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Official Citation: 2024 IHC 214
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-10-30
Parties: Azhar Hussain Shah and others vs Capital Development Authority through its Chairman & another
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-10-30, officially reported as 2024 IHC 214. In this matter between Azhar Hussain Shah and others and Capital Development Authority through its Chairman & another, 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.
Case cited as 2024IHC214
Court Name: Islamabad High Court Judge(s): Babar Sattar Title:Azhar Hussain Shah and others vs Capital Development Authority through
its Chairman & another Case No.: Writ Petition No. 1571 of 2011 Date of Judgment:2024-10-30 Reported As: 2024 IHC 214 Result: Order Accordingly Judgment
JUDGEMENT BABAR SATTAR, J.- This judgment will dispose of the afore-titled petition as well as the petitions listed in Annexure-A as they involve similar questions of law emanating from the same fact pattern. The grievance in brief and relevant factual background 2. The petitioners are aggrieved by the inaction of Capital Development Authority ("CDA") in compensating the petitioners for their Built-Up-Properties ("BUPs") acquired by CDA pursuant to Compensation Awards dated 23.07.1980, 05.09.1982 and 01.10.1985 ("Compensation Awards"), which were further amended through Review Orders dated 29.12.1987, 05.11.1989, 18.09.1990, 07.10.1990 and 23.10.1990 ("Review Orders", together with Compensation Awards, ("Awards"). 3. CDA acquired land in exercise of authority under Section 25 of the Capital Development Authority Ordinance, 1960 ("CDA Ordinance") that formed part of the Specified Area in terms of Section 3 of the CDA Ordinance. To compensate the affectees, an award was announced on 22.02.1969, which only valued the agricultural land and did not value the BUP, as the occupants of such property resisted the measurement of their BUP. Subsequently, as CDA managed to measure the property built on the land already acquired under the 1969 award, it issued three Compensation Awards for the affectees of acquisition of BUP alone. There remained individuals who were aggrieved by the Compensation Awards and sought its review for inclusion of their names within the list of affectees. This was done through the Review Orders, and the name of additional affectees, including, inter alia, some of the petitioners, were included as affectees of acquisition of BUP, who were entitled to
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compensation in terms of the Compensation Awards. Some affectees impugned award dated 01.10.1985 before Commissioner CDA, who found that the Compensation Award dated 01.10.1985 was not reasoned and remanded the matter back to DC CDA to determine the entitlement of the affectees to compensation, as well as the quantum of the compensation. The matter was then decided by DC CDA by order dated 07.01.1988, re-affirmed the quantum of compensation as determined in Compensation Award dated 01.10.1985. It was after this that additional affectees sought the inclusion of their names for grant of compensation, for acquisition of their BUP, over the land acquired by CDA by virtue of the 1969 award. And the names of such additional affectees were included through the Review Orders. The matter came to rest as far as the affectees were concerned, in terms of who all were entitled to compensation. The affectees, however, resisted giving up possession of the BUP and entered into negotiations with CDA authorities for allotment of plots in lieu of monetary compensation granted through the Awards. CDA constituted a Committee that held a meeting with affectees of village Bhaika Syedan on 14.01.1990. And such Committee accepted a demand by the affectees that descendants of Baba Muzammil Shah would be granted plots in Sector F-11 in lieu of compensation. And CDA would prepare a list of the direct descendants of Baba Muzammil Shah for such purposes. The minutes of meeting issued by CDA through memorandum dated 17.01.1990 document such discussions. It is in view of such discussions and assurances made by the Committee constituted by CDA (that direct descendants of Baba Muzammil Shah would be allotted plots in Sector F-11) that the petitioners are seeking the issuance of allotment letters for plots as compensation for acquisition of their BUP. Notwithstanding such discussions and representations, the Awards themselves (together with the monetary compensation they awarded) were never amended or reviewed, and were also not challenged by the petitioners and consequently attained finality. 4. CDA, on the other hand, was aggrieved by the Review Orders. It insisted that the Review Orders were a product of fraud and were a consequence of employees of CDA, including Deputy Commissioners CDA, colluding with those claiming to be affectees, who were not residing in BUP built over land acquired through the 1969 award, but had either built structures on land acquired by CDA after such acquisition or were not related to any BUP on the acquired land at all. CDA took disciplinary action against some employees, including a DC CDA. The payment of compensation to beneficiaries of the Awards also became the subject-matter of an investigation conducted by NAB and subsequently the subject-matter of an accountability reference. The relevant DC CDA was terminated by CDA for having issued a fabricated Review Order. This termination was set aside by the Federal Services Tribunal ("FST") and FST's decision was upheld by the Supreme Court. Similarly, the allegation of corruption that formed part of the accountability reference also made no headway and the allegation could not be proved. Consequently, the accused public officials were acquitted by the Accountability Court and appeals against such orders were also dismissed. 5. It is in this backdrop that the petitioners are seeking allotment of plots in lieu of compensation under the Awards on the one hand, and CDA continues to insist that the petitioners are not real beneficiaries of the Awards as their inclusion in the list of beneficiaries is a consequence of collusion and fraud. Petitioners' Arguments. 6. Given the number of petitioners' counsels, and in the interest of economy, this Court will summarize the arguments made on behalf of the petitioners together. Learned counsels for the petitioners argued that the Review Orders were never set aside and consequently the entitlement of the petitioners whose names had been included in the list of beneficiaries of the Awards had attained finality. CDA could not deny grant of compensation to the petitioners merely on the basis that inclusion of their names in the list of beneficiaries of the Awards had remained the subject- matter of a criminal investigation, when such charges were never proved in a Court of law. Once
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the entitlement of the petitioners to be compensated under the Awards was established, the form of compensation would need to be determined in view of the representations made by CDA to the affectees in meetings held in the year 1990. The minutes of such meetings reflected that the Committee constituted by CDA Board had assured the beneficiaries of the Awards and descendants of Baba Muzammil Shah, including some of the petitioners, that they were entitled to award of plots as compensation for acquisition of BUP in Sector F-11. It was submitted that CDA enacted the Islamabad Displaced Person Rehabilitation Policy, 1984 ("Rehabilitation Policy 1984"), which provided in Clause 4 that where only BUP was acquired from affectees, residential plots were to be offered to them as compensation for their permanent rehabilitation. It was submitted that as this policy was given effect on 01.10.1984, the petitioners who were beneficiaries under the Compensation Award of 1985 would be entitled to grant of residential plots. It was the petitioner's case that the Rehabilitation Policy 1984 was replaced by the Islamabad Displaced Persons Rehabilitation Policy, 1996 ("Rehabilitation Policy 1996"), which similarly provided for grant of residential plots for affectees whose BUP had been acquired and who had not been compensated. The right of affectees, whose BUP had been acquired, to be granted residential plots was then documented as part of the CDA Land Acquisition and Rehabilitation Regulations, 2007 ("Rehabilitation Regulations 2007"), which recognized the right of a landless person, whose dwelling house had been acquired, to be allotted a residential plot under Rule 11 of the Rehabilitation Regulations, 2007. They further submitted that the latest legal instrument was the Rehabilitation Policy Framework approved on 03.01.2023 ("Rehabilitation Policy Framework 2023"), which acknowledged that package deals would be honored and outstanding rehabilitation benefits would be released in line with Clauses 4, 7 and 8 of the Rehabilitation Policy, 1996, read with package deals for specific mouzas. It was submitted that once the entitlement of petitioners to compensation under the Awards was recognized, they were entitled to be compensated by grant of residential plots in accordance with the Rehabilitation Policy 1984, the Rehabilitation Policy 1996, the Rehabilitation Regulations 2007, and the Rehabilitation Policy Framework 2023. Learned counsels for the petitioners submitted that grant of alternate land as compensation for land acquisition was recognized in terms of Section 31(1) of the Land Acquisition Act, 1894 ("Land Acquisition Act"), which was implicitly incorporated under Section 2(k) of the CDA Ordinance for purposes of determining market value of land acquired. It was further submitted that in view of the long-standing departmental practice of grant of land as compensation for BUP, the petitioners had legitimate expectancy that they would be granted such benefit. In this regard reliance was placed on Noman Ahmed and others vs. Capital Development Authority and another (PLD 2021 Islamabad 75), Mst. Asiya Ashraf Chaudhary vs. Government of Punjab and others (2020 CLC 503 [Lahore]), Mst. Nasreen Akhtar and others vs. Province of the Punjab through Collector, Lahore and others (2010 YLR 324 Lahore), Muhammad Rashid vs. Deputy Commissioner, Pakpattan Sharif and others (2000 CLC 553 Lahore), Rana Muhammad Anwar through legal heirs vs. Lahore Development Authority through Director General (2001 CLC 710 [Lahore]), Mst. Sakina Bibi vs. Government of Pakistan and others (PLD 2008 Federal Shariat Court 17), Jibendra Kishore Achharyya Chowdhury and others. Vs. The Province of East Pakistan & Secretary Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 SC (Pak.) 9), M/s Radaka Corporation and others vs. Collector of Customs and another (1989 SCMR 353), Nazir Ahmad vs. Pakistan and others. (PLD 1970 SC 453), Chevron U.S.A Inc. vs. Natural Resources Defense Council, Inc., Et AI (467 U.S. 837 (1984), Indian metals and Ferro Alloys Ltd., Cuttack vs. The Collector of Central Excise, Bhumansehwar (AIR 1991 SC 1028) and K.P.Varghese vs. Income Tax Officer, Ernakulam and others (AIR 1981 SC 1922). CDA's Arguments
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7. It was submitted on behalf of CDA that the Review Orders had been the original list of affectees appended with the Compensation Awards. The petitioners who built property on land already acquired by CDA pursuant to the 1969 award had no entitlement to seek compensation for the acquired structures built on land already vested in CDA. It was submitted that the DC CDA who passed the Review Orders had remained subject to disciplinary action and no sanctity could be attached to the Review Orders passed by the DC CDA. The original list of affectees of the acquisition of BUP in Bhaika Syedan was not more than a couple of hundred, which subsequently grew to thousands by inclusion of fake beneficiaries through Review Orders. It was submitted that those who had erected buildings after 1969 were not entitled to any compensation. It was also submitted that the package deal was never approved by the CDA Board. And the Awards under which the petitioners were seeking compensation had only awarded monetary compensation. Such Awards had attained finality. Even if the entitlement of petitioners to be compensated were to be accepted, they were only entitled to monetary compensation awarded to them pursuant to the Awards and not any residential plots. It was lastly submitted that the petitioners had refused to hand over possession of BUP from 1969 all the way to 2022, when during the pendency of the instant petitions, by virtue of orders passed by this Court, possession of property was finally acquired by CDA, after use of State power to undertake an anti-encroachment operation. It was submitted that as the petitioners remained in use of the BUP, they had suffered no loss due to delay in payment of compensation. Constitutional Framework for Protection of Property Rights 8. The protection of property rights under a rule of law regime is almost as old as the notion of rule of law itself. Article 4(2)(a) of the Constitution explicitly provides that, "no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law." Article 23 of the Constitution protects the rights of citizens to acquire, hold and dispose of property. Article 24 then provides for mandatory acquisition of property by the State in the following terms: 24. (1) No person shall be deprived of his property save in accordance with law. (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given. 9. The Constitution also recognizes that land and property vested in the State is to be managed in the collective interest of the citizens and any grant, sale or disposal of land or property must be regulated by law. Article 173 provides as follows: 173. (1) The executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislature, to the grant, sale, disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts. (2) All property acquired for the purposes of the Federation or of a Province shall vest in the Federal Government or, as the case may be, in the Provincial Government. (3) All contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made in the name of the President or, as the case may be, the Governor of the Province, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the President or Governor by such persons and in such manner as he may direct or authorize. (4) Neither the President, nor the Governor of a Province, shall be personally liable in respect of any contract or assurance made or executed in the exercise of the executive authority of the Federation or, as the case may be, the Province, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof.
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(5) Transfer of land by the Federal Government or a Provincial Government shall be regulated by law. 10. What emerges from the Constitutional provisions is that property rights of all citizens are to be protected. Where the State must acquire private property in the collective interest of citizens for a public purpose its actions must not be confiscatory but compensatory i.e. to make the citizen whole by paying him/her compensation on the basis of the principle of equivalence so that he/she does not suffer any injury or monetary loss due to condemnation of his/her property in exercise of State's eminent domain power. Articles 24(1) and (2) of the Constitution mandate that the State's eminent domain power shall only be exercised in accordance with law and such law will provide for payment of compensation by fixing the amount of compensation or specifying "the principles on and the manner in which compensation is to be determined and given." In other words, the Constitution directs that the legislature must enact laws providing for compulsory acquisition of private property and such law must either fix the amount of compensation or lay down guiding principles as to how the amount of compensation is to be determined. The use of the word "amount" under Article 24(2) is also suggestive that the Constitution itself envisages that compensation for compulsory acquisition of property will be determined in monetary terms. The regulation of the manner in which land is to be transferred under Article 173 of the Constitution manifests a recognition by the Constitution that land is a non-fungible asset of a finite nature, which is to be held by the State as a trust and is to be utilized for the collective benefit of all citizens. And where it is to be the subject of a grant, disposal or transfer, such State action must be backed by law and cannot be left to the discretion of the executive functionaries of the State. In order to provide for compulsory acquisition of land, the Parliament has enacted the Land Acquisition Act, which applies across Pakistan. Further, Parliament has also enacted the CDA Ordinance, Chapter 4 of which deals exclusively with the acquisition of land. Therefore, in consonance with the Constitutional scheme, the legislature has enacted statutes that regulate the power to acquire land as well as the manner and the form in which affectees of compulsory land acquisition are to be compensated. Land Acquisition under CDA Ordinance 11. CDA Ordinance was enacted to make arrangements for the planning and development of Islamabad. Under Section 3 of the CDA Ordinance, it has been declared that Specified Areas constitute the site for Islamabad as the Capital City. And the land within such Specified Areas shall be acquired for purposes of the CDA Ordinance, including preparation and establishment of schemes by CDA, to develop and establish Islamabad as the Capital City. Section 15(2)(i) vests in CDA the authority to acquire any land in the Specified Area in accordance with the procedure laid out in Chapter 4. Section 25(1) provides that, "subject to the other provisions of this Ordinance, the rules made there under, and the directions of the authority, the Deputy Commissioner may, by order in writing, acquire any land for the purposes of this Ordinance". Sections 26, 27 and 28 deal with the process to be adopted, including issuance of notices to the interested persons whose land is to be acquired, and the inquiries to be carried out by DC CDA. Section 32 provides that once an award for land has been issued under Section 28, the compulsorily acquired land shall vest in CDA, free from all encumbrances. And after giving notice to any occupier, the DC may enter and take possession of such land. 12. Let us reproduce for convenience the key provisions of the CDA Ordinance relevant for our present purposes: 2. Definitions:- In this Ordinance, unless there is anything repugnant in the subject or context,- (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; (k) 'market value' means,
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(i) in relation to land acquire 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; (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 per cent of such value; and (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 of the land Acquisition Act, 1894, applicable in the Province of the Punjab. 27. Notice to persons interested.--(1). The Deputy Commissioner shall then cause public notice to be given of convenient places on or near the land to be taken, stating that the (Federal) Government intends to take possession to the land, and that claims to compensation for all interests in such land may be made to him. 2. Such notice shall state that particulars of the land so needed, and shall require 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 interested 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 may require any such statement to be made in writing and signed by the party or his agent. 3. The Deputy Commissioner shall also serve notice to the same effect on the occupier, if any of such land and no all such persons known or believed to be interested therein, or to be entitled to act for persons so interested. 28. Enquiry and award by 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 pursuant to the notice given under section 27, and into the market value of the land and into the respective interest 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. 29. 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. 30. Matters 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 considerations. First, The market value of the land (on the date of order of its acquisition made under section25). 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 reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earning, and
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Fifthly, If, in consequence of the acquisitions of the land the person interested is compelled 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. 13. The key features of the statutory scheme enumerated and discussed above include the following: (i) Land includes the buildings attached to the earth, and consequently any BUP is included within the definition of land as a subset of it and is not to be treated as a category of property independent of the land that is compulsorily acquired. (ii) Section 27(1) directs that a notice be issued not just to the owner of the land but to all persons who may have a claim to be compensated for any interest in such land, who must then state the nature of their respective interests and the "amount" and particulars of their claim to compensation for such interest. (iii) The award to be made in terms of Section 28 must include the composite amount of compensation to be paid for all interests in the land, along with an apportionment of how such compensation is to be distributed amongst persons who have interests in such land. This Section clearly envisages one all-encompassing award drawn up by adding the compensation due in relation to the various interests associated with the land and not piecemeal awards in relation to each distinct interest. (iv) Section 29 clearly provides that compensation would be paid in an "amount" as determined in view of the considerations mentioned in Sections 30 and 31. The first consideration mentioned in Section 30(1) is the market value of the land, which in itself is a monetary concept and requires determination of value in monetary terms and not by any payment through barter or payment in kind. (v) In calculating the compensation for land the various interests in the land are to be…
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