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Petitioner: GHULSHAN HUSSAIN and another VS Respondent: COMMISSIONER (REVENUE), JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Nawaz Abbasi Title:GHULSHAN HUSSAIN and another vs COMMISSIONER (REVENUE),
JUDGMENT
Reported As: 2000 YLR 1711 Result: Order accordingly Judgment JUDGMENT ' The petitioners are the landowners in Villages Maira Akko and Maira Jaffar which are located in Islamabad Capital Territory and form part of Sector G-13, Islamabad. The petitioners through this Constitution petition have questioned the validity of the notifications, dated 10-6-1996 issued by the Land Acquisition Collector, Islamabad under sections 4 of the Land Acquisition Act, 1894, for the acquisition of their lands situated in the above named villagers to be illegal and without , lawful authority. The Land Acquisition Collector after issuance of notification, dated 10-6-1996 under section 4 of the Land Acquisition Act, issued another notification, dated 23-11-1996 under section 17(4) of the Land Acquisition Act, 1894, for the acquisition of the land of the petitioners as well as the other landowners in the area forming part of Sector G-13, Islamabad, for the use of Federal Government Employees Housing Foundations, Islamabad, a registered Company under Companies Ordinance, 1984. The objections under sections 5 and 5-A of the above said Act having called a notice under section 9 of the Land Acquisition Act, 1894, was issued on 28-1-1998. However, the announcement of Award remained pending with the Land Acquisition Collector till filing of this petition. 2. In the light of report and parawise comments submitted to this petition, the learned counsel representing the respondent raised objection to the maintainability of this petition and 'tended that the present petitioners cannot invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, against the respondent a company limited by guarantee registered under Companies Ordinance, 1984 which has been established with the
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name of Federal Government Employees Housing Foundation to be run by the Board of Governors and Executive Committee of the Foundation with the object to execute Housing Schemes for Federal Government employees on ownership basis in Islamabad, with a view to provide shelter to the homeless Federal Government employees who are near their retirement and that the land for such schemes is to be arranged through acquisition with the consent and approval of the Federal Government. It is stated that previously a specified number of plots in the various developed Sectors of. Islamabad used to be placed at the disposal of the Federal Government Employees Housing Foundation by the Capital Development Authority for allotment to bona fide applicants but later the C.D.A. Showed inability to meet the requirement of the Federal Government Employees Housing Foundation. Therefore, Cabinet Division in its meeting held on 20-2-1993 approved a proposal for the development of Housing Schemes for MNAs, Journalists, civil servants, Judges and such other categories of persons in Islamabad. Consequently, a Committee was constituted for the implementation of the Scheme and in the light of the recommendations made by the said Committee, the proposal with the consent of the Prime Minister was given effect through a directive of Cabinet Division and the Ministry of Housing and Works, Government of Pakistan was engaged to implement the schemes. In consequence thereto, the Federal Government Employees Housing Foundation initiated the process for the acquisition of land in Sector G-13, Islamabad, through Land Acquisition Collector, Islamabad, and notification under section 4 of the Land Acquisition Act, 1894, was issued on 10-6-1996 and Federal Government Employees Housing Foundation floated a housing scheme .In Sector G-13, Islamabad. The Foundation placed an amount of rupees three hundred millions collected from the applicants at the disposal of the Deputy Commissioner, Islamabad, for payment of compensation of land to the landowners. The comments submitted on behalf of the Foundation contained that the landowners including the petitioners did not object to the acquisition of the land and the same being required urgently, a declaration under section 17(4) read with section 6 of the Land Acquisition Act, 1894, was published in the Extraordinary Gazette on 26-11-1996. ' The possession of the land was to be taken immediately on announcement of the Award by the Land Acquisition Collector under section 11 of the Land Acquisition Act, 1894. It is stated that initially the price of the land was assessed at Rs,75,000 per Kanal on the basis of the average price of the land but subsequently the same was increased to Rs,2,30,000 per Kanal through negotiation and the Executive Committee of the Housing Foundation in its meeting held on 11-3-1999 decided to make payment to the landowners accordingly. 4. During the course of hearing of this, learned counsel representing the petitioner informed the Court that the petitioners agreed to deliver the possession of the land to the Land Acquisition Collector subject to the payment of price at the rate of Rs,2,30,000 per Kanal as per their agreement with the Land Acquisition Collector and the Land Acquisition Collector passed the following order on 7-6-1999:-- "Learned counsel representing the petitioner states that the landowners in the area including the petitioners are prepared to deliver the possession of the land before 10th of July, 1999." 5. The Director-General of the Housing Foundation under the direction of this Court appeared before the Court on 6-8-1999 and stated that the housing scheme was at advance stage and the allotment letters would be issued shortly but the possession of the plots would be delivered to the allotted only after the announcement of the Award for the payment of compensation. In the light of the statement made by the Director-General, the following order was passed on 6-8-1999:-- "The Federal Government Housing Foundation, a company limited by guarantee and incorporated under the Companies Ordinance, 1984, was established to launch and implement Housing Scheme for the Federal Government employees on ownership basis in Islamabad and other cities of the country. According to the Memorandum of Association and Article of Association, the Executive
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Committee of the Foundation retains the authority to deal with the affairs of the Housing Cell of the Foundation under the policy decision taken by the Board of Governors. However, the Executive Committee and the Board of Governors are independent in exercise of their powers mentioned therein and the Chief Executive of the Foundation is overall In charge of the Foundation launched a housing scheme Phase-III, in Sector G-13, Islamabad, and invited applications from the different categories of the persons mentioned in clause 5(a) to (e) of the brochure of the scheme and requested Land Acquisition Collector, Islamabad, for acquisition of the land in the said Sector under the Land Acquisition Collector, Islamabad, for acquisition of the land in the said Sector under the Land' Acquisition Act, 1894. 2. The petitioners who are the land-owners have challenged the acquisition of the land and the publication of notification under section 4 of the Land Acquisition Act, 1894, on various grounds including that formation of Housing Foundation and acquisition of land for its members in capital are as well as the right of the employees of the Federal Government to get the private properties through the official Agency of Land Acquisition Collector and the company, namely, Housing Foundation of the Federal Government employees depriving the owners of the land from their properties as well as the citizens of Pakistan to acquire the residential plots in the said Sector through the Capital Development Authority is not legal. Learned counsel also contended that the acquisition is in violation of the Capital Development Authority Land Disposal Regulation, 1993. 3. Learned counsel representing' the Foundation contends that the land located in the capital area can be acquired for the public purpose of establishing the Housing Scheme by the Foundation under section 39 read with section 4 of the Land Acquisition Act, 1894. The Director-General of the Foundation present in Court states that the housing scheme is at advance stage and the entitlement of the categories mentioned under clause (5) of the Brochure have already been determined for allotment and the allotment letters shall be issued shortly. He, however, states that the possession of the plot shall be delivered to the allotted immediately after the announcement of the Award and payment of compensation to the landowners. He added that the persons who fulfilled the criteria for the eligibility as mentioned in clause 5(a) to (e) in the Brochure of the Scheme, Phase-III, Sector-G-13, Islamabad, shall be entitled for the allotment subject to the approval of the Prime Minister Implementation and Inspection Team in the light of the letter, dated 16th June, 1998, written by a Member of Prime Minister Inspection Team intimating the Foundation that a complete ban will exist on the allotment of plots in respect of Phase-III of the Islamabad Housing Scheme as well as reserved/discretionary quota of Phase-I and Phase-II of the said Housing Scheme. He added that the said Commission through letter, dated 26th of June, 1999, informed that the inquiry regarding the entertainment of the application of the person who were not eligible to become a member of the Housing Foundation under the Memorandum of Association and Article of Association of the Foundation has been completed which is under consideration with the Prime Minister's Office and unless some decision is taken, no further action should be taken by the Housing Foundation with the result that the Chief Executive of The Foundation cannot proceed independently to implement the Scheme as probably the proposal of withdrawal of some of the categories of applicants from the scheme as mentioned in clause 5(a) of the Brochure is under active consideration. However, the Legal Advisor of the Foundation as well as the Director-General have not been able to give a satisfactory explanation regarding the exclusive right of the Federal Government employees to establish such a company and acquire the land for their benefit in violation of the law and general policy of the Housing Scheme of the C.D.A. In Islamabad. 4. It is not understandable that how the affairs of the Housing Foundation, a Company limited by guarantee incorporated under the Companies Ordinance, 1984, can be regulated and controlled by the Prime Minister Inspection Team or any other authority in the Federal Government over and
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above the authority of the Executive Committee and the Board of Governors under the Memorandum and Article of Association of the Company. 5 Be that as it may, since a number of questions regarding the validity of the acquisition of land by the Housing Foundation and the exclusive right of the Federal Government employees as civil servants and exercise of authority by the Federal Government in the affairs of the Housing Foundation, which is neither a statutory Body nor an official Agency or Organization of the Federal Government are involved in this petition for examination, therefore, the same is admitted to regular hearing and notice is issued to the respondents. 6. The Director-General as well as the Legal Advisor of the Housing Foundation accepts notice on behalf of the respondents and request that the writ petition may be heard at an early date. Since the services complete, therefore, the office shall fix this petition for final hearing in the third week of September, 1999. The identical writ petitions, if any, shall also be fixed alongwith this petition. The respondents may, in the meanwhile file written statement to this petition. ' C.M. No, 645 of 1999 7. Pending disposal of the writ petition, the acquisition of proceedings shall remain continue in terms of the order, dated 7-6-1999 including the announcement of Award with permission to the Housing Foundation to issue provisional letters of allotment to the applicants for allotment in residential Sector G-13, who fulfil the criteria of eligibility as given in clause 5(a) to (e) of the Brochure to the Housing Scheme in question without any discrimination, which shall be subject to the final decision of the writ petition. However, the Foundation or any other Authority in the Federal Government shall not disturb, recall or rescind the entitlement/allotment of any person in Sector including Sector G-13, Islamabad, in the Housing Scheme and the Prime Minister Inspection Team or any other functionary in the Federal Government either in official or in an individual capacity is restrained from interfering in the affairs of the Foundation and from taking any action detrimental to the entitlement and interest of the categories of applicants mentioned in clause 5 (a) to (e) of the Brochure in any manner and any such action if has already been taken by any such authority in relation to the allotment of plots in Sector G-13 or any other Sector by the Housing Foundation shall be of no consequence in the meanwhile." 6. The Director-General Housing Foundation, Islamabad, while appearing in person on 1-11-1999 sought further time to seek instructions on the issue under discussion. The Land Acquisition Collector who was also present in Court stated that the Award with respect to the land having been announced, the compensation would be paid to the landowners within two months. He further stated that on receipt of assessm ent of compensation of built up properties, a separate Award would be announced in due course of time. The case was, therefore, adjourned for today with the following order:-- "The Director-General, Federal Government Housing Foundation present in Court states that a special quota of residential plots in the Housing Scheme for Journalist, retired and disable employees of Federal Government as well as the widows of the employees of Federal Government and handicapped civil servants have been allocated whereas all other categories of entitles have been clubbed together. The learned counsel for the landowners states that the Housing Foundation for the benefit of a particular class of civil servant has acquired the land on pretext of public interest. He states that although the Judges are not the civil servants yet they have been mixed with civil servants. It is noticeable that there being no explanation of placing the Judges of the superior Courts in the general category of civil servants, the determination of their eligibility for allotment of a plot in the Housing Scheme cannot be judged on the basis of criteria of civil servants, it may be observed that the Judge, who is not already an allotted of the Housing Foundation if has applied for the plot notwithstanding the condition that he was earlier holding an allotment of a residential plot in Islamabad in any other capacity, would be entitled for allotment of
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a plot in the Housing Scheme of the Foundation in the first category of allotted and cannot be pushed to second category. Further, the Judges who retired within two years before the publication of notification for the acquisition of the land on the basis of the principle made applicable to the retired civil servants would be entitled for the residential plot along with the Judges in office and since the number of applicant Judges are much less to that of the total number of plots allocated for the Judges i,e,, with the ratio 30:70, the retired Judges can be accommodated against the surplus plots through the Ministry of Law and Parliamentary Affairs. It may also be pointed out that since the Headquarters of Pakistan Army and Air Force are under shifting process to Islamabad, whereas the Headquarters of Pakistan Navy is already located in Islamabad, therefore, in the light of the policy of Housing Foundation to provide residential plots to the employees of the Federal Government posted in Islamabad or to be posted in Islamabad, the senior members of the Armed Forces who are normally stationed at their headquarters shall have also been included in the scheme and some percentage of plots in the Scheme should be allocated for them to be allotted through the Defence Ministry. The Director-General, Housing Foundation needs time to discuss the matter with the Executive Committee of the Housing Foundation and also seeks instructions from the concerned quarters regarding the issue of provisional allotment letters to all the applicant Judges irrespective of the condition of age and earlier allotment of plot in Islamabad in any other capacity by any authority other than the Housing Foundation and for allocation of plots in Sector G-13 and G-14 for senior members of Armed Forces i,e, Pakistan Army, Air Force and Pakistan Navy and as well as the retired and sitting Judges who are not the applicants. 2. The Land Acquisition Collector, Islamabad states that the Award in respect of the land Sector G- 13 that the Award in respect of the land of Sector G-13 as well as G-14 has been announced but the compensation has not been paid to the land owners so far which expectedly will be paid within two months. He, however, clarified that on receipt of the assessment qua the built up properties made by the P.W.D. a separate Award of the same shall be announced in due course of time. 3. Learned counsel for the petitioners at this stage stated that since the land has been acquired for the purpose of private Company, therefore, the compulsory charges at the rate of 25% should be payable. 4. The Land Acquisition Collector will also contact the concerned authorities in P.W.D. And make effort for the announcement of Award of built up property. This petition is adjourned to 8-11-1999 for the further proceedings." 7. Learned counsel for the petitioners has raised the following three issues in support of this petition:-- (1) That the land was being acquired for the .-benefit of a limited class of persons to establish their individual rights as a privilege without any "public purpose". (2) The acquisition of land for a Company is not permissible except in the "public interest" whereas the housing scheme in question has been established in the interest of individuals. (3) That in case of acquisition of land for a Company, the consideration being different, the payment of 25% compulsory charges is mandatory. ' Learned counsel for the petitioners, however, submitted that he would not challenge the notification under section 4 read with section 17(4) of the Land Acquisition Act, 1894, as well as the Award, if the "public purpose" is established and 25% compulsory charges are paid on the price of the land at the rate of 2,30,000 per Kanal as agreed by the landowners with the Land Acquisition Collector, Islamabad. 8. Learned counsel representing the Housing Foundation on the other hand argued that the initial price of the land was assessed at Rs,75,000 per Kanal which was enhanced to Rs,2,30,000 through negotiation with the landowners which included the compulsory charges and, therefore, on issuance of a notification under section 4 read with section 17(4) of the Land Acquisition Act, 1894.
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With the consent of the representatives of the landowners, the compulsory acquisition charges of land stood converted into acquisition by negotiation and, therefore, the landowners would not be additionally entitled to the compulsory charges as provided under section 39 of the Land Acquisition Act, 1894. 9. In reply to the first objection of the learned counsel for the petitioners that the land was not being acquired for 'public purpose', therefore, the acquisition of land for a private Housing Scheme was not possible under Land Acquisition Act, 1894, the learned counsel for the respondent submitted that the land under acquisition shall be utilized for a housing scheme being established by the Company in the "Public interest" for the benefit of the employees of Federal Government, therefore, the objection was not entertain able. In reply to the second objection, the learned counsel submitted that since the price of the land to be paid to the landowners was settled through negotiation, therefore, the compulsory charges were not supposed to be paid to the landowners by the acquiring Agency. He next submitted that the foundation in its Memorandum of Association and Article of Association has undertaken the responsibility of providing shelter to the employees of the Federal Government and that the company has no legal obligation to generalize it and include public at large in its Schemes and that without enlarging the scope of scheme beyond its purpose and objection, he acquisition of land for a Housing Scheme for the civil servants of the Federal Government is a "public purpose". 10. The fundamental question for determination in the present petition is as to whether the acquisition of land in an area kept for public residential Sector in the Master-Plan prepared by the C.D.A. Under Capital Development Authority Ordinance, 1960 and Building Regulation, 1993, can be allowed as an exception to general rule for establishment of Housing Scheme by the private Societies and registered Companies in the specified area and the Federal Government Employees Housing Foundation for the benefit of civil servants exclusively can establish a Housing Scheme in an area as special privilege, in which principally as per Scheme of C.D.A., a residential Scheme for general public is to be established and the plot are offered for sale through inviting applications publicly. The "public purpose" for the purpose of Land Acquisition Act, 1894, is defined as under:- "The acquisition of land for 'public purpose' generally means for a purpose which is for the benefit of general public or for the purpose of establishing an institution which can be utilized for public for certain benefits and not for the interest a limited class of persons to establish their individual rights over the property. The acquisition of land for construction of a building which is not built for common utilization is not 'public purpose'. 11. The expression "public purpose" is used in generic sense, which is extendable even to a fraction of community. However, the Government or acquiring Agency is not the final authority to determine, whether or not the purpose for which the land being acquired is "public purpose" and ultimate decision given by the Court on the question of "public purpose" would prevail, if it is brought before the Court. The procedure for acquisition of land for Companies is provided under Part-VII of the Land Acquisition Act, 1894, under which a charitable or Educational Institution or a profit-earning concern may seek acquisition of land for the Project if the essential requirement as provided under section 40(1) of the ibid. Act is fulfilled and the acquisition is needed for a purpose, which is useful to public. There is still further division of acquisition of land for a private Company and a Public Limited Company, but in any case, the basic element of "public purpose" must exist. 12. The acquisition of private property of the people is not allowed except for "public purpose" as envisaged under Article 24 of the Constitution of Islamic Republic of Pakistan, 1973. The acquisition of land for a "public purpose" is different to that of a 'private purpose' which is restricted to individual interest. The distinction is that a Company requiring land for any other purpose other than those mentioned in section 40 of the Land Acquisition Act, 1894, cannot request for acquisition through the machinery of law for compulsory acquisition under Land Acquisition Act, 1894, and the
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procedure provided for compulsory acquisition cannot be invoked except in public interest. Since the power of acquisition of land is restricted to "public purpose" under Article 24 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the existence of a "public purpose" is always open to judicial review. The classical definition of the expression of "public purpose" is an object or aim in which the general interest of the community as opposed to particular interest of individuals is directly and vitally concerned. The Supreme Court of India in AIR 1963 SC 151 observed, the phrase "public purpose" whatever else it may mean must include a purpose that is an object or aim in which the general interest of the community as opposed to the particular interest of individuals is directly or vitally concerned. The acquisition for personal benefit of a person or class of persons is ultra vires to the Constitution. The acquisition for the accommodation of the worker of an industrial concern without ownership rights is acquisition…
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