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Petitioner: ABDUL QADEER KHAN and others VS Respondent: CHAIRMAN, C.D.A. through its Chairman JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Nawaz Abbasi Title:ABDUL QADEER KHAN and others vs CHAIRMAN, C.D.A. through its Chairman
JUDGMENT
Reported As: 1999 YLR 247 Result: Petition allowed Judgment JUDGMENT ' The following Writ Petitions bearings Nos.296 of 1992, 297 of 1992, 298 of 1992, 375 of 1992, 515 of 1992, 521 of 1992, 522 of 1992, 523 of 1992, 524 of , 1992, 525 of 1992, 599 of 1992, 770 of 1992, 791 of 1992, 401 of 1994, 2435 of 1994 and 1369 of 1997 involving common question of law and fact are being disposed of through this single judgment. 2. The petitioners being the owners of the land situated in Banni Galla forming part of Villages Mohra Noor located in the capital area of Islamabad near Rawal Dam have challenged the acquisition of the same by the respondents under the Capital Development Authority Ordinance, 1960 (Ordinance XXIII of. 1960) to be illegal and without lawful authority. 3. The facts in the background giving rise to these Constitution petitions as supplied by the petitioners are that some of the petitioners constructed residential houses on the lands owned by them after getting approval of the site plans from the Union Council, Bara Kahu, Islamabad, under section 47 read with section 32 and the First Schedule to the Capital Territory Local Government Ordinance, 1979. Initially, the Capital Development Authority through the notice, dated 4-7-1988 under Pakistan Capital Regulation Ordinance, 1960 (M.L.R. 82 of 1960) raised an objection to the construction of the house belonging to petitioner No,2, widow of Mahmood-ul-Hassan. In reply to the said notice, 'she made it clear to the C.D.A., that under. Regulation in question, the Capital Development Authority was not empowered to take any action in the area and the construction was being raised on the basis of the site-plans duly approved by the Union Council concerned under section 4(2) of the said Regulation and consequently the respondent/Capital Development Authority having no jurisdiction to interfere in the matter should withdraw the notices. The
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respondents thereafter, kept silent and did not object to the construction of houses in the area till June, 1992 when one of the petitioners, namely, Muhammad Ayub was restrained from raising the construction, who filed a suit for permanent injunction seeking a restraint order against the respondents from demolishing his house, whereupon the Capital Development Authority while conceding the jurisdiction of the local council in the area made a statement before the Civil Court that the C.D.A. Without demolishing the structure would approach the concerned Union Council for the cancellation of site-plan already sanctioned with further request not to sanction any site-plan for the constructions in the area in future. However, the construction of houses in Village Banni Gala remained continued on the basis of the building plans duly approved by the Union Council Bhara Kahu with the result that the Capital Development Authority filed ten different , suits against the Union Council and the land owners seeking restraint order against the Union Council, Bhara Kahu and the land owners not to approve the site-plans and raise the construction. Later, without waiting the result of the suits, the respondents through an extra legal measure initiated an operation of the forcible demolition of the houses in the afternoon of 25th of June, 1992 which continued till late in the night on the next day i,e, 26-6-1992 during the public holidays. As a result of this unlawful and forcible operation of demolition of houses, a few persons while putting resistance lost their lives and a number of others sustained injuries at the hands of the police. The respondents thereafter, withdrew the above said civil suits on 27-6-1992 and on the basis of a directive of Chairman, C.D.A. Under section 33 of the Capital Development Authority Ordinance, 1960 issued notice under section 27(1) of the said Ordinance with the signature of Deputy Commissioner, C.D.A. Purported to have been issued on 25-6-1992 and with the help of police contingent proceeded for the acquisition of land. The notice in question contained the decision of the Government to acquire the land of Khasra numbers mentioned therein the list of which is annexed with this petition. The said notice did not disclose any purpose or the particulars of the scheme for which the land was being required. The service of notice upon the concerned persons including the petitioners is claimed on 25-6-1992 with direction to submit their claim by 9-7-1992, whereas the signatures of the Deputy Commissioner, C.D.A. On the notice bear the date as 28-6- 1992 which shows that the notice in question was actually served upon the land owners after making entry into the land and demolition of the houses through physical operation at the spot. The urgency for the, acquisition of the land dispensing with the normal procedure provided under the law was also not disclosed. The petitioners have challenged the validity of the impugned notices and the subsequent acquisition proceedings including the announcement of the Award and the change of ownership in the revenue record in the name of the C .D . A . 4. The respondents in the comments submitted to these petitions controverting the above factual position stated that a Phased Master Programme for the development of specified area in addition to the Master Plan was to be prepared subject to the approval of the Central Government and that the Rawal Lake with its surrounding area along with Banni Gala forming part of Specified Area and the capital site was included in National Park by the Federal Government through a notification, dated 27-4-1980 under section 21(1) of Islamabad Wild Life (Protection, Preservation, Conservation and Management) Ordinance, 1979. The Rawal Lake with an area of two Kilometers from the highest water mark was also made part of Margalla Hills National Park and the constructions in the area of Rawal Lake which is the main source of water supply to Rawalpindi City being in violation of Pakistan Capital Regulation, 1960 (M.L.R. 82 of 1960), the land owners were constantly warned not to build the area through notices, dated 16-10-1987, 11-2-1988, 9-1-1990, 4-11-1990, 30-7-1991, 30-10- 1991 and 7-2-1992 (copies placed on record). Further, the Local Councils were also informed by the Administrator, Islamabad that the constructions in the specified area without the permission of the C.D.A. Were illegal and that the authority of the said Union Councils of approving the building plans was subject to the Capital Development Authority Ordinance, 1960, Pakistan Capital Regulations,
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1960 (MLR 82 of 1960), Islamabad (Preservation of Landscape) Ordinance, 1966, and Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979). With a view to avoid pollution in the drinking water of Rawal Lake being supplied to Rawalpindi City, a high powered Committee was constituted by the Federal Government to look into the matter. The said Committee reviewing the situation recommended for the removal of all illegal constructions in the National Park area and consequently decision was taken for acquisition of all lands located within the radius of two kilometers from the water mark of the Lake. In pursuance thereof, the C.D.A. While proceeding under section 33 of the Capital Development Authority Ordinance, 1960, after giving notice under section 27(1) of the said Ordinance demolished the illegal constructions on 25-6-1992 and 26-6-1992. Learned counsel for the respondents pleaded that some of the petitioners filed civil suits against the action of demolishing of houses and acquisition of land which were still pending at the time of filing these petitions and they having availed the remedy of civil suit could not invoke the constitutional jurisdiction of this Court. It was added that only seven persons raised construction on the basis of sanctioned building plans from the concerned Union Council and out of them only two were the petitioners before this Court. 5. The respondents claimed that notices under section 27(1) of the Capital Development Authority Ordinance, 1960, were issued on 23-6-1992 which were served on 25-6-1992 and denied that the same were issued on 28-6-1992. However, the respondents have admitted the armed clash and forcible action at the spot with the help of police, as a result of which a criminal case was also registered for the sad incident. The main stress of the learned counsel for the respondents was that the Margalla Hills National Park could not be allowed to be converted into a residential colony in violation of section 21(4)(iv) of Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979. It was pleaded that except Rawal Town, the remaining construction allowed by the C.D.A. In the surrounding area of National Park was properly planned, 6. Mr.S.M. Zafar, Senior Advocate, assisted by M/s. Abdul Baseer Qureshi and Gul Zaman Khan, Advocates, learned counsel for the petitioners raised the following contentions:--- (a) Chapter IV of the Capital Development Authority Ordinance, 1960, provides a complete procedure for the acquisition of land according to which after preliminary survey without the consent of the occupants, the entry in the building or the garden is not possible whereas in the present case, the notices under section 27(1) of the Capital Development Authority Ordinance, 1960, were served upon the petitioners on 28th of June, 1992, after three days of the taking over the possession at the spot on 25-6-1992. (b) That unless a Scheme in the specified area in terms of sections 11, 12 and 13 of the Capital Development Authority Ordinance, 1960, is first made, the land cannot be acquired under Chapter IV of the said Ordinance; (c) That the respondents without disclosing the public interest in a clandestine manner and in departure to the normal procedure provided under the Capital Development Authority Ordinance, 1960, as well as in derogation to the Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973, read with section 13 of the Capital Development Authority Ordinance, 1960 acquired the land. (d) That initially the respondents went for the acquisition of the land without preparing any scheme or disclosing the purpose, but later on took the stand before this Court that the land was part of the National Park and the construction was restricted to avoid pollution in the area of Rawal Dam. (e) That first demolition of houses through violence and then hurriedly acquisition of the land without following the proper procedure and showing any urgency was mala fide. (f) That the acquisition of the land was not in good faith and was discriminatory as the C.D.A. In the remaining area of National Park close to Rawal Lake itself developed the Abadis, namely, Malpur and Chak Shahzad as model villages in addition to Islamabad Club, the Motels, Rawal Town,
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National Institute of Health and Bricks Factories, Farming houses and a part of Diplomatic Enclave. Learned counsel added that even poultry farms on large scales with permission of C.D.A. Are located around the Rawal Lake and the residential area of Village Lakhwal adjacent to Village Bailin Gala is located at a close distance from Rawal Lake; (g) That the provisions of Chapter IV of Capital Development Authority Ordinance, 1960, are oppressive and offend the Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973. Further Article 2, 2-A and 227 of the Constitution of Islamic Republic of Pakistan, 1973 do not permit the taking away the property of an individual in extra legal manner. The learned counsel placing reliance on the case of The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279) forcefully argued that acquisition of land was illegal. 7. Mr. Bashir Ahmad Ansari, learned counsel appearing on behalf of Capital Development Authority in reply has argued in the following manner:--- (i) That the Union Council Bhara Kahu under Islamabad Capital Territory Municipal Ordinance, 1979, was not authorized, to approve the site-plans for the erection of buildings in the National Park area forming part of the specified area. (ii) That the Capital Development Authority Ordinance, 1960, would not permit sanction of any 'site plan unless in the first instance a scheme is sanctioned in terms of section 12 of the C.D.A. Ordinance, 1960 and further Pakistan Capital Regulation No,82 promulgated on 26-6-1960 which was protected under Constitution of Pakistan, 1962, read with Islamabad Building Regulation Ordinance, 1963, framed under Capital Development Authority Ordinance, 1960 and the Capital Development Authority Building Regulations, 1992, prohibit such constructions in the specified area. (iii) That the disputed land was properly notified as a part of National Park area, therefore, no construction in the said area could be raised under Islamabad Wildlife (Protection, Preservation Conservation and Management) Ordinance, 1979. (iv) That the area around the Rawal Lake is required to be developed at international standard through construction of modern hotels, restaurants etc., and the unplanned construction of residential houses would in addition to the source of pollution in the Rawal Lake which supplies drinking water to Rawalpindi City will destroy the beautification of Islamabad; (v) That the respondent/C.D.A. Repeatedly through public notices since 1988 warned the owners of the land in the area not to raise the construction. The Press Note , dated 4-11-1990 , notices,, dated 20-11 1991, 14-1-1992 and 17-2-1992 in the daily 'Muslim' are an evident proof of the fact that the petitioners were restrained from raising the construction in the area. (vi) That as per Master plan placed on record as Annexure (R-1), Banni Gala is part of the National Park area and the C.D.A. Without acquisition of land could place restriction on all types of construction in the said area and, thus, acquisition of the land under challenge was not at all required under. Capital Development Authority Ordinance, 1960, therefore, the objections being raised on behalf of the petitioners were not sustainable. ' In a nutshell, learned counsel argued that in view of the restriction on the construction in the specified area under different laws, the land in question cannot be used for any other purpose except for which it is specified by the C.D.A. And consequently, the C.D.A. Without acquisition of land and payment of compensation can restrain the owners from using their land in violation of the Master Plan and further without disturbing the ownership of the petitioners, the use of the property can be regulated by the respondents under Capital Development Authority Ordinance, 1960. Learned counsel for the respondents lastly has questioned the maintainability of this petition on the ground that the remedy of appeal against the Award is provided under section 36 of the Capital Development Authority Ordinance, 1960.
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' The Legal Adviser to the C.D.A., added that the Union Council Bhara Kahu having no authority to sanction site-plans for the construction in the specified area, the unauthorized construction was demolished and that the irregularities pointed out in the acquisition of land would only relevant for the purpose of determining the compensation but the acquisition cannot be declared as illegal for such reasons. 8. Learned counsel for the petitioners strongly contesting the objection regarding the maintainability of this petition argued that the petitioners have challenged the validity of the alleged notices under section 27(1) of the Capital Development Authority Ordinance, 1960, and the illegal acquisition of land including the Award and not the inadequacy of compensation, therefore, there was no need to file the appeal against the Award under section 36 of the Capital Development Authority Ordinance, 1960. 9. I have heard the learned counsel for the petitioners as well as the respondents at length and anxiously considered the impressive arguments. Before proceeding further, I deem it proper to dispose of the preliminary objection regarding the maintainability of this petition. The apex Court in the case of Murree Brewery Co. Ltd. (supra) observed as under:- "This system of judicial review is radically different from a system of appeals--though it is easy to confuse them, and sometimes they appear to overlap. An appeal means that some superior Court or Tribunal has power to reconsider the decision of a lower tribunal on its merits. Sometimes any aspect of the lower decision is open to appeal, but sometimes there is only an appeal on a point of law (as opposed to a question of fact). Rights of appeal are given by statute, and unless some state confers the right, it does not exist. ' Review, on the other hand, is based not on the merits but on the legality of the lower authority's proceedings. At the root of the matter is jurisdiction, or, more simply, power. If an administrative authority is acting within its jurisdiction, or intra vires, and no appeal from it is provided by statute, then it is immune from control by a Court of law. But if it exceeds or abuses its powers, so that it is acting ultra vires, then a Court of law can quash its decision by declaring it to be legally invalid. It is an inevitable consequence of our concept of the separation of powers, and of our lack of administrative Courts that there is this sharp distinction between appeal and review. ' Judicial control, therefore, means review, and is based on the fundamental principle, inherent throughout the legal system that powers can be validly exercised only within their true limits. ' We may add that no order having been passed under section 25 of the Ordinance, there was no final order from which the appeal lay under section 36 of the Ordinance., We, therefore, do not find any substance in the preliminary objection." The alternate remedy of appeal provided under the statute cannot by itself take away the power of judicial review of this Court in its Constitutional jurisdiction. The provisions of section '36 of the Capital Development Authority Ordinance, 1960, being not exhaustive in the circumstances is not a suitable remedy available to the petitioners who are challenging the very acquisition of the land to be illegal and are not claiming the enhancement of compensation. Thus, the objection relating to the maintainability of the writ petition in the present case is not sustainable. 10. In the light of the foregoing facts, the legal position to be emerged can be seen under sections 11, 12, 13, 14, 15, 20 and 21 of Chapter-III and sections 22, 23, 24, 25, 26, 27 and 33 of the Capital Development Authority Ordinance, 1960, which are reproduced as under:--- "Section 11.---The Authority shall prepare a master-plan and a phased master-programme for the development of the Capital Site, and may prepare a similar plan and programme for the rest of the Specified Areas, and all such plans and programmes shall be submitted to the Central Government. ' Section 12.---(1) The authority may, pursuant to the master-plan and the master-programme, call upon any local body or agency operating in the Specified Areas to prepare, in consultation with the
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Authority, a scheme or schemes in respect of matters ordinarily dealt with by such local body or agency, and thereupon the local body or agency shall be responsible for preparation of the scheme or schemes within a reasonable time. (2) Such schemes may relate to---- (a) land use, zoning and land reservation; (b) public buildings; (c) industry; (d) transportation and communications: highways, roads, streets, railways, aerodromes; (e) telecommunications, including wireless, television, radio, telephone; (f) utilization of water, power and other natural resources; (g) community planning, housing, slum clearance, amelioration; (h) community facilities including water supply, sewerage, drainage, sewage disposal, electricity supply, gas supply and other public utilities; (i) preservation of objects or places of historical or scientific interest or natural beauty. (3) The, Central Government may by notification in the official Gazette, add to, alter or amend the list of subjects given in subsection (2) and any such addition, alteration or modification shall take effect as if it had been enacted in this Ordinance. (4) The expenditure incurred on the preparation of any such schemes as aforesaid shall be borne as agreed to between the Authority and the local body or agency, and in the event of disagreement between them as may be determined by the Central Government. (5) No planning or development scheme shall be prepared by any local body or agency without consulting , the Authority. ' Section 13.--- Preparation of schemes by Authority.--- The Authority may, pursuant to the master- programme, itself prepare, when it considers it desirable to do so in the public interest, schemes for the Specified Areas relating to the matters enumerated in subsection (2) of section 12. 14. Manner and form, etc., of scheme.--- All schemes under sections 12 and 13 shall be prepared in such manner and form as the Central Government may specify, and shall contain among other things the following information, namely:-- (a) description of the scheme and the manner of its execution; (b) estimate of costs and benefit; (c) allocation of costs to the various purposes to be served by the scheme. ' Section 15.---Power of the Authority.--- (1) Subject to the other provisions of this Ordinance and the rules, the Authority may take such measures and exercise such powers as may be necessary for the carrying out the purposes of this Ordinance. ' Without prejudice to the generality of powers conferred by subsection (1), the Authority may--- ' acquire any land in the Specified Areas in accordance with the procedure laid down in Chapter IV; ' undertake any works in the Specified Areas in pursuance of any schemes prepared under section 13; ' incur any expenditure; ' procure plant, machinery, instruments and materials required for its use; ' enter into and perform all such contracts as it may consider necessary; ' cause studies, surveys, experiments and technical researches to be made or contribute towards the cost of any such studies surveys, experiments or technical researches made by any other agency at the request of the Authority; (vii) issue interim development orders for areas for which a master-plan is under preparation and restrict or prohibit by general or special order any change in the use of land alteration in buildings, structures and installations; (viii) cause removal of , any works obstructing the execution of its schemes;
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(ix) seek and obtain advice and assistance for the preparation of any schemes from any local body or agency and such local body or agency shall give the advice and assistance sought by the Authority to the best of its ability, knowledge and judgment, and the additional expenditure, if any, involved in giving' such advice or assistance shall be borne by the Authority. ' Section 20.---Removal etc., of buildings after hearing.--- The Authority shall not order or cause any building in the Specified Areas, excluding the Capital Site, to be removed or demolished unless an opportunity of being heard has been given to the owner or occupier thereof, and his objection, if any, have been duly considered, and the Authority is satisfied that removal or demolition of the building is essential to the execution of its schemes. ' Section 21.--Schemes to be executed after calling objections.---The Authority shall not execute or cause to be executed any scheme in the Specified Areas, excluding the Capital Site, unless the persons whose rights and interests are thereby affected have been given a reasonable opportunity to file their objection to such execution, and the Authority has heard such of them as it considers necessary. ' Section 22.--- Liability to acquisition.--- All land within the Specified Areas shall be liable to acquisition at any time in accordance with the provisions of Chapter. ' Section 23.--- Entry upon land, preliminary survey, etc.--- (1) It shall be lawful for the Authority, and any member thereof, and for the Deputy Commissioner, and any such person as may either generally or specially be authorized by the Authority, in this behalf,- ' To. Enter upon the survey and take levels of any land; ' To dig or bore into the subsoil; ' To do all other acts necessary to ascertain whether land is adaptet1 for the purposes of this Ordinance; ' To set out the boundaries of the land proposed to be acquired and the intended line of the work, if any, proposed…
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