Case Summary & Legal Holding

This judicial decision was delivered by the ISLAMABAD. The matter involves proceedings between NOMAN AHMED and CAPITAL DEVELOPMENT AUTHORITYHonorable Justice Athar MinallahZulfiqar Abbasi, Raja Inaam Amin Minhas,Amir Latif Gill, Hafiz Arfat Chaudhry, officially reported as 2022 PLD 75. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

P L D 2021 Islamabad 75 Before Athar Minallah, C.J. NOMAN AHMED and 14 others---Petitioners Versus CAPITAL DEVELOPMENT AUTHORITY through Chairman and another---Respondents Writ Petition No. 244 of 2018 (and other connected Petitions), decided on 14th June, 2021. (a) Constitution of Pakistan--- ----Art. 24---Property right---Scope---Power of eminent domain is inherent attribute of sovereignty of a State, which derives such power because of its dominion over land within its jurisdiction---Private property rights are not absolute and based on principle that public rights take precedence over private rights. Fauji Foundation and another v. Shamim ur Rehman PLD 1983 SC 457 rel. (b) Land Acquisition Act (I of 1894)--- ----S. 4---Constitution of Pakistan, Art. 24---Expressions 'public purpose', 'public use' and 'public interest' are used interchangeably. (c) Land Acquisition Act (I of 1894)--- ----S. 4---Constitution of Pakistan, Art. 24---Eminent domain---Good governance---Nature of power of eminent domain and its disruptive consequences make it a duty of State to inform each individual of the latter's rights---In case of abuse of power of eminent domain, it becomes duty of state to remedy loss and damage caused to affected citizen, rather than leaving the latter to mercy of costly and time consuming judicial process. (d) Land Acquisition Act (I of 1894)--- ----S. 4---Constitution of Pakistan, Art. 24---Compulsory acquisitions---Pre-conditions---State is empowered to compulsorily acquire or to take possession of private property subject to fulfilling two fundamental conditions i.e. for public purpose and by authority of law which provides for compensation---Law has either fixed amount of compensation or has specified principles on and the manner in which compensation is to be determined and given. (e) Federal Government Employees Housing Authority Act (IV of 2020)--- ----S.5---Land Acquisition Act (I of 1894), S. 4---Constitution of Pakistan, Art. 24---Acquisition of land---Scope---Acquisition for establishing housing societies by Federal Government Employees Housing Authority is a public purpose. Federal Government Employees Housing Foundation, Islamabad and others v. Malik Ghulam Mustafa and others (C.As. Nos. 1476 to 1485/2018) rel. (f) Capital Development Authority Ordinance (XXIII of 1960)--- ----S. 25---Acquiring of property---Scope---Acquisition of property under Capital Development Authority Ordinance, 1960, is public purpose as it is to establish and develop capital of country. (g) Land Acquisition Act (I of 1894)--- ----S.12---Constitution of Pakistan, Art.24---Expression 'compensation'---Determining factors---Power to compulsorily acquire property is subject to duty to 'compensate' affected owner---Compensation is based on principle of equivalence which essentially has meaning of restoring injured party to his/her former position or to give equivalent for the loss sustained---Neither should affected party be enriched nor impoverished---Duty of State is to put owner of condemned property in same position as the latter was before---Quantum of compensation must be equivalent to injury or loss suffered---In the context of eminent domain it is implicit in the expression 'compensation' that injured party is at least put in a position as the latter was before so that opportunity to rehabilitate or resettle is not lost---It is right of every person whose property is intended to be taken to be dealt with fairly, justly, equitably and in accordance with law---Such is implicit in the right that duty of public functionaries is to ensure that market value is determined in a transparent manner---Procedures and policies should be clear, predictable and enforceable---Adoption of principles of good governance is of paramount importance for ensuring that affected does not lose confidence in the system. Blacks Law Dictionary (6th Edition); Hughson Condensed Milk Co. v. State Board of Equalization, 23 Cal.App.2d 281, 73 P.2d 290, 292; U.S. v. Reynolds, Ky., 397 U.S. 14, 90 S.Ct. 803, 805,25 L.Ed.2d 12; Jacobs v. U. S., Ala., 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142; Metropolitan Water Dist. of Southern California v. Adams, 16 Cal.2d 676, 107 P.2d 618, 621; U.S. v. Waterhouse, C.C.A. Hawaii, 132, F2d, 699, 703; Tennessee Valley Authority v. Indian Creek Marble Co., D.C. Tenn., 40 F. Supp. 811, 818, 819; State v. Hale, Tex. Civ. App., 96 S.W. 2d 135, 141; Cameron Development Co. v. United State, C.C.A. Fla., 145 F.2d 209, 210; U.S. v. 2.4 Acres of Land, More or Less, In Lake County, III., C.C.A., III., 138 F2d 295, 297; Danforth v. U.S., Mo., 308 U.S. 271, 60 S.Ct. 231, 236, 84 L.Ed. 240; Kieselbach v. Commissioner of Internal Revenue 317 U.S. 399, 63 S.Ct. 303, 305, 87 L.Ed. 358; Board of Water Supply of City of New York, 277 N.Y. 452, 14 N.E.2d 789; Los Angeles County Flood Control Dist. v. Hansen, 48 Cal. App. 2d, 314, 119 P.2d. 734, 735; Almota Farmers Elevator and Warehouse Co. v. U.S., Wash., 93 S.Ct. 791, 794, 409 U.S. 470; New Hampshire Water Resources Bd. v. Pera, 108 N.H. 18, 226 A.2d 774, 775, 776; State Highway Commission v. American Memorial Parks, Inc., 82 S.D. 231, 144 N.W.2d 25, 27; Enright v. U.S. 73 Ct. Cl. 416, 54, F.2d, 182, 190; De Laval Steam Turbine Co. v. U.S. 284 U.S. 61, 52 S.Ct. 78, 79, 76 L.Ed. 168; Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan PLD 1957 SC (Pak.) 9; Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 32; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; NWFP through Collector, Abbottabad Land Acquisition and others v. Haji Ali Asghar Khan and others 1985 SCMR 767; Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75; Sarhad Development Authority NWFP (Now KPK) through COO/CEO (Officio) and others 2020 SCMR 265; Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others PLD 2009 SC 16; Murad Khan v. Land Acquisition Collector 1999 SCMR 1647; Land Acquisition Collector, Abbottabad v. Gohar-ur-Rehman Abbasi 2009 SCMR 771; Air Weapon Complex through DG v. Muhammad Aslam and others 2018 SCMR 779; Province of Sindh through Chief Secretary and 8 others v. Syed Kabir Bokhari 2016 SCMR 101; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47 and Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132 rel. (h) Capital Development Authority Ordinance (XXIII of 1960)--- ----S. 27---Constitution of Pakistan, Art. 24---Compensation---Determination of market value---Main criteria for determination of market value is the price which a willing buyer would pay to a willing seller if they were to enter the transaction voluntarily and at arms-length. (i) Federal Government Employees Housing Authority Act (IV of 2020)--- ----Ss.5 & 14(1)---Capital Development Authority Ordinance (XXIII of 1960), Ss. 25 & 27---Land Acquisition Act (I of 1894), S. 4---Constitution of Pakistan, Arts. 9, 23, 24 & 199---Constitutional petition---Acquisition of land---Duties and powers of authorities---Negotiated compensation---Delay in payment of compensation---Effect---Petitioners were owners of lands and their grievance was that after acquisition of their lands no compensations were paid to them---Validity---Negotiated settlement approved by Executive Board of Federal Government Employees Housing Authority (FGEHA) was binding and parties were committed to perform their respective obligations---Settlement agreement between the parties met the requirements of just compensation in the context of Art. 24 of the Constitution---High Court directed Federal Government to ensure implementation of settlement agreement---Power of compulsory acquisition or eminent domain was abused by Capital Development Authority (CDA) by denying to affected property owners their acknowledged vested rights---Such was a Constitutional and statutory duty of CDA and Federal Government to 'compensate' all affected citizens whose rights stood admitted and acknowledged---Every affected citizen who was subjected to power of compulsory land acquisition and whose right to either allotment of plot or payment in monetary terms was acknowledged by CDA had a Constitutional right to be 'compensated' without further delay based on the principle of equivalence, otherwise it would be confiscatory and in violation of fundamental rights guaranteed under Arts. 9, 23 & 24 of the Constitution---Such was a statutory and Constitutional duty of Federal Government to formulate a policy regarding enforcement of acknowledged vested rights of affected citizens who were subjected to the power of eminent domain but were not compensated despite lapse of inordinate delay---High Court directed Federal Government to give such directions to CDA as were necessary to enforce acknowledged vested rights---Market values determined through awards announced before year 2010 had lost their efficacy and payment made on the basis thereof was likely to have confiscatory effect even if it was in addition to 8% per annum---No property could be legitimately condemned by exercising the power of eminent domain if the owner was not 'compensated'---Such was mandatory for authorities to reassess market values in a fair and transparent manner to avoid likelihood of confiscatory effect, followed by prompt payment directly to the affected owner of the property---High Court directed Federal Government to formulate uniform policy regarding acquisition of land, determination of market value or giving rehabilitation benefit in case of exercise of power of eminent domain by CDA or FGEHA, as the case could be---High Court further directed Federal Government that while formulating policy it would ensure that the policy was in consonance with the rights of citizens likely to be affected and duties of public functionaries towards them---High Court also directed that Federal Government through its policy directions would ensure that procedures adopted while exercising the power of eminent domain was clear, predictable, transparent and fair so that opportunities for corruption were not created---Federal Government could also consider directing CDA and FGEHA, as the case could be, to issue awards for acquisition of land and built up properties so as to avoid insurmountable complications---Constitutional petition was allowed accordingly. Zulfiqar Abbasi, Raja Inaam Amin Minhas, Muhammad Shoaib Shaheen, Ch. Afrasiab Khan, Adnan Haider Randhawa, Malik Nasir Abbas, Ghulam Murtaza Watto, Muhammad Shakeel Abbasi, Qazi Ghulam Dastagir, Ahsan Qureshi, Ch. Waqas Zamir, Ali Nawaz Kharal, Mansoor Ahmed, Muhammad Umair Baloch, Jahanzaib, Muhammad Rustum Malik, Qaiser Imam Chaudhry, Shaukat Hayat Khan, Muhammad Latif Saeed, Khalil ur Rehman, Shujaullah Gondal and Ch. Hasan Murtaza Mann for Petitioners. Amir Latif Gill, Hafiz Arfat Chaudhry, Malik Javed Iqbal Wains, Muhammad Anwar Dar, Jahangir Khan Jadoon, Muhammad Nazir Jawad, Syed Muhammad Shah, Ghulam Shabbir Akbar and Hussain Haider Thaheem for Respondents. Naveed Ellahi, Member (Estate) C.D.A. Shafi Marwat, Director, C.D.A. Dr. Satish Sharyar, DC, FGEHA. Khan Zeb, AD, FGEHA. Date of hearing: 4th June, 2021. JUDGMENT ATHAR MINALLAH, C.J.---The most intrusive power of the State and a fundamental attribute of its sovereignty is its inherent power to condemn private property and transfer its ownership to the government without the consent of its owner. The abuse of this inherent power by the State through its agents, i.e. public functionaries, can have devastating consequences, so much so that human lives could be destroyed. The abuse of this sovereign power causes gross violations of human rights and the constitutionally guaranteed rights, particularly in the case of those who are poor and belong to the weaker segments of the society. The Capital of the Islamic Republic of Pakistan i.e. the Islamabad Capital Territory has been established and is in the process of being developed pursuant to acquiring land through the exercise of the intrusive power of eminent domain. The responsibility of the State to protect the rights of citizens whose private properties have been or are in the process of being condemned is of paramount importance. It is the duty of the State to ensure, through its agents, that the citizens who are subjected to the power of eminent domain are treated in a just, fair and equitable manner. It is a constitutional duty of the State to ensure that the condemnation of private properties does not result in its confiscation, rather that its owners are justly and fairly compensated. Regrettably, what has transpired during these proceedings unquestionably establishes that the State and its functionaries, instead of protecting the citizens, have grossly violated their guaranteed fundamental rights through abuse of the power of eminent domain, inevitably having the effect of virtually confiscating their private properties. The victims of the abuse of the power of eminent domain in the Islamabad Capital Territory have been subjected to unimaginable agony and trauma for decades and the human cost is definitely immeasurable. The grievances raised in the petitions in hand are essentially regarding the rights of those citizens who have been subjected to the exercise of the power of eminent domain. The facts brought on record during the proceedings have manifested the worst and unthinkable form of abuse of land acquisition or the power of eminent domain of the State and the resultant grave violations of fundamental rights of the victims whose properties were or are in the process of being subjected to condemnation. Most of the affected victims are stated to be so poor and weak that they have neither the means nor the ability to fight a deeply corrupted governance system which does not favour them. Their right of access to justice is denied because the high cost of litigation is out of their reach and the delays caused during the judicial process renders any relief illusory. Most of the victims are not even aware of their rights and thus they are vulnerable to be exploited because of an apparent collusion between the unscrupulous investors and the public functionaries. It was observed during the proceedings and has become obvious from the material brought on the record that the victims of the abuse of the power of eminent domain have not been treated justly, fairly and as equal citizens of Pakistan. The way they have been treated by the public functionaries shows that as though to their extent the fundamental right which guarantees inviolability of dignity of a human does not exist in the Constitution. The public functionaries and institutions who owe to the people a fiduciary duty to safeguard their rights and to promote their welfare have themselves become beneficiaries of the property acquired by the State by exercising the power of eminent domain. Citizens have been subjected to suffer unimaginable pain and agony for decades. Their rights have been violated by those who owe them a fiduciary duty as agents of the State. It was the duty of the public functionaries to guard the vulnerable citizens against human rights abuse. This required taking appropriate steps to prevent, investigate punish and redress such abuse through effective policies, legislation, regulations and adjudication. The petitions in hand were only a tip of the iceberg and the information brought on record later was shocking and inconceivable in a society which claims to be governed under the Constitution. The human cost of the acknowledged abuse of eminent domain is definitely immeasurable. The grave nature of violations of guaranteed fundamental rights and the State's failure to protect the guaranteed rights of the citizens, particularly those who are most vulnerable, manifests absolute disregard of the public functionaries and the successive governments for their obligations under the Constitution of the Islamic Republic of Pakistan 1973 (hereinafter referred to as the 'Constitution'). The acknowledged rights are being denied to those citizens who are poor, weak and voiceless. The treatment of the petitioners and thousands of other similarly placed agonized and tormented citizens on account of the abuse of the power of eminent domain of the State is indeed a fraud that has been played on the Constitution and the guaranteed fundamental rights. The Governments are established to accomplish two fundamental objects; protection of the people and promotion of their welfare. As will be discussed in more detail later, successive governments have been instrumental in perpetuating violations of fundamental rights stemming from abuse of the power of eminent domain. Instead of promoting welfare of the citizens, policies have been formulated to benefit the powerful elite at the expense of the acknowledged rights of citizens and public interest. The petitions listed in 'Annexure-A' attached hereto have raised questions of paramount public importance in the context of abuse of the power of eminent domain and the resultant grave violations of fundamental rights. It has highlighted a mindset of the agents of the State i.e. public functionaries and the system of governance which, rather than serving the actual stakeholder, the people of Pakistan, has created opportunities that harm the rights of those citizens who are poor, weak and vulnerable. In a nutshell, the proceedings before this Court have brought on record an unimaginable travesty of justice and the worst form of abuse of exercise of the power of the State to condemn private property. This Court has no hesitation in observing that the phenomena of governance that has prevailed in the Capital of Pakistan for the past many decades has failed to protect the citizens and has instead benefited the privileged and the powerful elites at the expense of their rights. Manifestation of grave violations of fundamental rights and inconceivable injustices: 2. In order to highlight the nature of grievances raised by the petitioners, as an illustration the facts relating to some of the petitions are briefly discussed as follows; 3. Abdul Qudoos, son of Sajawal Khan, petitioner in W.P. No. 4242 of 2017, has asserted that his brother, namely Liaquat, was a resident of village Landa Mastal, Islamabad. The latter owned property which was acquired by the Capital Development Authority [hereinafter referred to as the "CDA"] in 1968. The brother passed away in 1975 and the CDA informed his mother, namely Mst. Ajaib Jan, that she was entitled to the allotment of a plot. Consequently, she was allotted a plot in Sector I-10, Islamabad. The allotment was later cancelled and another plot i.e. Plot No. 1083 in Sector I-14/4, was allotted vide letter dated 21.08.1993. The allotment was subsequently cancelled. The petitioner filed W.P. No. 354/2015 which was disposed of vide order, dated 22.04.2015, pursuant to a statement made on behalf of the CDA. Despite this Court's direction the grievance was not redressed and, therefore, the petitioner filed Criminal Original No. 33/2016 and the same was disposed of vide order dated 19.04.2016. The CDA was seeking the consent of the petitioner for the allotment of a plot in Sector I-12. The offer was not acceptable because Sector I-12 is yet to be developed. The petitioner, therefore, is seeking a direction to the CDA to allot a plot in one of the developed sectors. These facts have been admitted by the CDA in its written comments. The entitled owner of the condemned property had passed away in 1975 and his mother Mst. Ajaib Jan has since been denied her right for more than four decades. The litigation cost and the mental agony suffered by Mst. Ajaib Jan and her family during the last four decades are besides being treated unfairly, unjustly and contrary to the inviolability of her dignity. 4. The petitioner, namely Muhammad Shabbir, in W.P. No. 794 of 2019, had earlier filed W.P. No. 4177/2010 which was disposed of by this Court vide order dated 14.02.2017. Several other petitions were also disposed of vide the same order. The property of the petitioner was situated in the revenue estates which were acquired for developing Sectors H-16 and I-17 i.e. Noon, Bhattana Kalan, Sheikh Pur, Jhangi Syedan, Kot Kalian, Bajnial, Narehla and Lakhu. The award was announced on 15.01.2009. The entitled claimants were not paid compensation and a perusal of order dated 14.02.2017 of this Court shows that in response to a query the learned counsel for the CDA, after seeking instructions, had conceded that at the time when the award was announced i.e. on 15.01.2009, funds were not available. However, it is an admitted position that those who were influential did manage to receive compensation while the poor were ignored. This Court had, therefore, directed the CDA to pay compensation to the entitled land owners within one month from the date of the order, failing which the claimants would be entitled to get themselves de-notified from the award. The order of this Court was assailed by the CDA and Civil Petitions Nos. 1790 and 1859 to 1875 of 2017, titled "CDA through its Chairman and others v. Muhammad Shabbir and others" was dismissed vide order dated 15.05.2018. The award was announced on 15.01.2009 but those who did not have influence remain uncompensated even after the lapse of more than a decade. It is noted that the CDA has informed that the market value which was assessed at the time of announcing the award was about Rs 0.8 million and that the claimants are entitled to on 8% per annum in addition to the evaluated market value in 2009. Whether this would amount to being 'compensated' in terms of the fundamental right guaranteed under Article 23 of the Constitution will be discussed later. 5. The petitioners in W.P. No. 1027/2019, assert that they were residents of village Dherak Mohri, Tehsil and District Islamabad and their built-up properties were acquired through the award dated 16.09.1987. They have sought indulgence of this Court to direct the CDA to compensate them for condemnation of their properties. The CDA, in its comments, has taken the stance that the objections were raised by the Commissioner CDA and pursuant thereto the Deputy Commissioner CDA had conducted an inquiry followed by passing orders, dated 18.07.1988 and 01.09.1988. The latter had verified the rightful claimants but the CDA challenged the orders of its own Deputy Commissioner and the appeals were dismissed by the Commissioner (Appeals) CDA vide order dated 15.05.1990. The CDA filed review petitions and they too were dismissed vide order dated 28.11.2003. In the meanwhile, the National Accountability Bureau [hereinafter referred to as the "NAB"] initiated investigations. A meeting between the Chairman NAB and the Chairman CDA was held on 02.11.2007 and, pursuant thereto, the main award of built-up properties was cleared with the direction to take over possession of the acquired land and release the benefits of the entitled affectees. Reference was filed by the NAB i.e. Reference No. 13/2007 and on conclusion of the trial all the accused were acquitted by the learned Accountability Court vide judgment dated 11.12.2014. Despite suffering the rigors of criminal trial and the genuine status having been verified by the CDA itself, the condemned property owners remain uncompensated. 6. The petitioners in W.P. No. 1237/2019, assert that they are legal heirs of Mst. Bibi Gul Fatima, who owned property in villages Harno and Thanda Pani, Tehsil and District Islamabad, which was acquired in 1975. The mother, without being compensated, passed away in 1977. Their mother's name appeared in the award. A Scrutiny Committee constituted by the CDA approved and recommended the allotment of a plot in 2011. The petitioners had also approached the Wafaqi Mohtasib (Ombudsman) [hereinafter referred to as the "Ombudsman"] and the complaint was disposed of pursuant to an undertaking given on behalf of the CDA. 7. The ancestors of the petitioners in W.P. No. 3106/2019 had settled in village Bekhar Fateh Bux, Tehsil and District Islamabad. The properties were acquired in 1985. The Scrutiny Committee constituted by the CDA had declared the petitioners as entitled for compensation but the Bureau filed Reference No. 21/2007 against them and 83 other citizens. The petitioners and other accused were acquitted by the learned Accountability Court vide judgment dated 11.12.2014. The status of the petitioners as claimants has not been disputed by the CDA in its written comments. 8. The petitioners in W.P. No. 1194/2019 assert that they were affected by the…

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