
acquisition proceedings compensation is to be awarded on the basis of market
value as defined under section 2(k). The fact that actual expenses incurred by a
party to acquire that land had come to an amount for beyond the compensation
allowed, would not justify any increase in amount of compensation beyond that
permitted by law (PLD 1968 Lah. 938=PLR 1968 (2) W.P. 342}
3. Classified land. Pegging of classification which is meant only for
technical definition of the “market value” does not warrant that individual and
exceptional merits of any particular piece of land within the same relevant
classification can be ignored for compiling compensation amount” when by so
doing no change in that classification in any manner takes place (PLD 1977 Lah.
1200-PLJ 1977 Lah. 605) In such cases it is no longer open to introduce the
concept of improvements and improved conditions so as to change the
classification. Such improvements, etc which purport to change classification of
the land for technical definition of market value and is not to affect individual
merits of a particular piece of land while remaining within and without effecting
or altering, its relevant classification for compiling ‘compensation amount” as
district from technical market value as aforesaid (PLD 1977 Lah.1200 PLJ 1977
Lah. 605}.
4. Potential value. When determining compensation potential value of
land must be considered but it must be the potential value as it existed before
acquisition took place. Past acquisition use of land cannot be considered (PLD
1977 Lah. 1200}
5. Loss of business. When the land acquired was being used as a brick
kin by its lessee and the lessee claimed compensation for loss of business. The
Court ordered that compensation be paid to the lessee for loss of business (PLD
1977 Lah. 843=PLJ 1977 Lah 481}
6. Unauthorized structures on land. Where unauthorized structures
raised by the lessee of the land are also acquired by CDA alongwith the land,
lessee is entitled to compensation for them, because even if they are unauthorized
vis-Ã -vis the lessor, the Capital Development Authority cannot get them free of
cost and vis-Ã -vis the Capital Development Authority the said
constructions/additions belong he lessee and if they are to be taken over
compensation for the same shall have to be paid to the lessee (PLD 1977 Lah.
843-PLJ 1977 Lah. 481}
7. Review of order of predecessor Commissioner. Owners of
land were entitled to be awarded just and equitable compensation but the
Commissioner had neither considered relevant provisions of law for assessment of
market value and compensation nor had followed the guidelines laid down by
Supreme Court and High Court through binding upon him in view of Article 189
of Constitution nor had taken note of use of land on the date of acquisition nor its
potential value nor market value classification-wise nor had considered the
37
compensation awarded earlier by predecessor Commissioner in terms of Section
2(k) 30 & 31 of the Ordinance and guidelines of Supreme Court and High Court
could not be said to be in violation of law liable to be interfered within exercise of
review jurisdiction. Successor Commissioner, in absence of discovery of new and
important matter or evidence or error apparent on the face of record or any other
sufficient cause could not review a legal and proper order of his predecessor.
Supreme Court dismissed the appeal of the Authority holding that High Court was
justified in restoring the order of predecessor Commissioner after setting aside the
order of his successor (PLD 2002 SC 243}
Factors to be ignored in determining compensation:
In determining compensation as aforesaid, the Deputy Commissioner shall not
take into consideration:-
First, the degree of urgency which had led to the acquisition.
Secondly, any disinclination of the person interested to part with
the land acquired.
Thirdly, any damage sustained by him which, if cause by a private
person would not render such person liable to a suit.
Fourthly, any increase likely to accrue to the value of the land
acquired from the use to which such land will be put on
acquisition, and
Fifthly, any increase likely to accrue to the value of the other land
of the person interested from the use to which the land acquired
will be put.
32. Vesting of land in the Authority:- Immediately on the
making of the award under section 28, the land shall vest in the
Authority free from all.
33. Encumbrances (and thereupon the Deputy Commissioner
may after giving reasonable notice to the occupier, enter upon and
take possession of them.
32-A. Payment of additional compensation: When the amount
of the compensation determined under section 29 and sub section
(3) of section 30 is not paid or deposited with the Deputy
Commissioner shall, in addition to such compensation, pay
additional compensation computed at the rate of eight per centum
per annum on such compensation from the time of so taking the
possession until it has been so paid or deposited}
38
33. Acquisition in cases of urgency. In cases of urgency, the
Deputy Commissioner may immediately after the publication of
the notice mentioned in sub section (1) of section 27 enter upon
and taken possession of the land which shall thereupon vest
absolutely in the {Authority} free from all encumbrances.
Provided that the Deputy Commissioner shall not take possession
of any building or part of building under this section without
giving to the occupier thereof at least twenty four hours’ notice of
his intention so to do, or such longer notice as may be reasonably
sufficient to enable such occupier to remove his movable property
from such building without unnecessary inconvenience.
{33-A-Temporary occupation and use of land1) Where the
Authority requires any land for temporary occupation and use for
he purpose of this Ordinance for a period not exceeding five years,
it may direct the Deputy Commissioner to take possession of the
land in accordance with the provisions of this section for such
occupation and use.
(2) Upon a direction under sub section (1) in respect of
any land, the Deputy Commissioner shall give the persons having
interest in the land notice in writing of his intention to take
possession of the same for he purpose and period specified therein
calling upon such persons to submit within ten days of the receipt
of the notice written statement describing the nature and extent of
their interest in such land.
(3) The Deputy Commissioner, shall after giving the person
having interest in the land an opportunity of being heard,
determine the amount of
‘Added by the Capital Development Authority (Amdt) Act
1966(22 of 1966),s.7
Added by the Capital Development Authority (Admt) Act 1999
(III of 1999 ) s.r
Subs. By the Capital Development Authority (Admt) Act 1966 (22
of 1966)s.8 for Central Government.
Section 32 A and 33’B ins.ibid, s.9.
Compensation payable fore the temporary occupation and use of the land at the
rate at which it was rented during the preceding agricultural year and if, it was not
to rented, at such rate as he may consider fair and equitable, and make an award
specifying:-
39
(a) the area and description of the land.
(b) The purpose and the period for which the land is required.
(c) The amount of compensation and shares therein of the person, if
there be more than one, entitled thereto and
(d) The mode of payment of compensation.
(4) After making an award under sub section (3) in respect of any land,
the Deputy Commissioner may enter upon and take possession of
such land for the period and the period specified in the notice under
sub section(2)
(5) If it appears that as a result of the occupation and use as aforesaid any
land proposed to be taken possession of under this section is likely to
be permanently unfit for the use for which it is for the time being used
and the owner applies for its acquisition under this Ordinance, the
deputy Commissioner shall report the fact to the Authority and shall,
if the Authority so direct:-
(a) acquire the land under the Ordinance; or
(b) assess the damage likely to be caused to the land and make
an award for reasonable compensation for such damage; or
(c) terminate the proceedings for taking possession of the land.
(33 B. Payment of compensation to persons under disability and
heirs of deceased persons:- (1) If any person entitled to the payment of any
compensation under the Ordinance is a minor, or of unsound mind, or under
some other legal disability to receive payment, the Deputy Commissioner may
by order direct that the payment of such compensation shall be made to the
person applying for it on behalf of the person entitled thereto, if the Deputy
Commissioner, after making such enquiry as he may deem fit, is satisfied that
the person so applying is the proper person to receive payment for the benefit of
the person entitled to compensation.
(2) Where a person entitled to receive compensation under the
Ordinance dies after the making of an award, the Deputy Commissioner may, to
Provide relief in suitable cases, on the application of the heirs or legal
representatives of such person and after holding an enquiry into the title of the
appellants, direct that compensation shall be paid to the applicants on such
terms and conditions as the Deputy Commissioner may deem fit to impose.
(3) Any person made under sub section (1) sub-section (2) shall afford full
indemnity to the Authority for the payment made but shall not affect the liability
40
of the person who has received the payment to account therefore to the person
lawfully entitled thereto}
34. Power of Deputy Commissioner to call for
information:
With a view to acquiring any land or determining any compensation therefore or
to carrying out any other purpose of this Ordinance, the Deputy Commissioner
may:-
(a) require any person, by order in writing to furnish such
information in his possession relating to any land as may be
specified in the order.
(b) enter or authorize any person to enter upon any land and take
such action as may be necessary.
35. Power of Authority to give directions to Deputy
Commissioner. The Authority may give direction to the Deputy Commissioner as
respects of the exercise of his powers and the discharge of his functions under this
Chapter and Deputy Commissioner shall be guided by, and act in accordance with such
directions.
COMMENTS.
Authority to issue directions: Capital Development Authority could issue directions only
in consonance with and subordinate to other provisions of Ordinance and not ultra vires
of them. Nothing in section 28 read with section (2(k) or in any other provisions of
Ordinance warrants conclusion of Deputy Commissioner being not required to award
compensation according to existing classification of land on date of expropriation of the
owner. Directions issued by Authority under Section 35 to ignore bona fide
improvements made after 1958 but before acquisition, held, ultra vires. Amendments
subsequently introduced into section 2(k) by amending Ordinance VII of 1968, held
further had no effect on land acquired before 1-2-1968 (PLF 1976 SC-752).
Appeal and review:-
(1). The Authority or any person aggrieved by an award or final order of
the Deputy Commissioner may, within fifteen days of such award or order, appeal
to the Commissioner.
(2) The Commissioner may, after giving the Authority and he person
affected by the award or order appealed against an opportunity of submitting an
41
objection to the appeal and of being heard, pass such orders thereon as he may
think fit.
(3) The Deputy Commissioner or the Commissioner, either of his own
motion or on application made in this behalf, at any time within five years from
the date of an award or order made or passed by himself or by any of his
predecessor in office, including an award or order made or passed before he
commencement of the Capital Development Authority (Amendment) Act 1960
may after giving the parties concerned a notice and an opportunity of being heard,
review the award or order and pass such order thereon as he may deem fit.
Provided that an order under his sub-section shall not, except in so far it
corrects an arithmetical, clerical or patent error or mistake in the award or and
under review, enhance, the amount of compensation awarded.
(4) Any amount paid to any person which is found, for any reason
including fraud or misrepresentation, not to be due or in excess of the amount is
entitled to under the award or order as review under sub-section (3) shall be
recoverable by the Authority and the Deputy Commissioner shall call upon such
person to refund it.
(5) Subject to the provision of sub section (3), the order of the
Commissioner passed on any appeal shall be final and shall not be called question
in any court}.
COMMENTS.
Synopsis
1. Review after appeal is filed 2. Miscellaneous petition if may
be converted into Constitutional
petition.
3. Review proceedings. 4. Contempt of Court.
5. Constitutional petition. 6. Jurisdiction of Commissioner to
review order more than once.
_________________
1. Subs. by the capital Development Authority (amdt) Act 1966 (22 or 1966),
s.10 for section 36)
1. Review after appeal is filed. Where the CDA filed a review petition
before Deputy Commissioner himself after his award had been challenged in
appeal by the land dwellers, It was held; that it was clearly not open to the
Deputy Commissioner to proceed to review own order during the pendency of the
42
appeal before the superior officer; nor could the Deputy Commissioner alter the
award in review after the appeal had been decided by the Commissioner (1973
SCMR145 ).
2. Miscellaneous petition if may be converted into
Constitutional petition. Conversion of proceeding of one kind into another
lies within the discretion of he Court, if the High Court was satisfied that
circumstances of the case justified conversion of miscellaneous application filed
by respondents in a disposed of case into proceedings under Article 199 of the
Constitution of Pakistan there was no legal bar to such conversion of the
proceedings {1994 SCMR 771=NLR 1994 SCJ 372 }
3. Review proceedings: Dispute regarding acquisition of land was
finally decided by Supreme Court and direction was issued to the authorities to
pay compensation to affectees. Authorities had paid compensation to some of the
affectees, when all of a sudden Deputy Commissioner, Capital Development
Authority, initiated suo motu review proceedings under Section 36(3) of Capital
Development Ordinance, 1960 and excluded the names of certain landowners.
Respondents/Commissioner Capital Development Authority allowed, appeal filed
by aggrieved landowners and set aside the order passed under suo motu powers
by Deputy Commissioner. Validity, after receiving the reports, Deputy
Commissioner, a functionary under Capital Development Authority Ordinance
1960, himself visited the site and inspected existence of houses and structures and
thereafter according to the policy of Capital Development Authority, affectees
opted to remove Malba of buildings subject to deduction of 15% of the value of
houses. After the observations of Supreme Court, Authorities had acted with mala
fide intention to further delay legitimate payment of compensation which was not
justified on any legal or normal ground when the awards were adjudged valid and
proper by Supreme Court, the Deputy Commissioner, Capital Development
Authority was not empowered to exclude names of affectees from the award after
exercising powers of suo motu review. High Court in exercise of Commissioner
jurisdiction, assigned to interfere with the order passed by
respondent/Commissioner Capital Development Authority. Petition was
dismissed in circumstances {2008 CLC 1530).
4. Contempt of Court. Commissioner reviewed the order of his
predecessor on the ground that Supreme Court had misinterpreted the law, which
misinterpretation would not be shared by him, thus calling it as mistake patent on
the face of record. Successor Commissioner by such observations had showed
disrespect to decisions of Supreme Court and High Court, which prima facie
would amount to contempt of Supreme Court warranting legal consequences.
Notice was issued to Commissioner to show cause as to why proceedings under
Article 204 of Constitution read with Section 3 & 4 of Contempt of Court
Act,1976, be not initiated against him for showing his willful disobedience and
disrespect to the dignity and decorum of Supreme Court and High Court in
violation of such provisions (PLD 2002 SC 243}
43
Commissioner, Capital Development Authority, while disposing of a
revision petition under section 36 of the Capital Development Authority
Ordinance,1960 had differed in its judgment with the interpretation placed by the
High Court and the Supreme Court on Sections 29,30 and 31 of the said
Ordinance in the judgment reported in Sardar Begum and others, v. the Capital
Development Authority and others PLD 1977 Lah. 1200 and Muhammad Younus
and others v. Capital Development Authority and others PLD 1976 SC 752 by
using intemperate Language. Was obligatory on the Commissioner to follow he
said reported judgments in letter and spirit in terms of Article 189 of the
Constitution. Although the Administrative Functionaries did not enjoy judicial
powers but when they were require to pronounce a judicial decision in judicial
proceedings instituted before them, they were bound by the judgments of the
superior Courts as if they were functioning as a judicial forum having powers of
the Court to the extent of the decisions of the case required to be made by them
judiciously. Commissioner, therefore, had no lawful authority to differ with the
law laid down in the reported judgments and by not following the same he had
made himself liable for contempt of Court because while disagreeing with the
principles laid down therein he had used intemperate language. Respondent had
tendered unqualified apology for his action and had also placed himself at the
mercy of the Court. Perusal of the order passed by the Commissioner way back in
1983, however, indicated that he had not differed with the judgments quoted
before him with mala fide intention but on account of non-understanding of
judicial principles pertaining to apply the judgments of the superior Courts.
Supreme Court, therefore, had extended to the respondent the benefit of such
extenuating circumstances and did not exercise jurisdiction of contempt of Court
as provided under Article 204 of the constitution .Show cause notice issued to the
respondent/Commissioner was discharged accordingly with a warning to him that
in future he should remain careful while interpreting judgments passed by the
superior Courts, and if he repeated such conduct he would be dealt with strictly
without showing any leniency to him (PLD 2002 Sc 399}
5. Constitutional petition. Remedy of appeal available but such remedy
was not exhaustive and thus not suitable. Effect, Where petitioner had
challenged the very acquisition of land to be illegal and was not claiming the
enhancement of compensation, the provisions of Section 36 of the Ordinance was
not a remedy being not exhaustive. Constitutional petition was therefore,
maintainable {1999 YLR 247 }
6. Jurisdiction of Commissioner to review order more than
once. Commissioner, after deciding the earlier review application allowed
another review application. Validity. Where Commissioner had passed an order
on appeal, there arose right of review to any of the parties or a power vesting in
the Commissioner, himself to suo motu review the order so passed in appeal.
Once such power had been exhausted either suo motu or on an application, the
order to appeal would become final. Second review was not competent and the
Commissioner acted without awful authority in entertaining and allowing the
44
same. Order passed by the Commissioner in second review application was
without authority and the same was set aside. Constitutional petition was allowed
in circumstances {2002 YLR 1059}
36A. Deputy Commissioner and Commissioner to have
powers of civil court, etc. (1) The Deputy Commissioner making any
enquiry, or conducting any proceedings for an award under the Ordinance, or the
Commissioner hearing an appeal or holding a review under section 36, shall have
he same powers in respect of the following matters as are vested in a civil court,
when trying a suit, under the Code Procedure, 1908 (Act V of 1908} namely:-
1. Sections 36 A and 36 Bins. By the Capital Development Authority (Amdt)
Act,1966, s.11.
(a) summoning and enforcing attendance of any person and examining him on
oath or affirmation:
(b) requiring the discovery and production of any document;
(c) requisitioning any record from any court or office;
(d) issuing commissions for examination of wines, inspection of property or
making any local investigations;
(e) appointing guardian ad litem or next friends;
(f) adding or substituting representatives of deceased parties to proceedings.
(g) adding or dropping parties from pending proceedings;
(h) restoration of cases dismissed for default;
(i) consolidating and splitting up cases; and
(j) any other matter connected with the holding of an inquiry or hearing of an
appeal.
(2) The Deputy Commissioner or the Commissioner exercising powers under this
Ordinance shall be deemed to be a court for the purposes of sections 480 and 482 of the
Code of Criminal Procedure, 1898 (Act V of 1898), and a proceeding before him shall be
deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the
Pakistan Penal Code (Act XLV of 1860).
36B. Fees on applications:- The Authority may prescribe fees on applications
made to it.
45
CHAPTER V
ESTABLISHMENT
37. Appointment of officers and servants etc.
1) The Authority may from time to time, appoint such officers, servants, experts or
consultants as it may consider necessary for the performance of its functions, on such
terms and conditions as it may deem fit:
Provided that salaried officers and servants whose remuneration exceeds two
thousand and five hundred rupees per mensem shall not be appointed except with he
previous approval in writing of the (Federal Government).
(2) Subject to the proviso to sub-section (1), the Chairman may, in cases of urgency,
appoint such officers, servants, experts or consultants and on such terms and conditions
as he deems fit:
Provided that every appointment made under this sub section shall be reported to
the Authority without unreasonable delay.
38. Recruitment conditions of service and disciplinary
powers:-
The Authority shall lay down the procedure for the appointment of its officers, servants,
experts and consultants, and the terms and conditions of their services including the
constitution and management of provident fund for them, and shall be competent to take
disciplinary action against them.
COMMENTS
Notwithstanding pre-emptory language of section 38, appointment etc held could be
made without framing regulations. Requirements of section 38, held further directory
rather than mandatory (PLD 1979 Lah..803).
39. Members, officers, experts – public servants. The Chairman,
members, officers, servants, experts and consultants of the Authority shall, when acting
or purporting to ac in pursuance of any of the provisions of this Ordinance be deemed to
be public servants within the meaning of section 21 of the Pakistan Penal Code (XLV of
1860).
40. Indemnity. No suit, prosecution or other legal proceedings shall lie against
the Authority, the Chairman, any member, officer, servant, expert or consultant of the
Authority in respect of anything done or intended to be done, in good faith under this
Ordinance.
46
41. Delegation of powers to Chairman, etc. The Authority may, by
general or special order, delegate to the Chairman, or a member, or an officer of the
Authority, any of its powers, duties or functions under this Ordinance, subject to such
conditions as it may think fit to impose.
CHAPTER VI
FINANCE
42. Capital Development Authority Fund:-
(1) There shall be formed a fund to be known as the “Capital Development Authority
Fund” which shall vest in the Authority and shall be utilized by the Authority to meet
charges in connection with its functions under this Ordinance including he payment of
salaries and other remuneration to the Chairman, members, officers, servants, experts,
and consultants of the Authority.
(2) To the credit of Capital Development Authority fund shall be placed,.
(a) grants made by the [Federal Government];
(b) loans obtained from the [Federal Government];
© grants made by local bodies;
(d) sale proceeds of movable and immovable property and receipts for
services rendered;
(e) loans obtained by the Authority with the special or general
sanction of the [Federal Government];
(f) foreign aid and loans obtained from the International Bank of
Reconstruction and Development or from any other source outside
Pakistan, with the sanction of, and on such terms as may be
approved by, the [Federal Government]; and
(g) all other sums receivable by the Authority.
43. Budget.
(1) In the month of February each year the Authority shall submit to the [Federal
Government] for approval a statement of the estimated receipts and expenditure in rupees
in respect of the next financial year.
(2) In the manner prescribed by the [Federal Government] the Authority shall
also submit to the [Federal Government] for approval a statement
_____________________
47
Subs by F.A.O. 1975, Art 2 and Table for “Central Government”. of the estimated
receipts and expenditure in foreign exchange in respect of the next financial year.
(3) The Authority shall obtain specific sanction of the [Federal Government]
in respect of each individual scheme costing rupees twenty five lacs or more to be
financed out of the Capital Development Authority Fund.
44. Audit and accounts.
1) The accounts of the Authority shall be audited by not less than two auditors
holding certificates under section 144 of the Companies Act, 1913 (VII of 1913), who
shall be appointed by the [Federal Government], in consultation with the [Auditor
General] of Pakistan (hereinafter referred to as the Auditor General) on such
remuneration, to be paid by the Authority, as the [Federal Government] may fix, and the
Auditor General shall have the power to give directions to the auditors in regard to the
extent and method of their audit subject to the provisions of the Companies Act, and to
prescribe the forms of accounts to be maintained by the Authority consistent with the
requirements of this Ordinance.
(2) Notwithstanding the provisions of the preceding sub-section, the Auditor
General may either of his own motion or upon a request received in this behalf from the
[Federal Government], undertake such audit of the accounts of the Authority at such time
as may be considered necessary, and the Authority shall, at the time of such audit,
produce the account books and connected documents at such place or places as the
Auditor Genera may fix, and furnish such explanations and information as the Auditor
Genera or an officer or officers authorized by him in this behalf may ask for.
(3) Every auditor appointed under sub-section (1) shall be given a copy of
annual balance sheet of the Authority, and shall examine it together with the accounts and
vouchers relating thereto, and shall have a list delivered to him of all books kept by the
Authority, and shall at all reasonable times have access to the books, accounts and other
documents of the Authority, and m ay in relation to such accounts examine any member
or officer of the Authority.
(4) The auditors shall report to the [Federal Government] upon the annual
balance sheet and accounts and in their report they shall state whether in their opinion the
balance sheet is a full and fair balance sheet containing all necessary particulars and
properly drawn up so as to exhibit a true and correct.
___________________________
*Subs. by F.A.O 1975, Art. 2 and Table, for “Central Government”
Substituted by Federal Adaptation of Laws Order, 1975 (Order No.4 of 1975) for
“Controller and Auditor General”.
48
View of the state of the Authority’s affairs, and in case they have called for any
explanation or information from the Board, whether it has been given and whether it is
satisfactory.
(5) The {Federal Government} may at any time issue directions to the
auditors requiring them to report to it upon the adequacy of measures taken by the
Authority for the protection of the interests of the ‘{Federal Government} and of
the creditors of the Authority or upon the sufficiency of their procedure in
auditing the affairs of the authority, and may at any time enlarge or extend the
scope of the audit or direct that a different procedure in audit be adopted or that
any other examination be made by the auditor if in its opinion the public interest
to requires.
(6) The Authority shall comply with every direction issued by the {Federal
Government} for the rectification of matters objected to in audit.
45. Consultation with the Financial Advisor:- Save as provided in
the rules or regulations, the Financial Advisor shall be consulted on every proposal of
expenditure.
CHAPTER VII.
PENALTY AND PROCEDURE
46. Penalty:- Whoever contravenes any provision of this Ordinance or of
any rules or regulations made or scheme sanctioned thereunder shall, if no other
penalty is provided for such contravention, be punishable with imprisonment
which may extend to six months or fine or with both.
‘{46A. Causing damage to property:- Whoever willfully causes damage or allows
damage to be caused to any property which vests in the Authority or unlawfully
converts it to his own use or to that of any other person shall be punishable with
imprisonment for a term which may extend to one year, or with fine, or with both.
46B. Disobedience of orders: Whoever, without lawful excuse, fails or refuses
to comply with any direction or order issued by the Authority under this
Ordinance shall be guilty of an offence punishable under section 46.
‘Subs by F.A.O 1975, Art.2 and Table for “Central Government.”
49
‘Sections 46-A to 46-D ins by the Capital Development Authority (Amdt)
Act.1966(22 of 1966 )
44.
46-C. Attempts and abetments: Whoever attempts to commit or abets the
commission of an offence punishable under this Ordinance shall be deemed to
have committed that offence.
46-D. Summary trial of offences: Any Magistrate or Bench of Magistrates
empowered for the time being to try in a summary way the offences specified in
sub section (1) of section 260 of the Code of Criminal Procedure 1898 (Act-V of
1998 ), may, if such Magistrate or Bench of Magistrates thinks fit, on application
being made in this behalf by the prosecution, try any offence punishable under
this Ordinance in accordance with the provisions contained in sections 262 to 265
of the said Code}
47. Cognizance of offences by Courts:- N court shall take
cognizance of any offence punishable under this Ordinance except on a complaint
in writing made by the Authority or by an officer authorized for the purpose by
the Authority.
CHAPTER VIII
MISCELLANEOUS.
48. Submission of yearly reports and returns etc:
(1) The Authority shall submit to the {Federal Government) as soon as
possible after the end of every financial year but before the last day of December
next following a report on the conduct of its affairs for that year.
(2) The {Federal Government) may after giving sufficient notice to
the Authority, require it to furnish the Government with:-
(i) any return, statement, estimate, statistics, or other information
regarding any matter under the control of the Authority, or
(ii) a report on any subject with which the Authority is concerned, or
(iii) a copy of any document in the charge of the Authority; and the
Authority shall comply with every such requisition.
50
‘Subs. by F.A.O,1975, Art 2 and Table for “Central Government”
49. Power to dispose of land: The Authority may retain, or may
lease, sell, exchange, rent or otherwise dispose of any land vested in it.
COMMENTS
Synopsis
1. Minister’s powers qua allotment of 2. Allotment of pots by Prime
Property. Minister from the
discretionary quota.
3. Constitutional jurisdiction of
High Court. 4. Allotment of public
property parliamentarians
at Islamabad.
5. Allotment of land plot in Capital area.
1. Minister’s powers qua allotment of property. Capital Development
Authority having perpetual succession and a common seal, a Corporation with
independent audit and existence CDA Ordinance 1960 vests Authority with independent
power of preparation of master plan master programme, schemes and powers of
management. No such powers conferred by Ordinance on Minister Incharge. Minister,
held devoid of powers to allot property vesting to Authority {1979 CLC 502}
2. Allotment of plots by Prime Minister from the discretionary
quota. Paragraphs 15(i)(6),15(ii)(7) and 15 (ii-a) of Land Disposal in Islamabad
Regulations 1988 having been amended by Notification dated 19.5.1993 which was not
published in the official Gazette were ultra wires of the Capital Development Authority
Ordinance 1960 as said paragraphs were beyond the scope of the said Ordinance for
Prime Minister did not figure in the Ordinance in any capacity. Capital Development
Authority, itself could exercise any direction under paras 18© & 19(b) (iii) of the said
Regulations for these provisions were also ultra vires of the Ordinance and thus were
liable to be struck down alongwith paras 15(i)(6), 15(ii)(7) and 15 (ii-a) of the
Regulations. Plots so allotted therefore stood reverted to the Capital Development
Authority which was directed to take action in that behalf as ordered by the High Court
(PLD 1993 Lah. 155}
3. Constitutional jurisdiction of High Court. High Court has ample
jurisdiction to look into the allotment of plots by the Prime Minister of Pakistan in
various Housing Schemes of the Capital Development Authority from their discretionary
quota (PLD 1993 Lah. 855).
51
4. Allotment of public property to Parliamentarians at Islamabad.
Law prepares that an act was bona fide unless same was shown to have been taken with
mala fide motion. Mala fides cannot be presumed but has to be proved. If reservation of
plots in Development Schemes for other groups or class of people, in particular
Advocates to which class petitioner belongs was not objected to and has been treated to
be justifiable act, there was no reason to object to reservation of same to other class of
people in the same manner. No evidence in reservation of plots for Parliamentarians was
warranted in circumstances (1966 CLC 1987}
5. Allotment of land/plot in Capital Area. Lands/plots within limits of
Capital area of Islamabad is governed by Capital Development Authority Ordinance 1960
abd Rules and Regulations framed thereunder. Statutory Rules and Regulations as regards
transfer etc of State land in terms of Articles 260© & 268 (7) of the Constitution have
been declared to be the law for purpose of Article 173 (5) of the Constitution. Law
therefore, exists for dealing with State land within limits of Capital Area of Islamabad
{1996 CLC 1987}.
‘{49A. Recovery of dues etc. Any sum due to the Authority from,
or any scum wrongly paid to, any person under this Ordinance
shall be recoverable as arrears of land revenue.
COMMENTS.
Sum due to Authority. Actual amount due disputed. Held, same cannot be said to
be sum date, unless settled in accordance with law {1979 CLC 565 }
49B. Summary ejectment of unauthorized occupants: The Deputy
Commissioner or any person authorized by him or the Authority in
this behalf may, after giving fifteen days notice, summarily eject
any person in unauthorized occupation of any land or property
vested in the Authority and may, for such ejectment, use such force
including police force as may be necessary.
COMMENTS;
Eviction of leave: Plot given by capital Development Authority to Staff Welfare
Committee for welfare purpose. Lease of plot by Committee in favour of petitioner for a
fixed term. Eviction of petitioner from plot by Authority after expiry of lease while
matter of renewal of lease was under process. Petitioner alleged such eviction to be
illegal as lessor of plot was Committee which was a separate body from Authority and
thus, such lease was outside purview of Capital Development Authority Ordinance,1960.
Validity Committee was not alien to Authority, but was its competent Authority had
delegated certain powers to Committee to deal with plot and use its funds for purposes of
52
welfare of staff. Apprehension was that Authority under political influence would lease
out plot surreptitiously to someone else. High Court disposed of constitutional petition
with directions to Committee to decide fate of renewal of lease independently within
specified time, and on its failure to do so, petitioner would be put in possession of plot
till its decision (2006 CLC 745).
Plot lease to the petitioner had been given by the Capital Development Authority to the
Welfare Committee of the CDA’s employees so that the income derived from the plot be
utilized for welfare purpose and said committee was plenipotentiary with respect to all
the day to day matters relating to the said plot. Connection of the petitioner, who had
obtained the lease from the Staff Welfare Committee, was that action of ejecting him
from the plot had been taken at the end of the CDA without any proper decision in
connection with re-letting of the plot to the petitioner by the Welfare Committee.
Petitioner had further alleged that the authority in the Sections 49A to 49E ins. By the
Capital Development Authority (Amdt ) Act 1966 (22 of 1966) s.13. CDA with the
influence of certain political figures were trying to grab the plot in question and would
lease out the same surreptitiously to someone whom the authorities had been directed to
accommodate. Validity, Property undoubtedly belonged to the Capital Development
Authority and had been given over for welfare purpose to the Welfare Committee, CDA
therefore, same had some role in the matter and it was possible that CDA was used in
ousting the petitioner at the relevant time after the notice. Welfare Committee was
working with the Capital Development Authority and as such was an agency as the CDA
being its component same could not be said to be alien to the Body. CDA had delegated
certain powers to the Committee with the functional role to deal with plot in hand and use
its funds for the purposes of welfare of the Staff. Constitutional petition against the
Welfare Committee therefore was maintainable. Welfare Committee being incharge of
the plot in question having not aced independently in respect of any action which was
required to be taken with respect to the renewal of ease of the plot. High Court directed
that the matter be first referred to the Welfare Committee who shall hear the petitioner
afresh without prejudice to any past litigation for renewal of the said lease of the plot and
shall take a decision on the question of renewal of the lease without three weeks from the
announcement of the judgment by the High Court. Status quo, however, was ordered to
be maintained during such three weeks, but in case the Committee ailed in taking any
action in this, behalf, the petitioner shall be put in possession of the plot. In the
meanwhile until the Committee decided the fate of renewal of the lease on such terms
which were reasonable, according to the market value, genuine and not meant to defeat
the rights of the petitioner through deceit or circumvention of procedure in law.
Committee shall also ascertain as to what assets of the petitioner were lying at the plot(
Petrol pu mp) at the time its possession was taken over and will take measures for
safeguarding his rights in respect of those assets in accordance with law {2004 MLF
1644 }
49C. Removal of building, etc erected or used in
contravention of this Ordinance:- (1) If any building, structure,
work or land in erected, constructed or used in contravention of the
provisions of this Ordinance or of any rule, regulation or order
made hereunder, the Deputy Commissioner, or any person
53
empowered in this behalf y the Authority may, by order in writing,
require the owner, occupier, user or person control of such
building, structure, work or land to remove demolish or so alter the
building structure or work, or to desist from using or to so use the
land, as to be in accordance with the said provisions.
(2) If an order under sub-section (1) in respect of any building,
structure, work or and is not complied with within such
time as may be specified therein, the Deputy
Commissioner, or any person empowered in this behalf by
the Authority, may after giving the person affected by the
order an opportunity of being heard, remove, demolish or
alter the building, structure or work, or stop the use of the
land and, in so doing may use such force including police
force as may be necessary and may also recover the cost
therefore from the person responsible for the erection,
construction or use of the building, structure, work or land
in contravention of the provisions as aforesaid.
48.
49D. Police assistance:- The officer-in-charge of a policestation
shall render such police assistance as the Deputy
Commissioner may require in the discharge of his function under
the ordinance.
49E. Jurisdiction of courts barred:- Save as otherwise
provided by this Ordinance no court or other authority shall have
jurisdiction to question the legality of anything done or any action
taken under the Ordinance by or at the instance of the Authority.
COMMENTS.
Civil Courts Jurisdiction: Section 49-E protests from civil courts jurisdiction only
when orders passed in accordance with Act and not illegal orders (PLD 1978
Lah.1116 }.Though section 49E bar the jurisdiction to entertain question of the
legality of anything done or any action taken under this Ordinance, yet any thing
illegally done by Authority or its officers is not said to have been done under
Ordinance and courts jurisdiction in such circumstances is not barred (PLJ 1983
FSC 298}
Mala fides literally means “in bad faith” Action taken in bad faith is
usually action taken malicious 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 or action taken in fraud of the law are also
mala fide (PLD 1974 SC 151: PLJ 1974 SC 77 Law Notes 1974 SC 184 }
54
Civil courts can exercise jurisdiction to examine validity of acts of
statutory functionary to find ou whether or not it exceeds its powers and section
49E is no bar to exercise of such powers (PLD 1981 Lah. 341}. Under section
49(a) if actual sum due to the authority is in dispute the same cannot be said the
sum due unless settled in accordance with law {1979 CLC 565}
Jurisdiction of Civil Court will be barred only when the legality to
anything done or action taken under the Act/Ordinance by or at the instance of the
Authority is questioned. Jurisdiction of Civil Court, however, is not barred in a
suit for declaration about the nature of the transaction and the status of the parties
with consequential relief under section 42, Specific Relief Act,1877 (PLD 1995
SC 457 }
49F. Admissibility of document or entry as evidence: A copy of
any receipt, application, plan, notice order or other document or of
any entry in a register, in the possession of the Authority shall, if
duly certified by the legal keeper thereof or other person
authorized by the Authority in this behalf, be admissible in
evidence of the existence of the document or entry and shall be
admitted as evidence of the matter and transactions therein
recorded in every Section 49F ins. by the Capital Development
Authority (Admdt) Act 1968 (16 of 1968)s.2. Case where, and to
the same extent to which, the original document or entry would, if
produced, have been admissible to prove such matters}
COMMENTS.
Internal office noting. Objection as to its admissibility in
evidence not raised at time of its production in evidence, but raised in revision
before High Court. Objections so raised was of no substance {2003 CLC 1684}
50. Power to make rules. The *{Federal Government) may, by
notification in the official Gazette, make rules to carry out the purposes of this
Ordinance. Provided that no rules shall be made on any of the matters specified in
section 38.
51. Power to make regulations: The Authority may make
regulations, not inconsistent with the rules, if any, on all matters for which
regulations are necessary or expedient; and such regulations shall be published in
the official Gazette.}
COMMENTS.
Synopsis
1. Framing of regulations 2. Reservation of plots.
55
3. Imposition of property tax.
1. Framing of regulation: The Capital Development Authority is the
sole arbiter to frame regulation for he terms and conditions of its employees.
Requirement of publication cannot make non-statutory regulations statutory (PLD
1979 Lah. 803}.
Provisions of Sections 50 & 51 of the Ordinance are ambiguously worded
inasmuch as neither of these sections lays down any guidelines as on which
subjects the Federal Government was to frame the rules and on which topics
Capital Development Authority was to frame regulations, except to the extent that
the Rules could not be framed on certain service matters mentioned in section 38
of the Ordinance. If provision of section 49 be read with section 51 of the
Ordinance, then it can be said that the Authority could frame Rules for the
disposal of the land vesting in it. Land Disposal in Islamabad Regulations 1985
having been neither approved by the Federal Cabinet nor been published in the
official Gazette o satisfy the requirement of section 51 of the Ordinance were
incapable of being aced upon. If the Authority or any of the functionaries had
acted upon these regulation, all that was without lawful authority and of no legal
effect (PLD 1993 Lah. 855}.
*Subs. by F.A.O 1975, Art. 2 and Table, for “Central Government.”
!Subs. by the Capital Development Authority (Amdt) Act,1966 (22 of 1966), s.14
for s.51.
2. Reservation of plots. Law presumes that an act was bona fide unless
same was shown to have been taken with mala fide intention. Mala fides cannot
be presumed but has to be proved. If reservation of plots in Development
Schemes for other groups or class of people, in particular Advocates to which
class petitioner belongs was not objected to and has been treated to be justifiable
act, there was no reason to object to reservation of same to other class of people in
the same manner. No interference in reservation of plots for Parliamentarians was
warranted in circumstances {1966 CLC 1987 }. Statutory Rules and Regulations
framed thereunder have been declared to be the law for purpose of Article 173 (5)
of the Constitution {1966 CLC 1987 }
3. Imposition of property tax. Petitioners who owned and operated
hotel in Islamabad Capital Territory, had questioned imposition of property tax
and its recovery by the Authority. Contention of petitioners was that they being
not located in any of the areas mentioned under the heading “commercial” were to
be treated as Industrial concern and be charged accordingly. Terms “Industrial”,
“institution” or “commercial” had not been defined in the Rules framed by
Federal Government for the imposition of property tax and recovery thereof. Till
such time a statutory enactment including the hotels located in Islamabad Capital
Territory in the term “Industry” or “industrial” or “institution” was not made by
56
Competent authority, petitioners could not claim as a right to be charge as an
industrial concern vis-a-viz said property tax {PLD 2004 Lah. 80}
52. Dissolution of the Authority and transfer of its assets
and liabilities to the Federal Government and other agency
determined by that Government:-
(1) The *{Federal Government} may, by notification in the official Gazette,
declare that the Authority shall be dissolved on such date as may be specified in
such notification, and the Authority shall stand dissolved accordingly.
(2) On and from the said date:-
(a) (i) all properties, funds and dues placed at the disposal of the
Authority by the {Federal Government) and
ii) all properties, funds and dues exchanged for derived from or
otherwise attributable to the properties, funds and dues referred to in sub-clause
(i) which, immediately before the said date, were held by or were realizable by the
Authority shall vest in and be reliable by the {Federal Government} and
(b) all properties, funds and dues, other than those referred to
in cause (a) which immediately before the said date were vested in or were
realizable by the Authority shall vest in
*Subs. by F.A.O 1975, Art 2 and Table for “Central Government and be
realizable by such agency as the {Federal Government} may determine,
and its decision thereon shall be final.
(c) all liabilities which, immediately before the said date, were
enforceable against the Authority shall be assumed by and be enforceable
against the *(Federal Government} or such agency as the “Federal
Government determines under clause (b) as the case may be;
(d) for the purpose of completing the execution of any scheme
which has not been fully executed by the Authority and of realizing
properties, funds and dues referred to in clause (a) and (b), the functions of
the Authority under his Ordinance shall be discharged by the “Federal
Government} or by the agency determined by the *{Federal Government
} under clauses (b) and (c), as the case may be; and
(e) the agency referred to in clauses (b),(c) and (d) shall keep
such accounts of all moneys respectively received and expended by it
under this Ordinance, as the *{Federal Government} may prescribe.
_____________
57
Subs. by F.A.O 1975, Art.2 and able. For “Central Government”.
THE SCHEDULE
(See section 2(P)}
From Triangulation Point 5264 (near Village Nilan Bhotu), Map
Ref.191698 (Survey of Pakistan map .scale 1 in.to mile, sheet No.43 G/1), north
east along the Rawalpindi tehsil boundary to spot height 4949 Map. Ref:
223713(Survey of Pakistan map, scale 1 in, o 1 mile, sheet 43 G/1) then, south
east again along Rawalpindi tehsil boundary to the tehsil boundary and Nala
junction at Map Ref. 227707 (Survey of Pakistan map, scale 1 in. to mile, sheet
No.43 G/1) from her south-east along the Nala to the junction in the nala at Map
Ref. 250701 (Survey of Pakistan map, scale 1 in. to 1 mile, sheet No.43 G/1).
From this junction south east across the range of hills and via Village Mangial
(Map Ref: 268696 ) to village Karlot Map Ref: 287693(Survey of Pakistan Map.
Scale 1 in. to 1 mile, sheet No.43 (G/1). From village Karlot south east along the
Nala to Nala and Kurang Nala junction and along Kurang Nala to Junction of
Kurang Map. Ref: 304685 (Survey of Pakistan Map. Scale 1 in to 1 mile, sheet
No.43 G/1). From here due east across country to the Rawalpindi tehsil boundary
of Map. Ref: 310683 (Survey of Pakistan map, scale 1 in. to 1 mile, sheet No.43
(G/5) and south east along the tehsil boundary to the junction of the tehsil
boundary and Kurang Nala at Map. Ref> 315676, then north east along the
Kurang Nala to the junction of the Nala and tehsil boundary at Map. Ref. 327678
(Survey of Pakistan map scale 1 in to 1 mile, sheet No.43 (G/5). From this
junction south east across country via spot height 2954 Map. Ref>
345664(Survey of Pakistan map, scale 1 in to 1 mile, sheet No.43 G/5) across the
range south east to spot height 2276 Map. Ref> 358655 (Survey of Pakistan map,
scale 1 in to 1 mile sheet No.43 G/5 )located near Rawalpindi tehsil boundary
then south-east along the Rawalpindi tehsil boundary to junction of boundary and
Gumrah Kas at Map. Ref> 369636 (Survey of Pakistan map, scale 1 in. to 1 mile,
sheet No.43 G/6). From this junction south east across country to Village Sambli
Tijal on the River Soan, Map. Ref: 405615, then along River Soan and
Rawalpindi tehsil boundary east up to Map. Ref: 457595 (bend in the boundary )
and south-west again along tehsil boundary to a point at Map Ref. 424541
(Survey of Pakistan map, scale 1 in. to 1 mile, sheet No.43 G/6) 400 yards uth of
the Lehtrar Road. Then west along a line parallel to Lehtrar Road (400 yards
58
south of the road ) to a point on Malal Nala at Map Ref. 302523 (Survey of
Pakistan map, scale 1 in. to 1 mile, sheet No.
*See also schedule of the Capital of the Republic (Determination of Area)
Ordinance 1963.
43 G/2). Then south-west along the Malal Kas to junction Mala Kas and River
Korang Map. Ref> 225455 (Survey of Pakistan map, scale 1 in to 1 mile, sheet
No.43 (G-2) From here north-west along River Kurang to the junction of River
Kurang and Nala at Map. Ref> 172528 (Survey of Pakistan map, scale 1 in to 1
mile, sheet No.43 G/2) then north west along this Nala via Village Sohan Map.
Ref> 166528 (Survey of Pakistan map, scale 1 in. to 1 mile sheet No.43 G/2) to
the junction of Nala and Muree Road near Mile-stone 6, Map. Ref> 154537
Survey of Pakistan map, scale 1 in to 1 mile, sheet No.43 G/2). From this junction
south west across country to the bend in Lei Nala (Near village Narala at Map.
Ref> 138530 (Survey of Pakistan map scale 1 in. to 1 mile, sheet No.43 G/2).
Then south west alongwith Lei Nala to junction of Lei Nala and Bedarwali. Map.
Ref: 119510 (Survey of Pakistan map, scale 1 in to 1 mile, sheet No.43 G/2).
Then south alongwith Leh Nala to a point Map. Ref> 117479 being junction of
Leh Nala and a tributary near point Map. Ref:047477 (Survey of Pakistan Map.
scale 1 in to 1 mile, sheet No.43(C/14). From this point north-west along the
kutcha road to the junction of this Kutcha road and track at Map Ref. 044480
(Survey of Pakistan map, scale 1 in. to 1 mile, sheet No.43, C/14). From here
south, west across country to a point 100 yards west of G.T.Road, Map Ref:
040478 (Survey of Pakistan map scale 1. in. to 1 mile sheet No.43 C/14), then
north west along a line parallel to the G.T.Road, and at a distance of 100 yards
from it to Nicholson Monument at Map. Ref>884588(Survey of Pakistan Map,
scale 1 in to 1 mile, sheet No.43/C/14, Then west along the ridge of Margalla
Range via spot heights 2613,2981,3371 and 3338 to triangulation point height
3352, Map. Ref> 979604 on the boundary line of districts Hazara and Rawalpindi
(survey of Pakistan map, scale 1 in. to 1 mile, sheet No.43 C/14). Then east along
this boundary line back to the starting point triangulation height 5264.
LIMITS OF THE SPECIFIED AREAS
Starting from a point, map reference 534125 (sheet 43 F/8, 1 in to
1 mile) map of G.T.S ) nearly 2 miles North of Kohala on Azad Kashmir!
(Pakistan ) border running south along River Jhelum (boundary of Azad
Kashmior and Pakistan ) upto a point, Map Ref: 641678 (sheet 43 (G/9) being the
59
junction of boundaries of Murree Tehsil Kahuta Tehsil and Azad Kashmir. Then
along the southern boundary of Murree Tehsil up to junction of Khad Nala and
Murree Tehsil boundary Map Ref> 568699 (sheet 43 G/9). Then south-west along
Khad Nala
!Amendment by Federal Adoption of Laws Order 1975 (Order No.4 of 1975 ) for
“West Pakistan.” and a tributary. Then south-east along the tributary via Village
Lehtrar Nala to Nala and track junction at map reference 518594 (sheet 43 G/6).
Then along this track via village Marhiman south-west to the track and a Nala
junction at map reference 506571 (sheet 43 G/6). Then south-west along this
Nala via Village Jambhiri and Pihar to this nala and River Ling junction at map
reference 463483 (sheet 43 G/6). From here south-west along River Ling to the
junction of Rawalpindi Tehsil boundary and River Ling at map reference 369382
(sheet 43 G/6). Then along eastern, southern and western boundary of Rawalpindi
Tehsil up to bend at map reference 910683 (sheet 43 C/13) about a mile south of
Village Salargah. Tehn follow along River Harro north east up to a point map
Ref> 168810 (shet 43 G/1) near spot height 2518, which is the junction of River
Harro and boundary line of Haripur and Abbotabad {tehsils of Hazara District.)
Then along southern boundary of Abbotabad Tehsil of Hazara District upto to
point map reference 253833 (sheet 43 G/1) at the intersection of Abbotabad
Tehsil Boundary and River Karral Harroo, along River Karral Harro due northeast
to point map reference 344933 (sheet 43 G/5) being junction of Karral, Harro
and Samundar Katha near spot height 3730 and then along Samundar Katha
stream up to point Map. Ref: 381017 (sheet 43 F/8) on junction of Samundar
Katha Stream and boundary line between Village Tatrila and Nagribala of Tehsil
Abbotabad. Then running along the boundary line between Village Tatrila and
Nagribala (near spot height 7799 ). Bagh and Nagribala Bagnotar and Bara Gali,
Namli Mira Phalkot and Bakot and Mula and Bakot including Village Nagribala,
Bara Gali, Namli Mira and Bakot back to the starting point map reference 534125
(sheet 43 F/8).
CHAPTER-I ...................................................................................................................... 5
PRELIMINARY............................................................................................................. 5
COMMENTS.................................................................................................................. 7
1. Compensation principles for ................................................................................... 7
2. Modification of award............................................................................................. 8
3. Improvements ......................................................................................................... 8
4. Un-Islamic............................................................................................................. 10
5. Determination of market value. ............................................................................ 10
COMMENTS;............................................................................................................... 11
Levy Of Electricity Duty. ......................................................................................... 11
CHAPTER-II................................................................................................................... 12
CONSTITUTION OF THE AUTHORITY.................................................................. 12
CHAPTER III ................................................................................................................. 15
POWERS AND DUTIES OF THE AUTHORITY...................................................... 15
11. Master Plan And Master Programme...................................................................... 15
12 Preparation Of Schemes By Local Bodies Or Agencies.......................................... 15
Synopsis ........................................................................................................................ 17
1. Lease Of Public Park ............................................................................................ 17
2. N.O.C.................................................................................................................... 19
3. Establishing Housing Scheme By A Private Organization In A Sector Other Than
The One Specific For Such Scheme ......................................................................... 19
13. Preparation of schemes by Authority:- ............................................................. 20
14. Manner and Form Etc. of Scheme:-………………………………………… 21
Synopsis ........................................................................................................................ 21
1. Acquisition of land included in the master plan ................................................... 21
2. Master plan............................................................................................................ 21
3. Manner And Form, Etc Of .................................................................................... 21
15. Power of the Authority:- ....................................................................................... 21
15 –A Municipal Functions.- .................................................................................... 22
Synopsis ........................................................................................................................ 23
1. Jurisdiction and functions ................................................................................. 23
2. Nature of property......................................................................................... 23
3. Levy of Property Tax........................................................................................... 24
16. Borrowing powers................................................................................................... 24
17. Execution of scheme ............................................................................................... 24
18. Utilization of Building material:-............................................................................ 25
19. Amendment of Schemes: ........................................................................................ 25
20. Removal, etc of buildings after hearing. ................................................................. 26
CHAPTER IV.................................................................................................................. 27
ACQUISITION OF LAND........................................................................................... 27
22. Liability to acquisition: ........................................................................................... 27
1. Powers of Authority.......................................................................................... 28
2
2. Reasons for acquisition..................................................................................... 28
3. Acquisition for limited period........................................................................... 28
4. Boundaries of the capital area........................................................................... 28
5. Land acquisition................................................................................................ 29
6. Powers of Capital Development Authority and jurisdiction of the Court. ....... 29
23. Entry upon land, preliminary survey, etc:- ............................................................. 29
24. Compensation for damage. ..................................................................................... 30
25.Power to acquire land: ............................................................................................. 30
Synopsis. ....................................................................................................................... 31
1. Power of acquisition ......................................................................................... 31
2. Mala fide acquisition: ........................................................................................... 31
3. Safeguard the ownership of land and proprietary rights of property. ............... 31
26. Land to be marked out, measured and planned....................................................... 31
27. Enquiry and award of Deputy Commissioner......................................................... 32
Compensation: .......................................................................................................... 33
Synopsis. ....................................................................................................................... 33
1. Compensation at rates equal to that fixed for other similar land ...................... 33
2. New plea in Supreme Court .............................................................................. 34
Matter to be considered in determining compensation:-........................................... 34
Synopsis ........................................................................................................................ 34
1. Compensation-Factors to be considered. .......................................................... 35
2. Actual expenses incurred by owner are immaterial ......................................... 36
3. Classified land................................................................................................... 36
4. Potential value................................................................................................... 36
5. Loss of business. ............................................................................................... 36
6. Unauthorized structures on land ....................................................................... 36
7. Review of order of predecessor Commissioner ................................................ 36
Factors to be ignored in determining compensation: .................................................... 37
34. Power of Deputy Commissioner to call for information: ................................. 40
35. Power of Authority to give directions to Deputy Commissioner. .................... 40
Appeal and review:- .................................................................................................. 40
Synopsis ........................................................................................................................ 41
1. Review after appeal is filed............................................................................... 41
2. Miscellaneous petition if may be converted into Constitutinal petition. .......... 42
3. Review proceedings: ......................................................................................... 42
4. Contempt of Court ............................................................................................ 42
5. Constitutiional petition...................................................................................... 43
6. Jurisdiction of Commissioner to review order more than once. ....................... 43
36A. Deputy Commissioner and Commissioner to have powers of civil court, etc. .... 44
36B. Fees on applications:- ....................................................................................... 44
CHAPTER V................................................................................................................... 45
ESTABLISHMENT...................................................................................................... 45
37. Appointment of officers and servants etc ......................................................... 45
38. Recruitment conditions of service and disciplinary powers:-........................... 45
39. Members, officers, experts – public servants.................................................... 45
3
40. Indemnity. ......................................................................................................... 45
41. Delegation of powers to Chairman, etc............................................................. 46
CHAPTER VI.................................................................................................................. 46
FINANCE ..................................................................................................................... 46
42. Capital Development Authority Fund:- ............................................................ 46
43. Budget. .............................................................................................................. 46
44. Audit and accounts............................................................................................ 47
45. Consultaion with the Financial Advisor ........................................................... 48
CHAPTER VII. ............................................................................................................... 48
PENALTY AND PROCEDURE.................................................................................. 48
46. Penalty:- ............................................................................................................ 48
47. Cognizance of offences by Courts:-.................................................................. 49
CHAPTER VIII .............................................................................................................. 49
MISCELLANEOUS. .................................................................................................... 49
48. Submission of yearly reports and returns etc.................................................... 49
49. Power to dispose of land................................................................................... 50
Synopsis ........................................................................................................................ 50
1. Minister’s powers qua allotment of property..................................................... 50
2. Allotment of plots by Prime Minister from the discretionary quota................. 50
3. Constitutional jurisdiction of High Court ......................................................... 50
4. Allotment of public property to Parliamentarians at Islamabad. ...................... 51
5. Alloment of land/plot in Capital Area. ............................................................. 51
50. Power to make rules.......................................................................................... 54
51. Power to make regulations:............................................................................... 54
Synopsis ........................................................................................................................ 54
1. Framing of regulation: ...................................................................................... 55
2. Reservation of plots. ........................................................................................ 55
3. Imposition of property tax ................................................................................ 55
52. Dissolution of the Authority and transfer of its assets and liabilities to the
Federal Government and other agency determined by that Government:-................... 56
THE SCHEDULE........................................................................................................... 57
LIMITS OF THE SPECIFIED AREAS ....................................................................... 58
4
THE CAPITAL DEVELOPMENT AUTHORITY ORDINANCE 1960
27th June, 1960.
An Ordinance to establish a Capital Development Authority
COMMENTS
Objective of Ordinance, Firstly, planning and development of Capital
(Islamabad), secondly completing or authorizing Capital Development Authority to
perform functions of a Municipal Committee and to provide for cleanliness, health,
education of inhabitants, supply of goods, articles of food and mild, to promote interest of
different sections of public. All provisions are for advancing interest and public good.
Such statutes not repugnant to Sharia (PLD 1985 FSC 221).
Capital Development Authority being a statutory body is expected to deal
with citizens fairly, and honestly and conduct its all actions transparently (2003 CLC
1684).
WHEREAS it is expedient to establish a Capital Development Authority
for making all arrangements for the planning and development of Islamabad within the
frame-work of a regional development plan;
NOW, THEREFORE, in pursuance of the Proclamation of the seventh day
of October, 1958, and in exercise of all powers enabling him in that behalf, the President
is pleased to make and promulgate the following Ordinance:-
5
CHAPTER-I
PRELIMINARY
1. Short title, extent and commencement. (1) This Ordinance may be called the
Capital Development Authority Ordinance, 1960.
2. It extends to the Specified Areas.
2) It shall come into force at once.
2. Definitions. In this Ordinance, unless there is anything repugnant in the subject or
context ---.
(a) “Agency” means any department or organization of the (Federal) or
Provincial Government and includes a corporation, or other autonomous
or semi-autonomous body set up by the (Federal) or Provincial
Government.
(b) “Authority” means the Capital Development Authority established under
Section 4:
(c) “Board” means the Board constituted under section 6;
(d) “building” includes any factory, industrial or business establishment, shop,
godown, warehouse, house, outhouse, hut, hutment, shed, garage, stable,
well or platform, and any other structure, whether meant for residential or
business purposes or not, made of masonry, bricks, wood, mud, thatch,
metal or any other material, but does not include a temporary structure
made for purposes connected with agriculture;
(e) “Capital Site” mean s the part or parts of the Specified Areas declared to
be the site for the Pakistan Capital under section 3;
(f) “Chairman” means the Chairman of the Authority.
6
(g) “Commissioner” means the Commissioner of the Division concerned, and
includes any other officer appointed by the Authority to exercise the
powers of the Commissioner under this Ordinance.
“Deputy Commissioner” means the Deputy Commissioner of the District
concerned, and includes any other officer appointed by the Authority to
exercise all or any of the powers and discharge all or any of the functions
of the Deputy Commissioner under this Ordinance;
(i) “land” includes buildings and benefits arising out of land and things
attached to the earth or permanently fastened to anything attached to the
earth;
(j) “local body” means (the local body) the local council or the municipal
body as defined in clauses (23) (24) and (27) of Article 3 of Basic
Democracies Order, 1959 (P.O. 18 of 1959), or the Cantonment Board,
having jurisdiction in the area concerned, and includes an Improvement
Trust within such area;
2
(K) “market value” means,__
(i) in relation to land acquired before the first day of January, 1968,
the average market value thereof prevailing during the period
commencing the first day of January, 1954, and ending on the
thirty first day of December, 1958; 3
(ii) in relation to land acquired on or after the first day of January,
1968, the aggregate of the average market value as aforesaid
determined with reference to its classification recorded in the
Register of Haqdaran Zamin as in force on that day and twenty
five percent of such value 4 and
5 (iii)in relation to land acquired on or after the first day of January, 1996,
the market value as may be determined in accordance with the provision
7
of the Land Acquisition Act, 1894 as applicable in the Province of the
Punjab
COMMENTS
Synopsis
1. Compensation, principles for 2. Modification of award
3. Improvements 4. Un-Islamic
5. Determination of market value
________________________
1
Ins. by the Capital Development Authority (Amdt.) Act. 1966 (22 of 1966),s.2..
2 Subs. by the Capital Development Authority (Amdt.) Ordinance, 1968 (7 of 1968),S.2, for
clause (k)
3 Omitted by the Capital Development Authority (Amdt.) Act. 1999 (3 of 1999),S.2.
4 Subs. Ibid., for full stop.
Added ibid.
8.
1. Compensation principles for. Owners whose lands are acquired should be paid
compensation which should be just and equitable keeping in view the consideration of
land at the time of acquisition on the basis of guidelines gives by Superior Courts (2002
SCJ 189) There was a difference between what is called technical definition of the word
“market-value” as contained in Section 2(K)(i) and 2(K)(ii) of the Ordinance on the one
hand and “the compensation amount” to be paid to the land owners on the other hand.
Compensation amount was total and overall amount whereas market value was simply
one of the items to be take note of in fixing or claiming the compensation amount. The
market value in other words was just a base and start and not the end of the process of
compiling the compensation value (PLD 1977 Lab.1200=PLJ 1977 Lab.605). IN subsection
(2) the sentence “the aggregate of the average market value as aforesaid
determined with reference to its classification recorded in the Register of Haqdaran
8
Zamin as in force on the that day and 25% of such value” refer back to clause (i) of
section 2(K) where 1968, the average market value there of prevailing during the period
commencing the first day of January 1954 and ending on the 31st date of December 1958.
Thus the aggregate value would be the sum total of average price during 1954-1958
period plus 25% over and above that (2002 SCJ 189: PLD 1977 Lab.1200 = PLJ 1977
Lab.605). While determining market value relevant transaction of the land acquired and
of the similar land of neighborhood. locality is also to be taken into consideration (2002
SCJ 189). The date of acquisition is the relevant date for determining compensation
(PLR 1977 Lah.1200-PLJ 1977 Lab. 605).
2. Modification of award. Any award of compensation made before the
commencement of the Ordinance in respect of any land acquired on or after the first day
of January,1968, shall be modified so as to raise the amount of compensation specified
therein to the amount which would have been awarded had the award been made after the
commencement of this Ordinance (Ord,No.7 of 1968, S. 3).
3. Improvements. The owner of the land is entitled to the value of the property in
“its actual condition at the time of expropriation” with all its existing advantages. The
indeed is the general law. There is nothing in section 28 read with section 2(k) or in any
other provisions of the Ordinance in force to warrant the conclusion that the Deputy
Commissioner was not required to award compensation for the land according to
existing classification on the date of the expropriation of the owner thereof. Therefore,
the directions, if any, issued by the Authority under section 35 of the Ordinance to the
effect that in awarding the compensation bona fide improvement made by the land
owners to their lands after 1958, but before their acquisition must be ignored, were ultra
vites and in excess of the powers vested in the Authority under the Ordinance. Even the
amendment introduced subsequently into section 2(k) by the Capital Development
Authority (Amendment) Ordinance VII of 1958, but before their acquisition must be
ignored, were ultra vites and in excess of the powers vested to the Authority under the
Ordinance. Even the amendment introduced subsequently into section 2(k) by the
Capital Development Authority (Amendment) )Ordinance Vii of 1968) had no effect on
this state of affairs on the lands acquired before 1.2.1968 (PLD 1976 SC-752f).
9
Before amendment of definition of “market value” in relation to land
acquired on or after 1.1.1968 as inserted by amending Ordinance,1968, pegging
classification of land as recorded in Register of Haqdaran Zamin as criterion for
assessment of compensation of acquired land, no such pegging of classification of lands
existed nor any restriction imposed by statute in that direction. Nothing in definition of
land as given in Ordinance XXIII of 1960 either expressly or by necessary intendment
warranted conclusion that embargo against award on account of any reside in level of
prices operated in any other decision as well and precluded landowners from claiming
compensation for bonafide improvement effected in qualify of their acquired lands during
1954 to 1988. M.L.R 82 of 1960 imposed no bar against landowners in effecting
improvements to their agricultural lands by improving upon their classification and
agricultural potential as such..
By the introduction of section 2(k) in the Capital Development
Authority Ordinance 1960, defining the term “market value” the Legislature has simply
pegged up the average prices generally prevailing during 1954 to 1958 in respect of the
different kinds of land in general in the locality. There is nothing in the definition, either
express or by necessary amendment to warrant the conclusion that this embargo against
the award on account of any rise in level of prices, was operative in any other direction
as well and precluded the landowners from claiming compensation for the bonafide
improvements effected in the quality of their acquired lands made during this period.
Under clause 4 (1)(a)(ii) of the Martial Law Regulation No. 82 (known as Pakistan
Capital Ordinance 1960) a restriction was imposed to the effect that no person shall
within the Capital site convert any land being used for purposes of agriculture to any
other use. Similarly under clause 4(1) (b)(ii) of the Regulations it is laid down that no
person shall outside the Capital site convert any land used for purposes of agriculture to
any other purpose, except in accordance with directions, issued by Deputy
Commissioner. In these provisions, there was no bar imposed against a landowner in
effecting improvements to his agricultural land by improving upon its classification and
agricultural potential as such. There is nothing in section 2(k) or any other provisions of
the Ordinance in warrant the conclusion that compensation could not be allowed for any
such development to the land effected upto and as on the date of its acquisition. In
10
practical terms the value of any interest in land which is a compulsorily acquired under
the Ordinance must be ascertained by reference to the average market values prevailing
generally during the period from 1954 to 1958 and for that purpose the interest in land
actually acquired at the material time on the date of expropriation must be deemed to be
subsisting during 1954 to 1958. For the first time under 1968 amendment in relation to
land acquired on or after the first day of January,1968, a further clause was inserted in the
definition and this had the effect of pegging the classification of the land as recorded in
the Register of Haqdaran Zamin as in force on that day, as the criterion for the
assessment of the compensation of the acquired land. But before it, there was no such
pegging of the classification of the lands. There was no restriction imposed by the staule
in that direction and the compensation for the acquired land had to be assessed on the
basis of its subsisting classification on the date of acquisition (PLD 1976 SC 752).
4. Un-Islamic. The provisions of section 2(k) and 30 (j) of the Ordinance declared as
repugnant to the injunctions of Islam. The Federal Shariat Court, directed, that the
required amendment be made in the said Ordinance (PLD 1992 FSC -361).
5. Determination of market value. Authority declined award with regard to
compensation of land acquired in 1968 under pro visions of Capital Development
Authority Ordinance,1960, as per classification of land entered in Revenue Record.
Owners of land so acquired disputed award of the Authority contending that market value
of land should have been calculated in accordance with Section 23 & 24 of Land
Acquisition Actm1894 taking into consideration potential value of land. Validity
Authorities while determining amount of compensation if land to be made to the owners
were possessed of jurisdiction to rely upon law as compensation of land to be made to the
owners were possed of jurisdiction to rely upon law as contained in Section 2(k) of
Capital Development Authority Ordinance 1960. Authorities, thus were not bound to take
into account potential value of land in question at the time of award of compensation was
delivered. In absence of any “legislation by incorporation” making provisions of Section
23 & 24 of Land Acquisition Act,1894 applicable with retrospective effect. Owners of
acquired land could not press into service said provisions. Orders by Authority with
regard to determination of market value of land under provisions of Capital Development
11
Authority Ordinance,1960 having not been shown to be suffering from any defects in
law, could not be interered with (1999 SCMR 1589)
(i) “Members” means a member of Authority.
(m) “regulations” means regulations made under this Ordinance..
(n) “rules means rules made under this Ordinance.
(c) “scheme means a planning scheme or a development scheme made
under this Ordinance.
(p) “Specified Areas” means the areas specified in the Schedule and
such other area or areas as may from time to time be included
therein by the “Federal Government) by notification in the official
gazette.
COMMENTS;
Levy Of Electricity Duty. Area of Islamabad already being part of
Province of Punjab on promulgation of Establishment of West Pakistan Act,1955 became
part of West Pakistan and remanded so even after declaration of area of capital by
Section 2 of Capital of the Republic (Determination of Area) Ordinance 1963, Province
of west Pakistan stood dissolved through Province of west Pakistan (Dissolution ) Order
1970, whereafter Constitution (1973) was promulgated and Punjab assembly could not
legislate with respect to Capital Area of Islamabad. By virtue of Article 268 of the
Constitution Section 13 of West Pakistan Finance Act,1964 being an existing law and no
force in Capital Area of Islamabad was to continue in force Section 13 of Finance Act,
1964 as substituted by Section 5 of Punjab Finance Ordinance,1978 would apply to
Capital Area of Islamabad with effect from 27.6.1978 (PLD 2008 Ist.30).
(q.) “Vice-Chairman” means the Vice Chairman of the Authority.”
12
3. Declaration of Capital Site:- The {Federal Government may, from
time to time, by notification in the official Gazette, declare any part or
parts of the Specified Areas to be site for the Pakistan Capital.
(2) Notwithstanding any thing contained in this Ordinance or in any
other law, any such notification as aforesaid may be made so as to be
retrospective to any day not earlier than the first day of June,1959, and
where a notification is so made, the provisions of the Ordinance shall, in
so far as they effect the Capital Site, apply as if this ordinance were
promulgated on the day to which the notification is made retrospective to
any day not earlier than the first day of June,1959 and where a notification
is so made, the provisions of the Ordinance shall, in so far as they affect
the Capital Site, apply as if this Ordinance were promulgated on the day to
which the notification is made retrospective.
CHAPTER-II
CONSTITUTION OF THE AUTHORITY
(1) There shall be established an authority to be known as the
Capital Development Authority for carrying out the purposes of
this Ordinance.
(2) The Authority shall be a body corporate, having perpetual
succession and a common seal, with power, subject to the
provisions of this Ordinance, to acquire and hold property, both
movable and immovable and shall by the said name sue and be
sued.
(5) Management.(1) The general direction and administration of
the Authority and its affairs all vest in the Board, which may
exercise all powers and do all acts and things which may be
exercised or done by the Authority.
13
(2) The Board in discharging its functions shall act on sound
principles of development, town planning and housing and shall be
guided on questions of policy by such directions as the {Federal
Government) may from time to time given.
(3) If any question arises as to whether any matter is a matter of
policy or not the decision of the {Federal Government) shall be
final
6. Constitution of the Board:- (1) The Board shall consist of not
less than three members to be appointed by the {Federal
Government}
(2) The {Federal Government) shall appoint a Chairman, a Vice
Chairman and a Financial Advisor from amongst the members.
(3) The Chairman and other members shall hold office during the
pleasure of the {Federal Government) and unless sooner removed
the Chairman and the Financial Advisor shall hold office for a
period of five years and other members shall hold office for a
period of four years
(4) Any person ceasing to be Chairman, Vice Chairman or member
of the Board by reason of the expiry of the terms of his office, shall
be eligible for reappointment for another term or for such shorter
term as the {Federal Government) may decide.
(5) No act or proceeding of the Board shall be invalid merely on
the ground of the existence of any vacancy in p or any defect in the
constitution of the Board.
(6) The Chairman or any member may at any time resign. Provided
that his resignation shall not take effect until accepted by the
{Federal Government)
(7) Remuneration and conditions of service:- The Chairman and
each member shall receive such salary and allowances and shall be
subject to such conditions of service as may be determined by the
{Federal Government).
(8) Disqualification of the members: No person shall be or shall
continue to be a member who:-
(a) is or, at any time, has been convicted of an
offence involving moral turpitude or
14
(b) is or, at any time, has been adjudicated
insolvent: or © is found to be a lunatic or of unsound mind or
(d) is a minor, or
(e) has a financial interest in any scheme or a
conflicting interest directly or indirectly between his interests as a
member and his private interests and has failed to disclose such
interest in writing to the (Federal Government):
(f) If he is for the time being disqualified for
membership of any body established by or under any law for the
time being in force of which the constituent members are wholly or
partly chosen by means of election.}
‘Subs. By F.A.O(1975, Art 2 and Table for “Central Government.”
‘Substituted by the Federal Laws (Revision and Declaration)
Ordinance,1981(XXVII of 1981)‘s. 3 and Sch.II.
(9) Duties and functions of Chairman and other members
1) The Chairman and other members shall discharge such
duties and perform such functions as are assigned to them by or
under this Ordinance.
2) Until the Board is duly constituted, the Chairman shall,
subject to such directions as the {Federal Government_) may from
time to time give, exercise the powers, discharge the duties and
perform the functions of the Board
3) The Vice-Chairman shall have such powers, duties and
functions as may be delegated to him by the Chairman.
(10) Headquarters of the Authority and meetings of the Board
15
1) Until the Authority establishes its headquarters
elsewhere within the Specified Areas, its headquarters shall be
situated at Rawalpindi.
2) The meetings of the Board shall be held at such times
and places and in such manner as the regulations may provide.
Provided that until regulations are made in this behalf, the
meetings of the Board shall be held as and when convened by the
Chairman.
CHAPTER III
POWERS AND DUTIES OF THE AUTHORITY
11. Master Plan And Master Programme
The Authority shall [re[are a master plan and a phased masterprogramme
for the development of the Capital Site, and may prepare a
similar plan and programme for the rest of the Specified Areas, and all
such plans and programmes shall be submitted to the {Federal
Government) for approval.
12 Preparation Of Schemes By Local Bodies Or
Agencies
(1) The Authority may, pursuant to the master plan and the master
programme, call upon and local body or agency operating in the Specifed
Areas to prepare, in consultation with the Authority, a scheme or schemes
in respect of matters ordinarily dealt with by such local body or agency
and thereupon the local body or agency shall be responsible for the
preparation of the scheme or schemes within a reasonable time.
(2) Such schemes, may relate to:
16
(a) Land use, zoning and land reservation.
(b) Public buildings.
(c) Industry.
(d) Transportation and communications, highway,
roads, streets, railways, aerodromes.
(e) Telecommunication, including wireless, television,
radio, telephone.
(f) Utilization of water, power and other natural
resources.
(g) Community planning housing slum clearance
amelioration.
(h) Community facilities including water supply,
sewerage, drainage, sewage, disposal, electricity
supply6, gas supply and other public utilities
(I) preservation of objects or places of historical or
scientific interest or natural beauty.
(3) The {Federal Government) ,by notification in the official
Gazette, add to alter or amend the list of subjects given in sub
section (2) and any such addition alteration or modification
shall take effect as if it had been enacted in this Ordinance.
(4) The expenditure incurred on the preparation of any such
schemes as aforesaid shall be borne as greed to between the
Authority and the local body or agency, and in the even of
disagreement between them as may be determined by the
{Federal Government)
(5) No planning or development scheme shall be prepared by any
person or by any local body or agency except with the
concurrence of the Authority.
Subs. By F.A.O 1975. Art-2 and Table for Central Government”
Subs. By the Capital Development Authority.(Amdt) Act.1966(22
of 1966 )s.3.
COMMENTS
17
Synopsis
1. Lease of public park
2. N.O.C
3. Establishing housing scheme by a Private organization in a
sector other than the one specific for such scheme.
1. Lease Of Public Park
Contentions of the petitions were that wherever, a Scheme under the provisions of
Section 12 of the Capital Development Authority Ordinance 1960 was prepared
by the Authority, amenity plots including the plot for public park, playing field,
graveyard and incident open places, etc were earmarked separately, that under
Regulation 3 of the Islamabad Land disposal Regulation, 1993 for the purpose of
establishing Mini Golf Course on the public park, no permission was sought from
the Federal Government nor objections were invited in this behalf in accordance
with section 19 read with section 20 of the Capital Development Authority
Ordinance,1960 that the transaction of leasing the plot had been made by the
Capital Development Authority with the private party without any lawful
authority and jurisdiction as such in this manner the fundamental rights of general
public enshrined in Articles 9 & 26 of the Constitution had been denied, that a
public park, citizens, including children were not required to purchase tickets and
once Mini Golf Course, was established, the entry of general public would be
obstructed in term of imposing ordinances including purchase of tickets and to
enjoy other amusement against payment and that Development Authority was
committed to provide a public park for the residents of the sector concerned
which would be maintained by the Authority itself and could not be allowed so
he converted into a commercial project by the third party in terms of Regulation
12(3) of Islamabad Land Disposal Regulation if a piece of land had been
earmarked for the purpose of public park, same could not be leased out and
Capital Development Authority itself was bound to develop the same. Neither the
permission was sought to convert the public park into the Mini Golf Course nor
before doing so objections were invited from the general public in terms of
Section 21, Capital Development Authority Ordinance 1960. Production of
original documents with regard to the plot in question for purpose of examining
the examining the exact position of the lease and status of the plot by the Supreme
Court was denied by the Capital Development Authority stating in writing that the
same were not available and were being traced out and will be produced before
the Court when the same were found out, Public park if earmarked in a housing
Scheme created a tight amongst the public and that right included then right of
entry in the park without any obstacle, being fundamental right as enshrined in
Article 26 read with Article 9 of the Constitution Liberty of a person, to have
access or utilize a right available to him could not be taken away by converting
such facility into commercial one, for the purpose of extending benefit to a third
18
person, as in the present case, considerably a big plot of land measuring five acres
had been handed over to a third person at a throw away lease money causing huge
loss to the public exchequer therefore, tax payers had a right to inquire from
Capital Development Authority, as to how a right of life and liberty could be
denied to them. Facts of the case were admitted by the Capital Development
Authority, no formal evidence therefore was required to prove the same. Deal
between Capital Development Authority and the third person had not been made
in a transparent manner, coupled with the fact that the lease of a public park had
been given for 15 years at a rate of Rs. 2.55 million per annum to be paid after
about 20 months with clear delegated authority to the lessee that it could issue
license to the local or international parties for a purpose of providing
amusement/commercial activities etc. Such delegation to private person to watch
its financial interests of the high degree would tantamount to depriving the Capital
Development Authority as well as the public from their valuable rights, for whose
benefits such Authority had been created and apparently such action had no legal
sanctity. Law on the subject, on the other hand was, that such parks were to be
developed to be maintained by the Capital Development Authority itself, Park
was earmarked in the original Scheme of the sector, as it was meant for low
income group, who were deprived of the benefits of the having their own private
gardens. Comparing to higher income groups, therefore, converting such plots for
commercial activity with the collaboration of multinational companies would
deny the people rights guaranteed to them. Functionaries, exercising statutory
power, like Capital Development Authority were bound to discharge their
functions strictly in accordance with law, otherwise the action contrary to law
would not be sustainable and such Authority shall expose itself for disciplinary
action. Without obtaining no objection certificate from the general public, such
plot could not be used for any other purpose. Capital Development Authority in
such like situation, if at all was interested to leave out the public park instead of
developing the same, might have invited fresh proposal instead of calling the third
person to enhance the lease money because in granting contracts for the purpose
of fetching money to support the public exchequer, the competent authority had
an obligation to adopt such devices on the basis of which more money could be
procured. Capital Development Authority as per record, was only interested to
grant lease to the third party, mala fide. In concluding the transaction with the
third party not transparent. Allowing the third party to avail benefit of the lease, in
circumstances, would tantamount to perpetuate the unlawful/illegal acts of both
Capital Development Authority and the third party. Constitutional petition was
accepted by the Supreme Court with directions that lease agreement executed by
Capital Development Authority for the development of Mini Golf Course was not
sustainable in the eye of law, being contrary to law and fundamental rights of the
general public, enshrined under Article 26 of the Constitution, that third party was
to hand over vacant pubic, enshrined under Article 26 of the Constitution, that
third party was to hand over vacant possession of the plot, lease of which had
been obtained by him from the Capital Development Authority within a period of
four weeks in its original condition. Subject to complying with the directions of
the Court, Capital Development would refund Rs. 5 lacs to the third party
19
deposited by it as security, that enquiry report shall be sent to the Registrar
Supreme Court within three months for Court’s perusal in Chamber and passing
further order, if need, be, that Board of the Capital Development Authority shall
exam e the case thoroughly to explore possibility of initiating disciplinary/penal
action before the competent forum against the delinquent officers/officials
responsible for executing the lease with the third party, in view of the law laid
down by Supreme Court in the case of Pervaiz Oliver PLD 1990 Sc 26, that
Board of Capital Development Authority will take steps to find out the relevant
record of the part, and if record was not made available, then report shall be
lodged before the competent law enforcing agency according to aw and the
Capital Development Authority shall be free to develop the public part itself for
the purpose of providing entertainment to the public of Islamabad in discharge of
duties under the law (PLD 2006 SC 394).
2. N.O.C
No objection Certificate from Capital Development Authority, no covering entire
land sought to be acquired by Acquiring Agency, Validity, not obligatory for
Acquiring Agency under Section 12(5) of Capital Development Authority
Ordinance 1960 to obtain ‘No Objection Certificate’ from C.D.A for every piece
of land proposed to be acquired through notification from time to time, if
aggregate of land was required for same comprehensive scheme {2004 YLR
629}.
Acquisition of land in capital area by Army Welfare Trust for establishing
housing scheme. Trust had obtained 60% land fro landowners through private
negotiations. Trust after lapse of original notification had issued fresh successive
notifications to acquire remaining land not purchased earlier privately. No delay
in acquisition proceedings, which could defeat or demolish acquisition process
itself. Mention of only one village in “No Objection Certificate” would make no
difference. No objection certificate issued by CDA was in respect of whole
scheme, which would cover all or any acquisition of land forming part and parcel
of development scheme as a whole. Description of purpose in original
notification as “defense purpose” and in later notifications are establishment of
Housing Scheme for Army Personnel. Judicial notice could be taken of acute
shortage of accommodation and rehabilitation facility for beneficiaries of Trust.
High Court dismissed Constitutional petition (2004 YLR 629)
3. Establishing Housing Scheme By A Private Organization In A
Sector Other Than The One Specific For Such Scheme
Housing Foundation was a registered company having senior Federal
Government Officials as ex-officio office-bearers of the Foundation. Foundation
acquired lands owned by the petitioners in public interest and notification under
Section 4 & 17(4) of Land Acquisition Act. 1894, was issued by the Government.
Land so acquired was to be allotted only to the employees of federal Government
on ownership basis. Validity, Housing Foundation like such other companies
20
could establish a housing scheme in the specified zone for its members but could
not establish such scheme in the are of remaining residential sector. Housing
Foundation could not be allowed to establish a private scheme in regular sectors
for individuals interests of civil servants in violation of general policy as a special
case and privilege. Housing Foundation without enlarging the purpose of
acquisition of land to the general use for benefit of public at large, could neither
establish such scheme out of the specified zone nor could use the machinery of
law and Government for such purpose. Where acquisition of land for a Housing
Scheme introduced by the respondent. Foundation was executed for benefit of
public at large and was not confined to a limited class of persons, such scheme
would definitely advance the spirit of the Constitution. High Court directed the
Housing foundation to include certain categories of persons who could also be
benefited from the scheme. When all categories of persons referred by High
Court cold be benefited from the acquisition of the land by the Housing
Foundation, the acquisition could be for public purpose and the same would not
be in violation of Article 24 of the Constitution as the same did not prevent
establishment of housing colonies in public interest(2000 YLR 1711).
13. Preparation of schemes by Authority:-The Authority may,
pursuant to the master-programme, itself prepare, when it considers it desirable to do
so in the public interest, schemes for the Specified Areas relating to the maters
enumerated in sub section (2) of section 12.
COMMENTS
Synopsis
1. Acquisition of land included in the
2. Master plan
3. Manner and form, etc of scheme
1. Acquisition of land included in the master plan. Acquisition of land
without preparing a scheme or disclosing the public purpose for which the land was
acquired Validity. Where the master plan had been prepared for the development of the
capital site, the Authority, subject to the rights of people, could acquire the land under
Capital Development Authority Ordinance, 1960, for the purpose of implantation of
different schemes prepared hereunder. Capital Development Authority in its discretion
could not acquired any land in the specified area without preparing a scheme or
disclosing the public purpose for which the land was to be acquired (1999 YLR 247).
Land of petitioner was acquired on the basis of its being shown in the master plan as an
area for the National Park. No scheme of Nation al Park had been prepared and defined
anywhere and acquisition was made on the basis of mere earmarking o f that area through
a notification under Islamabad Wildlife (Protection, Preservation, Conservation and
Management) Ordinance, 1979. Validity, Land in question was a private land, unless a
proper scheme of National Park was prepared by the Central Government or the Capital
21
Development Authority under Sections 11,12,13 & 14 of the Ordinance, partial
acquisition of land in the name of National Park could not be justified (1999 YLR 247).
2. Master plan Land owners had raised construction on their lands after getting
approval of building plans from the Union Council. Capital Development Authority
objected to such constructions and attempted to get the said constructions demolished on
the pretext that master plan for the city of Islamabad was duly approved earmarking the
lands in question as a national Park and Scheme. Capital Development Authority, though
can earmark an area for a particular purpose in the master plan, but scheme a decision
cannot be implemented unless a scheme as contemplated by Sections 12 & 13 of Capital
Development Authority Ordinance 1960 is prepared by the Authority. Authority has to
take steps to acquire the land as provided by Chapter IV of the Ordinance before taking
of any concrete steps for implementation of such Scheme. Without taking steps for
acquisition of the property, action of Authority would be violative of the Constitutional
rights of the landowners on account of restrictions placed on them to use the property in
the manner they like. Supreme Court directed that Capital Development Authority will be
entitled to initiate acquisition proceedings of the property in question or any other
property after farming a proper scheme and if any other law authorizes the Authority to
regulate the construction of the buildings in the disputed area, it will be open to the
Authority to take action according to law for enforcing the said law or regulations B(1999
SCMR 2636).
3. Manner And Form, Etc Of scheme All schemes under section 12 and section 13
shall be prepared in such manner and form as the (Federal Government) may specify, and
shall contain among other things the following information, namely:-
(a) description of the scheme and the manner of its execution;
(b) estimate of costs and benefits;
Subs.by F.A.O. 1975, Art-2 and Table, for “Central Government”
(c) allocation of costs to the various purposes to be served by the scheme;
14. MANNER AND FORM ETC. OF SCHEME.
All schemes under section 12 and section 13 shall be prepared in such manner and
form as the Capital Government may specify, and shall contain among other things the
following information namely:-
(a) description of the scheme and the manner of its execution;
(b) estimate of costs and benefits;
(c ) allocation of costs to the various purposes to be served by the scheme.
15. Power of the Authority:-
(1) Subject to the other provisions of this Ordinance and the rules, the Authority may take
such measures and exercise such powers as may be necessary for the carrying out of the
purposes of this Ordinance.
22
(2)Without prejudice to the generality of powers conferred by sub-section (1), the
Authority may.
(i) acquire any land in the specified Areas in accordance with the procedure
laid down in Chapter IV.
ii) undertake any works in the Specified Areas in pursuance of any scheme
prepared under Section 13;
iii) incur any expenditure.
iv) procure plant, machinery, instruments and materials required for its sue;
v) enter into and perform all such contracts as it may consider necessary;
vi) cause studies, surveys, experiments and technical researches to be made or
contribute towards the cost of any such studies, surveys, experiments or technical
researches made by any other agency at the request of the Authority;
vii) issue interim development orders for areas for which a master plan is under
preparation and restrict or prohibit by general or special order any change in the
use of land and alteration in buildings, structures and installations;
viii) cause removal of any works obstructing the execution of its scheme.
ix) seek and obtain advice and assistance for the preparation of any planning
scheme or for the execution of any scheme from any local body or agency and
such local body or agency shall gives the advice and assistance sought by the
Authority to the best of its ability, knowledge and judgment, and the additional
expenditure, if any, involves in giving such advice or assistance shall be borne by
the Authority
15 –A Municipal Functions.-
(1) During such period and for such areas within the Islamabad Capital Territory
as the (Federal Government) may by notification in the official Gazette, specify,
the Authority may, notwithstanding anything contained in any other law for the
time being in force, exercise, and perform such powers and functions as a
Municipal Committee may exercise and perform in relation to a Municipality
under the Municipal Administration Ordinance, 1960.
(2) For the purpose of sub section (1), the provisions of sections 18,33 to 73, 77
to 106,109,115 to 118 and 122 of the Municipal Administration Ordinance, 1960
(X of 1960), and the second. Third and Fifth Schedules thereto shall, so far as
may be, apply to the Islamabad Capital Territory as they apply to a municipality,
references therein.
23
a) to or to the powers and functions of, the Controlling
Authority being omitted; and
b) to Municipal Committee and Government being
construed respectively as references to the
Authority and the (Federal Government).
COMMENTS
Synopsis
1. Jurisdiction and functions. 2. Nature of property.
3. Levy of property tax.
1. Jurisdiction and functions Capital Development Authority has been
authorized to perform functions and exercise powers of Municipal Committee under the
Municipal Administration Ordinance, 1960 (2001 SCMR 809).
2. Nature of property. Appellants being owners of hotels, motels and
restaurants were aggrieved of levy of property tax on commercial rates and claimed to be
industry.
-----------------------------------
1 Section 15A ins. By the Capital Development Authority (Am dt.) Act. 1966 (22
of 1966) s.4
2 Subs by FAO 1975. Art.2 and Table, for “Central Government”.
3 See S.R.O 805 (1)/91 dated 20th Aug, 1991 as amended by S.R.O. 1(1)/99 dated
1st January, 1999.
Subs. By F.A.O. 1975. Art.2 and Table, for “Central Government”.
on the plea that authorities were charging electricity and gas dues on industrial
rates from them. Validity No statutory enactment had been made in the Capital
Development Authority Rules whereby hotels/motels situated in the jurisdiction
of Capital Development Authority were included in the term ‘industry’ industrial
or institution, as such appellants could not claim such relief. Appellants were
allotted commercial plots for construction of hotels. Order or notifications of
Federal Government under other laws declaring business of hotel as industry
would not affect the nature of building or use of plots as defined in the Regulation
3 of Islamabad Land Disposal Regulation,1993. Amendment had also been made
in Notification No.24(1)/2001, dated 11.1.2001, through Notification No.783
(1)/2003, dated 9.8.2003, whereby non-residential properties outside commercial
areas were included in the heading ‘commercial’ Finding of High Court that until
no statutory enactment declaring hotel/motels and restaurants located in
24
Islamabad Capital was made by competent authority, appellants could not, as a
matter of right, claim to be charged at such rate was unexceptionable. Appeal was
dismissed {2006 SCMR 1738 }
Leave to appeal was granted by Supreme Court to consider
whether property tax on hotels, motels and restaurants, establishments would be
charged at commercial rates or industrial one {2006 SCMR 1738}
3. Levy of Property Tax Competency of Capital Development Authority to
levy property tax on properties situated within area of Islamabad Capital Territory in
exercise of its power under Section 15-A. Capital Development Authority
Ordinance,1960 challenged. Petitioner’s contention was that some of the functions of
Municipal Committee which Authority performed under provisions of Municipal
Administration Ordinance,1960 were assigned to Capital Development Authority
within specified limits of Islamabad Capital Territory. Petitioners claimed that no
power was available to Municipal Committee to levy property tax on urban
immovable property which was levied under provisions of West Pakistan Urban
Immovable Property Tax Act.1958. Leave to appeal was granted to consider
petitioner’s contention that Capital Development Authority having been assigned
only functions of Municipal Committee under Municipal Administration
Ordinance,1960 had no authority to levy tax on urban properties alongwith other
contention raised {1997 SCMR 466 }. Capital Development Authority under the
provisions of Schedule-III, Entry No.1 of Municipal Administration Ordinance 1960,
has been empowered to levy property tax {2001 SCMR 809 2001 S CJ 541}
16. Borrowing powers
(1) The Authority may, with the previous approval in writing of the {Federal
Government}, raise funds for the purpose or raising its working capital by issuing
bonds and debentures carrying interest at such rates as may be approved by the
*{Federal Government}.
(2) The repayment of the principal and the payment of interest due on the bonds
and debentures issued by the Authority shall be guaranteed by the {Federal
Government}.
Subs.by F.A.O 1975 Art,2 and Table for “Central Government.”
17. Execution of scheme etc. through local bodies and agencies.
(1) The Authority may require a local body or agency within whose
jurisdiction any particular area covered by a scheme lies to execute a
scheme in consultation with the Authority.
(a) To take over and maintain any of the works and
services in that area.
25
(b) To enforce regulations, on behalf of the Authority.
(2) The expenditure incurred on the execution of any scheme, or on the
taking over or maintenance of any work, or the enforcement of a
regulations, under this section, shall be borne as may be agreed to
between the Authority and the local body or agency and in the event
of disagreement, as may be determined by the {Federal Government).
18. Utilization of Building material:- Notwithstanding anything
contained in any other law for the time being in force or in any contract or
agreement, no person shall without the prior concurrence of the Authority
allocate, exploit or in any manner utilize, except for the purpose of his own
personal use, such natural resources used as building material as the Authority
may, by notification in the official Gazette, specify in this behalf}
19. Amendment of Schemes: any scheme prepared under section 12 or
section 13 may at any time be amended or modified:-
(a) In cases where the amended where the amended or
modified scheme should exceed the financial powers of the
Authority by the authority with the previous approval in
writing of the {Federal Government) and
(b) In other cases, by the Authority” 3* *
* *
COMMENTS.
‘Subs by F.A.O,1975, Art 2 and Table, for “Central Government”
1‘Subs. By the Capital Development Authority (Amdt) Act 1966 (22 d 1966 ) a.5
for section 18
2*Subs, ibid, s.6 for colon Proviso omitted ibid.
26
Appellant, an allottee/lessee of plot for setting up manufacturing cold storage had
set up cold storage in his plot, respondents allowed by Authority to set
up/construct cooling rooms in their basement of plot allotted to them. Appellant’s
claim was that respondents had no right to construct cooling units and that
Authority was not competent to grant such permission. Appellant failed to point
out his vested right to be the sole authorized person to set up the cold storage.
Permission to respondents to set up cooling rooms for storage of their vegetables
and fruits did not in any hamper the use of Appellant’s storage plant. Authority,
held was competent to prepare any scheme or phased scheme and could also
amend or modify the same at any time. Authority had not given undertaking to
appellant that no other cooling unit would be set up in the area, Factual position
was that four other cold stage units were already functioning in the area.
Appellant, thus could not claim monopoly of being the sole authorized person to
set up such plaint {1989 CLC 1532)
20. Removal, etc of buildings after hearing. The Authority shall
not order or cause any building in the Specified Areas, excluding the Capital Site,
to be removed or demolished unless an opportunity of being heard has been given
to the owner or occupier thereof and his objections, if any, have been duly
considered and the Authority is satisfied that removal or demolition of the
building is essential to the execution of its schemes.
COMMENTS.
Construction of petition over the land owned by him was
demolished and land was acquired without completion of legal formalities and
without payment of compensation. Validity, such construction could not have
been demolished merely by issuing notice under Section 27(1) of the Ordinance.
Residents of the area were not supposed to be dislocated without approval of a
proper scheme and giving them reasonable opportunity to file objections, thereto.
Acquisition of land for a scheme without proper notice under section 27(1) of the
Ordinance and the payment of compensation according to prevailing market value
27
of land including he built up area as residential houses, was not legal. Non
preparation of any scheme and forcible dispossession and initiation of
proceedings without compliance of legal formalities, rendered the action of the
Capital Development Authority. Unlawful and all proceedings after such action
were illegal {1999 YLR 247}
Schemes to be executed after calling objections: The Authority
shall not execute or cause to be executed any scheme in the Specified Areas,
excluding the Capital Site, unless the persons whose rights and interests are
thereby affected have been given a reasonable opportunity to file their objection
to such execution and the Authority has heard such of them as it considers
necessary.
COMMENTS.
Setting up fruit and vegetable market. Amendment/modification of
a scheme. Objection to amendment or modification of a scheme to be invited only
in specified areas. Federal Government from time to time by notification in the
official Gazette could declare any part of the specified area to be the site for the
capital under section 3. Fruit and vegetable market not located in ‘specified area’
inviting of objections was thus not necessary for amendment and modification of
such scheme { 1989 CLC 1532).
CHAPTER IV
ACQUISITION OF LAND
22. Liability to acquisition: All land within the Specified
Area shall be liable to acquisition at any time in accordance with the
provisions of this Chapter.
COMMENTS.
28
1. Powers of Authority 2. Reasons for acquisition
3. Acquisition for limited period. 4. Boundaries of the capital area
5. Land acquisition. 6. Powers of Capital
Development Authority and
jurisdiction of the Court.
1. Powers of Authority: The powers of the Authority to
acquire land within the specified areas, are not unlimited. Any requisition within
these areas must have a reasonable reference to the purpose of the Ordinance and
must be carried out strictly in accordance with the provisions (PLD 1972 SC 279).
2. Reasons for acquisition. It is not within the domain of a Court of
law to analyze the sufficiency of the reasons which prevail with an Authority to
acquire property, and if apparently the acquisition is for a public purpose, the
Court will not interfere unless a question of mala fide is raised (PLD 1970 Lah.
821 )
3. Acquisition for limited period. The fact that the public purpose for
which the land is being acquired is for limited duration does not affect the powers
of acquisition of the Auditor (PLD 1970 Lah. 821}
4. Boundaries of the capital area. Plea for inclusion of certain
village lying on the boundary between District Rawalpindi and Islamabad the
capital territory. Validity Boundaries which had already been settled in view of
the acquisition of land under section 22, Capital Development Authority
Ordinance,1960 and Capital of the Republic (Determination of Area)
Ordinance,1963 and other relevant laws, could not be now altered without
following the provisions of Article 239, Constitution of Pakistan and therefore
any directive or notification requiring any change could not be enforced now.
Petitioner, in his alternate plea stated that even with respect to the boundaries
were only made in the plans and in the papers High Court, while disposing of the
Constitutional petition observed that the Capital Development Authority and the
District Coordination Officer of Rawalpindi should hold a meeting for
determining a date for joint demarcation of the boundaries in accordance with law
and to effect the physical demarcation of the boundaries within a period of three
29
months from the announcement of the judgment while submitting a compliance
report to the High Court ensuring that the same reaches the High Court by the Ist
of March,2003 (PLD 2003 Lah. 55 }
5. Land acquisition. Resumption of acquired land from company in
event of its non utilization for restoring the same to previous owners. Initiation of
such proceedings under Rule 15 of Punjab Land Acquisition Rules,1983 in
respect of land within Islamabad Capital Territory (Administration ) Order, 1980
does not make applicable Punjab Land Acquisition Act,1886 in its entirity in
Islamabad Capital Territory, Punjab Land Acquisition Act 1886 and Punjab Land
Acquisition Rules, 1983 are not applicable to Islamabad Capital Territory, which
is given district Constitutional status and is a separate area from the Province of
Punjab Land Acquisition Act,1894 is not a law applicable for purpose of
acquisition within Islamabad Capital Territory. Compulsory acquisition of land
within Islamabad Capital Territory is effected under Capital Development
Authority Ordinance,1960 and Land Acquisition Regulations 1961. General
Standing Order No. 28 issued under Land Acquisition Act,1894 is not applicable
in Islamabad Capital Territory premise for initiating proceeding under Punjab
Land Acquisition Rules 1983 by Chief Commissioner Islamabad was not legally
available {2004 CLC 145).Government’s power to acquire land for public good
though unquestionable, such power generally to be exercised on payment of full
compensation equal to market value of land (PLJ 1983 FSC 298}
6. Powers of Capital Development Authority and jurisdiction
of the Court. Acquisition of land merely with the label of public purpose will
not be enough to make acquisition of land under the Ordinance. Law does not
given unfettered powers to the Authority to acquire any land at any time in the
specified area. Acquisition must be in pursuance of some scheme approved by the
Competent Authority. No restriction could be placed on the jurisdiction of the
court to go into the question of legality of the acquisition of lands {1999 YLR
247 )
23. Entry upon land, preliminary survey, etc:- (1) It shall be
lawful for the Authority, and any member thereof and for the Deputy
Commissioner, and any such person as may either generally or specially be
authority by the Authority, in this behalf:-
30
(a) to enter and survey and take levels of any land.
(b) to dig or bore into the subsoil.
(c) to do all other acts necessary6 to ascertain whether land is
adopted for the purposes of this Ordinance.
(d) to set out the boundaries of the land proposed to be acquired and
the intended line of the work, if any proposed to be made thereon.
(e) to mark such levels, boundaries and line by placing marks and
cutting trenches and
(f) where it is necessary for the purposes of the survey, taking of
levels or marking of line, to cut down and clear away any part of
any standing crop, fence or jungle.
(2) No person shall enter into any building or upon any enclosed court
or garden attached to a dwelling house (unless with the consent of the occupier
thereof ) without previously giving such occupier at least twenty four hours notice
in writing of his intention to do so.
24. Compensation for damage. Where any damage is caused to any
land in consequence of anything done in pursuance of section 23 there shall be
paid compensation, the amount of which shall be determined in the manner and in
accordance with the provisions hereinafter set out, that is to say:-
(a) where the amount of compensation can be fixed by
agreement, it shall be fixed in accordance with such
agreement and
(b) where no such agreement can be reached, it shall be fixed
by the Deputy Commissioner.
25.Power to acquire land: (1) Subject to the other provisions of this
Ordinance, the rules made thereunder and the directions of the Authority, the
Deputy commissioner may by order in writing acquire any land the purposes of
this Ordinance.
31
(2) No order under sub section (1) shall be issued except on
the receipt by the Deputy Commissioner of specified directions
from the Authority:-
COMMENTS.
Synopsis.
1. Power of acquisition 2. Mala fide acquisition
3. Safeguard the ownership of land and Proprietary rights of
property.
1. Power of acquisition: Since 25 of the Ordinance gives the powers to
acquire land. Section 25 has categorically provided that the land can be acquired for the
purposes of the Ordinance subject to the other provisions of this Ordinance, the rules
made there under and the directions of the Authority. This naturally takes back, inter alia,
to the provisions of the sections 11,12,13 and 14 of the Ordinance. Apart from the
purpose of the Ordinance however, the acquisition under the Ordinance has to be made in
pursuance of a scheme framed under the Ordinance (PLD 1972 SC 279) Capital
Development Authority in its direction could not acquire any land in the specific area)
without preparing a scheme or disclosing the public purpose for which the land was to be
acquired {1999 YLR 247 }
2. Mala fide acquisition: The Court would not uphold a mala fide acquisition.
The acquisition was held to be mala fide in the following circumstances:- (i) Different
reasons were given at different times for the acquisition of property. (ii) The land was
allegedly acquired for Presidential Secretariat but the Master Plan did not show that the
land acquired by the property in dispute was earmarked for setting up the Presidential
Secretariat, on the contrary the pan showed quite a different place at a considerable
distance from the property in dispute, as earmarked for setting up the Presidential
Secretariat (iii) No scheme appears to have been framed under the Ordinance which is
applicable to the acquisition of the property in question (iv) The scheme was produced at
a very belated stage of the writ petition (v) The acquisition of the property when it was
already under requisition and in use for the same purpose (vi) The unseemly hurry in the
process of the acquisition (PLD 1972 SC 279 ).
3. Safeguard the ownership of land and proprietary rights of
property. Authority had deprived the petitioner of such rights through urgent
acquisition of land without any scheme and compensation to the petitioner. Validity,
Authority had power to acquire the land but where the land of the petitioner was
acquired without acquiring the land of the land owners in the same vicinity having the
same effect on the Rawal Lake and falling in the same area, acquisition of the petitioner’s
land was unconstitutional in circumstances (1999 YLR 247 ).
26. Land to be marked out, measured and planned. Where any land is
proposed to be acquired under Section 25 of Deputy Commissioner shall cause the land
32
(unless it has been already marked out ) to be marked out and measured and if no plan
has been made thereof, a plan to be made of the same.
26. Notice to persons interested: (1) The Deputy Commissioner
shall then cause public notice to be given at convenient
placed on or near the land to be taken, stating that the
{Federal Government} intends to take possession of the
land, and that claims to compensation for all interests in
such land may be made to him. Such notice shall state the
particulars of the land so needed, and shall acquire all
persons all persons interested in the land to appear
personally or by agent before the Deputy Commissioner at
a time and place therein mentioned (such time not being
earlier than ten days after the date of publication of the
notice) and to state the nature of their respective interests
in the land and the amount and particulars of their claims to
compensation for such interest, and their objections if any,
to the measurements made under section 23 and the Deputy
Commissioner.
Subs. By F.A.O 1975 Art 2 and Table for “Central
Government”
May require any such statement to be made in writing and
signed by the party or his agent.
(2) The Deputy Commissioner shall also serve notice to
the same effect on the occupier, if any of such land
and on all such persons known or believed to be
interested therein, or to be entitled to act for persons
so interested.
COMMENTS.
Notice to party. The Act provided that notice of acquisition must be given to the
party interested. The object of law is that the party may be heard and justice be done to
him. Therefore, where the party was not given notice by DC, but was heard by Appellate
Authority. It was held that even if the petitioner was not given a hearing at the initial
stage, he was heard by the appellate authority and all his contentions were taken note and
the order of the Deputy Commissioner was modified and the rate of compensation was
enhanced from Rs.76 to Rs.112. Therefore, the principles of natural justice have
sufficiently been completed with and the impugned order cannot be set aside for that
reasons alone (PLD 1968 Lah. 938-PLR 1968 (2) W.P. 432).
27. Enquiry and award of Deputy Commissioner. On the day so fixed,
or on any other day to which the enquiry has been adjourned, the Deputy Commissioner
shall proceed to enquire into the objections, if any, which any person interested has stated
33
pursuant to the notice given under Section 27, and into the market value of the land and
into the respective interests of the persons claiming the compensation, and shall make an
award of:-
(i) the true area of the land.
(ii) The compensation which in his opinion should be allowed
for the land.
(iii) The apportionment of such compensation among all the
persons known or believed to be interested in the land of
whom, or of whose claims, he has information, whether or
not they have appeared before him.
COMMENTS.
Dispute between the parties related to apportionment of compensation i.e. as to
whom it was payable. Deputy Commissioner under Section 28(iii) of Ordinance is
invested with powers to decide the q2uestion of apportionment of compensation amongst,
claimants and his order could be assailed under Section 36 of Ordinance before
Commissioner, whose order would be final. Commissioner could not evade his
responsibility to decide the question of apportionment of compensation between parties
and shift the same in Civil Court. Civil Court had jurisdiction only to see, whether order
was passed in accordance with the provisions of Ordinance or not {2001 YLR 2751}.
Compensation: where any land is acquired under this Ordinance there shall be paid
compensation, the amount of which shall be determined by the Deputy Commissioner
who shall be guided by the provisions of section 30 and 31.
COMMENTS.
Synopsis.
1. Compensation a rates equal to that fixed for other similar land.
2. New plea in Supreme Court.
1. Compensation at rates equal to that fixed for other similar land.
Where petitioner’s counsel urged Commission to award at least same rates of
compensation as awarded by him in a specified case. Commissioner while accepting such
plea, cannot be said to have acted whether lawful authority by not adverting to an order
neither placed before him nor relied upon {1981 SCMR -21-PLJ 1981 SC 198}.
Compensation of market value to be assessed on value prevailing at time of acquisition
and not to the notified value fixed in relation to time before such acquisition (PLD 19854
FSC 221 PLJ 1983 FSC.298).
34
2. New plea in Supreme Court. A plea which could have been raised before
Commissioner but not raised before cannot be raised for the first time before High Court.
The plea was not allowed to be raised in Supreme Court (1981) SCMR 21-PLJ 1981 SC
198}
Matter to be considered in determining compensation:-
(1) In determining the amount of compensation to be awarded for land acquired under
this Ordinance the Deputy Commissioner shall take into consideration:-
First the market value of land {on the date of order of its acquisition made under section
25}.
Secondly the damage sustained by the person interested, by reason of dispossession of
any standing crops or trees which may be on the land.
Thirdly, the damage, if any sustained by the person interested at the time of taking
possession of the land by reason of severing such land from his other land.
Fourthly, the damage, if any sustained by the persons interested at the time of taking
possession of the land by the acquisition injuriously affecting his other property movable
or immovable, in any other manner or his earning and;
Fifthly, if in consequence of the acquisition of the land the person interested is completed
to change his residence or place of business, the reasonable expenses, if any, incidental to
such change.
(2) In addition to the value of the land determined as aforesaid, the Deputy
Commissioner shall in every case award a sum of fifteen per centum on such value in
consideration of the compulsory nature of the acquisition.
(3) In relation to land acquired on or after the first day of January,1996 in addition to
the value of land determined as aforesaid, the deputy Commissioner shall in every case
award a sum of twenty per centum on such value in consideration of the compulsory
nature of the acquisition.}
COMMENTS.
Synopsis
1. Compensation-Factors to be 2. Actual expenses incurred by
considered. owner as immaterial.
3. Classified land 4. Potential value.
5. Loss of business. 6. Unauthorized structures on
35
land.
7. Review of order of predecessor
commissioner.
1. Compensation-Factors to be considered. Compensation for
acquired land Factors to be considered are (1) market value of the land. (2)
damage caused by reason of dispossession, besides the value of land so
determined is to include 15% per annum of such value in consideration of
compulsory nature of acquisition. In terms of section 31, these factors are not to
be ignored while determining compensation (2002 SCJ 189 ). The principles for
fixing compensation may now be summed up as follows (i) The Deputy Com
missioner is first to determine and find out as to what is the classification of land
acquired as recorded in the register of Haqdaran Zamin as in force on 1.1.1968 (ii)
he is there to determine and find out as to what was the average market value
thereof during the period 1.1.1954 to 31.12.1958. While so doing it may be
noticed that the classification recorded in the Register of Haqdaran Zamin which
was in force on 1.1.1968 has to be given retrospective effect and it is to be
considered as if the classification of 1.1.1968 was in force during the period
1.1.1954 to 31.12.1958 (iii) to the average value so Sub section (iii) added by the
Capital Development Authority (Amdt ) Act 1999 (III of 1999 ) s.3. Determined
he is then to add 25% thereof; (iv) the aggregate so obtained by adding (ii) and
(iii) will thus come out and constitute the ‘market value ‘ of the land within the
meaning of section 2(k)(ii) of the Ordinance, which the Deputy Commissioner in
inter alia required to keep under consideration while awarding and assessing
compensation under section 31(v) the material date for compensation however is
the date of acquisition and not any other date (vi) that while compiling the
compensation amount, the potential value of the land as on the acquisition day is
not to be lost sight of and is to be duly taken into consideration for whatever
worth it may be (see the deductions made while interpreting section 31. fourthly
and other analogous provisions ) (vii) he is also not to exclude from consideration
the individual merits of a particular land acquired within the same classification to
which that land belongs or in other words without affecting or changing the
general classification of that land (vii) as per section 3 of the Capital
Development Authority Amendment ) Ordinance VII of 1968 any award of
compensation made before the commencement of this Ordinance in respect of any
land acquired on or after the first day of January,1968 shall be modified so as to
raise the amount of compensation specified therein to the amount which would
have been awarded had he award been made after the commencement of the
Ordinance 2002 SC 189 PLD 1977 Lah. 1200=PLJ 1977 Lah.605) It follow that
where village C was situated 3-4 miles away from village ‘B’ and its had were
nearer to urban area of “R” and were more valuable. Compensation assessed for
village ‘C’ cannot be awarded to petitioners (1982 SCMR 1136 }.
36
2. Actual expenses incurred by owner are immaterial. In land
acquisition proceedings compensation is to be awarded on the basis of market
value as defined under section 2(k). The fact that actual expenses incurred by a
party to acquire that land had come to an amount for beyond the compensation
allowed, would not justify any increase in amount of compensation beyond that
permitted by law (PLD 1968 Lah. 938=PLR 1968 (2) W.P. 342}
3. Classified land. Pegging of classification which is meant only for
technical definition of the “market value” does not warrant that individual and
exceptional merits of any particular piece of land within the same relevant
classification can be ignored for compiling compensation amount” when by so
doing no change in that classification in any manner takes place (PLD 1977 Lah.
1200-PLJ 1977 Lah. 605) In such cases it is no longer open to introduce the
concept of improvements and improved conditions so as to change the
classification. Such improvements, etc which purport to change classification of
the land for technical definition of market value and is not to affect individual
merits of a particular piece of land while remaining within and without effecting
or altering, its relevant classification for compiling ‘compensation amount” as
district from technical market value as aforesaid (PLD 1977 Lah.1200 PLJ 1977
Lah. 605}.
4. Potential value. When determining compensation potential value of
land must be considered but it must be the potential value as it existed before
acquisition took place. Past acquisition use of land cannot be considered (PLD
1977 Lah. 1200}
5. Loss of business. When the land acquired was being used as a brick
kin by its lessee and the lessee claimed compensation for loss of business. The
Court ordered that compensation be paid to the lessee for loss of business (PLD
1977 Lah. 843=PLJ 1977 Lah 481}
6. Unauthorized structures on land. Where unauthorized structures
raised by the lessee of the land are also acquired by CDA alongwith the land,
lessee is entitled to compensation for them, because even if they are unauthorized
vis-Ã -vis the lessor, the Capital Development Authority cannot get them free of
cost and vis-Ã -vis the Capital Development Authority the said
constructions/additions belong he lessee and if they are to be taken over
compensation for the same shall have to be paid to the lessee (PLD 1977 Lah.
843-PLJ 1977 Lah. 481}
7. Review of order of predecessor Commissioner. Owners of
land were entitled to be awarded just and equitable compensation but the
Commissioner had neither considered relevant provisions of law for assessment of
market value and compensation nor had followed the guidelines laid down by
Supreme Court and High Court through binding upon him in view of Article 189
of Constitution nor had taken note of use of land on the date of acquisition nor its
potential value nor market value classification-wise nor had considered the
37
compensation awarded earlier by predecessor Commissioner in terms of Section
2(k) 30 & 31 of the Ordinance and guidelines of Supreme Court and High Court
could not be said to be in violation of law liable to be interfered within exercise of
review jurisdiction. Successor Commissioner, in absence of discovery of new and
important matter or evidence or error apparent on the face of record or any other
sufficient cause could not review a legal and proper order of his predecessor.
Supreme Court dismissed the appeal of the Authority holding that High Court was
justified in restoring the order of predecessor Commissioner after setting aside the
order of his successor (PLD 2002 SC 243}
Factors to be ignored in determining compensation:
In determining compensation as aforesaid, the Deputy Commissioner shall not
take into consideration:-
First, the degree of urgency which had led to the acquisition.
Secondly, any disinclination of the person interested to part with
the land acquired.
Thirdly, any damage sustained by him which, if cause by a private
person would not render such person liable to a suit.
Fourthly, any increase likely to accrue to the value of the land
acquired from the use to which such land will be put on
acquisition, and
Fifthly, any increase likely to accrue to the value of the other land
of the person interested from the use to which the land acquired
will be put.
32. Vesting of land in the Authority:- Immediately on the
making of the award under section 28, the land shall vest in the
Authority free from all.
33. Encumbrances (and thereupon the Deputy Commissioner
may after giving reasonable notice to the occupier, enter upon and
take possession of them.
32-A. Payment of additional compensation: When the amount
of the compensation determined under section 29 and sub section
(3) of section 30 is not paid or deposited with the Deputy
Commissioner shall, in addition to such compensation, pay
additional compensation computed at the rate of eight per centum
per annum on such compensation from the time of so taking the
possession until it has been so paid or deposited}
38
33. Acquisition in cases of urgency. In cases of urgency, the
Deputy Commissioner may immediately after the publication of
the notice mentioned in sub section (1) of section 27 enter upon
and taken possession of the land which shall thereupon vest
absolutely in the {Authority} free from all encumbrances.
Provided that the Deputy Commissioner shall not take possession
of any building or part of building under this section without
giving to the occupier thereof at least twenty four hours’ notice of
his intention so to do, or such longer notice as may be reasonably
sufficient to enable such occupier to remove his movable property
from such building without unnecessary inconvenience.
{33-A-Temporary occupation and use of land1) Where the
Authority requires any land for temporary occupation and use for
he purpose of this Ordinance for a period not exceeding five years,
it may direct the Deputy Commissioner to take possession of the
land in accordance with the provisions of this section for such
occupation and use.
(2) Upon a direction under sub section (1) in respect of
any land, the Deputy Commissioner shall give the persons having
interest in the land notice in writing of his intention to take
possession of the same for he purpose and period specified therein
calling upon such persons to submit within ten days of the receipt
of the notice written statement describing the nature and extent of
their interest in such land.
(3) The Deputy Commissioner, shall after giving the person
having interest in the land an opportunity of being heard,
determine the amount of
‘Added by the Capital Development Authority (Amdt) Act
1966(22 of 1966),s.7
Added by the Capital Development Authority (Admt) Act 1999
(III of 1999 ) s.r
Subs. By the Capital Development Authority (Admt) Act 1966 (22
of 1966)s.8 for Central Government.
Section 32 A and 33’B ins.ibid, s.9.
Compensation payable fore the temporary occupation and use of the land at the
rate at which it was rented during the preceding agricultural year and if, it was not
to rented, at such rate as he may consider fair and equitable, and make an award
specifying:-
39
(a) the area and description of the land.
(b) The purpose and the period for which the land is required.
(c) The amount of compensation and shares therein of the person, if
there be more than one, entitled thereto and
(d) The mode of payment of compensation.
(4) After making an award under sub section (3) in respect of any land,
the Deputy Commissioner may enter upon and take possession of
such land for the period and the period specified in the notice under
sub section(2)
(5) If it appears that as a result of the occupation and use as aforesaid any
land proposed to be taken possession of under this section is likely to
be permanently unfit for the use for which it is for the time being used
and the owner applies for its acquisition under this Ordinance, the
deputy Commissioner shall report the fact to the Authority and shall,
if the Authority so direct:-
(a) acquire the land under the Ordinance; or
(b) assess the damage likely to be caused to the land and make
an award for reasonable compensation for such damage; or
(c) terminate the proceedings for taking possession of the land.
(33 B. Payment of compensation to persons under disability and
heirs of deceased persons:- (1) If any person entitled to the payment of any
compensation under the Ordinance is a minor, or of unsound mind, or under
some other legal disability to receive payment, the Deputy Commissioner may
by order direct that the payment of such compensation shall be made to the
person applying for it on behalf of the person entitled thereto, if the Deputy
Commissioner, after making such enquiry as he may deem fit, is satisfied that
the person so applying is the proper person to receive payment for the benefit of
the person entitled to compensation.
(2) Where a person entitled to receive compensation under the
Ordinance dies after the making of an award, the Deputy Commissioner may, to
Provide relief in suitable cases, on the application of the heirs or legal
representatives of such person and after holding an enquiry into the title of the
appellants, direct that compensation shall be paid to the applicants on such
terms and conditions as the Deputy Commissioner may deem fit to impose.
(3) Any person made under sub section (1) sub-section (2) shall afford full
indemnity to the Authority for the payment made but shall not affect the liability
40
of the person who has received the payment to account therefore to the person
lawfully entitled thereto}
34. Power of Deputy Commissioner to call for
information:
With a view to acquiring any land or determining any compensation therefore or
to carrying out any other purpose of this Ordinance, the Deputy Commissioner
may:-
(a) require any person, by order in writing to furnish such
information in his possession relating to any land as may be
specified in the order.
(b) enter or authorize any person to enter upon any land and take
such action as may be necessary.
35. Power of Authority to give directions to Deputy
Commissioner. The Authority may give direction to the Deputy Commissioner as
respects of the exercise of his powers and the discharge of his functions under this
Chapter and Deputy Commissioner shall be guided by, and act in accordance with such
directions.
COMMENTS.
Authority to issue directions: Capital Development Authority could issue directions only
in consonance with and subordinate to other provisions of Ordinance and not ultra vires
of them. Nothing in section 28 read with section (2(k) or in any other provisions of
Ordinance warrants conclusion of Deputy Commissioner being not required to award
compensation according to existing classification of land on date of expropriation of the
owner. Directions issued by Authority under Section 35 to ignore bona fide
improvements made after 1958 but before acquisition, held, ultra vires. Amendments
subsequently introduced into section 2(k) by amending Ordinance VII of 1968, held
further had no effect on land acquired before 1-2-1968 (PLF 1976 SC-752).
Appeal and review:-
(1). The Authority or any person aggrieved by an award or final order of
the Deputy Commissioner may, within fifteen days of such award or order, appeal
to the Commissioner.
(2) The Commissioner may, after giving the Authority and he person
affected by the award or order appealed against an opportunity of submitting an
41
objection to the appeal and of being heard, pass such orders thereon as he may
think fit.
(3) The Deputy Commissioner or the Commissioner, either of his own
motion or on application made in this behalf, at any time within five years from
the date of an award or order made or passed by himself or by any of his
predecessor in office, including an award or order made or passed before he
commencement of the Capital Development Authority (Amendment) Act 1960
may after giving the parties concerned a notice and an opportunity of being heard,
review the award or order and pass such order thereon as he may deem fit.
Provided that an order under his sub-section shall not, except in so far it
corrects an arithmetical, clerical or patent error or mistake in the award or and
under review, enhance, the amount of compensation awarded.
(4) Any amount paid to any person which is found, for any reason
including fraud or misrepresentation, not to be due or in excess of the amount is
entitled to under the award or order as review under sub-section (3) shall be
recoverable by the Authority and the Deputy Commissioner shall call upon such
person to refund it.
(5) Subject to the provision of sub section (3), the order of the
Commissioner passed on any appeal shall be final and shall not be called question
in any court}.
COMMENTS.
Synopsis
1. Review after appeal is filed 2. Miscellaneous petition if may
be converted into Constitutional
petition.
3. Review proceedings. 4. Contempt of Court.
5. Constitutional petition. 6. Jurisdiction of Commissioner to
review order more than once.
_________________
1. Subs. by the capital Development Authority (amdt) Act 1966 (22 or 1966),
s.10 for section 36)
1. Review after appeal is filed. Where the CDA filed a review petition
before Deputy Commissioner himself after his award had been challenged in
appeal by the land dwellers, It was held; that it was clearly not open to the
Deputy Commissioner to proceed to review own order during the pendency of the
42
appeal before the superior officer; nor could the Deputy Commissioner alter the
award in review after the appeal had been decided by the Commissioner (1973
SCMR145 ).
2. Miscellaneous petition if may be converted into
Constitutional petition. Conversion of proceeding of one kind into another
lies within the discretion of he Court, if the High Court was satisfied that
circumstances of the case justified conversion of miscellaneous application filed
by respondents in a disposed of case into proceedings under Article 199 of the
Constitution of Pakistan there was no legal bar to such conversion of the
proceedings {1994 SCMR 771=NLR 1994 SCJ 372 }
3. Review proceedings: Dispute regarding acquisition of land was
finally decided by Supreme Court and direction was issued to the authorities to
pay compensation to affectees. Authorities had paid compensation to some of the
affectees, when all of a sudden Deputy Commissioner, Capital Development
Authority, initiated suo motu review proceedings under Section 36(3) of Capital
Development Ordinance, 1960 and excluded the names of certain landowners.
Respondents/Commissioner Capital Development Authority allowed, appeal filed
by aggrieved landowners and set aside the order passed under suo motu powers
by Deputy Commissioner. Validity, after receiving the reports, Deputy
Commissioner, a functionary under Capital Development Authority Ordinance
1960, himself visited the site and inspected existence of houses and structures and
thereafter according to the policy of Capital Development Authority, affectees
opted to remove Malba of buildings subject to deduction of 15% of the value of
houses. After the observations of Supreme Court, Authorities had acted with mala
fide intention to further delay legitimate payment of compensation which was not
justified on any legal or normal ground when the awards were adjudged valid and
proper by Supreme Court, the Deputy Commissioner, Capital Development
Authority was not empowered to exclude names of affectees from the award after
exercising powers of suo motu review. High Court in exercise of Commissioner
jurisdiction, assigned to interfere with the order passed by
respondent/Commissioner Capital Development Authority. Petition was
dismissed in circumstances {2008 CLC 1530).
4. Contempt of Court. Commissioner reviewed the order of his
predecessor on the ground that Supreme Court had misinterpreted the law, which
misinterpretation would not be shared by him, thus calling it as mistake patent on
the face of record. Successor Commissioner by such observations had showed
disrespect to decisions of Supreme Court and High Court, which prima facie
would amount to contempt of Supreme Court warranting legal consequences.
Notice was issued to Commissioner to show cause as to why proceedings under
Article 204 of Constitution read with Section 3 & 4 of Contempt of Court
Act,1976, be not initiated against him for showing his willful disobedience and
disrespect to the dignity and decorum of Supreme Court and High Court in
violation of such provisions (PLD 2002 SC 243}
43
Commissioner, Capital Development Authority, while disposing of a
revision petition under section 36 of the Capital Development Authority
Ordinance,1960 had differed in its judgment with the interpretation placed by the
High Court and the Supreme Court on Sections 29,30 and 31 of the said
Ordinance in the judgment reported in Sardar Begum and others, v. the Capital
Development Authority and others PLD 1977 Lah. 1200 and Muhammad Younus
and others v. Capital Development Authority and others PLD 1976 SC 752 by
using intemperate Language. Was obligatory on the Commissioner to follow he
said reported judgments in letter and spirit in terms of Article 189 of the
Constitution. Although the Administrative Functionaries did not enjoy judicial
powers but when they were require to pronounce a judicial decision in judicial
proceedings instituted before them, they were bound by the judgments of the
superior Courts as if they were functioning as a judicial forum having powers of
the Court to the extent of the decisions of the case required to be made by them
judiciously. Commissioner, therefore, had no lawful authority to differ with the
law laid down in the reported judgments and by not following the same he had
made himself liable for contempt of Court because while disagreeing with the
principles laid down therein he had used intemperate language. Respondent had
tendered unqualified apology for his action and had also placed himself at the
mercy of the Court. Perusal of the order passed by the Commissioner way back in
1983, however, indicated that he had not differed with the judgments quoted
before him with mala fide intention but on account of non-understanding of
judicial principles pertaining to apply the judgments of the superior Courts.
Supreme Court, therefore, had extended to the respondent the benefit of such
extenuating circumstances and did not exercise jurisdiction of contempt of Court
as provided under Article 204 of the constitution .Show cause notice issued to the
respondent/Commissioner was discharged accordingly with a warning to him that
in future he should remain careful while interpreting judgments passed by the
superior Courts, and if he repeated such conduct he would be dealt with strictly
without showing any leniency to him (PLD 2002 Sc 399}
5. Constitutional petition. Remedy of appeal available but such remedy
was not exhaustive and thus not suitable. Effect, Where petitioner had
challenged the very acquisition of land to be illegal and was not claiming the
enhancement of compensation, the provisions of Section 36 of the Ordinance was
not a remedy being not exhaustive. Constitutional petition was therefore,
maintainable {1999 YLR 247 }
6. Jurisdiction of Commissioner to review order more than
once. Commissioner, after deciding the earlier review application allowed
another review application. Validity. Where Commissioner had passed an order
on appeal, there arose right of review to any of the parties or a power vesting in
the Commissioner, himself to suo motu review the order so passed in appeal.
Once such power had been exhausted either suo motu or on an application, the
order to appeal would become final. Second review was not competent and the
Commissioner acted without awful authority in entertaining and allowing the
44
same. Order passed by the Commissioner in second review application was
without authority and the same was set aside. Constitutional petition was allowed
in circumstances {2002 YLR 1059}
36A. Deputy Commissioner and Commissioner to have
powers of civil court, etc. (1) The Deputy Commissioner making any
enquiry, or conducting any proceedings for an award under the Ordinance, or the
Commissioner hearing an appeal or holding a review under section 36, shall have
he same powers in respect of the following matters as are vested in a civil court,
when trying a suit, under the Code Procedure, 1908 (Act V of 1908} namely:-
1. Sections 36 A and 36 Bins. By the Capital Development Authority (Amdt)
Act,1966, s.11.
(a) summoning and enforcing attendance of any person and examining him on
oath or affirmation:
(b) requiring the discovery and production of any document;
(c) requisitioning any record from any court or office;
(d) issuing commissions for examination of wines, inspection of property or
making any local investigations;
(e) appointing guardian ad litem or next friends;
(f) adding or substituting representatives of deceased parties to proceedings.
(g) adding or dropping parties from pending proceedings;
(h) restoration of cases dismissed for default;
(i) consolidating and splitting up cases; and
(j) any other matter connected with the holding of an inquiry or hearing of an
appeal.
(2) The Deputy Commissioner or the Commissioner exercising powers under this
Ordinance shall be deemed to be a court for the purposes of sections 480 and 482 of the
Code of Criminal Procedure, 1898 (Act V of 1898), and a proceeding before him shall be
deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the
Pakistan Penal Code (Act XLV of 1860).
36B. Fees on applications:- The Authority may prescribe fees on applications
made to it.
45
CHAPTER V
ESTABLISHMENT
37. Appointment of officers and servants etc.
1) The Authority may from time to time, appoint such officers, servants, experts or
consultants as it may consider necessary for the performance of its functions, on such
terms and conditions as it may deem fit:
Provided that salaried officers and servants whose remuneration exceeds two
thousand and five hundred rupees per mensem shall not be appointed except with he
previous approval in writing of the (Federal Government).
(2) Subject to the proviso to sub-section (1), the Chairman may, in cases of urgency,
appoint such officers, servants, experts or consultants and on such terms and conditions
as he deems fit:
Provided that every appointment made under this sub section shall be reported to
the Authority without unreasonable delay.
38. Recruitment conditions of service and disciplinary
powers:-
The Authority shall lay down the procedure for the appointment of its officers, servants,
experts and consultants, and the terms and conditions of their services including the
constitution and management of provident fund for them, and shall be competent to take
disciplinary action against them.
COMMENTS
Notwithstanding pre-emptory language of section 38, appointment etc held could be
made without framing regulations. Requirements of section 38, held further directory
rather than mandatory (PLD 1979 Lah..803).
39. Members, officers, experts – public servants. The Chairman,
members, officers, servants, experts and consultants of the Authority shall, when acting
or purporting to ac in pursuance of any of the provisions of this Ordinance be deemed to
be public servants within the meaning of section 21 of the Pakistan Penal Code (XLV of
1860).
40. Indemnity. No suit, prosecution or other legal proceedings shall lie against
the Authority, the Chairman, any member, officer, servant, expert or consultant of the
Authority in respect of anything done or intended to be done, in good faith under this
Ordinance.
46
41. Delegation of powers to Chairman, etc. The Authority may, by
general or special order, delegate to the Chairman, or a member, or an officer of the
Authority, any of its powers, duties or functions under this Ordinance, subject to such
conditions as it may think fit to impose.
CHAPTER VI
FINANCE
42. Capital Development Authority Fund:-
(1) There shall be formed a fund to be known as the “Capital Development Authority
Fund” which shall vest in the Authority and shall be utilized by the Authority to meet
charges in connection with its functions under this Ordinance including he payment of
salaries and other remuneration to the Chairman, members, officers, servants, experts,
and consultants of the Authority.
(2) To the credit of Capital Development Authority fund shall be placed,.
(a) grants made by the [Federal Government];
(b) loans obtained from the [Federal Government];
© grants made by local bodies;
(d) sale proceeds of movable and immovable property and receipts for
services rendered;
(e) loans obtained by the Authority with the special or general
sanction of the [Federal Government];
(f) foreign aid and loans obtained from the International Bank of
Reconstruction and Development or from any other source outside
Pakistan, with the sanction of, and on such terms as may be
approved by, the [Federal Government]; and
(g) all other sums receivable by the Authority.
43. Budget.
(1) In the month of February each year the Authority shall submit to the [Federal
Government] for approval a statement of the estimated receipts and expenditure in rupees
in respect of the next financial year.
(2) In the manner prescribed by the [Federal Government] the Authority shall
also submit to the [Federal Government] for approval a statement
_____________________
47
Subs by F.A.O. 1975, Art 2 and Table for “Central Government”. of the estimated
receipts and expenditure in foreign exchange in respect of the next financial year.
(3) The Authority shall obtain specific sanction of the [Federal Government]
in respect of each individual scheme costing rupees twenty five lacs or more to be
financed out of the Capital Development Authority Fund.
44. Audit and accounts.
1) The accounts of the Authority shall be audited by not less than two auditors
holding certificates under section 144 of the Companies Act, 1913 (VII of 1913), who
shall be appointed by the [Federal Government], in consultation with the [Auditor
General] of Pakistan (hereinafter referred to as the Auditor General) on such
remuneration, to be paid by the Authority, as the [Federal Government] may fix, and the
Auditor General shall have the power to give directions to the auditors in regard to the
extent and method of their audit subject to the provisions of the Companies Act, and to
prescribe the forms of accounts to be maintained by the Authority consistent with the
requirements of this Ordinance.
(2) Notwithstanding the provisions of the preceding sub-section, the Auditor
General may either of his own motion or upon a request received in this behalf from the
[Federal Government], undertake such audit of the accounts of the Authority at such time
as may be considered necessary, and the Authority shall, at the time of such audit,
produce the account books and connected documents at such place or places as the
Auditor Genera may fix, and furnish such explanations and information as the Auditor
Genera or an officer or officers authorized by him in this behalf may ask for.
(3) Every auditor appointed under sub-section (1) shall be given a copy of
annual balance sheet of the Authority, and shall examine it together with the accounts and
vouchers relating thereto, and shall have a list delivered to him of all books kept by the
Authority, and shall at all reasonable times have access to the books, accounts and other
documents of the Authority, and m ay in relation to such accounts examine any member
or officer of the Authority.
(4) The auditors shall report to the [Federal Government] upon the annual
balance sheet and accounts and in their report they shall state whether in their opinion the
balance sheet is a full and fair balance sheet containing all necessary particulars and
properly drawn up so as to exhibit a true and correct.
___________________________
*Subs. by F.A.O 1975, Art. 2 and Table, for “Central Government”
Substituted by Federal Adaptation of Laws Order, 1975 (Order No.4 of 1975) for
“Controller and Auditor General”.
48
View of the state of the Authority’s affairs, and in case they have called for any
explanation or information from the Board, whether it has been given and whether it is
satisfactory.
(5) The {Federal Government} may at any time issue directions to the
auditors requiring them to report to it upon the adequacy of measures taken by the
Authority for the protection of the interests of the ‘{Federal Government} and of
the creditors of the Authority or upon the sufficiency of their procedure in
auditing the affairs of the authority, and may at any time enlarge or extend the
scope of the audit or direct that a different procedure in audit be adopted or that
any other examination be made by the auditor if in its opinion the public interest
to requires.
(6) The Authority shall comply with every direction issued by the {Federal
Government} for the rectification of matters objected to in audit.
45. Consultation with the Financial Advisor:- Save as provided in
the rules or regulations, the Financial Advisor shall be consulted on every proposal of
expenditure.
CHAPTER VII.
PENALTY AND PROCEDURE
46. Penalty:- Whoever contravenes any provision of this Ordinance or of
any rules or regulations made or scheme sanctioned thereunder shall, if no other
penalty is provided for such contravention, be punishable with imprisonment
which may extend to six months or fine or with both.
‘{46A. Causing damage to property:- Whoever willfully causes damage or allows
damage to be caused to any property which vests in the Authority or unlawfully
converts it to his own use or to that of any other person shall be punishable with
imprisonment for a term which may extend to one year, or with fine, or with both.
46B. Disobedience of orders: Whoever, without lawful excuse, fails or refuses
to comply with any direction or order issued by the Authority under this
Ordinance shall be guilty of an offence punishable under section 46.
‘Subs by F.A.O 1975, Art.2 and Table for “Central Government.”
49
‘Sections 46-A to 46-D ins by the Capital Development Authority (Amdt)
Act.1966(22 of 1966 )
44.
46-C. Attempts and abetments: Whoever attempts to commit or abets the
commission of an offence punishable under this Ordinance shall be deemed to
have committed that offence.
46-D. Summary trial of offences: Any Magistrate or Bench of Magistrates
empowered for the time being to try in a summary way the offences specified in
sub section (1) of section 260 of the Code of Criminal Procedure 1898 (Act-V of
1998 ), may, if such Magistrate or Bench of Magistrates thinks fit, on application
being made in this behalf by the prosecution, try any offence punishable under
this Ordinance in accordance with the provisions contained in sections 262 to 265
of the said Code}
47. Cognizance of offences by Courts:- N court shall take
cognizance of any offence punishable under this Ordinance except on a complaint
in writing made by the Authority or by an officer authorized for the purpose by
the Authority.
CHAPTER VIII
MISCELLANEOUS.
48. Submission of yearly reports and returns etc:
(1) The Authority shall submit to the {Federal Government) as soon as
possible after the end of every financial year but before the last day of December
next following a report on the conduct of its affairs for that year.
(2) The {Federal Government) may after giving sufficient notice to
the Authority, require it to furnish the Government with:-
(i) any return, statement, estimate, statistics, or other information
regarding any matter under the control of the Authority, or
(ii) a report on any subject with which the Authority is concerned, or
(iii) a copy of any document in the charge of the Authority; and the
Authority shall comply with every such requisition.
50
‘Subs. by F.A.O,1975, Art 2 and Table for “Central Government”
49. Power to dispose of land: The Authority may retain, or may
lease, sell, exchange, rent or otherwise dispose of any land vested in it.
COMMENTS
Synopsis
1. Minister’s powers qua allotment of 2. Allotment of pots by Prime
Property. Minister from the
discretionary quota.
3. Constitutional jurisdiction of
High Court. 4. Allotment of public
property parliamentarians
at Islamabad.
5. Allotment of land plot in Capital area.
1. Minister’s powers qua allotment of property. Capital Development
Authority having perpetual succession and a common seal, a Corporation with
independent audit and existence CDA Ordinance 1960 vests Authority with independent
power of preparation of master plan master programme, schemes and powers of
management. No such powers conferred by Ordinance on Minister Incharge. Minister,
held devoid of powers to allot property vesting to Authority {1979 CLC 502}
2. Allotment of plots by Prime Minister from the discretionary
quota. Paragraphs 15(i)(6),15(ii)(7) and 15 (ii-a) of Land Disposal in Islamabad
Regulations 1988 having been amended by Notification dated 19.5.1993 which was not
published in the official Gazette were ultra wires of the Capital Development Authority
Ordinance 1960 as said paragraphs were beyond the scope of the said Ordinance for
Prime Minister did not figure in the Ordinance in any capacity. Capital Development
Authority, itself could exercise any direction under paras 18© & 19(b) (iii) of the said
Regulations for these provisions were also ultra vires of the Ordinance and thus were
liable to be struck down alongwith paras 15(i)(6), 15(ii)(7) and 15 (ii-a) of the
Regulations. Plots so allotted therefore stood reverted to the Capital Development
Authority which was directed to take action in that behalf as ordered by the High Court
(PLD 1993 Lah. 155}
3. Constitutional jurisdiction of High Court. High Court has ample
jurisdiction to look into the allotment of plots by the Prime Minister of Pakistan in
various Housing Schemes of the Capital Development Authority from their discretionary
quota (PLD 1993 Lah. 855).
51
4. Allotment of public property to Parliamentarians at Islamabad.
Law prepares that an act was bona fide unless same was shown to have been taken with
mala fide motion. Mala fides cannot be presumed but has to be proved. If reservation of
plots in Development Schemes for other groups or class of people, in particular
Advocates to which class petitioner belongs was not objected to and has been treated to
be justifiable act, there was no reason to object to reservation of same to other class of
people in the same manner. No evidence in reservation of plots for Parliamentarians was
warranted in circumstances (1966 CLC 1987}
5. Allotment of land/plot in Capital Area. Lands/plots within limits of
Capital area of Islamabad is governed by Capital Development Authority Ordinance 1960
abd Rules and Regulations framed thereunder. Statutory Rules and Regulations as regards
transfer etc of State land in terms of Articles 260© & 268 (7) of the Constitution have
been declared to be the law for purpose of Article 173 (5) of the Constitution. Law
therefore, exists for dealing with State land within limits of Capital Area of Islamabad
{1996 CLC 1987}.
‘{49A. Recovery of dues etc. Any sum due to the Authority from,
or any scum wrongly paid to, any person under this Ordinance
shall be recoverable as arrears of land revenue.
COMMENTS.
Sum due to Authority. Actual amount due disputed. Held, same cannot be said to
be sum date, unless settled in accordance with law {1979 CLC 565 }
49B. Summary ejectment of unauthorized occupants: The Deputy
Commissioner or any person authorized by him or the Authority in
this behalf may, after giving fifteen days notice, summarily eject
any person in unauthorized occupation of any land or property
vested in the Authority and may, for such ejectment, use such force
including police force as may be necessary.
COMMENTS;
Eviction of leave: Plot given by capital Development Authority to Staff Welfare
Committee for welfare purpose. Lease of plot by Committee in favour of petitioner for a
fixed term. Eviction of petitioner from plot by Authority after expiry of lease while
matter of renewal of lease was under process. Petitioner alleged such eviction to be
illegal as lessor of plot was Committee which was a separate body from Authority and
thus, such lease was outside purview of Capital Development Authority Ordinance,1960.
Validity Committee was not alien to Authority, but was its competent Authority had
delegated certain powers to Committee to deal with plot and use its funds for purposes of
52
welfare of staff. Apprehension was that Authority under political influence would lease
out plot surreptitiously to someone else. High Court disposed of constitutional petition
with directions to Committee to decide fate of renewal of lease independently within
specified time, and on its failure to do so, petitioner would be put in possession of plot
till its decision (2006 CLC 745).
Plot lease to the petitioner had been given by the Capital Development Authority to the
Welfare Committee of the CDA’s employees so that the income derived from the plot be
utilized for welfare purpose and said committee was plenipotentiary with respect to all
the day to day matters relating to the said plot. Connection of the petitioner, who had
obtained the lease from the Staff Welfare Committee, was that action of ejecting him
from the plot had been taken at the end of the CDA without any proper decision in
connection with re-letting of the plot to the petitioner by the Welfare Committee.
Petitioner had further alleged that the authority in the Sections 49A to 49E ins. By the
Capital Development Authority (Amdt ) Act 1966 (22 of 1966) s.13. CDA with the
influence of certain political figures were trying to grab the plot in question and would
lease out the same surreptitiously to someone whom the authorities had been directed to
accommodate. Validity, Property undoubtedly belonged to the Capital Development
Authority and had been given over for welfare purpose to the Welfare Committee, CDA
therefore, same had some role in the matter and it was possible that CDA was used in
ousting the petitioner at the relevant time after the notice. Welfare Committee was
working with the Capital Development Authority and as such was an agency as the CDA
being its component same could not be said to be alien to the Body. CDA had delegated
certain powers to the Committee with the functional role to deal with plot in hand and use
its funds for the purposes of welfare of the Staff. Constitutional petition against the
Welfare Committee therefore was maintainable. Welfare Committee being incharge of
the plot in question having not aced independently in respect of any action which was
required to be taken with respect to the renewal of ease of the plot. High Court directed
that the matter be first referred to the Welfare Committee who shall hear the petitioner
afresh without prejudice to any past litigation for renewal of the said lease of the plot and
shall take a decision on the question of renewal of the lease without three weeks from the
announcement of the judgment by the High Court. Status quo, however, was ordered to
be maintained during such three weeks, but in case the Committee ailed in taking any
action in this, behalf, the petitioner shall be put in possession of the plot. In the
meanwhile until the Committee decided the fate of renewal of the lease on such terms
which were reasonable, according to the market value, genuine and not meant to defeat
the rights of the petitioner through deceit or circumvention of procedure in law.
Committee shall also ascertain as to what assets of the petitioner were lying at the plot(
Petrol pu mp) at the time its possession was taken over and will take measures for
safeguarding his rights in respect of those assets in accordance with law {2004 MLF
1644 }
49C. Removal of building, etc erected or used in
contravention of this Ordinance:- (1) If any building, structure,
work or land in erected, constructed or used in contravention of the
provisions of this Ordinance or of any rule, regulation or order
made hereunder, the Deputy Commissioner, or any person
53
empowered in this behalf y the Authority may, by order in writing,
require the owner, occupier, user or person control of such
building, structure, work or land to remove demolish or so alter the
building structure or work, or to desist from using or to so use the
land, as to be in accordance with the said provisions.
(2) If an order under sub-section (1) in respect of any building,
structure, work or and is not complied with within such
time as may be specified therein, the Deputy
Commissioner, or any person empowered in this behalf by
the Authority, may after giving the person affected by the
order an opportunity of being heard, remove, demolish or
alter the building, structure or work, or stop the use of the
land and, in so doing may use such force including police
force as may be necessary and may also recover the cost
therefore from the person responsible for the erection,
construction or use of the building, structure, work or land
in contravention of the provisions as aforesaid.
48.
49D. Police assistance:- The officer-in-charge of a policestation
shall render such police assistance as the Deputy
Commissioner may require in the discharge of his function under
the ordinance.
49E. Jurisdiction of courts barred:- Save as otherwise
provided by this Ordinance no court or other authority shall have
jurisdiction to question the legality of anything done or any action
taken under the Ordinance by or at the instance of the Authority.
COMMENTS.
Civil Courts Jurisdiction: Section 49-E protests from civil courts jurisdiction only
when orders passed in accordance with Act and not illegal orders (PLD 1978
Lah.1116 }.Though section 49E bar the jurisdiction to entertain question of the
legality of anything done or any action taken under this Ordinance, yet any thing
illegally done by Authority or its officers is not said to have been done under
Ordinance and courts jurisdiction in such circumstances is not barred (PLJ 1983
FSC 298}
Mala fides literally means “in bad faith” Action taken in bad faith is
usually action taken malicious 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 or action taken in fraud of the law are also
mala fide (PLD 1974 SC 151: PLJ 1974 SC 77 Law Notes 1974 SC 184 }
54
Civil courts can exercise jurisdiction to examine validity of acts of
statutory functionary to find ou whether or not it exceeds its powers and section
49E is no bar to exercise of such powers (PLD 1981 Lah. 341}. Under section
49(a) if actual sum due to the authority is in dispute the same cannot be said the
sum due unless settled in accordance with law {1979 CLC 565}
Jurisdiction of Civil Court will be barred only when the legality to
anything done or action taken under the Act/Ordinance by or at the instance of the
Authority is questioned. Jurisdiction of Civil Court, however, is not barred in a
suit for declaration about the nature of the transaction and the status of the parties
with consequential relief under section 42, Specific Relief Act,1877 (PLD 1995
SC 457 }
49F. Admissibility of document or entry as evidence: A copy of
any receipt, application, plan, notice order or other document or of
any entry in a register, in the possession of the Authority shall, if
duly certified by the legal keeper thereof or other person
authorized by the Authority in this behalf, be admissible in
evidence of the existence of the document or entry and shall be
admitted as evidence of the matter and transactions therein
recorded in every Section 49F ins. by the Capital Development
Authority (Admdt) Act 1968 (16 of 1968)s.2. Case where, and to
the same extent to which, the original document or entry would, if
produced, have been admissible to prove such matters}
COMMENTS.
Internal office noting. Objection as to its admissibility in
evidence not raised at time of its production in evidence, but raised in revision
before High Court. Objections so raised was of no substance {2003 CLC 1684}
50. Power to make rules. The *{Federal Government) may, by
notification in the official Gazette, make rules to carry out the purposes of this
Ordinance. Provided that no rules shall be made on any of the matters specified in
section 38.
51. Power to make regulations: The Authority may make
regulations, not inconsistent with the rules, if any, on all matters for which
regulations are necessary or expedient; and such regulations shall be published in
the official Gazette.}
COMMENTS.
Synopsis
1. Framing of regulations 2. Reservation of plots.
55
3. Imposition of property tax.
1. Framing of regulation: The Capital Development Authority is the
sole arbiter to frame regulation for he terms and conditions of its employees.
Requirement of publication cannot make non-statutory regulations statutory (PLD
1979 Lah. 803}.
Provisions of Sections 50 & 51 of the Ordinance are ambiguously worded
inasmuch as neither of these sections lays down any guidelines as on which
subjects the Federal Government was to frame the rules and on which topics
Capital Development Authority was to frame regulations, except to the extent that
the Rules could not be framed on certain service matters mentioned in section 38
of the Ordinance. If provision of section 49 be read with section 51 of the
Ordinance, then it can be said that the Authority could frame Rules for the
disposal of the land vesting in it. Land Disposal in Islamabad Regulations 1985
having been neither approved by the Federal Cabinet nor been published in the
official Gazette o satisfy the requirement of section 51 of the Ordinance were
incapable of being aced upon. If the Authority or any of the functionaries had
acted upon these regulation, all that was without lawful authority and of no legal
effect (PLD 1993 Lah. 855}.
*Subs. by F.A.O 1975, Art. 2 and Table, for “Central Government.”
!Subs. by the Capital Development Authority (Amdt) Act,1966 (22 of 1966), s.14
for s.51.
2. Reservation of plots. Law presumes that an act was bona fide unless
same was shown to have been taken with mala fide intention. Mala fides cannot
be presumed but has to be proved. If reservation of plots in Development
Schemes for other groups or class of people, in particular Advocates to which
class petitioner belongs was not objected to and has been treated to be justifiable
act, there was no reason to object to reservation of same to other class of people in
the same manner. No interference in reservation of plots for Parliamentarians was
warranted in circumstances {1966 CLC 1987 }. Statutory Rules and Regulations
framed thereunder have been declared to be the law for purpose of Article 173 (5)
of the Constitution {1966 CLC 1987 }
3. Imposition of property tax. Petitioners who owned and operated
hotel in Islamabad Capital Territory, had questioned imposition of property tax
and its recovery by the Authority. Contention of petitioners was that they being
not located in any of the areas mentioned under the heading “commercial” were to
be treated as Industrial concern and be charged accordingly. Terms “Industrial”,
“institution” or “commercial” had not been defined in the Rules framed by
Federal Government for the imposition of property tax and recovery thereof. Till
such time a statutory enactment including the hotels located in Islamabad Capital
Territory in the term “Industry” or “industrial” or “institution” was not made by
56
Competent authority, petitioners could not claim as a right to be charge as an
industrial concern vis-a-viz said property tax {PLD 2004 Lah. 80}
52. Dissolution of the Authority and transfer of its assets
and liabilities to the Federal Government and other agency
determined by that Government:-
(1) The *{Federal Government} may, by notification in the official Gazette,
declare that the Authority shall be dissolved on such date as may be specified in
such notification, and the Authority shall stand dissolved accordingly.
(2) On and from the said date:-
(a) (i) all properties, funds and dues placed at the disposal of the
Authority by the {Federal Government) and
ii) all properties, funds and dues exchanged for derived from or
otherwise attributable to the properties, funds and dues referred to in sub-clause
(i) which, immediately before the said date, were held by or were realizable by the
Authority shall vest in and be reliable by the {Federal Government} and
(b) all properties, funds and dues, other than those referred to
in cause (a) which immediately before the said date were vested in or were
realizable by the Authority shall vest in
*Subs. by F.A.O 1975, Art 2 and Table for “Central Government and be
realizable by such agency as the {Federal Government} may determine,
and its decision thereon shall be final.
(c) all liabilities which, immediately before the said date, were
enforceable against the Authority shall be assumed by and be enforceable
against the *(Federal Government} or such agency as the “Federal
Government determines under clause (b) as the case may be;
(d) for the purpose of completing the execution of any scheme
which has not been fully executed by the Authority and of realizing
properties, funds and dues referred to in clause (a) and (b), the functions of
the Authority under his Ordinance shall be discharged by the “Federal
Government} or by the agency determined by the *{Federal Government
} under clauses (b) and (c), as the case may be; and
(e) the agency referred to in clauses (b),(c) and (d) shall keep
such accounts of all moneys respectively received and expended by it
under this Ordinance, as the *{Federal Government} may prescribe.
_____________
57
Subs. by F.A.O 1975, Art.2 and able. For “Central Government”.
THE SCHEDULE
(See section 2(P)}
From Triangulation Point 5264 (near Village Nilan Bhotu), Map
Ref.191698 (Survey of Pakistan map .scale 1 in.to mile, sheet No.43 G/1), north
east along the Rawalpindi tehsil boundary to spot height 4949 Map. Ref:
223713(Survey of Pakistan map, scale 1 in, o 1 mile, sheet 43 G/1) then, south
east again along Rawalpindi tehsil boundary to the tehsil boundary and Nala
junction at Map Ref. 227707 (Survey of Pakistan map, scale 1 in. to mile, sheet
No.43 G/1) from her south-east along the Nala to the junction in the nala at Map
Ref. 250701 (Survey of Pakistan map, scale 1 in. to 1 mile, sheet No.43 G/1).
From this junction south east across the range of hills and via Village Mangial
(Map Ref: 268696 ) to village Karlot Map Ref: 287693(Survey of Pakistan Map.
Scale 1 in. to 1 mile, sheet No.43 (G/1). From village Karlot south east along the
Nala to Nala and Kurang Nala junction and along Kurang Nala to Junction of
Kurang Map. Ref: 304685 (Survey of Pakistan Map. Scale 1 in to 1 mile, sheet
No.43 G/1). From here due east across country to the Rawalpindi tehsil boundary
of Map. Ref: 310683 (Survey of Pakistan map, scale 1 in. to 1 mile, sheet No.43
(G/5) and south east along the tehsil boundary to the junction of the tehsil
boundary and Kurang Nala at Map. Ref> 315676, then north east along the
Kurang Nala to the junction of the Nala and tehsil boundary at Map. Ref. 327678
(Survey of Pakistan map scale 1 in to 1 mile, sheet No.43 (G/5). From this
junction south east across country via spot height 2954 Map. Ref>
345664(Survey of Pakistan map, scale 1 in to 1 mile, sheet No.43 G/5) across the
range south east to spot height 2276 Map. Ref> 358655 (Survey of Pakistan map,
scale 1 in to 1 mile sheet No.43 G/5 )located near Rawalpindi tehsil boundary
then south-east along the Rawalpindi tehsil boundary to junction of boundary and
Gumrah Kas at Map. Ref> 369636 (Survey of Pakistan map, scale 1 in. to 1 mile,
sheet No.43 G/6). From this junction south east across country to Village Sambli
Tijal on the River Soan, Map. Ref: 405615, then along River Soan and
Rawalpindi tehsil boundary east up to Map. Ref: 457595 (bend in the boundary )
and south-west again along tehsil boundary to a point at Map Ref. 424541
(Survey of Pakistan map, scale 1 in. to 1 mile, sheet No.43 G/6) 400 yards uth of
the Lehtrar Road. Then west along a line parallel to Lehtrar Road (400 yards
58
south of the road ) to a point on Malal Nala at Map Ref. 302523 (Survey of
Pakistan map, scale 1 in. to 1 mile, sheet No.
*See also schedule of the Capital of the Republic (Determination of Area)
Ordinance 1963.
43 G/2). Then south-west along the Malal Kas to junction Mala Kas and River
Korang Map. Ref> 225455 (Survey of Pakistan map, scale 1 in to 1 mile, sheet
No.43 (G-2) From here north-west along River Kurang to the junction of River
Kurang and Nala at Map. Ref> 172528 (Survey of Pakistan map, scale 1 in to 1
mile, sheet No.43 G/2) then north west along this Nala via Village Sohan Map.
Ref> 166528 (Survey of Pakistan map, scale 1 in. to 1 mile sheet No.43 G/2) to
the junction of Nala and Muree Road near Mile-stone 6, Map. Ref> 154537
Survey of Pakistan map, scale 1 in to 1 mile, sheet No.43 G/2). From this junction
south west across country to the bend in Lei Nala (Near village Narala at Map.
Ref> 138530 (Survey of Pakistan map scale 1 in. to 1 mile, sheet No.43 G/2).
Then south west alongwith Lei Nala to junction of Lei Nala and Bedarwali. Map.
Ref: 119510 (Survey of Pakistan map, scale 1 in to 1 mile, sheet No.43 G/2).
Then south alongwith Leh Nala to a point Map. Ref> 117479 being junction of
Leh Nala and a tributary near point Map. Ref:047477 (Survey of Pakistan Map.
scale 1 in to 1 mile, sheet No.43(C/14). From this point north-west along the
kutcha road to the junction of this Kutcha road and track at Map Ref. 044480
(Survey of Pakistan map, scale 1 in. to 1 mile, sheet No.43, C/14). From here
south, west across country to a point 100 yards west of G.T.Road, Map Ref:
040478 (Survey of Pakistan map scale 1. in. to 1 mile sheet No.43 C/14), then
north west along a line parallel to the G.T.Road, and at a distance of 100 yards
from it to Nicholson Monument at Map. Ref>884588(Survey of Pakistan Map,
scale 1 in to 1 mile, sheet No.43/C/14, Then west along the ridge of Margalla
Range via spot heights 2613,2981,3371 and 3338 to triangulation point height
3352, Map. Ref> 979604 on the boundary line of districts Hazara and Rawalpindi
(survey of Pakistan map, scale 1 in. to 1 mile, sheet No.43 C/14). Then east along
this boundary line back to the starting point triangulation height 5264.
LIMITS OF THE SPECIFIED AREAS
Starting from a point, map reference 534125 (sheet 43 F/8, 1 in to
1 mile) map of G.T.S ) nearly 2 miles North of Kohala on Azad Kashmir!
(Pakistan ) border running south along River Jhelum (boundary of Azad
Kashmior and Pakistan ) upto a point, Map Ref: 641678 (sheet 43 (G/9) being the
59
junction of boundaries of Murree Tehsil Kahuta Tehsil and Azad Kashmir. Then
along the southern boundary of Murree Tehsil up to junction of Khad Nala and
Murree Tehsil boundary Map Ref> 568699 (sheet 43 G/9). Then south-west along
Khad Nala
!Amendment by Federal Adoption of Laws Order 1975 (Order No.4 of 1975 ) for
“West Pakistan.” and a tributary. Then south-east along the tributary via Village
Lehtrar Nala to Nala and track junction at map reference 518594 (sheet 43 G/6).
Then along this track via village Marhiman south-west to the track and a Nala
junction at map reference 506571 (sheet 43 G/6). Then south-west along this
Nala via Village Jambhiri and Pihar to this nala and River Ling junction at map
reference 463483 (sheet 43 G/6). From here south-west along River Ling to the
junction of Rawalpindi Tehsil boundary and River Ling at map reference 369382
(sheet 43 G/6). Then along eastern, southern and western boundary of Rawalpindi
Tehsil up to bend at map reference 910683 (sheet 43 C/13) about a mile south of
Village Salargah. Tehn follow along River Harro north east up to a point map
Ref> 168810 (shet 43 G/1) near spot height 2518, which is the junction of River
Harro and boundary line of Haripur and Abbotabad {tehsils of Hazara District.)
Then along southern boundary of Abbotabad Tehsil of Hazara District upto to
point map reference 253833 (sheet 43 G/1) at the intersection of Abbotabad
Tehsil Boundary and River Karral Harroo, along River Karral Harro due northeast
to point map reference 344933 (sheet 43 G/5) being junction of Karral, Harro
and Samundar Katha near spot height 3730 and then along Samundar Katha
stream up to point Map. Ref: 381017 (sheet 43 F/8) on junction of Samundar
Katha Stream and boundary line between Village Tatrila and Nagribala of Tehsil
Abbotabad. Then running along the boundary line between Village Tatrila and
Nagribala (near spot height 7799 ). Bagh and Nagribala Bagnotar and Bara Gali,
Namli Mira Phalkot and Bakot and Mula and Bakot including Village Nagribala,
Bara Gali, Namli Mira and Bakot back to the starting point map reference 534125
(sheet 43 F/8).
