1999SCMR2636 (PLP)

MAMOON KAZI, J.

By this common judgment, we propose to dispose of the following petitioners for leave to appeal;-- Civil Petition No.495 of 1999. Civil Petitions Nos.695 to 709 of 1999.

2. The facts giving rise to these petitions are that, the petitioner, Capital, Development Authority, is a corporate body constituted under section 4 of the Capital Development Authority Ordinance, 1960 (hereinafter to be referred to as "the C.D.A. Ordinance"). The respondents a_e owner of land situated in Mohra Noor, Banni Galla, District Islamabad. The said respondents raised construction on the said land after getting approval of building plans from the Union Council, tiara Kau. The same was objected to by the petitioner which sought to stop the construction by filing a suit against the said Union Council and some of the respondents. Subsequently, on 27-6-1992, the suit was withdrawn by the petitioner, but it attempted to get the said construction demolished by an operation carried on by it on 25-6-1992. A notice purportedly issued under section 27(1) of the said Ordinance was also shown to have been served on the said respondents, however, such claim of the petitioner was disputed by the respondents.

3. In such background, the said respondents filed writ petitions in the Lahore High Court, challenging the said action of the petitioner and purported acquisition proceedings initiated by it against the respondents.

4. The writ petitions were resisted by the petitioner, nevertheless they, were allowed vide judgment dated 23-10-1998 passed by a learned Single Judge in the High Court as it was held by him as follows:-- "

26. In the light of the above discussion, these writ petitions succeed. The impugned acquisition of land by the respondent is declared to be illegal and without lawful authority. The entries of ownership of the land in question in the name of the C.D.A. in the Revenue Record, if any, shall be of no consequence. The petitioners are declared the lawful owners of fhe land to be used in accordance with law and are also well within their rights. to recover the damages for the loss, if any, caused to them as a result of the forcible and violent operation made by the respondents before acquisition of land at the spot from the Capital Development Authority through the civil suits. However, this judgment will not debar the C.D.A. Capital Development Authority Ordinance, 1960. The land in question is located near the main located city and the same is being used for residential purposes solely, therefore, in case of acquisition of land, the C.D.A. before dislocating the petitioners will suitable adjust them in any .regular residential scheme as per policy of the C.D.A. in such like market value of the land. This writ petition and the other connected writ petitions are allowed with no order as to costs. "

5. The main contention of Mr. Fazle Ghani Khan learned counsel for the petitioner has been that master plan for the city of Islamabad was duly approved by the Government under section 11 of the C.D.A. Ordinance and a Notification under section 21 of Punjab Wildlife (Protection Preservation, Conservation and Management) Ordinance, 1979, was also issued, earmarking the land in question as a National Park. Consequently, according to the learned counsel, there was a duly prepared Scheme which could be implemented by the petitioner and the learned Judge in Chambers was, therefore, clearly in error while declaring the petitioner's action in the matter as without lawful authority. Reference was also made to Martial Law Regulation No.82, dated the 24th June, 1960, whereby restrictions" could be placed on use of land within the capital site and construction of buildings thereon and a commission appointed by the President under Cabinet Division Notification No. Cord. (1)8/44/59, dated 7th September, 1959, was empowered to implement the provisions of the said regulation.

6. These contentions have, however, been challenged by Mr. S.M. Zafar and Syed Iqbal Haider, learned counsel appearing on behalf of some of the respondents. Reliance has also been placed by Mr. S.M. Zafar on the case of Muree Brewery Co. Ltd. v. Pakistan (PLD 1972.SC 279).

7. So far as the contention of Mr. Fazle Ghani Khan is concerned, reference may be made to sections 11, 12, 13 and 15 of the C.D.A. Ordinance. No doubt, section 11 contemplates preparation of a master plan and a phased master programme for development of the capital site which is to be submitted for approval to the Federal Government, but sections 12 and 13 further contemplate preparation of a scheme pursuant to such master plan and the Capital Development Authority has been empowered by the said sections to either prepare such plan itself or to call upon any local body or agency, operating in the specified areas, to prepare, in consultation with the said Authority, a scheme as contemplated by the master plan. Section 15 further empowers the Authority 'to take measures to acquire any land in the specified areas in-accordance with the procedure laid down in Chapter IV of the C.D.A. Ordnance. Admittedly, neither such scheme has so far been prepared by- the petitioner in pursuance of the said master plan nor any land has been acquired by it in accordance with the procedure provided in Chapter IV of the CDA . Ordinance. Although, the purported object behind the said action taken by the petitioner is shown to be earmarking of the said land for the purpose of the National Park and preservation and protection of wildlife, but, as has been observed by the learned Judge in chambers, it was claimed by the petitioner before the High Court that the action was necessitated to save Rawal Lake from pollution.

8. It play be pointed out in this connection that, although an area can be earmarked for a particular purpose in the master plan but such a decision cannot be implemented unless a scheme as contemplated by sections 12 and 13 of the C.D.A Ordinance, is prepared by the petitioner Authority. The petitioner should also have taken steps first to acquire the said land as provided in Chapter IV of the said Ordinance, before taking of any concrete steps for implementation of such scheme. Without taking of steps for acquisition of the said property, the said action would be violative of the Constitutional rights of the said respondents owing to restrictions placed on them to use their property in the manner they like. The inconsistent stands taken by the petitioners in the present case also reflect on their bona fides. In Murree Brewery Co. Ltd. v. Pakistan (supra.), similar action taken by the petitioner was struck down by this Court, as mala fide for more or less similar reasons as would appear from the following observations:-- "We now come to the thud contention. Having regard to the facts and circumstances of the case we think that the acquisition is mala fide in law. This is evident from the following circumstances:-- (i) Different reasons were given at different times for the acquisition of the property; . (ii) The master plan does not show that the land occupied by the property in dispute is earmarked for setting up the Presidential Secretariat; on the contrary the plan shows quite a different place which is at a considerable distance from the property in dispute, has been earmarked for setting up the Presidential Secretariat; (iii) No scheme appears to have been framed under the Ordinance which is applicable to the acquisition of the property in question. The alleged. scheme dated 12-8-1964 is not a scheme framed in accordance with the provisions of the Ordinance. (iv) The scheme dated 12-8-1964 was produced at a very belated stage of the writ petition; (v) The acquisition of the property -when it was already under requisition and in use for the same purpose; (vi) The unseemly hurry in the process of the acquisition. This is evident from the fact of serving both the notices simultaneously although the law required that one should have been served much earlier than the other. (vii) In the ultimate analysis it is not unreasonable to infer that the sudden decision to acquire the property was for purely fiscal reason as appear to have been admitted by Mr. N.A. Faruqui, Principal Secretary to the President of Pakistan as aforesaid."

9. It may be pointed out that the circumstances of the present case do not appear to be materially different from those in the reported case.

10. Consequently, we are not inclined to interfere with the judgment of the learned Judge in Chambers For the aforesaid reasons, this petition was disposed of in terms of the short order dated 14-5-1999 passed by us which reads as follows:- "For the reasons to be recorded later on, leave is refused subject to the following clarifications:-- (i) The petitioner will be entitled to initiate acquisition proceedings of the 8 suit property or any other property after framing a proper scheme. , (ii) That if Martial Law Regulation No.82, or any provision under the C.D.A. Ordinance, or any other law, authorise the C.D.A. to regulate C the construction of the building in the disputed area, it will be open to the C.D.A. to take action according to law for enforcing the above law or regulations." M.B.A./C-38/S Order accordingly.