2025 PLP 176 (MLD)

Mohsin Akhtar Kayani, J.

Through this writ petition, the petitioner Civil Works Organization has assailed the letter dated 25.08.2021 issued by respondent No.1 / Land Acquisition Collector/ Islamabad, whereby, petitioner has been directed to obtain. NOC from CDA for acquisition of the property.

2. Brief facts referred in the instant petition are that petitioner Civil Works Organization is a strategic organization established under National Command Authority Act, 2010, whereas, the National Command Authority supervises and manages the organization which falls within the definition of section 7 (b) of National command Authority Act, 2010. The petitioner on 26.07.2007 intended to acquire land in revenue estate of Sihala for public purpose i.e. defence purposes, approached the office of Land Acquisition Collector, Islamabad, who issued notification under section 4 of Land Acquisition Act, 1894 for the acquisition of land measuring 49 Kanals and 13 Marlas in the revenue estate Sihala, District Islamabad, however, during the completion of process the petitioner had purchased 29 Kanals and 9 Marls directly from the land owners through mutation Nos. 6710, 6727, 6728, 6737, 6748 and 6767, in the same area which has now been de-notified from the acquisition process vide corrigendum dated 20.05.2009. The Land Acquisition Collector determined price / value of land @ rupees two millions per kanal in accordance with the market value of land in 2011 and petitioner had deposited the total amount of compensation along with 15% compulsory surcharge through cross cheque in favor of respondent No.1, which has been received through letter dated 07.10.2011. Some civil proceedings were initiated by the land owners which have been settled after first round from the court of Civil Judge, Islamabad, resultantly, suit was dismissed, whereafter, respondents have approached for conclusion of the acquisition proceedings in accordance with the section 11 of Land Acquisition Act, 1894. The respondent in response to the letter dated 15.07.2021 informed the petitioner to get NOC from CDA authorities through letter dated 25.08.2021 hence, this writ petition.

3. Learned counsel for the petitioner contends that there is no requirement of NOC from respondent No.2 / CDA office as such the said claim is beyond legal authority of the Land Acquisition Collector; that the land is acquired for public purposes namely defence purposes under land Acquisition Act, 1894, does not fall within the requirement of CDA Ordinance, 1960, which is only meant for planning and development of Islamabad within the framework of regional development plan.

4. Conversely, learned counsel for CDA contends that CDA is custodian of entire land in Islamabad and as such any strategic organization if intends to acquire land for public purposes, same should have obtained NOC from the CDA in terms of CDA by-laws for the purposes of regulation of the property.

5. Arguments heard, record perused.

6. Perusal of record reveals that the entire case of the petitioner revolves around the direction passed by Land Acquisition Collector, Islamabad vide letter dated 25.08.2021 to obtain NOC from CDA with reference to the direction passed vide Order dated 09.06.2021 in Writ Petition No. 2016 of 2021 titled as "Mst. Kaniz Fatima and others v. FOP, and others".

7. No doubt, the CDA Ordinance, 1960, deals with the development of capital in specified areas for which CDA has been equipped with powers and duties in terms of section 11 of the Ordinance, for preparation of master plan and phased master program for development of capital site, which requires approval from Federal Government. In terms of section 12 of the Ordinance, the CDA authorities may pursuant to master plan and master program, call upon any local body or agency operating in the specified areas to prepare, in consultation with the authority, a scheme or schemes in respect of matters ordinarily dealt with by such local body or agency, which may relate to land use, zoning and land reservation; public buildings; industry; transportation and communications, highway, roads, streets, railways, aerodromes; tele-communications, including wireless, television, radio, telephone; utilization of water, power and other natural resources; community planning house slum clearance, amelioration; community facilities including water supply, sewerage, drainage, sewage disposal, electricity supply, gas supply and other public utilities; preservation of objects of places of historical or scientific interest or natural beauty; therefore, in order to manage all these functions the CDA authority can acquire the land in specified area in accordance with the procedure laid down in chapter IV of the CDA Ordinance, 1960, which is provided in detail under section 15 of the Ordinance. The acquisition of land has separately been explained in Chapter IV, section 22 to section 34 of the CDA Ordinance, 1960, which provides liability to acquisition; power to acquire land; land to be marked out measured and planned; enquiry and award of Deputy Commissioner, etc, even appeal and review has been provided to aggrieved persons.

8. Learned counsel for the petitioner has pointed out that in proposition of scheme prepared by the CDA in terms of section 12 of the CDA Ordinance, 1960, only envisages limited purpose of capital territory development and defence purpose does not fall within the purview of CDA Ordinance, 1960, therefore, requirement of the strategic organization has not been covered under this law. In such scenario, the requirement of the strategic organization is to be seen in the light of preamble provided in NCA Act, 2010, which deals with complete command and control over research, development, production and use of nuclear and space technologies, therefore, in order to achieve the said areas highlighted in NCA Act, 2010, National Command Authority is equipped with powers and functions provided in section 7(q) of the Act, to acquire property whether movable or immovable in its own name or in the name of a designated official or a strategic organization. Learned counsel for the petitioner has further drawn attention of this Court towards notification dated 27.06.2007 issued by Land Acquisition Collector which highlights the public purpose namely defence purpose against the land situated in Mouza Sihala, measuring 49 Kanal and 13 Marla, which has now been reduced to 29 Kanal and 09 Marla by virtue of notification dated 30.05.2009 for the acquisition of land in favor of Head Quarters Civil Works Organization, Rawalpindi.

9. Now question arises as to whether District Collector can issue such direction to obtain NOC from the CDA? As such there is no power conferred to the Collector under Land Acquisition Act, 1894 to claim NOC from the beneficiary company as no provision authorizes the Land Acquisition Collector to claim such NOC, but the wording referred in the impugned letter refers the direction of the court in case titled as "Kaniz Fatima v. FOP and others" which is on different parameters, whereby, this Court in constitutional jurisdiction highlighted the framework of, master plan enforced in the Islamabad Capital Territory through CDA Ordinance, 1960 and in the said case the court held that CDA is necessary party in all such type of cases, hence there is no direct requirement of NOC. However, after the construction of building on the acquired land, the NOC is to be applied from CDA for approval of construction made therein subject to compliance of requisite formalities provided in the CDA by-laws so that any violation if made be checked and settled accordingly.

10. I have attended the parawise comments filed by CDA, whereby, they have taken a particular stance that they being the master regulator of Islamabad Capital Territory are bound to strictly follow and implement the master plan of CDA as every zone of CDA has its own purpose within the framework of regional development plan.

11. No doubt, the planning and development is domain of CDA, even against the acquired land in terms of judgment reported as 2021 SCMR 201 (Federal Government Employees Housing Foundation (FGEHF) Islamabad and others v. Malik Ghulam Mustafa and others). however, by applying the rules of interpretation in this proposition, I have compared the CDA Ordinance, 1960 with NCA Act, 2010 and earmarked the difference in the applicable area of both the laws which are special subject laws in their own policy mandate, however, section 21 of the NCA Act, 2010 provides and overriding effect upon any other law for the time being enforced and applicable to strategic organization. In such scenario in case of interpretational dispute strategic organization under NCA Act, 2010 shall prevail, however, situation in hand is entirely different, in which only NOC has been claimed from the strategic organization to complete process of acquisition. It is admitted that defence purpose is a public purpose and specifically notified under section 4 of Land Acquisition Act, 1894, notified by the Land Acquisition Collector, Islamabad, though the same was not provided in CDA Ordinance scheme but it does not mean that strategic organization or defence forces are not allowed to acquire land within Islamabad Capital Territory, even otherwise, Land Acquisition Collector, Islamabad, does not have any authority to ask for the NOC from CDA, even the acquisitions done earlier by any agency other than CDA, NOC has never been required, especially, when the acquisition agency is fully competent. At the most the NOC is to be considered against the application of by-laws of CDA on the property acquired by the Civil Works Organization, if any, resultantly, the action proposed by Land Acquisition Collector is beyond his powers, therefore, the acquisition process should be completed forthwith under the law, hence, instant petition is ALLOWED and letter dated 25.08.2021 issue by the Land Acquisition Collector, ICT, seeking NOC from CDA is SET-ASIDE, however, it is expected from the CDA authorities to issue NOC in accordance with rules and regulations after the conclusion of acquisition proceedings when any building or construction has been made on the acquired land under the law and to decide any such request at the relevant stage through speaking order within period of fifteen days positively. MQ/36/Isl. Petition allowed.