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Official Citation: 2025 PLJ 254
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2025
Decision Date: 2025-04-07
Parties: Mst. Kaniz Fatima & Another vs Federation Of Pakistan & 6 Others
Ruling Summary: This decision was rendered by the Islamabad High Court on 2025-04-07, officially reported as 2025 PLJ 254. In this matter between Mst. Kaniz Fatima & Another and Federation Of Pakistan & 6 Others, 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 PLJ 2025 Islamabad 254
Court Name: Islamabad High Court Judge(s): Muhammad Azam Khan Title: Mst. Kaniz Fatima & Another vs Federation Of Pakistan & 6 Others Case No.: Writ Petition No. 2016 Of 2021 Date of Judgment:2025-04-07 Reported As: 2025 IHC 230, PLJ 2025 Islamabad 254 Result: Petition Allowed
JUDGMENT
JUDGMENT MUHAMMAD AZAM KHAN, J. Through the instant Writ Petition, the Petitioners [Mst. Kaniz Fatima and Nazir Begum] have assailed the Notification dated 19.03.2021 ("Impugned Notification") issued by the Respondent No. 5 (Land Acquisition Collector) under Section 4 of the Land Acquisition Act, 1894 ("Land Acquisition Act"). 2. The brief facts of the case in hand as per the Memo of Petition are that both the Petitioners are women and widows. The Petitioner No.1 [Mst. Kaniz Fatima] is co-owner in physical possession of land measuring 1 Kanal 15 Marlas out of Khasra Nos. 3937 and 3949, while Petitioner No. 2 [Nazir Begum] is co-owner in physical possession of area measuring 1 Kanal 11 Marlas comprised in Khasra Nos. 3951, 3954 and 3948 of village Sihala, Tehsil & District Islamabad. The land described herein above has been inherited by the Petitioners from their respective fathers. The Petitioner No. 1 has constructed her residential house on the land in Khasra No. 3937 and is living there alongwith her family members, while remaining part of the land owned by both the Petitioners has been reserved by them for the residential accommodations of their children. The Respondents No. 4 [District Collector/Additional Deputy Commissioner (Revenue), ICT, Islamabad], at the behest of Respondent No. 5 [Land Acquisition Collector, Islamabad Capital Territory] has issued a Impugned Notification under Section 4 of the Land Acquisition Act vide Dispatch No. 336/2(218)-DRA-2021 and the same has been got published in the Gazette of Pakistan in its extraordinary issue dated 30.03.2021. The Notification is intended and oriented to acquire among others land/property of the Petitioners described herein above. The Impugned Notification followed by other proceedings in pursuance of the same for acquisition of the Petitioners' land/properties is illegal, unlawful, without
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lawful competence and jurisdiction, ultra vires of the law which militates against the fundamental rights of the Petitioners under Articles 4, 9, 10-A, 15, 23 and 24 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") therefore, the same along with other allied acts and deeds by the Respondents is liable to be set-aside. Hence, the Petitioners have preferred the instant Petition. 3. The learned counsel for the Petitioners argued that the Petitioners are citizens of Pakistan and have rights to be treated in accordance with law in view of Article 4 of the Constitution; that Respondents Nos. 2 to 5 are public functionaries and are under legal obligations to perform their functions and to discharge their duties strictly in accordance with law, however, unfortunately they are acting otherwise being instrumental to serve the illegal and unlawful designs/motives of Respondent No. 6 [Defence Housing Authority ("DHA")]; that Respondent No. 6 has been created under Act No. XII of 2013 of the Majlis Shura and according to Section 3(2) of the said Act, DHA is a Body Corporate and empowered to purchase, procure, sell, exchange, hold and dispose of the property with its name and at the same place, it is provided that DHA can sue and can be sued with its given nomenclature; that sub-section 2 of Section 3 of the Act ibid, provides that while designing, planning and executing a scheme in the specified area, DHA shall adhere to the master plan of Islamabad and to ensure that all public roads and revenue paths leading to and from their adjoining areas and to access to the graveyard shall as far as possible be maintained and no change or alteration be made in such road, paths or access except with prior approval of the Government; that Section 4 of the Act ibid provides for constituting a governing body comprised of officials from civil as well as army service; that DHA is shown to be headed by the Secretary, Ministry of Defence, its powers and functions are given in Section 4 (2) of the Act, thereafter constitution of an Executive Board has been provided under Section 5 along with members and office bearers of the same and its powers and functions are to be performed and provided under Section 6 of the Act and according to sub-section 2 of the same, powers to be exercised by the Board, without prejudice to the generality of the powers under Section 6(1), shall be relevant into the matters which inter alia have been specified therein; that according to Section 21 of the Defence Housing Authority Act, 2013 ("DHA Act"), its provisions are not to be in derogation or in addition to any other law for the time being in force; that from perusal of the DHA Act, powers and functions of its officials, particularly into the matters of acquisition of land in ICT, exercise of the same are subject to certain legal restrictions and conditions; that examination of the acquisition of the land by DHA through the Impugned Notification in juxtaposition with the relevant provisions of DHA Act, shows that the same suffers from lack of jurisdiction, competence and powers with numerous serious illegalities, and given these facts, the Impugned Notification followed by any proceedings pursuant thereof, if any, are unlawful, null and void for the following reasons:- i. That Impugned Notification has been issued and got published by Respondent No.5. It is without lawful competence and without jurisdiction. According to Section 3(c) of the Land Acquisition Act read with Rules 3, 4, 5 and 6 of the Land Acquisition Rules, 1983 ("Land Acquisition Rules"), it is only the District Collector competent to issue Notification under Section 4 of the Land Acquisition. The Impugned Notification, therefore, enjoys no legal value, effect, sanctity and consequences as the same has been issued and got published by Respondent No. 5. The Impugned Notification is, therefore, ultra vires of the law, without lawful competence and jurisdiction, coram non judice, null and void with no legal value, sanctity, effect and consequences. ii. That DHA is neither a Government entity nor a Company registered under the Companies Act or incorporated by any Act of the Parliament or a Society registered under the Societies Act, 1860 and also a registered society within the meaning of Cooperative Societies Act, 1925. Therefore, in view of its character/ status as such, provisions of the Land Acquisition Act cannot be made applicable for acquisition of land in its favour.
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iii. That according to the provisions of Section 6(j) of the DHA Act, it is only the Executive Board constituted under Section 5 of the DHA Act to apply for acquisition of land to the Government for initiation and completion of the process of land acquisition in accordance with the law governing the land acquisition. In sheer violation of the same, relevant application for acquisition dated 12.01.2021 has been addressed to the District Commissioner Officer ICT Islamabad (no Officer or Authority being in existence as such). iv. That the application asking for acquisition of land for DHA, has been filed by Ch. Sajid Abdullah Sraa, an Advocate High Court as legal Advisor instead of Executive Board constituted under Section 6 or even the Administrator appointed under Section 8 of the DHA Act. No proceedings for acquisition of the land could be initiated even by the competent Authorities under the provisions of Land Acquisition Act, except on the application made by the Executive Board or Administrator of DHA and that too to the Government (Federal Government) as per mandate of section 6(j) of the DHA Act. v. That viewing the legal position as given above, the entire proceedings resulting in issuance and publication of Impugned Notification under Section 4 of the Land Acquisition Act illegal, unlawful, ultra vires of the law, without competence and lawful authority and given its character as such, the same is null and void with no legal effect, value and consequences. vi. That notwithstanding the above, the Impugned Notification under Section 4 of the Act is opposed to the very application by DHA as made through its Legal Advisor. The application finds mention of land Khasra Nos. 3331, 3332, 3335, 3556, 3994, 3995, 3996, 3998, 3999 and 4042 for the purpose of acquisition while contrary to that Impugned Notification speaks of acquisition of land comprised in Khasra Nos. 3908, 3937, 3938, 3940, 3941, 3951, 3974, 4010, 4024, 4025, 4026, 4038, 4048 and 4042/1 of village Sihala District Islamabad. This being a very serious and glaring contradiction is indicative of the fact that the Impugned Notification is unfounded in facts and is result of arbitrarily exercise of powers by the Respondent No. 5. The Notification, therefore, is the result of misuse and abuse of powers by him which in view of its given character/status is null and void with no legal value, effect and consequences. The same is also violative of Articles 4 and 10-A of the Constitution. vii. That in addition to the above, the application seeking acquisition on behalf of DHA is backed by its business in Joint Venture which is duly spelt out by the expression (JV) in its relevant No. as Ltr ID: 7/JVMC/01-21 dated 12.01.2021. As a matter of fact, DHA is conducting its business of real estate on commercial basis in Joint Venture with M/s Behria Town (Pvt.) Ltd. and Habib Rafique (Pvt.) Ltd. viii. That veritably the land proposed for acquisition through the Impugned Notification is not meant for the purpose and objects as are given in the preamble of the DHA Act. The application seeking the acquisition of land is manifestation of hidden common motives of DHA and its partners in Joint Ventures named above to grab land /property of the Petitioners under the garb of the Land Acquisition Act. It is nothing but a misadventure on the part of DHA to deprive the Petitioners of their land /properties. ix. That the Impugned Notification speaks of the acquisition of land at the expense of DHA but for public purpose. It negates the very object and purpose of the Constitution and creation of DHA, which in its preamble part of the Act is not empowered to acquire land for public purposes. x. That given the above facts, acts and deeds of the Respondents along with Impugned Notification under Section 4 of the Land Acquisition Act are neither fair and transparent nor the same qualify the constitutional requirement of "due process" as per the mandate of Article 10-A of the Constitution. xi. That the Impugned Notification followed by the acquisition of petitioners' land along with other owners, in reality, is not required for the public purpose or even for the purpose as shown in the Impugned Notification.
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xii. That as a matter of fact the land now being sought to be acquired pertains to 254 commercial and residential plots with an area which have already been sold out to EOBI against a sale consideration of Rs.15,324,000,000/- The DHA, did not own the land underneath these plots nor it was possessed by it. Xiii. That all these plots form part of and located on the proposed DHA Expressway A-Block in its project called as Business Corridor. Majority of the plots so sold by the DHA in favour of EOBI with reference to location, comprised of the land described in terms of Khasra Numbers in the Impugned Notification. xiv. That EOBI and its officials were found involved in a big financial scam and the august Supreme Court of Pakistan took cognizance of the same in its Suo Moto jurisdiction under Article 184(3) of the Constitution. Now since the incumbent management of EOBI demanded physical possession of the plots along with title of the land underneath the same, which was neither owned by DHA nor possessed. xv. That in order to overcome the situation and to get rid of the problem, DHA has devised a plan to get the land acquired in the garb of its utilization for its Expressway. xvi. That in view of the above proposed acquisition of the Petitioners' land along with others and for that issuance of the Impugned Notification, it is not meant for the purpose and object as mentioned therein instead it is veritably required to be delivered to the EOBI. Given these facts, the Impugned Notification and the proposed acquisition of land amounts to making mockery of the law and an attempt to hoodwink the entire legal system. xvii. That the above facts notwithstanding the Impugned Notification is also violative of the provisions of Section 3(4) of the DHA Act in as much as it is destined to acquire even the public path. Reference to this effect may be made to Khasra No. 4049 which the Impugned Notification by itself shows as a (way). 4. The learned counsel for the Petitioners further argued that DHA has also occupied public paths comprised in Khasra Nos. 5583, 3297, 3984 of the same village Sihala which acts and deeds on their part were challenged before this Court in W.P No. 3372/2017 titled "Ch. Sabi Zahid vs. Chief Commissioner ICT Islamabad etc", which was allowed vide Judgment dated 18.03.2019; that in addition to above acquisition of land by the Army Welfare Trust predecessor of DHA has already been declared unlawful by the Honorable Lahore High Court, Rawalpindi Bench Rawalpindi vide Judgment passed in case of Muhammad Saqib Abbasi cited as 2013 CLC 158 and the same has been upheld vide Judgment dated 13.11.2018 in ICA No. 140 of 2012 titled Army Welfare Housing Scheme etc. vs. Ch. Ejaz Ahmed etc; that acquisition of land by DHA and issuance of Notification under the provisions of Land Acquisition Act by the Respondent No. 5 are also in violation of CDA Ordinance, 1960 read with the Land Acquisition Regulations 1961; that the latter being special law cannot be overridden by the Land Acquisition Act being general law; that this legal situation is also supported by Section 21 of the DHA Act which speaks clearly on the fact that the provisions of said Act shall be in addition to and not in derogation of another law for the time being in force, therefore, application of the DHA Act in ICT, is derogatory to the CDA Ordinance, 1961 read with the Land Acquisition Regulations, 1961; that the Impugned Notification with reference to the object and purpose is not at all for any object and purpose mentioned therein; that the officials of DHA are misusing and abusing its legal status for their own benefits and interest; that previously DHA out of the acquired land, sold an area of 01 Kanal 16 Marlas out of Khasra No. 1141 in favour of M/s Behria Town (Pvt.) Ltd. along with other land against the sale consideration of Rs.1,2,500,000/- vide Mutation No. 7024 dated 15.01.2009 attested by the Revenue Officer; that faced with the impugned, illegal, and unlawful acts and deeds of the Respondents, the Petitioners have no alternative and efficacious remedy but to invoke the Constitutional jurisdiction of this Honourable Court. Lastly, the learned counsel prayed that the Impugned Notification issued under Section 4 of the Land
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Acquisition Act, along with any subsequent proceedings aimed at acquiring the Petitioners' land, including that of others, is illegal, unlawful, and outside the lawful competence, authority, and jurisdiction of the Respondents; that the Impugned Notification and subsequent proceedings are in violation of the law, based on malafide intent, and an abuse of power by the Respondents; that such actions infringe upon the Petitioners' lawful rights under Articles 2-A, 4, 8, 9, 10-A, 23, and 24 of the Constitution; and that the Impugned Notification as well as the Respondents' actions are alleged to violate the CDA Ordinance of 1960, the Land Acquisition Regulations of 1961, and the DHA Act; and therefore, the Impugned Notification under Section 4 of the Land Acquisition Act, along with any subsequent proceedings, be declared void, without legal effect, and be quashed or set aside. 5. On the other hand, the learned counsel for contesting Respondents vehemently opposed the arguments of learned counsel for Petitioners and prayed for the dismissal of the instant Writ Petition. 6. I have heard the learned counsel for the parties and have also perused the record with their able assistance. 7. As manifest from the arguments advanced by the parties and on perusal of the record, the Petitioners have challenged the validity of the Impugned Notification issued by the Respondent No. 5, for acquisition of land measuring 188 Kanal and 6 Marlas, for DHA for the purpose of construction of road namely Expresswa y in Village Sihala, Tehsil & District Islamabad on its own expenses for public purpose. 8. The points raised by the Petitioners are adduced by this Court for its determination through this judgment and are given as under: - i. Did Respondent No. 5, has the legal authority to issue the Impugned Notification under Section 4 of the Land Acquisition Act? ii. Was there a proper request made by the Executive Board of DHA for the acquisition of the land for public purpose? iii. Does the stated purpose of the acquisition qualify as a "public purpose"? iv. Can the Land Acquisition Collector acquire land in Islamabad Capital Territory (ICT) under the Land Acquisition Act, without obtaining prior approval/NOC from Respondent No. 7 [Capital Development Authority ("CDA")]? V. Is CDA the only legally authorized body to acquire land under the Capital Development Authority Ordinance, 1960? 9. Before discussing and dilating upon the above-mentioned points for determination, I would like to mention some background regarding the development of Islamabad Capital Territory. 10. The Capital Development Authority was established under the Capital Development Authority Ordinance, 1960 ("CDA Ordinance") to plan and develop the Capital of Pakistan pursuant to a meticulously prepared 'Master Plan' by experts after extensive deliberations. The 'Master Plan' was given a statutory backing under Section 11 of the CDA Ordinance. The 'Master Plan' had envisaged that the entire area described in the 'Schedule' of the CDA Ordinance, would be acquired for establishing the Capital of Pakistan through the exercise of the State's power of eminent domain. In pursuant to the Act, the process for acquiring land was initiated and the first award was announced on 12.02.1961. Thereafter, the CDA has announced 527 awards so far, for acquiring land for developing sectors in accordance with the master plan, however, the development of number of sectors is still pending and the allottees are facing immense problems. Changes to the Master Plan Originally Islamabad Capital Territory included Rawalpindi, Margallah Hills, and Rural areas. After a Presidential order, the Master Plan was revised, removing Rawalpindi from Islamabad development area.
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c. In 1992, the Islamabad Capital Territory (Zoning Regulations), 1992 ("Zoning Regulations") further divided into five zones with distinct development rules. 11. The Islamabad Capital Territory (Zoning Regulation), 1992 also provides the development strategies of the newly delineated zones. The development strategy of Zone V is here as under: (a) the existing urban sprawl will be organized into a planned urban development and housing scheme will be encouraged; (b) a broad outline development plan shall be prepared by the Authority in whose context the schemes shall be considered for approval. The minimum area of such a scheme shall not be less than 100 acres; (c) the detailed lay-out plan and development specifications of the scheme shall be subject to the approval of the Authority; (d) the schemes shall have their independent accesses and roads, water supply and primary sewerage treatment systems to be developed by the sponsors at their own cost and expense; the possession of individual plots in the scheme shall not be handed over to allottees until the land is fully developed by the sponsors and completion certificate in this regard obtained from the Authority; (f) all land reservations made for roads and utilities in such schemes shall belong to the Authority; (g) the sponsors shall deposit with the Authority as security hundred percent (100%) estimated total cost of development of the scheme or shall mortgage thirty percent (30%) of the saleable area in lieu thereof till a completion certificate is obtained by the sponsors from the Authority in respect of the scheme; (h) all the buildings to be constructed in the zone shall be subject to the Islamabad Building Regulations, 1963 ("Building Regulations"), and Islamabad Residential sectors Zoning Regulation, 1985; (i) After completion and allotment, the scheme shall be maintained by the sponsors or by an association of the allottees, as the case may be till such time the scheme is taken over by the Authority; (j) all such permissions shall be subject to payment of Scrutiny Fee/Service charges as determined and levied by the Authority from time to time, and without prejudice to the right of the Authority to acquire the land in public interest; (k) Individual construction not falling within the scheme approved by the Authority will not be permissible. However, repair of old houses and expansion of existing houses may be allowed once by the Authority to the native residents subject to the conditions that the site is located within the limits of the main body of the village. The covered area of such construction shall not exceed 1000 sq. feet including expansion and such permission shall not in any way impede the right of the Authority to acquire the property wherever needed in the public interest, such requests shall be routed through the concerned Union council. 12. Chapter IV of the Zoning Regulations, provided the penalties for violations which says:- "Any person, group of persons, organization, etc. if found violating any provision of this Regulation shall be liable to be proceeded against as under: - (i) The offending structure made in violation of the provisions of this Regulation, the Islamabad Building Regulation, 1963, or the Islamabad Residential Sectors Zoning Regulation, 1985, shall be liable to demolition in accordance with Section 49-C of the CDA Ordinance, 1960, unless regularized by the Authority on the payment of compounding fee as may be fixed by the Authority from time to time. (ii) The NOC/permission given by the Authority to any person, group of persons, organization, etc, for a scheme shall be liable to be cancelled.
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(iii) Any person, group of persons, organization, etc. found guilty of violating any of the provisions of the Regulation of who or which without lawful excuse fails or refuses to comply with any direction or order issued by the Authority in this behalf, may be proceeded against under Section 46 and 46-B of the CDA Ordinance, 1960, in addition to action under clauses (i) and (ii) above. 13. On 30.1.2020, CDA introduced another Regulation with the name of "Revised Modalities & Procedures (2020) framed under ICT (Zoning) Regulation, 1992 (As Amended) For Development of Private Housing/Farm Housing Schemes in Zones 2, 4 & 5 of Islamabad Capital Territory Zoning Plan". 14. Now coming to the points for determination by this Court one by one. (i) Did Respondent No. 5, has the legal authority to issue the Impugned Notification under Section 4 of the Land Acquisition Act? 15. According to Section 3 of Land Acquisition Act read with Rule 3 of Land Acquisition Rules, a Collector means the District Collector or any officer appointed by the Board of Revenue or Commissioner to perform the Collector's duty. For ready reference, both the above said Section & Rule are reproduced hereunder: - Section 3 of Land Acquisition Act, 1894 "The expression "Collector" means the Collector of a District and includes any officer specially appointed by the Board of Revenue or Commissioner to perform the functions of the Collector of a District under this Act.". Rule 3 of Land Acquisition Rules, 1983 "The acquiring agency shall submit an application to the Collector of the District concerned in the prescribed form for the acquisition of land under the Act given full justification of the public purpose involved and the minimum area required by it with full details of all other area owned by it in same locality." 16. According to these enactments, it is the Collector of a District and includes any officer specially appointed by the Board of Revenue or Commissioner to perform the functions of the Collector of a District. In this regard, Notification dated 15.08.2018 issued by the Chief Commissioner, Islamabad Capital Territory bearing No.1(19)-law/2008/3055 is very much clear, vide which Mr. Kamran Ali Cheema, Additional Deputy Commissioner Revenue, Islamabad, is empowered as Land Acquisition Collector, Islamabad within the revenue…
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