P L D 2001 Lahore 379 (PLP)

11. In the year 1963 and pursuant to the provisions of article 211 of the Constitution of the Republic of Pakistan and vide Ordinance VI of 1963 captioned as Capital of the Republic (Determination of Area) Ordinance, 1963, the area of the Capital was determined by the President through this Ordinance. Section 2 of the Ordinance reads as follows: "Area of the Capital.‑‑The area specified in the Schedule measuring three hundred and fifty square miles or thereabout within the District of Rawalpindi in the Province of West Pakistan at the site selected for the Capital of Pakistan shall be the area of the Capital of the Republic." It also provides the Schedule of the area to be called as the "Capital Site".

12. It appears that this was a step forward after the promulgation of the C.D.A. Ordinance which determined the contours of the Capital Site. It is interesting to note that the Specified Areas reflected in section 2(p) of the C.D.A. Ordinance found no mention in this Ordinance.

13. In the year 1970, President's Order No.1 of 1970 dissolved the Province of West Pakistan and constituted new Provinces. Section 4 reads as follows: "Constitution of new Provinces, etc. ‑‑(1) As from the appointed day, the Province of West Pakistan, as it existed immediately before that day, shall cease to exist and there shall be constituted in its place four Provinces to be known respectively as (a) Balochistan, (b) the North‑West Frontier Province, (c) the Punjab and (d) Sindh, and the following Centrally Administered Areas, namely:‑‑ (a) the Islamabad Capital Territory; and (b) the Centrally Administered Tribal Areas. (2) The territories of the new Provinces and the Centrally Administered Areas shall be as set out in the Schedule."

14. The 1973 Constitution in its Article 1 described the Republic and its Territories as follows: "The Republic and its territories ‑‑Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan. (2) The territories of Pakistan shall comprise‑‑(a) the Provinces of Balochistan, the North‑West. Frontier, the Punjab and Sindh; (b) the Islamabad Capital Territory, hereinafter referred to as the Federal Capital; (c) the Federally Administered Tribal Areas; and (d) such States and .territories as are or may be included in Pakistan, whether by accession or otherwise. (3) Parliament may by law admit into the Federation new States or areas on such terms and conditions as it thinks fit."

15. Article 152 of the 1973` Constitution reads as follows: "Acquisition of land for Federal purposes ‑‑The Federation may, if it deems necessary to acquire any land situate in a Province for any purpose connected with a matter with respect to which Parliament has power to make laws, require the Province to acquire the land on behalf, and at the expense, of the Federation or, if the land belongs to the Province, to transfer it to the Federation on such terms as may be agreed or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of Pakistan." 16.' It appears that at the time of promulgation of the C.D.A‑ Ordinance, 1960, the selection of the Capital Site and its physical determination was still in an embryo State and this appears to be the reason for stating as to what may possibly be the specified areas on which the Capital Site was to be built. The 1962 Constitution in its Article 211 required the selection of the Capital Site and after three years of the promulgation of the C.D.A. Ordinance, 1960 that is in the year 1963, Capital of the Republic (Determination of Area) Ordinance, 1963 (Ordinance VI of 1963) came about providing a Schedule under its section 2 which was to be the area of the Capital. It further appears that corresponding changes were not carried out in the C.D.A. Ordinance, 1960, particularly the two Schedules which were reflecting the limits of the "Capital Site" and the limits of the "Specified Areas". But obviously the Schedule given by the Capital of the Republic (Determination of Area) Ordinance, 1963 was to replace the Schedule of the C.D.A. Ordinance, 1960 and is to be followed for all purposes determining the territorial limits of the Capital Site. The inaction on the part of the C.D.A. in correcting the Ordinance has already led to various controversies including the present one. The C.D.A. according to the "Schedule of limits of Specified Areas" given in the 1960 Ordinance feels that any such area mentioned in the said Schedule was subject to acquisition. While forgetting that the said Schedule had later to conform to the Schedule given by the Ordinance VI of 1963.

17. Having cleared this legal and factual position, we have now to see whether Khasra No.260/1 is located within the Capital Site or in Rawalpindi. In case it is located in the Capital Site, it is vulnerable to acquisition by the C.D.A. as has already been done through the award and the directive under reference. But in. case Khasra No.260/1 is located outside the Capital Site and in the Province of the Punjab and in the District of Rawalpindi, the territorial jurisdiction of the C.D.A. shall not extend to this Khasra number and the C.D.A. cannot still nourish the idea on the basis of the C.D.A. Ordinance, 1960 that it has the jurisdiction. While being oblivious of the development in law, the change in the territorial positions of the Capital and the Provinces.

18. It has come on record on the basis of the certification issued by the Tehsildar, C.D.A. aforementioned that the Khasra number in question was located in Rawalpindi, the C.D.A. Authorities, therefore, had no locus standi or legal justification to extend their jurisdiction into the ambit of a Province for directly acquiring this land.

19. It may be mentioned that the territories of the Provinces and the Capital having been determined, the Federal Government and the Provincial Government have to act within their own spheres of jurisdiction in a Federal set‑up. The methodology for acquisition of land in a Province for a Federal Government is already provided by Article 152 of the Constitution. And in case the C.D.A. was interested in acquiring this land, it can always take benefit of Article 152 of the Constitution. But certainly cannot act directly in the territorial limits of a Province.

20. As a matter of fact, when an objection with respect to the location of the said Khasra number was made, the C.D.A. ought to have carried out a demarcation/spot inspection for finding out whether the said Khasra number fell within its territorial limits or not and proceeded in accordance with law instead of remaining tied to its position on the basis of the Schedule showing the "limits of the Specified Areas".

21. Even now if the C.D.A. feels that Khasra No.260/1 was covered by the Schedule to the Capital of the Republic (Determination of Area) Ordinance, 1963, it may point out this to the petitioner during the phys demarcation and then act in accordance with law.

22. However, it may be mentioned that before this Court it is not case of the C.D.A. that the said Khasra number fell within the Schedule the Capital of the Republic (Determination of Area) Ordinance, 1963.

23. The upshot of the above discussion is that the inclusion of Kha No.260/1 in the directive No.204 showing it to be situated in the. District Tehsil of Islamabad appears to be factually incorrect as no demarcation ; been effected and the C.D.A's certificate itself aforementioned shows this be a part of Rawalpindi.

24. Under the circumstances, the award dated 29‑1‑1986 as far Khasra No.260/1 is concerned, is of no legal consequence. The writ petition therefore, succeeds subject to the observations made above in para.

21. The is no order as to costs. Q.M.H./M.A.K./K‑71/L Petition allowed.