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Petitioner: Rafaqat Hussain Shah Bukhari and others VS Respondent: Secretary Ministry of Housing JUDGMENT
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title:Rafaqat Hussain Shah Bukhari and others vs Secretary Ministry of Housing
JUDGMENT
Reported As: PLJ 2023 Islamabad 335 Result: Petitions dismissed Judgment JUDGMENT By way of this common judgment, I intend to decide all these writ petitions and contempt petition arising out of similar questions of law and fact. 2. Brief facts stated in Writ Petition No. 1518 of 2021 are that the petitioners have prayed for issuance of direction to the respondent Federal Government Housing Authority (FGEHA) to prepare the list of affectees of Built-up Properties, herein after referred as BUPs of Jhangi Syedan after proper assessm ent, measurement and on spot verification manually instead of relying on Google GIS /Image. Further direction is also sought to respondent authority to determine compensation of BUPs of petitioners from the date of taking possession of built-up properties instead of date of notification under Section 4 of the Land Acquisition Act, 1894 in terms of 2021 SCMR 201 (Federal Government Employees Housing Foundation (FGEHF) vs. Malik Ghulam Mustafa), also prayed for compensation in terms of rehabilitation policy enshrined in awards of different sectors or agreement signed by the affectees with the CDA. 3. In W.P No. 2346-2021, the petitioners have challenged the vires of Sections 15, 16, 19 and 20 of FGEHA Act, 2020 and claims that the same may be declared as ultra vires to the constitution of Islamic Republic of Pakistan, 1973; also contended that parliament has no legislative competence to enact the law in respect of acquisition for whole country after 18th amendment. 4. In W.P No. 960/2021, the petitioners have assailed the BUPs award dated 15.02.2021, passed by the respondent Authority with the additional claim to announce award after conducting the due survey and measurements of the BUPs on the site.
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5. In W.P No. 4153-2022, the petitioners claim the payment of compensation as per BUP No. 210 being genuine affectees of Pind Paracha, Dakhli Jhangi Syedan, Islamabad. 6. In W.P No. 3551/2022, the petitioners have prayed for issuance of directions to the respondents to pay compensation as per the measurements of the BUP owned and possessed by the petitioners in BUP No. 910 at Serial No. 365 of the list. 7. In W.P No. 3746/2022, the petitioners have prayed for issuance of direction to the respondents to pay compensation of 04 kanals of land as mentioned in the revenue record according to the present market value with further prayer to allot one plot each to the petitioners, as well as correction in the list accordingly. 8. In W.P No. 2047/2022, the petitioners have prayed for issuance of direction to the respondents to prepare the list of affectees of BUPs of Jhangi Syedan G-14/1 and G-14/2 and to record number of families in each building with number of units and utility connections on the basis of information provided by the owners/affectees, with further prayer that the Authority be directed to determine the compensation of BUPs of the petitioners from the date of taking possession of the properties instead of date of notification under Section 4 of Land Acquisition Act, 1894 and they be treated equally to similarly placed affectees of the CDA in terms of Rehabilitation Policy, and consequently they be allotted the plots against each affectee in different sectors or in terms of 'agreements signed between the affectees and CDA. 9. In Criminal Original No. 138/2021, the applicants have prayed for initiation of contempt of Court proceedings against the respondents for publication of notice on 23.05.2021 in "Daily Express", misstating the order passed by this Court pertaining to measurement of different houses. 10. Learned counsel for the petitioners have raised multiple questions including the wires of Federal Government employees Housing Authority Act, 2020, as well as upon the process adopted by the respondent /FGHEA for survey, demarcation and acquisition of the properties viz-a-viz their rehabilitation benefits which were not granted to the petitioners in line with the rehabilitation policy adopted by the CDA for different acquisition proceedings within Islamabad Capital Territory. It has also been argued that the Federal Government Employees Housing Authority Act, 2020, is illegal as the appellate authority provided in the law is the same Executive Board of the Authority, which amounts to conflict of interest as they are judged in their own cause. 11. Different applicants have also filed applications for impleadment numbered as CM Nos.2002 & -2000 of 2022 in Writ Petition Nos.1518 & 960 of 2021 respectively, on the ground that they are civil servants who have been allotted plots by the erstwhile Federal Government Employees Housing Foundation and till date the respondent Authority has not been able to deliver the possession due to non-conclusion of the proceedings, and as such the construction cost has raised, while majority of the applicants who have retired from civil service remain shelter less. The applicants have sought directions for early decision of these cases with the claim that the respondent Authority has to take over the acquired land and develop the sectors in accordance with the layout plan in order to settle the miseries of the retired civil servants. No doubt, they are necessary parties to the lis, however, they have been given right of hearing through their counsel Mr. Mudassar Latif Abbasi and Barrister Ayesha Siddique Khan. 12. Learned counsel for the Federal Government employees Housing Authority contends that they have completed the survey on the basis of Google GIS /images for the BUP as the residents /occupants are not willing to cooperate, furthermore, on directions of this Court, committee has been constituted, which has completed the survey after physical inspection of the properties. However, the petitioners on one hand have challenged the sires of law and on the other hand seeking benefits which itself is self-contradictory. It has further been contended that the rights of recognized BUPs will only be settled under the law and any person who has illegally constructed any building or a house is not entitled for any benefit, however, the survey has covered both legal
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as well as illegal BUPs. Public notices have been given followed by door to door verification carried out in presence of the local committee and by the staff of the FGEHA, however, some of the residents have not cooperated with the respondent Authority, therefore, their cases shall be dealt in terms of Google GIS /Image. The Deputy Commissioner and the staff of the FGEHA have visited on site and even public meetings were carried out, where each individual has been asked to represent his case to avoid any conflict in the measurement of the BUPs. The majority of the area has been settled and measured accordingly as per the survey numbers in BUPs. 13. Arguments heard, record perused. 14. Perusal of record reveals that the petitioners have raised three different questions in these writ petitions, where majority of the petitioners claim that they be compensated for their BUPs from the date of taking over the possession of the property instead of the date of notification in terms of Section 4 of the Land Acquisition Act, 1894, and they are also seeking rehabilitation benefits in shape of plots in different sectors. Some of the petitioners are only aggrieved to the extent of compensation as per measurement of their BUPs claiming that the properties of the affectees should be measured on physical verification in Mouza Jhang Syed and Challo, which have been acquired by the FGEHA /respondent in order to develop the sectors for the Federal Government Employees, whereas, at the same time in W.P No. 2346/2021 vires of Sections 15, 16, 19 and 20 of the FGEHA Act, 2020 have been challenged. In order to settle the issue, this Court considers it necessary to settle the vires raised in Writ Petition No. 2346 of 2021, wherein, the vires of Sections 15, 16, 19, and 20 of the Federal Government Employees Housing Authority Act, 2020, have been assailed. I. Vires of FGEHA Act. 2020: 15. Federal Government employees Housing Authority Act, 2020 was enacted on 15th of Jan 2020 for the purpose of planning and development of housing scheme for serving and retired Federal Government Employees and other specified groups. The Authority is equipped to purchase the land or to acquire the same to fulfill the objectives narrated in the law. Initially, Federal Government Employees Housing Foundation was established in the year 1989, under the Ministry of Housing and Works. Later on, it was registered as a company limited by guarantee with Securities and Exchange Commission of Pakistan under Section 42 of the Companies Ordinance, 1984, on 26th March 1990. In the previous decades, the erstwhile foundation started acquisition of land in terms of the Land Acquisition Act, 1894, whereby different sectors were developed with the approval of Capital Development Authority under CDA Ordinance, 1960, and later on Federal Government Employees Housing Authority Act, 2020, was enacted. While challenging the vires of Section 15 of the Act, as per stance of the petitioners, wherein enquiry and award of the Deputy Commissioner was taken into account in which the market value of the land, interests of the persons claiming the compensation and the view rendered by the Deputy Commissioner as well as apportionment of such compensation are the key concerns and it has been argued that compensation so determined by the Deputy Commissioner is not justiciable, when the enquiry is conducted by the Deputy Commissioner of the FGEHA, which was not done in the previous law i.e. Land Acquisition Act, 1894, rather it was done by the state machinery on the request of beneficiary company. However, at present the FGEHA authority themselves appointed the Deputy Commissioner who is empowered to determine the market value, rate of compensation and pass an order for payment of compensation, such aspect is adverse to the entire scheme of the law. Under FGEHA Act, 2020, the determination of compensation has specially been vested in the office of Deputy Commissioner of the Authority who will be judge in his own cause as on one side he is under the administrative control of FGEHA Authority and on the other end, he would be performing judicial assignment, therefore, it is argued that the Deputy Commissioner is not likely to determine the compensation beyond the policy decisions of the respondent Authority.
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16. Another important question raised is regarding Section 19 of Act ibid, which provides the mechanism of appeals and review filed against award of the Deputy Commissioner. An appeal can only be filed before the Executive Board in this regard, whereas, the Executive Board of the respondent authority is also considered adverse to the individuals claim, especially, when the Executive Board established under Section 4 of the Act comprises of different members including member from the Authority. 17. It is specifically argued that all such orders, appeals and appellate decisions would be considered in conflict of interests of the respondent Authority. At last, the learned counsel has vehemently argued that the powers of the Deputy Commissioner and the Executive Board were previously not available in such manner. 18. While considering the arguments of the petitioners side, I have gone through the Federal Government Employees Housing Authority Act, 2020, whereby FGEHA, which is controlled through Executive Board, powers of supervisions, control and administration are being exercised by eleven members of the Executive Board comprising, which consists of Minister of the Division concerned and Chairman of the Authority, Secretary of the Division, Draftsman Law and Justice Division, Additional Secretary of the Division, Managing Director PHA, Director General Pakistan Public Works Department, Chief Commissioner, Islamabad Capital Territory, Chairman Capital Development Authority, Joint Secretary Expenditure Ministry of Finance, Chief (Physical Planning and Housing) Planning Commission, Islamabad and Chief Engineer of the Authority. As such the power and functions are not in one hand, rather different representatives have been fixed from the public servant hierarchy of the Government, where the chairman CDA as well as the Managing Director PHA are different representatives of independent legal entities. The powers and functions have been explained in Section 5, which are not restricted in any manner rather the board can perform all necessary functions for effective implementation of the law in question. During the course of proceedings this Court has confronted the petitioner side to assist this Court and demonstrate from the law where any actions have been taken in conflict with Article 10 of the Constitution of Islamic Republic of Pakistan, 1973, read with Article 24 (1) of the Constitution, however, no specific event has been quoted except that "no one can be judge in their own cause", however, the primary question in challenging the vires of law is to demonstrate that the provisions are in conflict with the fundamental rights guaranteed in the Constitution, whereas, the petitioners have only confined their case to the extent of four Sections of the FGEHA Act, 2020, but so far the test laid down in judgment reported as PLD 1999 [SC] 1026 (Federation of Pakistan and others vs. Shaukat Ali Mian and others), PLD 1988 [SC] 416 (Benazir Bhutto vs. Federation of Pakistan and another), 2018 SCMR 802 (Sui Southern Gas Company Ltd. and others vs. Federation of Pakistan and others), 2014 CLC 335 (M.Q.M. and others vs. Province of Sindh and others), 2015 SCMR 1739 (Lahore Development Authority through D.G. and others vs. Ms. Imrana Tiwana and others), is concerned, it was held that the petitioners have to demonstrate that the legislation in question is a colorable legislation and the legislature lacks the legislative power to enact such law or the vires of an Act can be challenged if its provisions are ex-facie discriminatory or its certain provisions are unconstitutional which could be severable from the remaining statute and the remaining law even then can be able to proceed to fulfill the objective, those provisions or law could be declared void, but where parties are not able to demonstrate the violation of any fundamental guarantee or the lack of legislative power or perversity in the law, the same could not be struck down. The basic guidance given in Imrana Tswa na case supra, further clarifies that the presumption in favor of constitutionality has to be upheld and a possible effort should be made to interpret the law as valid instead of declaring the same as void. Similarly, a reasonable doubt must be resolved in favor of the statutes being valid and Court should abstain from deciding a constitutional question, if a case could be decided on other or narrower grounds. There is no doubt that Court was not concerned
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with the wisdom or prudence of the legislation but only with its constitutionality on the touchstone that malafide should not be attributed to the legislature. All these parameters have not been demonstrated by the petitioners' side, nor any technical defect was highlighted in this statute or to the extent of provisions challenged by the petitioners side. This Court is bound to discover the legislative intent and interpret the laws promulgated by the legislature. While interpreting statute or discovering the legislative intent it is presumed by Court that mistake or absurdity cannot be attributed to parliament, even no interpretation can be made to defeat the public interest or protecting the personal interests of few. Therefore, in this backdrop, the question of conflict of interest while referred in Section 19 of the Act, where powers and functions were available to the Executive Board of the respondent authority and similarly the question of determination by the Deputy Commissioner of the respondent authority were discussed in detailed by this Court in judgment reported as PLD 2021 [Islamabad] 75 (Noman Ahmed and 14 others vs. Capital Development Authority Chairman and another), whereby, learned judge in chamber of this Court has almost settled these questions as in line with the arguments of the petitioners in Para No. 42 of the judgment, but the judgment mentioned supra "Noman Ahmed" has been set-aside by the apex Court in the judgment reported as 2021 SCMR 201 (FGEHF vs Malik Ghulam Mustafa etc), whereby, it was held that the foremost rule of interpretation of any statute was the constitution which set the gold standard to adjudge the constitutionality, repugnancy, and validity and vires of any legislative instrument or provisions contained therein. It was also held that legislature were presumed to know the existing law, judicial pronouncement and general principles of law and all these facts and laws were considered by the legislature, therefore, the apex Court while considering the case of vires of the present law settled the question in Para No. 116 in the following manner: "116. Thus in case in hand, this Court has taken judicial notice of the Federal Government Employees Housing Society Act, 2020 passed by the Parliament on 15th January, 2020 as brought to the notice of the Court. None of the parties took any exception to the new legislative regime leading to land acquisition by the Authority for the purpose and object set out in the preamble of the Act, 2020. Accordingly, we took notice of the change in law as regard acquisition of land subject matter of present controversy. Examining the Act, 2020, it is noted that, it contains an elaborate procedure for enquiry, acquisition of land, payment and determination of compensation, vesting of property on issuance of notification and, right of appeal and all other incidental and ancillary matter relating to acquisition of land." While considering the above background the question of vires which has already been settled could not be agitated again, even otherwise the test laid down by the apex Court in the judgment reported above as well as in other case laws, the petitioners have failed to justify any constitutional defect, where fundamental rights of the petitioners were considered to be in violation of law. This Court has also attainted the proposition and comes to conclusion that by declaring Sections 15, 16, 19 and 20 of the FGEHA ACT, 2020, as ultra vires would amount to virtually striking down the entire FGEHA Act, 2020, which is a fundamental reason as to why this Court should not engage in such abstract constitutional review. 19. This Court has considered the arguments of petitioners side, where powers under Section 15, 16 and 18 of the Act were discussed in order to determine the compensation by passing an award upon acquisition of land but the provisions which extend the power to determine compensation are independent viz a viz the Executive Board. As such, there is no cavil to the proposition that both are two distinct bodies, which are required to pass different orders under the law and this Court is not in agreement with the argument that the FGEHA authorities are judge in their own cause. The next submission rendered by the petitioners is to declare the FGEHA Act, 2020, only operational to the extent of Islamabad Capital Territory and FATA and the parliament has no legislative power to enact the law in respect of the acquisition for the whole country after the 18th amendment. While
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considering the argument, I have gone through Article 142 (c) of the Constitution, wherein, the Federal Government or the parliament cannot legislate on a residuary subject (subject not specified in the constitution or Federal Legislative List) there is no cavil that FGEHA Act, 2020, deals with the provision of housing to shelterless serving or retired Federal Government Employees. The Federal Public Service is a matter specifically in entry No. 11, Part-I of the Federal Government Legislative List, and it is settled that Federal Government Lists are to be given broader meaning, therefore, welfare measures for Federal Public Service are to be read in this entry being a matter ancillary to Federal Public Service, especially in view of entry 59, Part-I of the Federal Legislative List. By virtue of Article 240 of the Constitution of Islamic Republic of Pakistan. 1973, Parliament has the authority to legislate in respect to the conditions of service of a person in the service of Federation and All Pakistan Services. The proposed welfare measures are included in the terms (condition of service) and the Parliament is constitutionally competent to legislate on the subject, therefore, Sections 15, 16, 19 and 20 could not be treated as ultra vires to the law rather declared infra vires, but lastly, the issue which has been settled by the apex Court in the Ghulam Mustafa case supra. clearly envisages the principles of binding judicial precedent in terms of Artice-189 of the constitution of Islamic Republic of Pakistan, 1973, therefore, present petition is not maintainable to declare four provisions of the Act, ultra vires to the constitution. II. GIS Survey Verification: 20. Now adverting towards the second issue raised in this case is relating to the partial and supplementary awards, detail of the same is produced hereunder: i. First Partial Award of Built up Properties Mauza Jhangi Syedan (Sector G-14/1&2) under Section 11 of LAA, 1894 dated: 1I.O8.2020; ii. Second Partial Award of Built up Properties Mauza Jhangi Syedan and Mauza Chelow (Sector G- 14/1&2) under Section 11 of LAA, 1894 dated: 28.10.2020; iii. Third Partial Award of Built up Properties Mauza Jhangi Syedan and Mauza Chelow (Sector G- 14/1&2) under Section 11 of LAA, 1894 dated: 12.01.2021; iv. Supplementary Award of Built up Properties (BUPs) of Moza Jhangi Syedan Sector G-15/3 under Section 11 of LAA, 1894 dated: 01.O2.2021; v. Fourth Partial Award of Built up Properties Mauza Jhangi Syedan (Sector G-14/2) under Section 11 of LAA, 1894 dated: 15.02.2021; vi. Judgment dated: 26.04.2021 in the case of enhancement in Award announced by Deputy Commissioner CDA under CDA Ordinance, 1960 Acquisition of Land in villages Chahana, Badia Qadir Bukhsh, Radio Rustam Khan, Maira Sumbal Akku, Maira Akku and Dherak Mohri (Sector F- 12/G-12) issued by Deputy Commissioner FGEHA under aegis of Summary dated: 07.07.2020 approved by Federal Cabinet for Sectors F-12 and G-12 Islamabad: vii. Fifth Partial Award of Built up Properties Mauza Jhangi Syedan (Sector G-14/2) under Section 11 of LAA, 1894 dated:17.10.2022; 21. The above referred history if considered in the light of the proceedings earlier conducted in terms of Land Acquisition Act, 1894, are protected in terms of FGEHA Act, 2020, especially, Section 12 of the Act, clearly stipulates that acquisition of any land or any interest in land for the purposes of authority shall be deemed to be an acquisition for public purposes within the meaning of the applicable Land Acquisition Act, 1892 or any other prevailing law for the said purposes, as per policy of the Federal Government. Similarly Section 24of the FGEHA Art, 2020, protects all orders, rights, interests, powers, actions, contracts, agreements, schemes, works, undertaken by the Federal Government Employees Housing Foundation, prior to the enactment of the FEGHA Act, 2020. By virtue of the deeming clause, meanwhile, all the partial awards if taken into account, it appears that the respondent authority is committed to resolve every controversy to clear the land of Mouza. Jhangi Syedan and Chello and resorted to multiple award or BUPs based upon GIS /images and
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physical inspection so that no one could be left unattended, meanwhile, some of the petitioners have challenged the GIS proceedings, therefore, this Court has to protect the rights of the individuals which is evident from the order sheet in the main case by which a committee has been constituted on the joint request of both the sides comprising of seven members initially on 28.05.2021 to conduct the survey to record the measurements of BUPs separately in a single form, one under the GIS Map System and the other through physical verification with the help of committee to complete the data. The action continued for more than 2 years, where affectees committee has also participated in the verification of BUPs, where photographs were taken, the forms signed, each and every structure was measured as sketch was drawn on assessment form, signature/thumb impressions of the owner has been completed including the division of the family as narrated by the owners before the survey officials. The respondents were also directed to conduct the survey while considering the electricity and gas…
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