1989SCMR656 (PLP)

Date of hearing: 5th December, 1988. SHAFIUR RAHMAN, J.‑‑The petitioners, thirteen in number, seek leave to appeal against the judgment of the Lahore High Court dated 20th December, 1986, whereby a Constitutional petition filed by them was dismissed. The petitioners were affected by the acquisition of land belonging to them by the Capital Development Authority for the establishment of Capital of Pakistan. This happened in 1960 or near about. They were given the cash compensation as admissible to them under the law. In order to rehabilitate such affectees, a scheme was then drawn up whereby they could have one residential plot within the area of the Capital Development Authority on payment or agricultural land in the Punjab for their rehabilitation. The benefits were in the alternative and not one in addition to the other. It transpired that the petitioners had not only obtained the plots within the limits of the Capital Development Authority but had also got the entitlement certificates making them eligible for land in the Punjab. On the discovery of this mistake the entitlement certificates which had been obtained for obtaining the plot, were withdrawn and cancelled thereby depriving them of the agricultural land which they had obtained or were likely to obtain on such entitlement certificates. This act of the Capital Development Authority aggrieved the petitioners. They invoked the Constitutional jurisdiction of the High Court for challenging this action. Their claim before the High Court was that the compensation awardable for acquisition of their land and immovable property was not fair or just, and for that reason they had necessarily to be compensated in other manner. A Scheme was drawn up whereby these benefits were made available to them. Subsequently, when the land similarly situated in the adjoining villages was acquired, the land‑owners so affected were compensated not in the alternative but given both the benefits namely, of a plot and the agricultural land. This according to the petitioners amounted to unjustified discrimination against them. The learned Judge in the High Court disposed of this objection or the main ground taken up in the writ petition by observing as follows:‑ "Learned counsel for the petitioners has failed to point out any provision in the Scheme or the Ordinance to show that the petitioners had right to get residential plots as also the agricultural lands in. addition to money compensation for the lands taken from them. In the absence of the clear justiciable right inhering in the petitioners, no writ can issue to the respondent for its enforcement. That notwithstanding, people from the territory of Islamabad have parted with their valuable property for building up of a beautiful Capital at Islamabad and have been forced to leave their hearths and homes on payment of compensation assessed in terms of CDA Ordinance. Sacrifices made and the miseries suffered by them must attract the attention of those who matter. However, I do not intend to pursue the matter further. However, it is for the CDA to look into the matter and pass an appropriate order. With these observations this writ petition is found to be without merits, and is, accordingly, disposed of." Maulvi Sirajul Haque, Advocate, the learned counsel for the petitioner has taken up the same grounds before us as were urged before the High Court and has emphasized the gross discrimination that has taken place whereby‑he petitioners have been deprived of a valuable benefit obtained by others similarly affected. It is not disputed on fact that in 1960 when the land of the petitioners was acquired, the scheme for their rehabilitation in fact provided for making available to them only one of the benefit in the alternative and not both. There was, even, according to the learned counsel for the petitioners, no departure from that Scheme in giving benefit to those affected at that stage. What has happened is that at a subsequent stage on a latter date when land was sought to be acquired for establishing new Sectors in Islamabad falling in G/10, F/10 and F/11 the Capital Development Authority had allowed the affectees both the facilities as a result of package deal in view of urgency of the area for development as well as to facilitate the rehabilitation of the concerned affectees. The Capital Development Authority in its comments made it clear that‑‑ "Excepting the residents of those Sectors falling in village Madrassa, Koka, Bheika Saycdan, Thatta Gujran, Dhermian and Schala (near Golra Sharif) the other entitled affectees of Islamabad had been granted only one facility. The respondent‑Authority had in fact relaxed its condition in a specific area." In view of this factual position not only it would appear that there was a difference of time when the two acquisitions were made but also of the conditions in which these acquisitions were made. A different Scheme. was made out for them and a decision at the appropriate level was taken with regard to these benefits and their entitlement. Apart from these the main question would be that to 1984. when the impugned order was passed or in 1960 when the Scheme was framed, the fundamental right No.25 against discrimination was not available for contesting the action of the authorities. That would be a technical objection with regard to the competency of the petition itself on this ground. We find that on merits no case is made out and leave to appeal is refused. AA./K‑87/S Leave to appeal refused.