P L D 1972 Supreme Court 277 (PLP)

Section 11. Master plan and master-programme.

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 for approval. Section

12. Preparation of Schemes by local bodies or agencies.-(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 consulta tion with the 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 the 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, ameliora tion ; (h) community facilities including water supply, sewerage, drainage, sewage disposal, electricity supply, gas supply add other public utilities ; (i) preservation of objects or places of historical or scientific interest or natural beauty. Section

31. Preparation of Schemes 8y Authority.-The Authority may, pursuant to the master-programme, itself prepare, when it considers it desirable to do so in the public interest, scheme for the Specified areas relating to the matters enumerated to subsection (2) of section 12. "Section

14. Manner and form, etc., of Scheme.-All Schemes under section 12 and section 13 shall be prepared in such manner and form as the Central Government may specify, 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 of the purposes of this Ordinance. (2) Without prejudice to the generality of powers conferred by subsection (1), the Authority may- (i) acquire any land in the Specified Areas in accordance with the procedure laid down in Chapter IV; (ii) undertake any works in the Specified Areas in pursuance of any Scheme prepared under section 13; (vii) issue interim development orders for areas for which a master-plan is under preparation . . . . . Section

19. Amendment of Sachems.-Any scheme prepared under section 12 or section 13 may at any time be amended or modified . . . . . 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 objections 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 objec tions.

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 this Chapter. Section

25. Power to acquire land.-(1) Subject to the other provisions of this Ordinance, the rules made thereunder, and the directions of the Authority, the Deputy Commissioner may, by order in writing, acquire any land for the purposes of this Ordinance. Section

26. Land to be marked out, measured and planned.

Where any land is proposed to be acquired under section 25, the Deputy Commissioner shall cause the land (unless it has been already marked out) to be marked out and measured, and if no plan has been made thereof a plan to be made of the same. Section

27. Notice to persons interested.-(1) The Deputy Commissioner shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Central Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him. (2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Deputy Commissioner at a time and place therein mentioned (such time not being earlier than 10 days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests and their objections, if any, to the measurements made under section 23, and the Deputy Commissioner may require any such statement to be made in writing and signed by the party or his agent. Section

36. Appeals.-(1) Any person aggrieved by a final order of the Deputy Commissioner may, within fifteen days of the order, appeal to the Commissioner. Section

50. Power to make rules.-The Central Government may, by notification in the official Gazette, make rules to carry out the purposes of this Ordinance. Section

51. Power to make regulations.--Subject to rules, the Authority may make regulations on all matters for which regulations are necessary or expedient." Before we proceed further it is desirable to dispose of the preliminary objection raised on behalf of the respondents. It has been contended that the appellant's writ petition was not maintainable inasmuch as its appeal under section 36 of Ordinance XXIII of 1960 was pending and it had, therefore, not exhausted the remedies available under the Ordinance itself. This contention is based on a misconception of the appellant's writ petition. Among other things the writ petition contains the following statements:- "The petitioner believes that its property is being acquired not in good faith and not for the purposes of the Ordinance but mala fide. (12) The notices Annexs. C and D and the acquisition of the petitioner's property are without lawful authority and of no legal effect for the following among other reasons: (i) (a) The proposed acquisition has nothing to do with the establishment of Islamabad, which is the purpose of the Ordinance. (b) The proposed acquisition is not for any of the purposes of the Ordinance. (c) The reasons being advanced to justify the proposed acquisition are not reasons for which any property can be acquired under the Ordinance. (iii) The petitioner believes that there is no scheme for the property in question nor have any master-plan and the phased master-programme been prepared under section 11 of the Ordinance in respect of this property. Unless there was any such scheme or a plan or programme for the use of this property, it could not be acquired because, according to section 25, the power of acquisition is subject also to the other provisions of the Ordinance and section 11 says that "the Authority shall prepare a master-plan and a phased master- programme for the development of . . . . . (vi) The proceedings for the acquisition of the petitioner's property have been taken mala fide." It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as 'the C. D. A:) to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the A impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others (PLD1961SC119), that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly, without authority. The appellant has also alleged mala fide in law against the C. D. A., a statutory functionary. In the case of East & West Steamship Co. v. Pakistan (PLD1958SC(Pak.)41) this Court has held that where a Statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The learned Judge of the High Court has correctly dealt with this aspect of the question. In support of the maintainability of the writ petition the learned counsel for the appellant has drawn our attention to the distinction between review and appeal. He has argued that the appeal under section 36 of the Ordinance is limited to a matter which is within the jurisdiction of the authority concerned and the scope of the Ordinance. A question of jurisdiction is a matter for Review, which is based not on the merits but on the legality of the lower authority's proceedings. In support of this proposition reference has been made to the following passages occurring in Administrative Law by Wade, 1961 Edition at pages 42 and 43:- "The Courts have no concern with the conduct of Govern ment provided that it proceeds within its legal powers. Any misuse of power within the law is a political matter, and for discussion in Parliament rather than in the Courts. The Courts of law are in no sense general Courts of administrative justice . . . . . Review and appeal contrasted. 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 statute 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. We now proceed to consider the various contentions raised by the learned counsel for the appellant. It has been contended, firstly, that the impugned acquisition not being for any of the purposes of the said Ordinance, is not an acquisition under the Ordinance, and is therefore, without any jurisdiction. Secondly, that the impugned acquisition is also illegal for the reason that 9t has been made in flagrant contravention of the provisions of the Ordinance, which amounts to no acquisition under the Ordinance. Thirdly, the acquisition is malt fide in law, and as such it is no act in law. Different reasons were given at different times for the acquisition of the said property. In the notice dated the 10th September 1964, issued by Assistant Director Lands for Deputy Commissioner, C. D. A.. Rawalpindi, it has been stated that the acquisition of the land is required for the Central Government for the construction of the Capital, Islamabad. However, in its Scheme dated the 12th August 1964, purported to have been framed under section 13 of the Ordinance, the Authority appears to have designated the Scheme as "Provision of Office Accommodation for the President's Secretariat." This Scheme was filed by respondent before the High Court only on 8-5-1968, i.e, about 3J years after the filing of the respondent No. 2's first written statement filed on 29th December 1964. It appears, however, that at an interview held on the 2nd of October 1964, between the two Directors as the Appellant-Company with Mr. N. A. Faruqui, Principal Secretary to the President of Pakistan, Rawalpindi, the latter had observed that the property in question was being acquired for reasons which were "purely fiscal", and that having considered the requirement of the Central Government for the raid property for perhaps next twenty years it might be more economical for the Government to acquire the property tinder Capital Development Authority Ordinance rather than retain the same on a rental basis. Vide Annex. 'F' to the appellant's writ petition appearing at page 20 of the paper-book These observations were conveyed by the appellant's letter dated the 10th October 1964, Annex. 'F' and it was duly received by the Principal Secretary. The Principal Secretary in his letter dated the 14th October 1964, addressed to M. P. Bhandara, Esq., Managing Director, Murree Brewery Company Limited, Rawalpindi, acknowledged receipt of the aforesaid letter dated the 10th October 1964. It has been pointed out to us that this letter of the Principal Secretary did not deny the aforesaid observations contained in Annex. `F'. It is thus evident that yet another reason was put forth as the ground for acquiring the property in question. At the direction of this Court the learned counsel represent ing the C. D. A. produced before the Court a Master-Plan of Islamabad, Metropolitan Area prepared sometime in the year 1963, under section 11 of the Ordinance. On reference to the Master-Plan we find that the property in question is situated at a place reserved for "Open space parks". Section 11 speaks about the obligation on the part of C. D. A. to prepare a Master-Plan and a phased Master-Programme for the development of the Capital Site. The Authority also has been given a discretion to prepare a similar plan and programme for the rest of the specified areas. Reading the provisions of sections 11 and 13 together it appears to us clear that the C. D. A. may, pursuant to the Master-Programme relating to the rest of the Specified Areas mentioned in section 11, itself prepare Schemes concerning matters enumerated in subsection (2) of section 12, if it considers desirable to do so in public interest. It has not been claimed on behalf of the respondents that any Master- Programme was prepared by the Authority for the rest of the Specified Areas. The Important thing to note about section 13 is that the Schemes mentioned therein must be pursuant to the Master Programme relating to the rest of the Specified Areas as mentioned in section 11 of the Ordinance. In reply to the first contention it has been argued on behalf of the respondents that the purpose mentioned in the notice of the 10th September 1964, (Annexure 'D'), namely, "for the construction of the Capital, Islamabad", and that mentioned in the aforesaid Scheme dated 12th August 1964, namely, "in the public interest to provide suitable accommodation for the more efficient functioning of the President's Secretariat," fall well within the purpose of the Ordinance. Furthermore that section 22 of the Ordinance gives the Authority untrammelled power of acquisition in respect of all land within the Specified Areas. In support of their contention the respondents have relied on the case United States Ex Rel T. Y. A. v. Welch (USSCR90Law.Ed.843). In our opinion the provisions of the Ordinance clearly indicate the purpose for which the C. D. A. has been created. The purpose is, as has been mentioned in the Preamble itself, "for making at. arrangements for 1?lanning and development of Islamabad within the framework of a regional development plan. That the preamble is a legitimate aid in discovering the purpose of a Statute receives support from the following passage off Maxwell's Interpretation of Statutes, 12th Edition, page 6.

"Many old statutes have preambles in which the main objects of the Act are set out, and these are legitimate aids in constru ing the enacting parts." The main purpose is to plan and develop Islamabad in a suitable manner where according to the 1962-Constitution the Capital of Pakistan is to be located. In order to achieve this ft is also necessary to keep in mind the planning and development of the rest of the Specified Areas with a view to integrate them with the planning and development of the Capital itself. In the Master Plan the site where the disputed property stands has been shown as earmarked for 'Open Space.' Acquiring the disputed property "for providing suitable accommodation for the more efficient functioning of the President's Secretariat" is not only outside the purpose of the Ordinance and the function of the C. D. A. but is also not covered by any Scheme framed under the Ordinance. Merely putting a label on the acquisition that this is "for the construction of the Capital, Islamabad" will not automatically make it an acquisition for the purpose of the Ordinance. Nor does it shut out a Court of law from inquiring into the real purpose of the acquisition. Besides, the purpose of acquisition as mentioned in the Scheme dated the 12th August 1964, appears to be purely temporary, for In any event the President's Secretariat shall have to be established at the site reserved for it in Islamabad, and the C. D. A. in our opinion, has no power to make any such make-shift arrangement. We are unable to accept the contention that the C. D. A. has unlimited and undefined power to acquire all land within the Specified Areas. Any acquisition within these areas must have a reasonable reference to the purpose of the Ordinance, and must be carried out strictly in accordance with its provisions. The facts of the case reported in 90 Law Edn. were quite different from the present case. In the case under report the Tennessee Valley Authority, hereinafter referred to as the T. V. A., were granted powers by the Congress to "exercise the right of eminent domain" to condemn "all property that it deems necessary for carrying out the purposes of this Act." Congress in 1942, in order to meet pressing power needs for war production empowered the Authority to construct Fontana Dam, on the Little Tennessee River in North Carolina. The Dam is one of the world's largest and creates a reservoir 29 miles long. Between this reservoir and the Great Smoky Mountains National Park lie forty-four thousand acres of mountainous land, including the tracts which the Government wanted to condemn here. When the Congress authorised construction of the Dam, two hundred and sixteen families occupied this area. Their only convenient means of ingress and egress, was North Carolina Highway No. 288, a road approximately fifty miles in length. When, however, the Dam was built, the reservoir flooded most of the highway, rendering it useless for travel. As a result the area remained practically isolated. This apparently was an unforeseen situation and created problems that could not be solved for quite a long time. The interests of more than one person were affected. Conferences between the interested groups brought to light facts which led to the solution ultimately adopted. After a protracted negotiations which lasted a year and a half, with the exception of six persons who were residents of the said area, all the parties arrived at a unanimous agreement which inter alia provided for the acquisition of all the land in the isolated area, either by purchase or condemnation. It may be stated here that all the land-owners in the area, except the six respondents who refused to sell, received full compensation for the property. The main contentions raised on behalf of the respondents against the condemnation was that the T. V. A. could only condemn those lands which were needed for the Dam and Reservoir proper. It was argued that the common law rule of construction required that statutory powers to condemn be given a restrictive interpretation. This latter argument, however, was repelled by the Supreme Court by pointing out that the law expressly provided that the particular Act establishing the T. V. A. should be liberally construed to carry out the purposes of Congress to provide for the National Defence, Improve navigation, control destructive floods and promote Inter-State commerce and the general welfare. The Supreme Court held that it was the function of Congress to decide what type of taking is for a public use and that the agency authorised to do the taking may do so, to the full extent of its statutory authority. The Court also held that the provisions in the Statute include the power to condemn property for the purpose of settling its liability for the destruction of the State Highway under agreement between it and the State and with a view to co-operation with the other Governmental Agencies and the prevention of the waste of Government funds through adjustments made in the interests of the public, although the property taken is not directly needed by it for its Dam and Reservoir. It was also observed that the cost of public projects is a relevant element in all of them, and the Government, just as anyone else, is not required to proceed oblivious to elements of cost. It is thus evident that the T. V. A. in the exercise of its statutory powers which were much wider than those of the C. D. A. found itself in a situation which compelled it to acquire the lands which though not directly required for the purpose of setting up the Reservoir or the Dam, were reasonably connected with the purpose and function for which the T. V. A. was brought into existence. Learned counsel for the appellant has relied on the case in support of his contention that there must be a reasonable nexus between the acquisition and the purpose of the Ordinance. An acquisition which is wholly foreign to the Ordinance is ultra vires the Ordinance and is, therefore, illegal. Mr. Manzoor Qadir has also relied on the case of Municipal Council of Sydney v. Campbell (1925 L R A C 338) in support of his contention that the Impugned acquisition is illegal. In the case under report the appellant had been restrained from compulsorily acquiring the respondent's land in the city of Sydney under its statutory powers contained in the Sydney Corporation Amend ment Act. (No. XXXIX of 1905), as amended by certain subsequent Acts. The appellants had statutory power to acquire com pulsorily land required for the purposes of making or extending streets, also land required for "carrying out improvements in or remodelling any portion of the city". In connection with the extension of a street, they resolved to acquire the respondents' land for the latter purpose. They had previously been restrained from acquiring the land for the extension, on the ground that it was not really required for that purpose, but that its purchase was desired because of its probable increase in value. No plan for improving or remodelling the area was considered or proposed, and evidence as to proceedings in the Council showed that the appellants were endeavouring to give a new form to the transaction previously decided upon, rather than considering whether the respondents' land was required for improving or remodelling. It was held that the evidence sustained the lower Court's conclusion of fact that the appellants were exercising their powers for a purpose differing from those specified by the Statute, and that they had rightly been restrained from acquiring the respondent's land. We hold that the impugned acquisition is not for the purpose of the Ordinance, and is, therefore, without any justification. As regards the second contention learned counsel for the appellant has argued that the Ordinance does not give unlimited and undefined powers to the Authority to acquire land in the specified areas. All acquisition under the Ordinance must be preceded by and made in pursuance of a Scheme approved by the Central Government. On the contrary the respondents have contended that inasmuch as under section 22 of the Ordinance all land in the Specified Area "shall be liable to acquisition at any time fn accordance with the provisions of this Chapter,' j Land in the Specified Areas can be acquired without any restriction whatsoever and without the necessity of framing any Scheme. In our opinion the very Scheme and purpose of the Ordinance make it clear that the planning and development must proceed in accordance with some Scheme approved by the Central Government. This view finds full support, inter alia, from the provisions of sections 11, 12, 13 and 14, 19, 20, 21 and 25 of the Ordinance. The preamble further lends support to the view. Section 22 of the Ordinance provides that all land within the Specified Areas shall be liable to acquisition at any time in accordance with the provisions of this Chapter. The contention of the respondents suffers from a misconception inasmuch as it fails to take note of section 25 of the Ordinance which gives the powers to acquire land. Section 25 has categorically provided that the land can be acquired for the purposes of the Ordinance subject to the other provisions of this Ordinance, the rules made thereunder, and the directions of the Authority. This naturally takes us back, inter alia, to the provisions of sections 11, 12, 13 and 14 of the Ordinance. Apart from the purpose of the Ordinance, however, the acquisition under the Ordinance has to be made in pursuance of a Scheme framed under the Ordinance. This is particularly supported by the provisions of sections 20 and 21 of the Ordinance. The property in question having pucca buildings standing thereon may require to be demolished on acquisition. Under section 21 there is an embargo on the Authority to execute etc. any Scheme in the specified area, excluding the Capital Site, unless a reasonable opportunity to file their objections has been given to the persons whose rights and interests are going to be affected and the Authority has heard such of them as it considers necessary. Similarly no order for removal or demolition of any building fn the specified area excluding the Capital Site can be made unless the necessary opportunity has been given to owners or occupiers of the buildings and their objections have been heard as prescribed in section

20. The notice dated the 10th of September 1964 (Annex. 'C') evidently appears to be under section 21 of the Ordinance. This notice, however, does not give the particulars of the Scheme whereunder the property in question was sought to be acquired. In another notice of the same date (Annexure 'D') however, it has been mentioned that the land was sought to be acquired for the Central Government for the construction of the Capital, Islamabad. This notice was given under section 27 of the Ordinance. The latter notice should have preceded the preparation of a Scheme and the marking out and measurement of land and the preparation of plan. It was indeed curious that the two notices Annexures 'C' and 'D' should have been issued simultaneously. The Ordinance deals with expropriation of private properties and in the absence of a clear and unambiguous provision to the contrary such wide and undefined powers as are claimed for the C. D. A. cannot be countenanced. We accordingly hold that the acquisition being in flagrant violation of the provisions of the Ordinance is illegal. We now come to the third 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. For the reasons stated above this appeal is Allowed with costs and the impugned acquisition is declared to be without lawful authority and of no legal effect. SAMAD AHMAD, J.-I agree. WAHEHDUDDIN AHMAD, J.-I agree. K. B. A. Appeal accepted: