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Petitioner: Malik Bashir Ahmed, etc. VS Respondent: The Federal Government of Pakistan, through Secretary Cabinet Division, Pak Secretariat, Islamabad, etc.
Court Name: Islamabad High Court Judge(s): Athar Minallah Title:Malik Bashir Ahmed, etc. vs The Federal Government of Pakistan, through
Secretary Cabinet Division, Pak Secretariat, Islamabad, etc. Case No.: W.P. NO. 308 of 2016 Date of Judgment:2017-10-23 Reported As: 2017 IHC 234 Result: Petition Allowed Judgment ATHAR MINALLAH, J.- Through this consolidated judgment, I intend to decide the instant writ petition along with the petitions listed in "Annexure -A", attached hereto, since common questions of law and facts are involved. 2. The prayers sought in the instant petitions are as follows:- "In the light of the foregoing submissions, it is respectfully prayed that this Honourable Court may be graciously pleased to: a) Declare that the Impugned Notifica tions are illegal, unlawful, arbitrary , malafide, discriminatory , without jurisdiction, void ab initio and are of no legal effect; b) Declare that the land of the Petitioners can only be acquired under the CDA Ordinance and the land acquisition procedure framed thereunder for purpose of the Master Plan only; c) Declare that the entire acquisition proceedings initiated by the Respndents are unlawful, malafide, arbitrary and unsustainable for noncompliance of the mandatory statutory provisions as well as the purpose of the acquisition is not for the benefit of the general public; d) Declare that self-financing housing schemes on ownership basis for federal government employees in the Federal Capital are without lawful justification, arbitrary and against the public interest; e) Alternatively , direct the Respondents to treat the Petitioners and all other affectees under the 'land for land' scheme as provided under the CDA Ordinance and the procedure framed thereunder , and declare any other formula for compensation illegal, arbitrary , unlawful and unconstitutional; f) Grant costs of this Petition. Any other relief which this Honourable Court may deem fit and proper may also be granted". 3. The petitioners in all these petitions assert that they are natives of villages covered under the impugned notifications issued under the Land Acquisition Act 1894 (hereinafter referred to as the "Acquisition Act"). The
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Land Acquisition Collector has issued the impugned Notification, dated 20.05.2015, under section 4, while the other impugned Notification, dated 04.12.2015, has been issued by the Commissioner, District Islamabad, under sub-section (1) of section 17 of the Acquisition Act. The petitioners have, therefore, called into question the proceedings initiated by the Land Acquisition Collector to acquire land for 'public purpose' at the request and for the Federal Government Employees Housing Foundation (hereinafter referred to as the "Foundation"). It is the case of the petitioners that their fundamental rights, guaranteed by the Constitution of the Islamic Republic of Pakistan 1973 (hereinafter referred to as the "Constitution") inter alia, under Articles 9, 23, 24 and 25 are being violated and that they are being forcibly deprived of their ancestral lands in violation of the law . 4. The relevant facts, in chronological order , for adjudication of the instant petitions are as follows;- 30.04.1986. A summary was sent for approval of the Federal Cabinet for construction of 5000 houses for government servants on ownership basis in the Federal Capital Territory , Islamabad. The recommenda tions were in respect of giving effect to the Sixth Five Year Plan which had envisaged construction of 6000 housing units by the Federal Cabinet for government servants. The summary , inter alia, recommended a management system consisting of three tiers i.e. a Board of Governors headed by the Minister for Housing and Works, an Exec utive Committee of the Board of Governors headed by the Secretary , Housing and W orks and a Directorate headed by a BPS-20 Engineer . 05.08.1986. The Cabinet approved the above summary in its meeting held on 05.08.1986. 21.06.1989. The Executive Committee in its 5 meeting, inter alia, decided to set up an institutional entity for the implementation of the housing scheme and that the status thereof would be autonomous. It is noted that neither was the Executive Committee mandated in this regard nor was approval sought from a Ministry or Division, let alone the Cabinet. 26.03.1999. Pursuant to the above decision of the Executive Committee, the Foundation was incorporated as a juridical person under section 42 of the Companies Ordinance, 1984 (hereinafter referred to as the "Ordinance of 1984" ) and accordingly a Certificate of Incorporation was issued by the Corporate Law Authority . The objects for which the Company was established are mentioned in its Memorandum of Association which are as follows;- a) To eradicate shelterlessness for Federal Government Employees, serving and retired, and for other specified groups of people as decided by the Foundation from time to time and assist as far as possible each of them to have a house at the time of his retirement or earlier , and his dependents in case of his death before retirement, on such terms as the Foundation may determine; b) To initiate, launch, sponsor and implement Housing Schemes for Federal Government Employees, serving and retired, and for other specified groups of people as decided by the Foundation from time to time on ownership basis in Islamabad, the Provincial Capitals and other major cities of Pakistan; and c) To do all such things as are incidental or conducive to the attainment of the above objects or any of them, in particular to do the following:-" March, 1992. The Foundation launched its housing scheme in Phase-II pursuant to the above mentioned decision of the Cabinet. The beneficiaries included serving and retired Federal Government employees except those who owned houses, flats / residential plots in Islamabad/Rawalpindi either in their names or in the names of their dependents. It is noted that since land can only be acquired in the Islamabad Capital Territory under the Capital Development Authority Ordinance, 1960, therefore in order to execute the scheme, plots were allocated by the Capital Development Authority in the already acquired sectors. 20.12.1993. The Cabinet in its meeting held on 20.12.1993, constituted a Committee to look into the possibility of developing a housing scheme for Members of the National Assembly , Journalists, Civil Servants, Judges, etc in Islamabad. 03.05.1994.th
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The Committee constituted pursuant to the above decision of the Cabinet made recommendations to the Prime Minister , which were approved by the latter and the same are as follows:- i) The Federal Government Employees Housing Foundation may acquire the land in Sector G-13 Islamabad through DC, Islamabad under Land Acquisition Act 1894 for the proposed housing schemes. The existing charter of the Housing Foundation was reasonably broad-based and would require no change for the implementation of the scheme. ii) Only plots may be provided to the target groups instead of constructed houses. iii) The Housing Foundation may draw up detailed proposals for implementing the scheme after approval in principle to the above recommendations." As it will be discussed in more detail, these recommendations were made by those who themselves were to be the beneficiaries of the largess which definitely involved substantial financial interest to private persons. The provisions of the Capital Development Authority Ordinance, 1960 were not considered. It is interesting to note that contrary to the decision of the Cabinet, the Committee excluded Members of the National Assembly . PHASE-III. The Foundation launched phase-III for a housing scheme located in Sector G-13, which was spread over a vast area and was yet to be acquired under the Acquisition Act. 08.11.1999. The owners of land which was being acquired in Sector G-13 challenged the acquisition proceedings through Writ Petition No. 338 of 1999 before the Lahore High Court, Rawalpindi Bench, Rawalpindi. The petition was decided vide judgment, dated 08.11.1999. The learned High Court besides upholding the acquisition proceedings also prescribed the criteria for allotment of plots to the Judges of the Superior Courts and gave directions for including employees of autonomous and semi autonomous organizations, Election Commission of Pakistan, Honourable Supreme Court of Pakistan, Federal Shariat Court and Rawalpindi Bench of the Lahore High Court, the National Assembly, senior members of the Armed Forces, Journalists, Doctors, Engineers and Lawyers. The allotments already made by the Foundation were declared as invalid and the latter was directed to allot plots in the light of the directions given by the learned Single Judge in Chambers. 15.03.2000. Criminal Original No.1-W of 2000 was filed alleging that the directions given by the Lahore High Court vide its order , dated 08.11.1999 were being violated by the Foundation. The Foundation took the plea that since plots in Sector G-13 had been exhausted, therefore, other applicants would be accommodated in the next phase. However , the learned Single Judge in Chambers was pleased to approve allotment of plots in sector G/13 to selected judges, two senior lawyers namely late Sharif ud Din Pirzada and Aziz A. Munshi besid es former Chief of Navel Staff namely Admiral (R) Fasih Bukhari. 22.11.2007. The Prime Minister of Pakistan approve d the criteria for allotment of plots to officers serving in BPS-22. This largess involving substantial private financial benefit was in addition to allotment of plot by the Foundation. Phase-IV . The Foundation launched and completed yet another housing scheme in Sub-Sectors 1,2 and 3 of G-14 while Sector G-14/4 was allocated to the employees of Quaid-e-Azam University . 04.11.2013. A summary was sent for approval of the Prime Minister proposing acquiring Sector F-14 for the Foundation. However , the request made by the Cabinet Division was turned down by the Prime Minister on account of observations and objections raised by the Capital Development Authority (hereinafter after referred to as the "Authority" ). 06.01.2015. The Secretary Ministry of Housing and Works initiated a fresh summary regarding acquisition of land for the Foundation covering Sector F-14 and parts of Sector F-15. It is noted that the objections raised by the Authority were explicitly mentioned in the summary and the same are as follows;-
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"Any private Housing Scheme is not allowed in Zone-I of ICT . Sector F-14 cannot be planned to provide 7,000 small category plots by the FGEHF as per its requirement. In F-Series Sectors the number of plots is much less than 7000. Allocation of sector to another organization would deprive CDA from funds recove red through sale of commercial plots to meet the expenditures for trunk infrastructure. Allocation of F-14 sector to FGEHF for allotment to FGEs and Supreme Court Bar members will be in violation of ILDR, 2005. Inclusion of quota for lawyers in ILDR, 2005 will establish a precedent for other professions, increase litigation and erosion of space for CDA to develop sectors for general public". The justifications mentioned against each were vague and in violation of the Master Plan, the Ordinance of 1960 and the regulations made there under . 01.05.2015. The Prime Minister accorded his approval to the above summary . 20.05.2015. The Land Acquisition Collector issued impugned notification under section 4 of the Acquisition Act 04.12.2015. Notification was issued by the Commissioner under section 17(1) of the Acquisition Act. 16.02.2016. The Sub-Committee of the Foundation recommended quota policy and eligibility criteria in respect of allotment and distribution of plots in the proposed Sector F-14 and parts of Sector F-15. Base d on this report summary was forwarded by the Ministry of Housing and W orks to the Prime Minister for his approval. 01.09.2016. The Secretary Housing and Works was informed that the Prime Minister had seen the summary and had observed that the policy did not require his approva l and that it should be decided by the Foundation on its own. However , it was specifically directed as follows;- i) Any such policy should comply , in letter and spirit, with the provisions of 'Abolition of Discretionary Quotas in Housing Scheme Act, 2013'; and ii) There should be no special quota for any Group/Service or Organization at all, as a matter of principles of equity and fairness." April, 2017. Despite the fact that the instant petitions were pending the Foundation obviously at its own risk, issued letters to its members wherein they were asked to deposit the first instalment for their respective plots. The Foundation has collected substantial funds despite the pending petitions. It is beyond comprehe nsion how the Foundation sent offer letters and collects instalments when the matter was subjudice. 5. The learned counsels appearing on behalf of the petitioners have contended that; the Capital Development Authority Ordinance, 1960 (hereinafter referred to as the "Ordinance of 1960" ) is a special law and, therefore, shall prevail over the provisions of a general law; the Ordinance of 1960 is a self contained comprehensive statute, which provides for acquisition of land and prescribes a procedure relating thereto; for the purposes of determination of fair compensation Land Acquisition and Rehabilitation Regulations, 2007 (hereinafter referred to as the "Acquisition and Rehabilitation Regu lations" ) has been made and duly notified; the Acquisition Act is inconsistent with the provisions of the Ordinance of 1960 and, therefore, land cannot be acquired there under; reliance has been placed on "Mst. Shah Sultan and 45 others versus Chief Commissioner of Islamabad and 05 others" [2004 CLC 145]; Section 22 of the Act of 1960 is explicit and the legislature in its wisdom has declared that the land within the 'specified areas' shall be liable to acquisition at any time in accordance with the provisions of this Chapter; the legislature through primary legislation has declared the entire area liable to acquisition; section 22 is a statutory declaration having the effect of a notice under section 4 of the Acquisition Act; as long as section 22 is enforced notice under section 4 of the Acquisition Act cannot be issued within the 'Specified Areas'; the impugned notices are ultra vires the Ordinance of 1960; land cannot be acquired within the 'specified areas' except under the
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Ordinance of 1960 and in the manner prescribed therein and the regulations made there under; compensation offered by the Land Acquisition Collecto r is far less than what is paid under the Acquisition and Rehabilitation Regulation; the adjoining Sector i.e. F-13 is being acquired by the Authority and the affectees are being compensated in accordance with the Acquisition and Rehabilitation Regulations, while the petitioners are being treated differently; the land belonging to the petitioners is being forcibly taken for the benefit of the most privileged and influential segments of the society; the scheme and the entire process is inherently discretionary; without prejudice to the argument that land cannot be acquired under the Acquisition Act, forced acquisition in the facts and circumstances of the instant petitions cannot be treated as 'public purpose' in the context of the Acquisition Act since land is being taken from less privileged and given to the powerful and influential classes of the society; the entire scheme is a fraud upon the fundamental rights of the people of Pakistan and the intent of the legislature envisaged under the Ordinance of 1960 as well as the Constitution; the proposed housing scheme is in violation of the law expounded and laid down by the august Supreme Court in respect of disposition and sale of assets which vest in the State i.e. the Government; it is settled law that executive authorities are not vested with power or jurisdiction to dispose of or sell assets vested in the Government in a non-transpar ent manner; the beneficiaries of the scheme for whom land is being acquired in sectors F 14 and F 15 are otherwise not entitled nor have a vested right; the plots are being offered to the beneficiaries at prices far lower than what it would fetch if auctioned through a transparent process; it is settled law that what cannot be done directly can also not be done indirectly; the selection of persons for allotment of plots is not based on rational and reasonable classification; such non- transparent disposition or sale and exten ding benefits involving substantial pecuniary benefit is in violation of the law laid down by the august Supreme Court and simultaneously violates the fundamental rights not only of the petitioners but the people of Pakistan; the executive authorities are not empowered to sell or dispose of State property in a non-transparent manner by giving substantial pecuniary benefit to the beneficiaries unless the same has been expressly authorised under an Act of the appropriate legislature and meets the test of rational and reasonable classifications; acquisition of land for distribution amongst privileged classes in a non-transparent manner cannot qualify the test of 'public purpose'; the Land Acquisition Collector without application of mind has issued the impugned notification on the dictation of the authority which is alien to the provisions of the Acquisition Act; the Land Acquisition Collector and other officers in the hierarchy of the administration of Federal Capital Territory are themselves beneficiaries and, therefore, the acquisition proceedings stand vitiated because of their private pecuniary interests; the proceedings under the Acquisition Act are of a quasi-judicial nature and, therefore, the element of bias, particularly when there is pecuniary interest would vitiate the entire proceedings; the Master Plan of Islamabad has statutory backing and the same is being violated in collusion with officials of the Authority; under Article 173 of the Constitution of the Islamic Republic of Pakistan, 1973, the executive authorities cannot sell / dispose of property owned and vested in the Government except in a transparen t manner and that too subject to an Act of Parliament; the beneficiaries cannot claim a right over property owned by the Government; sale or disposition of State asset in a non-transparent manner is violation of the fundamental rights of the people of Pakistan; no vested right exists in favour of the beneficiaries to claim such a financial benefit; reliance has been placed on "Syed Mehmood Akhtar Naqvi versus FOP through Secretary Law and others" [PLD 2012 S.C. 1089 ], "Maj. Mehtab Khan versus The Rehabilitation Authority and another" [PLD 1973 S.C. 451], "Muhammad Mohsin Ghuman and others versus Government of Punjab through Home Secretary , Laho re and others" [2013 SCMR 85], "Syed Mushahid Shah and others versus Federal Investment Agency and others" [2017 SCMR 1218 ], "BNP Pvt. Ltd. and others versus Capital Development Authority" [PLD 2017 Islamabad 81], "Nazir Ahmad and 08 others versus Commissioner , Lahore Division, Lahore and 03 others" [2000 MLD 322], "Divisional engineer , Gujranwala and 03 others versus Rana Muhammad Sharif" [2002 CLC 985], "Haji Ghulam Zamin and another versus A.B. Khondkar and others" [PLD 1965 Dacca 156], "Nagpur Improvement Trust and anoth er versus Vithal Rao and others" [AIR 1973 S.C. 689] and "Chiniot Co-operative Housing Society Ltd. through President versus Government of Punjab through Secretary Cooperative Department and 02 others" [ PLD 2016 Lahore 293 ]. 6. The learned counsel appearing on behalf of the Foundation has argued that; the scheme was approved by the Prime Minister vide approval, dated 01.05 .2015; the Foundation has been declare d by the august Supreme Court
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as an agency of the Federal Government; the Foundation had made a request regarding acquisition of land in Sectors F-14 and F-15; Award, dated 15.11.2016 has been finalized and an area measuring 7003 Kanals has been acquired; out of 650 affectees, 280 have filed references under section 18 of the Acquisition Act; the Acquisition Act is extended to the Federal Capital Territory; there is no conflict between the provisions of the Ordinance of 1960 and the Acquisition Act; efficacious remedy is available to the petitioners under section 18 of the Acquisition Act; there is no malafide on part of the Land Acquisition Collector nor the proceedings suffer from illegality; the land is being acquired for 'public purpose' and not for the Foundation as a Company; the purpose and object is to provide plots to Federal Government Employees and other groups; earlier land for Sectors G-13 and G-14 was acquired and the proceedings were challenged before the Lahore High Court, Rawalpindi Bench, Rawalpindi and were upheld through judgment reported as "Ghulam Murtaza, etc versus Ghulam Jillani, etc" [2000 YLR 1798]; acquisition of land for a housing scheme comes within the ambit of the expression 'public purpose'; the Foundation is under the control of the Federal Government and, therefore, is covered under the definition given in the Companies Act, 2017 i.e. section 2(54) thereof; the august Supreme Court has also declared the Foundation as an agency of the Government and reliance in this regard has been placed on "Federal Government Employees' Housing Foundation through Director General, Islamabad and another versus Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad" [PLD 2002 S.C. 1079]; as an agency of the Government, the Foundation was competent and empowered to request the Land Acquisition Collector for acquisition of land in Sectors F-14 and F 15; the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, rendered in the case "Mst. Shah Sultan and 45 others versus Chief Commissioner of Islamabad and 05 others" [2004 CLC 145] is distinguishable since in that case the matter related to Punjab Land Acquisition Rules, 1983 and the land had been acquired for a Company; the judgment rendered by the Lahore High Court, Rawalpindi Bench, Rawalpindi, reported as "Mst. Shah Sultan and 45 others versus Chief Commissioner of Islamabad and 05 others" [2004 CLC 145], wherein it was declared that the Acquisition Act is not attracted in the Federal Capital Territory, Islamabad is per incurriam and in this regard reliance has been placed on "Sindh High Court Bar Association through its Secretary and another versus FOP through Secretary, M/O Law and Justice, Islamabad and others" [PLD 2009 S.C. 879]; the Acquisition and Rehabilitation Regulations are not attracted since the land is not being acquired under the Ordinance of 1960; section 22 of the Ordinance of 1960 is attracted only in case of land which is acquired under the Ordinance ibid and has no relevance for the purposes of Acquisition Act; reliance has been placed on "Islamabad Club versus Punjab Labour Court No.2, etc." [PLD 1981 S.C. 81], "The Murree Brewery Co. Ltd. versus Pakistan through The Secretary to Government of Pakistan, Works Division and 02 others" [PLD 1972 S.C. 279], The Federation of Pakistan through The secretary, Establishment Division, GOP, Rawalpindi versus Saeed Ahmad Khan and others" [PLD 1974 S.C. 151], "Dr Muhammad Nasim Javed versus Lahore Cantonment Housing Society Ltd. through The Secretary Fortress Stadium Lahore Cantt and 02 others" [PLD 1983 Lahore 552], [PLD 2009 S.C. 217], "Allah Ditta and others versus Province of Punjab" [PLD 1997 Lahore 499], Tej Ram Jag Ram versus Union of India, Ministry of Works, Housing and Supply, New Delhi and others" [AIR 1959 Punjab 478], "Smt. Somawanti and others versus The State of Punjab and others" [AIR 1963 S.C. 151], "State of Gujarat and another versus Musamigan Imam Haider Bux Razvi and another" [AIR 1977 S.C. 594] and "Faisalabad Development Authority versus Raja Jahangir Nasir and others" [2004 SCMR 1247 ]; the learned counsel has further informed this Court that the august Supreme Court has allowed Constitutional Petition no. 38 of 2013 vide order , dated 29.09.2014 pursuant whereof land acquisition proceedings under the Acquisition Act have been initiated and contempt proce edings are pending before the august Supreme Court. 7. The learned Advocate General has argued the case at length. He has contended that; the Acquisition Act is enforced in the area of Islamabad Capital Territory; the arrangement for acquisition of the scheme for which the land is being acquired is a composite arrangement between the Authority and the Foundation; the judgment of the august Supreme Court rendered in the case titled "Mustafa Impact versus Government of Pakistan" [PLD 2016 S.C. 808] is being misinterpreted by the learned counsels for the petitioners; Article 173 does not require separate legislation for sale or disposition of land vesting in the Government; the…
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