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Official Citation: 2025 IHC 222018
Court / Jurisdiction: Islamabad High Court
Parties: CDA vs Mst. Mehfooz Begum etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 222018. In this matter between CDA and Mst. Mehfooz Begum etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Muhammad Azam Khan) AUTHOR JUDGE: Honourable Mr. Justice Muhammad Azam Khan DECISION DATE: 23-JUN-2025 CASE NO: Regular First Appeal-54-2001 CITATION: 2025 IHC 222018 PARTIES: CDA VS Mst. Mehfooz Begum etc LAW / SECTION: - SUBJECT: Against Judgement & Decree, REMARKS: RFA: Against Judgement & Decree. ============================================================ JUDGMENT SHEET.
IN THE ISLAMABAD HIGH COURT, ISLAMABAD.
REGULAR FIRST APPEAL NO. 54 OF 2001
CAPITAL DEVELOPMENT AUTHORITY VS MST. MEHFOOZ BEGUM AND OTHERS.
Appellant by : Mr. Ghulam Shabbir Akbar, Advocate.
Respondents by : Mr. Adil Aziz Qazi Advocate for Respondent No.1. Mr. Muhammad Ishtiaq Raja, Advocate for respondents No.1, 2, 6 to 10, 13 to 15, 17 to 19, 21, 23, 29, 30, 35, 37, 39 to 42, 46, 47, 65, 77, 81, 83, 86 to 88, 97, 98. Raja Yasir Shakeel, Advocate for respondents No.43, 45, 49, 50, 52, 62, 63, 66, 78, 80, 96, 98, 100.
Date of hearing : 30.04.2025
MUHAMMAD AZAM KHAN, J. 1. Through the instant Appeal under Section 96 of the Code of Civil Procedure, 1908 (“CPC”), the Appellant has assailed the Judgment and Decree dated 31.07.2000 (“Impugned Judgment and Decree”) passed by the learned Civil Judge 1st Class, Islamabad (“Trial Court”), whereby the suit filed by the Respondents/Plaintiffs for Possession through Specific Performance, has been dismissed to the extent of Mst. Mehnaz, Mst. Riffat Perveen, Mst. Mukhtar Begum, Ms. Salma, Mst. Yasmin Akhtar, Mst. Ghulam Sakina, Mst. Zarmina, Ghulam Yasin, Mst. Nafeesa Shaheen, Mst. Abida Begum, Muhammad Nisar Khan, Mst. Deeba Naz, Abdul Rauf, Mst. Rasheeda Begum, Syed Akbar, Iqbal Hussain, Ali Raza, Mst. Qudrat, Abdul Rashid, Muhammad Saddique, Abdul Hameed, Mst. Sughra Begum, Mst. Razia Begum, Liaqat Hussain, Mst. Shahnaz Begum and Muhammad Aslam, whereas the suit to the extent of the remaining Respondents/Plaintiffs has been decreed. 2. The brief facts of the case are that the Respondents/Plaintiffs filed a suit for Declaration, and Possession through Specific Performance against the Appellant/Defendant/CDA before the learned Trial Court, contending therein that they are Affectees of Mouza Badia Qadir Bakhsh, Islamabad, whose properties were acquired by the Appellant/Defendant/CDA. They further alleged that they were 2 R.F.A No.54 of 2001
entitled to allotment of residential plots in Islamabad as per the policy of CDA/Appellant, but the Appellant/Defendant/CDA showed reluctance to make such allotments, prompting the Respondents/Plaintiffs to lodge a protest. Ultimately, the Appellant/Defendant/CDA accepted the demand of the Respondents/Plaintiffs through a compromise agreement executed in June 1995 between the Appellant/Defendant/CDA and representatives of the Affectees of Mouza Badia Qadir Bakhsh. According to the compromise agreement, the CDA had already verified the cases of 188 Affectees, including the Respondents/Plaintiffs, whose houses in Village Badia Qadir Bakhsh were demolished. Their names existed in the award list and they had been paid compensation. The demands of the Respondents/Plaintiffs were accepted by the Appellant/Defendant/CDA through different letters and decisions. However, it was contended in the suit that the Appellant/Defendant/CDA failed to perform its obligations under the compromise agreement and did not allot plots despite repeated requests. Hence, the suit was filed before the learned Trial Court. The Appellant/Defendant/CDA appeared before the learned Trial Court and submitted written statement, strongly contesting the contentions of the Respondents/Plaintiffs. 3. From the divergent pleadings of the parties, issues were framed by the Trial Court. In evidence, the Respondents/Plaintiffs produced three witnesses namely Mehboob Ali as PW-1, Qaiser Ali as PW-2 & Arshad Mehmood as PW-3 who recorded their statements. On behalf of the Appellant/Defendant/CDA, Abdul Ghafoor Alvi appeared as DW-1 and got recorded his statement. Both parties produced documentary evidence in support of their respective versions. After recording of evidence and hearing arguments of the learned counsel for the parties, the Impugned Judgment and Decree was passed, whereby the Suit filed by the Respondents/Plaintiffs for Possession through Specific Performance has been dismissed to the extent of Mst. Mehnaz, Mst. Riffat Perveen, Mst. Mukhtar Begum, Ms. Salma, Mst. Yasmin Akhtar, Mst. Ghulam Sakina, Mst. Zarmina, Ghulam Yasin, Mst. Nafeesa Shaheen, Mst. Abida Begum, Muhammad Nisar Khan, Mst. Deeba Naz, Abdul Rauf, Mst. Rasheeda Begum, Syed Akbar, Iqbal Hussain, Ali Raza, Mst. Qudrat, Abdul Rashid, Muhammad Saddique, Abdul Hameed, Mst. Sughra Begum, Mst. Razia Begum, Liaqat Hussain, Mst. Shahnaz Begum and Muhammad Aslam, and decreed to the extent of the remaining 3 R.F.A No.54 of 2001
Respondents/Plaintiffs has been decreed. Being aggrieved by the Impugned Judgment and Decree, the Appellant/Defendant/CDA has filed the instant Appeal. 4. The learned counsel for the Appellant/Defendant/CDA argued that the learned Trial Court did not appreciate the relevant provisions of law and facts of the case; that the learned Trial Court ignored the evidence of the Appellant/Defendant/CDA regarding violations of the package deal agreement (Ex.PW/1) by the Affectees/Respondents, such as not handing over the possession of the acquired Built-up Property (“BuP”), which is sine qua non for the grant of rehabilitation benefit, i.e., allotment of the residential plots ; that the learned Trial Court also failed to consider the statements of DWs, made in unequivocal terms, regarding bogus Review Awards; and that it is a well-settled principle of law that a party to a fraud is not to be allowed to benefit from his own fraud. The learned counsel placed reliance on judgments reported as PLD 1962 SC 132, 2002 SCJ 500, and PLD 1990 SC 624. The learned counsel further argued that the learned Trial Court did not appreciate the statements of the PWs in their true perspective, drew incorrect inferences therefrom, and misconstrued them against the Appellant/Defendant/CDA; that it was not noticed that there were material contradictions in the statements of PW-1 and PW-3; and that PW-3 deposed that possession of BuP was not given to CDA, and further stated that Ex.PW-3/2 is valid, whereas the remaining documents are dubious; that the learned Trial Court failed to appreciate that even a single affectee/Plaintiff was not examined and in this regard, the mandatory provisions of Articles 117, 118, and 119 of the Qanoon-e-Shahadat Order, 1984 were overlooked, and the weakness, if any, in the evidence of the Appellant/Defendant/CDA was made the basis to arrive at the Impugned Judgment and Decree, in derogation of the well-settled principle that the Plaintiff must succeed on the strength of his own case and cannot take advantage of his adversary’s weaknesses; that the learned counsel placed reliance on 2008 SCMR 1395, 2011 PSC (SC Pak) 713, and 2007 CLC 39; that the learned Trial Court did not appreciate that although PW-2 spoke to possession of the BuP, he categorically deposed that “possession was fake” and “reviews were absolutely forged since disowned by their authors”; that the Trial Court failed to consider contradictions in the statement of PW-1 (Mahboob Elahi) regarding the number of BuPs/houses in Village Badia Qadir Bakhsh. It was also not considered that possession at G-12 was not handed over and that the green belt between G-11 and G-12 was not handed over either, as deposed 4 R.F.A No.54 of 2001
by PW-1; that the documentary evidence was not properly read and appreciated by the learned Trial Court, which resulted in erroneous findings on Issues No. 2, 5, and 9; that the findings on Issues No. 1 and 4 are also incorrect and contrary to facts and law; that it was not appreciated that according to the scrutiny committee's report, 219 persons were found eligible for plot allotment, out of which allotment letters had already been issued to 183 persons, and this fact was deposed by DW-1 and remained unrebutted during cross-examination; that the learned Trial Court, despite relying on this deposition, failed to appreciate that only 36 oustees/Affectees were left entitled for the grant of rehabilitation benefit i.e. allotment of residential plot; that the Trial Court misread Ex-PW-2/1 (Demolition List), as many Respondents/Plaintiffs do not find mention in the said list, hence, the Impugned Judgment and Decree was passed without closely examining and sifting the list; that the learned Trial Court also failed to appreciate that the authority conferred upon PW-3 (Arshad Mehmood son of Mehboob Elahi) by the Respondents/Plaintiffs was also doubtful, as there were material contradictions in his statement in this respect; that the Trial Court failed to appreciate the contents of the package deal (Ex.PW- 2/2), especially clauses 2, 3, and 4; that the statement of DW-1 (Abdul Ghafoor Alvi, Deputy Director (Land), CDA) was also ignored, wherein it was categorically deposed that:- ايک شق يہ تهی کہ بقايا412 متاثرين کی مکمل سکروٹنی ہوگی اور ان ميں سے جو جائز حقدارپائے گئے ان ميں سے 273 کو سيکڑ11 -آئی ميں پﻼٹ ديں گے بقايا کو دوسرے قباطم ےک سج ینب یٹيمک ینٹورکس کيا ۔ ےگ ںيد ںيمزرٹکيس219 لوگ صحيح حقدار ےس ںيم نُا ےئگ ےئاپ183 ےنرک یروپ تازيواتسد یهب وک اياقب ےہ ید رک ٹنمٹﻻا وک ۔ےگ ںيد رک دعب ےک That the learned Trial Court omitted to consider the statements of DWs regarding Review Awards, BuP possession, Demolition List, and the number of Affectees etc. as well as the documentary evidence produced by the Appellant/Defendant/CDA was also ignored; that unrebutted portions of the DWs’ statements were not deemed true or appreciated; that the learned Trial Court also ignored that the original Demolition List was not available in CDA records, and only a photocopy existed, as deposed by DW-1 and a photostat copy of a public document is inadmissible unless certified to be a true copy by the officer having custody thereof, under Article 87(2) of the Qanun-e-Shahadat Order, 1984; and thus, the Respondents/Plaintiffs were not entitled to allotment of residential plots as determined in the Impugned Judgment and Decree, in light of the facts of the case facts and evidence; that the learned Trial 5 R.F.A No.54 of 2001
Court exceeded its jurisdiction in decreeing the suit in favor of the Respondents/Plaintiffs. In view of the foregoing, it is respectfully prayed that this Court may set aside the Impugned Judgment and Decree, in the interest of justice. 5. On the other hand, the learned counsel for the Respondents/Plaintiffs argued that it is an admitted fact that the Respondents/Plaintiffs were owners of properties in Village Badia Qadir Bakhsh, and that the land was acquired by the Appellant/Defendant/CDA. It is also admitted that, upon such acquisition, the oustees/Affectees are compensated through rehabilitation benefits under applicable Land Acquisition Regulations and Rehabilitation Policies; that the dispute between the parties pertains to the BuP owned by the Respondents/Plaintiffs. The CDA officials who appeared as Plaintiffs’ witnesses, as well as the Deputy Director who testified for the Appellant/Defendant/CDA, admitted that the list of built-up houses in the village (Ex-PW-2/1) is on record and contains 228 persons whose houses were located at the site and after demolition of the houses, the CDA issued demolition certificates to the owners of the said houses; that it is also admitted that the Appellant/Defendant/CDA planned and designed the allotment of plots to oustees of Village Badia Qadir Bakhsh and this decision was approved by the CDA Board, the competent authority for such matters. The Respondents/Plaintiffs produced this document as Ex.PW-2/3 through official witness PW-2 Qaiser Ali; that the agreement between the parties was approved by the CDA Board in its meeting held on 10.06.1995, which is produced in evidence by the Respondents/Plaintiffs through the official witness Qaiser Ali; that the document, whereby the agreement between the parties was approved/confirmed by the CDA Board, is produced in evidence as Ex.PW-2/4; that the Respondents/Plaintiffs discharged their onus regarding the execution and approval of the same by the authority under the law, and their entitlement to plot allotment; that the Appellant/Defendant/CDA, having entered into a lawful agreement with the Respondents/Plaintiffs is bound by its terms, which remain unfulfilled; that after taking possession of the Respondents/Plaintiffs' land had, the CDA allotted the same to others by developing sectors in the area, but had made the Affectees/Respondents/Plaintiffs a rolling stone since four decades; that the learned Trial Court, after careful scrutiny, decreed the suit and paragraph 14 of the Impugned Judgment and Decree reflects the efforts made by the learned Trial Court to sift truth from falsehood; that the learned Trial Court excluded 9 persons due to minor discrepancies in their entitlement and did not allow them the benefit; 6 R.F.A No.54 of 2001
that the rest of the issues, onus whereof was upon the Appellant/Defendant/CDA, the witness appearing on behalf of Appellant/Defendant/CDA as DW-1 namely Abdul Ghafoor Alvi, while appearing in witness box had admitted the existence of agreement (package deal), he also admitted that the CDA had issued 98 allotment letters to different persons, he had also admitted that the Respondents/Plaintiffs’ names do exist in the award as well as in the list of those houses against which the demolition certificate was issued by the Appellant/Defendant/CDA. He admits that the name of those people exist in document Ex.PW2/6; that the only stance taken by the witness is that, the then DC, CDA had given illegal plots to the people in the area but the Appellant/Defendant/CDA failed to produce any such evidence on record, despite the fact that the entire record was/is in possession of the Appellant/Defendant/CDA; that in this view of the matter Article 129(G) of Qanoon- e-Shahadat Order, 1984 is fully attracted; that such an important evidence is deliberately withheld, because if produced, will go against the Appellant/Defendant/CDA; that during the course of hearing, after post remand proceedings, this Court summoned certain records and it was proved that the Appellant/Defendant/CDA on one hand claims that the review documents were forged documents but at the same time the Appellant/Defendant/CDA filed appeals against these awards before the Commissioner CDA, which were dismissed; that the then DC, CDA was charged with an allegation that he has illegally given the award and his case was handed over to NAB, but that DC, CDA was acquitted by Court of competent jurisdiction. Lastly, the learned counsel prayed for dismissal of instant Appeal with heavy cost. 6. It is pertinent to mention that the instant Regular First Appeal was earlier dismissed by this Court vide order dated 19.06.2013, and the Appellant/Defendant/CDA, being aggrieved, challenged the same before the august Supreme Court of Pakistan. After hearing both sides, the apex Court remanded back the instant appeal vide order dated 14.05.2014 for decision afresh after hearing the parties and further held that the learned High Court has merely affirmed the judgment of the Trial Court without discussing the material relevant for reaching such a conclusion. 7. I have heard the learned counsel for the parties after remand and have also perused the evidence and record with their able assistance. 7 R.F.A No.54 of 2001
8. Perusal of the record reveals that the BuPs of the Respondents/Plaintiffs (hereinafter referred to as the “Affectees”), residents of Mouza Badia Qadir Bakhsh, Islamabad, were acquired by the Appellant/Defendant/CDA vide Award dated 26.07.1987 under the provisions of the CDA Ordinance. The Affectees were entitled to compensation as well as allotment of residential plots in Islamabad as per the rehabilitation policies of the Appellant/Defendant/CDA; however, the CDA seemed reluctant to provide residential plots to the Affectees. The definition of “Affectee” under Clause 2(1) of the Islamabad Displaced Persons Rehabilitation Policy, 1984, is hereby reproduced as under: 2(1) "Affectee" means a person or persons whose agricultural land and/or built-up property is acquired under the CDA Ordinance. Moreover, under Clause 4 of the said Policy, certain conditions regarding BuP have been mentioned in Clauses 4(a) and 4(b), and the same are reproduced as hereunder:- (A) Affectees due to acquisition of Built-up Property only — Where only built- up property is acquired from the affectees, residential plots in the Sub Urban Centres would be offered to them as a consideration for their permanent rehabilitation. The basis of such an offer will be a single family unit. (B) Affectees due to acquisition of land or land and built-up property: - 1. Where built-up property or land not less than 4 kanals, or land and built-up property is acquired and the acquired area is less than 40 kanals of cultarable land but more than 4 kanals the affectee would qualify for allotment of a residential plot in a Sub Urban Centre. 2. Where land or land and built-up property is acquired and the area acquired is 40 kanals to 100 kanals of cultarable land then the affectees would become entitled to consideration for allotment of one agro unit (approx:20 kanals of agricultural land and a residential plot in an agroville. 3. Where land acquired is more than 140 kanals of cultarable land [with a margin of (--) 5 kanals], the affectee would be considered for the allotment of two agro units and a residential plot in one of the proposed agrovilles. 4. In case of joint family entitlement on the basis of (1) & (3) above, the affectee family would qualify for allotment of corresponding number of agro units and residential plots in agroville and/ or Sub Urban Centre as the case may be. 5. Those affecttees who wish to be covered under the old scheme of obtaining land available in Colony Districts, would be issued eligibility certificates according to new entitlement, i.e. if cultarable land lost in acquisition is 40 kanals or more. 9. Due to the inaction and various excuses on the part of CDA, the Affectees lodged protests. Ultimately, the Appellant/Defendant/CDA accepted the demands of 8 R.F.A No.54 of 2001
the Affectees through a Compromise Agreement executed inter se the parties in June, 1995, wherein the Affectees, besides compensation, were also entitled to the allotment of residential plots in Sector I-11, Islamabad. In view of the Compromise Agreement, a Demolition List was prepared, which was signed by the officers of CDA. It has been observed that the Affectees, in accordance with the terms and conditions of the Compromise Agreement, had duly handed over the possession of their BuPs to the CDA. However, the Appellant/Defendant/CDA till date has failed to allot residential plots to the Affectees in Sector I-11, Islamabad. It is to be noted herein that as the Appellant/Defendant/CDA had paid compensation to the Affectees, therefore, the main grievance is related to allotment of residential plots in Sector I-11, Islamabad as per the terms and conditions of the Compromise Agreement/Package Deal. 10. The Appellant/Defendant/CDA has contended that the learned Trial Court has ignored the evidence of the Appellant/Defendant/CDA regarding violations of the Package Deal Agreement (Ex.PW/1) by the Affectees, such as not handing over the possession of the acquired BuPs, which is an essential requirement for the grant of rehabilitation benefit, i.e., allotment of residential plots. The assertion that the allotment of residential plots can be granted only upon handing over possession of the acquired land to the CDA is misconceived and contrary to the applicable legal framework. Under Section 32 of the Capital Development Authority Ordinance, 1960 (hereinafter referred to as the “Ordinance, 1960”), the acquired land vests in the Authority immediately upon the making of the Award under Section 28, free from all encumbrances. Thereafter, it is within the power of the Deputy Commissioner to enter upon and take possession of the land after giving reasonable notice to the occupiers. For ready reference, Section 32 of the Ordinance, 1960 is reproduced herein below:- “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 encumbrances and thereupon the Deputy Commissioner may, after giving reasonable notice to the occupier, enter upon and take possession of the same.” Furthermore, Regulation 21 of the CDA Land Acquisition and Disposal Regulations, 1961 reinforces this statutory position by stipulating that upon issuance of an Award, the land shall vest in CDA as contemplated under Section 32, and the Deputy Commissioner may take possession thereof. There exists no provision in either the 9 R.F.A No.54 of 2001
Ordinance, Regulations, or Policies which renders handing over possession of the acquired BuPs by the Affectees to the CDA to be an essential requirement for the allotment of residential plots. Therefore, handing over the possession of the acquired BuPs is not sine qua non for the grant of allotment of residential plots to the Affectees. Rather, the Affectees have to be allotted residential plots timely so as to enable them to settle down immediately. However, the matter qua allotment of residential plots to the Affectees remains pending since 26.07.1987, which approximately amounts to four decades. 11. In this regard, in a judgment cited as Ministry of Interior Employees Cooperative Housing Society versus Capital Development Authority and others (2025 CLC 75 Islamabad), this Court dismissed the contention that handing over possession of the acquired land to CDA is an essential requirement for receiving compensation. The relevant portion is reproduced herein below:- “24. During the course of the arguments, learned counsel for CDA tried to justify the non-payment of compensation to MIECHS by stating that possession of the acquired land had not been given to CDA. Additionally, in paragraph 5 of CDA’s written submissions, it is stated that CDA is “committed and ready to discharge its obligation mentioned in the award and CDA Ordinance 1960 and clear the remaining compensation as soon as the petitioner society hands over possession of the acquired land.” My understanding of this submission is that compensation would be paid to MIECHS once it hands over possession of the acquired land to CDA. The said submission is baseless and not in consonance with the law. To begin with, how is MIECHS expected to obtain possession of land, the ownership whereof presently vests in CDA. Unlike Section 16 of the Land Acquisition Act, 1894 by virtue of which the acquired land vests in the government upon possession being taken of such land, Section 32 of the CDA Ordinance provides for the vesting of the acquired land in CDA on making of the award. Taking over possession of the acquired land is within the power of CDA. Section 32 of the CDA Ordinance empowers the Deputy Commission to enter upon and take over possession of the acquired land. 26. Regulation 21 of the 1961 Regulations provides that once an award is given, the land shall vest in CDA as contemplated in Section 32 of CDA Ordinance and “the Deputy Commissioner may take possession thereof” irrespective of the fact that an appeal has been filed against the award or the owners have not been paid compensation or whether they have accepted the compensation under protest. Neither do the provisions of the CDA Ordinance nor the 1961 Regulations make the payment of compensation contingent on taking over possession of the acquired land by CDA.” Similarly, in the instant case, neither the compensation nor the allotment of rehabilitation benefits to the Affectees under the CDA policies were ever contingent 10 R.F.A No.54 of 2001
on taking over possession of the acquired BuPs. Thus, the premise advanced by the Appellant/CDA is wholly unsupported by law. 12. Moreover, the Appellant/Defendant/CDA has further contended that the learned Trial Court has failed to consider the Review Awards as bogus. According to the Appellant/Defendant/CDA, hundreds of Affectees got their names included in the list of Affectees vide different Review Awards from 1987 to 1990, which were found to be bogus during…
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