PLJ 1999 Lahore 1108
Present: muhammad nawaz
abbasi, J. ABDUL QADEER KHAN ete.~Petitioners
versus CHAIRMAN, C.D.A. through its Chairman etc.--Respondents
W.P. No. 513 of 1992, accepted on
23.10.1998.
(i) Acquisition of Land Act, 1894 (I of
1894)--
—S. 18—Capital Development Authority
Ordinance (1960), S. 11 read with Sections 12 & 13, 25 Acquisition of Land
by C.D.A. without disclosing any specific scheme and without observing provisions of
law-Validity-Notice purported by issued on 25th of June, 1992, contain date
of issue under signatures of Deputy Commissioner as 28th June, 1992-Same did not disclose purpose for which land was being
acquired-Under Section 11 of Capital Development Authority Ordinance, 1960, all
plans and programs are necessarily to be
approved by Central Government-Section 12 provides that C.D.A. may ask Local Body to prepare scheme in respect of matters to be dealt with by Local Bodies in
specified area-Section 13 authorize C.D.A. to prepare any such scheme
itself in specified Area, as mentioned in
Section 12 of Ordinance-Section 14 of ordinance talks about all such
information regarding manner of execution of scheme, cost, benefits and
purpose to be served by scheme- ection 15 authorized Authority to exercise powers given therein for carrying out purpose of Ordinance—Sections 20 and 21 provide manner of
removal of buildings in
specified area and schemes to be executed after hearing concerned persons and calling objections from them-Section 22 empowers C.D.A. to acquire land within specified area in accordance with provisions of Ordinance—Sections 23 and 24 relate to entry upon land for preliminary survey etc. and compensation for damages nder Section 25 of Ordinance, land is acquired, whereas under Section 26, land is marked out, measured and planned-Section 27 provides that before taking step for acquisition, Deputy Commissioner, C.D.A. shall issue public notice in manner as provided therein and Section 33 applies in cases of urgency- Factual position narrated herein before by parties shows that respondents without observing above provisions of law in letter and spirit proceeded for action and mandatory requirement of notice etc. was fulfilled subsequent to action at spot-Held % Illegality committed by respondents would render their action under Ordinance as without lawful authority. [Pp. 1129 & 1130] B
specified area and schemes to be executed after hearing concerned persons and calling objections from them-Section 22 empowers C.D.A. to acquire land within specified area in accordance with provisions of Ordinance—Sections 23 and 24 relate to entry upon land for preliminary survey etc. and compensation for damages nder Section 25 of Ordinance, land is acquired, whereas under Section 26, land is marked out, measured and planned-Section 27 provides that before taking step for acquisition, Deputy Commissioner, C.D.A. shall issue public notice in manner as provided therein and Section 33 applies in cases of urgency- Factual position narrated herein before by parties shows that respondents without observing above provisions of law in letter and spirit proceeded for action and mandatory requirement of notice etc. was fulfilled subsequent to action at spot-Held % Illegality committed by respondents would render their action under Ordinance as without lawful authority. [Pp. 1129 & 1130] B
(ii) Capital
Development Authority Ordinance, 1960 (XXI! of 1960)-
—S. 25-Land Acquisition Act (I of 1894), S. 18-Constitution of Pakistan,
1973,
Art. 25 Acquisition of land by C.D.A.-Restriction on construction of residential houses on
ground of protecting Rawal Lake from pollution- lassification for imposing
restrictions—Discrimination—Equality of State ubject-Application of Art. 25 of
onstitution-Purpose of saving water of awal Lake pollution cannot be confined to
construction only in Banni Gala--Eawal Lake is surrounded by large Abadis on
all sides in addition to poultry farm, brick kiln, industry, hotels, motels,
as well as rest houses etc. and therefore, partial restriction on construction
of few houses in area will not held in reducing pollution without removal of all such
Abadis in surrounding area
within radious of two miles as per notification in question and decision of committee—Consequently this ground cannot be
validly pressed into service for
imposing restriction on construction only on small portion of land owners only in Banni Galla from constructing
residential houses for their personal
use and need on pretext that same is located at bank of Rawal Lake—Principle of
reasonable classification for purpose of imposing restriction on construction only in Banni Galla
through acquisition of land without
preparing any scheme is not attracted as similar Abadis at similar distance from Rawal Lake having established are in
existence with permission of
C.D.A.-Art 25 of constitution contemplates that persons similarly
situated and similarly placed were to be treated alike—Therefore, acquisition
of land under C.D.A. Ordinance, 1960 must be for some scheme already prepared in accordance with provisions of
Ordinance and acquisition must not be
in violation of procedure provided thereunder and further land owners
for their land under acquisition must be paid market value of land as provided under Art. 24 of Constitution of Islamic
Republic of Pakistan, 1973- -Deprivation
of ownership of land and proprietary rights of property of petitioners
safeguarded by constitution through urgent acquisition of law without any scheme and payment of compensation by
respondent was not legal—Respondents having authority to acquire land
not only would regard all relevant
conditions to determine that which area was necessary to be acquired and for what purpose and lights of land
owner, but should also treat there at
par with others in like circumstances-Land of petitioner has been acquired without acquiring land of land
owners in same vicinity having same
effect on Rawal Lake and falling in National Park Area-Held : It would be unconstitutional-Ownership of land of
petitioners is not changed through impugned acquisition. [Pp.
1130 & 1131] C & D
PLJ 1998 SC 1415.
(iii) Capital Development Authority
Ordinance, 1960 (XXII of I960)-
—S. 25-Land Acquisition Act, 1894 (I
of 1894), Ss. 18 & 27(l)-Constitution of Pakistan (1973), Art. 9~Acquisitioa of
land by C.D.A. without any scheme,
without payment of compensation and demolition of houses-Whether C.D.A. has
unfettered power and can acquire land at their sweet will—Question of—Acquisition land for scheme without proper notice u/s 27(1) of Ordinance and payment of compensation,
according to prevailing market value
of land including built up area as residential houses is not legal-Learned counsel appearing on behalf of
respondents forcefully argued that
apart from C.D.A Ordinance, 1960, use of land in specified area can be
restricted for purpose of other laws with acquisition of land or residual
properties-There is no departure to principle that in case of emergency like war or such other ordinary
circumstances, temporary use of property
through suspension of fundamental rights or otherwise to meet with emergent situation can be restricted
through temporary legislature for specified period, but no law can be
enacted to impose permanent restriction on
use of private properties for convenient of Government or for benefit of section of people at cost of basic need in
life of other in departure to Constitution of Islamic Republic of
Pakistan, 1973-Exercise undertaken by
respondent cannot from any angle be considered constitutional, legal or moral
and no justification can be afforded from such reprehensible act by officials
of Government and policy of
Development of Capital site must proceed with strict observance of legal
and fundamental rights of people guaranteed under constitution-Held :
Laws referred would not be used as a lever to place restrictions on lawful use of properties by petitioners and
respondents were not supposed to use law oppressively and deprive
petitioners from free use of their properties
as per their genuine need. [Pp. 1132 & 1136] F, G & H
PLD 1994 SC 693.
(iv) Capital
Development Authority Ordinance, 1980 (XXIII OF 1960)--
—S. 25--Land Acquisition Act, 1894 (I of
1894), S. 18-Constitution of Pakistan (1973), Arts. 23 & 24-Acquisition of land by
C.D.A.-Violation of Fundamental Rights and invasion on rights of property—Whether permissible under
law-Art. 23 of Constitution of Islamic Republic of Pakistan, 1973,
provides that every citizen shall have right to hold and dispose of property in
any part of Pakistan, subject to constitution and any reasonable
restriction imposed by law in public interest-Acquiring, holding and disposing of property is
fundamental right of every citizen subject
to restriction imposed by any law, but no restriction can be placed on use of property in lawful manner under said
Article-It is permissible to Govt. to acquire land in public interest under
law, as in present case under C.D.A.
Ordinance, 1960 and if same is made in violation of law on subject, it would be in violation of Art. 23 of
Constitution of Islamic Republic of
Pakistan, 1973-Art. 24 of Constitution provides that no person shall be
deprived of his property save in accordance with law and no property can be compulsorily acquired or taken
possession of save for public purpose without payment of compensation
under authority of law which shall be
determined on basis of principle given therein-Thus, acquisition of land
under relevant provisions of C.D.A. Ordinance, 1960, is permissible subject to
law and payment of compensation for public purpose
only, but invasion on right of property is not permissible except in accordance with law as enshrined by Art. 24 of
Constitution-Further, Art. 4 of
Constitution also recognized this right by providing guarantee that no adverse action can be taken in relation to
property of person except in
accordance with law--If acquisition is done without fulfilling essential
conditions given under law, same would be violative of Arts. 23 and 24
read with Art. 4 of Constitution of Islamic Republic of Pakistan, 1973—State cannot deprive person of his properly
without strict compliance of law in support of action-Provisions of Art.
24(i) read with Art. 4 of Constitution
although contemplates deprivation of property other than those of acquisition under clause (2) of said Art. yet, it
seems to also refer cases of acquisition through substantial deprivation.
[P. 1132] E AIR 1954 SC 92.
(v) Capital Development Authority Ordinance, 1960 (XXIII of 960)-
—-Ss. 27(1) & ID-Land Acquisition Act,
1894 (I of 1894), S. 18~Acquisition of land by C.D.A.--Requirements of notice u/S.
27(1) of C.D.A. Ordinance, 1960-Non-fulfilment of--Effect-Notice u/s. 27(1) of Ordinance must contain full description of
land to be acquired and also purpose for
which land is needed, but in present case, general notice containing khasra numbers of village namely
Mohra Noor, Islamabad was issued with
desire of Central Govt. to acquire land- espondents, in comments to this petition have categorically
stated that notice u/S. 27(1) of
C.D.A. Ordinance, 1960 was issued on 28.6.1992-It is requirement of Section
II of Capital Development Authority Ordinance, 1960 that notice should be
published giving reasonable time which in any case cannot be less than ten days—In present ase, notices were served upon owners after taking over possession of land through
forcible demolition of houses on 25.6.1992
and 26.6.1992--Mandatory requirement of notice under Section 27(1) of
C.D.A. Ordinance, 1960, well before time having not fulfilled acquisition of land was not valid and legal-Non preparation of any scheme and forcible dispossession and
initiation of proceedings without
compliance of legal formalities have rendered action of respondents without lawful authority-Held : Notice
and subsequent acquisition
proceedings culminating announcement of award and in consequence thereof change of owner of land in revenue
record was
illegal-Held further ; Acquisition of land by respondent is illegal and without authority. [P. 1140] I & J
illegal-Held further ; Acquisition of land by respondent is illegal and without authority. [P. 1140] I & J
(vi) Capital Development Authority
Ordinance, 1960 (XXIII of 1960)-
-—S. 36-Constitution of Pakistan (1973), S,
199-Acquisition of land-Appeal against award-Constitutional Petition -Availability of
alternate remedy-Maintainablity—Alternate remedy of appeal provided under Statute cannot by itself
take away power of judicial review of High Court in it Constitutional
jurisdiction-Provisions of Section 36 of Capital Development Authority Ordinance, 1960
being not exhaustive in circumstances is not suitable remedy available to
petitioners who are challenging very acquisition of land to be illegal and
are not claiming enhancement of compensation-Held : Objection to maintainability of writ petition is not sustainable. [P.
1118] A
M/s. S.M. Zafar, A. Baseer Qureshi & Gul
Zaman Khan, Advocates for Petitioners.
M/s. Sardar Muhammad
Aslam and
Bashir Ahmad Ansari, Advocates for C.D.A.
Dates of hearing:
7,12 and 13.10.1998.
judgment
The following writ
petitions bearing Nos. 296/1992, 297/1992, 298/1992, 375/1992, 515/1992,
521/1992, 522/1992, 523/1992, 524/1992, 525/1992, 599/1992, 770/1992, 791/1992,
401/1994, 2435/1994 and 1369/1997 involving common question of law and fact are
being disposed of through this single Judgment.
2.
The petitioners being the owners of the land situated in
Banni Galla
forming part of Villages Mohra Noor located in the capital area of Islamabad near Rawal
Dam have challenged the acquisition of the same by the respondents under
the Capital Development Authority Ordinance, 1960 (Ordinance XXIII of
1960) to be illegal and without lawful authority.
3. The facts in the
back-ground giving rise to these Constitutional petitions as supplied by the
petitioners are that some of the petitioners constructed residential houses on the
lands owned by them after getting approval of the site-plans from the Union
Council, Bara Kahu, Islamabad, under Section 47 read with Section 32 and the First
Schedule to the Capital Territory
Local Government Ordinance
1979. Initially, the
Capital Development Authority through the notice dated 4.7.1988 under Pakistan Capital Regulation
Ordinance, 1960 (MLR 82 of 1960) raised an objection to the construction of
the house belonging to petitioner No. 2, widow of Mahmood-ul-Hassan. In
reply to the said notice, shall made it clear to the C.D.A. that
under Regulation in
question, the Capital
Development Authority was not empowered to take any action in the area and the construction was
being raised on the basis of the site-plans duly approved by the Union Council
concerned under Section 4(2) of the said Regulation and consequently the
respondent/Capital Development Authority having no jurisdiction to
interfere in the matter should withdraw the notices. The espondents thereafter kept silent and did not
object to the construction of houses in the area till June, 1992 when one of the
petitioners, namely, Muhammad Ayub was restrained from raising the
construction, who filed a suit for
permanent injunction seeking a
restraint order against
the espondents from
demolishing his house,
whereupon the Capital Development Authority while conceding the urisdiction of the local council in the area made a statement before the Civil
Court that the C.D.A. without demolishing the structure would approach the
concerned Union Council for the
cancellation of site-plan already sanctioned with further request not to sanction any site-plan for the constructions in the
area in future. However, he construction of houses in Village Banni Gala
remained continued on the basis of the
building plans duly approved by the Union Council Bahara Kaku with the result that the Capital Development
Authority filed ten different suits
against the Union Council and the land owners seeking restraint order against
the Union Council, Bhara Kaku and the land owners not to approve the site-plans
and raise the construction. Later, without waiting the result of the suits, the respondents through an extra legal
measure initiated an operation of
the forcible demolition of the houses in the after-noon of 25th of June, 1992 which continued till late in the night
on the next day i.e. 26.6.1992 during
the public holidays. As a result of this unlawful and forcible operation of demolition of houses, a few persons
while putting resistance lost their
lives and a number of other sustained injuries at the hands of the police. The respondents thereafter withdrew the
above said civil suits on 27.6.1992
and on the basis of a directive of Chairman, C.D.A. under Section 33 of the Capital Development Authority Ordinance,
1960 issued notice under Section
27(1) of the said Ordinance with the signature of Deputy Commissioner, C.D.A. purported to have been
issued on 25.6.1992 and with the help
of police contingent proceeded for the acquisition of land. The notice in question contained the decision of the
Government to acquire the land of Khasra
numbers mentioned therein, the
list of which is annexed with this petition.
The said notice did not disclose any purpose or the particulars of the scheme for which the land was being required. The
service of notice upon the concerned
persons including the petitioners is claimed on 25.6.1992 with direction to submit their claim by 9.7.1992,
whereas the signatures of the Deputy
Commissioner, C.D.A. on the notice bear the date as 28.6.1992 which shows that the notice in question was actually
served upon the land owners after
making entry into the land and demolition of the houses through physical operation at the spot. The urgency for the
acquisition of the land dispensing with the normal procedure provided under the
law was also not disclosed. The
petitioners have challenged the validity of the impugned notices and the subsequent acquisition proceedings
including the announcement of the
Award and the change of ownership in the revenue record in the name of the C.D.A.
4. The respondents in
the comments submitted to these petitions controverting the above factual position
stated that a Phased Master Programme for the development of specified area in
addition to the Master Plan was to be prepared subject to the approval of the
Central Government and that the Rawal Lake with its surrounding area alongwith Banni Gala forming part of Specified Area and the
capital site was included in National Park by
the Federal Government through a Notification dated 27.4.1980 under Section 21(1) of Islamabad Wild Life
(Protection, Preservation, Conservation and Management) Ordinance, 1979.
The Rawal Lake with an area of two
Kilometers from the highest water mark was also made part of Margalla Hills National Park and the constructions
in the area of Rawal Lake which is the main source of water supply to
Rawalpindi City being in violation of
Pakistan Capital Regulation, I960 (MLR 82 of 1960), the land owners were
constantly warned not to built the area through notices dated 16.10.1987,
11.2.1988, 9.1.1990, 4.11.1990, 30.7.1991, 30.10.1991 and 7.2.1992 (copies placed on record).
Further, the Local Councils were also informed
by the Administrator, Islamabad that the constructions in the specified
area without the permission of the C.D.A. were illegal and that the authority of the said Union Councils of approving
the building plans was subject to the Capital Development Authority Ordinance,
1960, Pakistan Capital Regulations,
1960 (MLR 82 of 1960), Islamabad (Preservation of Landscape) Ordinance, 1966, and Islamabad Wildlife
(Protection, Preservation, Conservation and Management) Ordinance, 1979.
With a view to avoid pollution in the
drinking water of Rawal Lake being supplied to Rawalpindi City, a high
powered Committee was constituted by the Federal Government to look into the matter. The said Committee reviewing the situation recommended for the removal of all
illegal constructions in the National
Park Area and consequently decision was taken for acquisition of all lands located within the radius of two
kilometers from the water mark of the Lake. In pursuance thereof, the C.D.A.
while proceeding under Section 33 of
the Capital Development Authority Ordinance, 1960, after giving notice under Section 27(1) of the said Ordinance
demolished the illegal constructions
on 25.6.1992 and 26.6.1992. Learned counsel for the respondents pleaded that some of the petitioners
filed civil suits against the action of demolishing of houses and acquisition
of land which were still pending at
the time of filing these petitions and they having availed the remedy of
civil suit could not invoke the Constitutional jurisdiction of this Court. It was added that only seven persons raised
construction on the basis of sanctioned building plans from the
concerned Union Council and out of them only
two were the petitioners before this Court.
5.
The respondents claimed that notices under Section 27(1)
of the Capital Development Authority Ordinance, 1960, were issued on 23.6.1992 which were served on
25.6.1992 and denied that the same were issued on 28.6.1992. However,
the respondents have admitted the armed clash and forcible action at
the spot with the help of police, as
result of which a criminal
case was also registered for the sad incident. The main stress of the learned counsel for the respondents was that the Margalla Hills National Park could not be allowed to be converted into a
residential colony in violation
of Section 21(4)(iv) of Islamabad Wildlife (Protection, Preservation, Conservation
and Management) Ordinance, 1979. It was peladed that except Rawal Town, the remaining construction allowed by
the C.D.A. in the surrounding area of
National Park was properly planned.
6.
Mr. S.M. Zafar, Senior Advocate, assisted by M/s. Abdul
Baseer
Qureshi and Gul Zaman Khan, Advocates, learned counsel for the
petitioners raised the following contentions :--
Qureshi and Gul Zaman Khan, Advocates, learned counsel for the
petitioners raised the following contentions :--
(a) Chapter IV of the Capital Development Authority Ordinance, 1960, provides a
complete procedure for the acquisition of land according to which after preliminary
survey without the consent of the occupants, the entry in the building on the garden is not possible
whereas in the present case, the notices
~- under Section 27(1) of the Capital Development Authority Ordinance, 1960, were served upon the petitioners on 28th of June, 1992, after three days of the taking over the possession at the spot on 25.6.1992.
~- under Section 27(1) of the Capital Development Authority Ordinance, 1960, were served upon the petitioners on 28th of June, 1992, after three days of the taking over the possession at the spot on 25.6.1992.
(b)
That unless a Scheme in the specified area in terms of
sections 11,12,
and 13 of the Capital Development Authority Ordinance, 1960, is first made,
the land cannot be acquired under Chapter IV of the said Ordinance;
(c) That the respondents
without disclosing the public interest in a clandestine manner and in departure to the
normal procedure provided under the Capital Development Authority Ordinance, 1960, as well as in
derogation to the Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan,
1973, read with _ Section
13 of the Capital Development Authority Ordinance, 1960 acquired the land.
(d)
That initially the respondents went for the acquisition
of the land
without preparing any scheme or disclosing the purpose, but later on took the
stand before this Court that the land was part of the National Park and the
construction was restricted to avoid pollution in the area of Rawal Dam.
(e)
That first demolition of houses through violence and then
hurriedly
acquisition of the land without following the proper procedure and
showing any urgency was mala-fide.
(f)
That the acquisition of the land was not in good faith and was discriminatory as the
C.D.A. in the remaining area of National Park close to Rawal Lake itself
developed the Abadis, namely, Malpur and Chak Shahzad as model villages in addition to " Islamabad Club, the Motels, Rawal Town National
Institute ofHealth and Bricks
Factories, Farming houses and part of Diplomatic
Enclave, Learned counsel added that even poultry Farms on large scales with
permission of C.D.A. are located around
the Rawal Lake and the residential area of Village Lakhwal adjacent to Village Banni Gala is located
at a close distance from Rawal Lake;
(g) That the provisions of Chapter IV of Capital
Development Authority Ordinance, I960, are oppressive and offend the Articles 23 and 24 of the Constitution of Islamic
Republic of Pakistan, 1973.
Further, Articles 2, 2-A and
227 of theConstitution of Islamic Republic of Pakistan, 1973
do not permit the taking away the
property of an individual in extra legal
manner. The learned counsel placing reliance on the case of The Murree Brewery Co. Ltd. Vs. Pakistan
through the Secretary to
Government of Pakistan, Works Division and 2 others (P.L.D 1972 Supreme
Court 279) forcefaOy argued that acquisition
of lais'i was illegal,
7. Mr. Bashir Ahmad Ansari, learned counsel appearing on behalf of Capital Development
Authority in reply has argued in the following manner:-
