2000 PLP 1711 (YLR)

(iii) Secretary, Cabinet Division Member (iv) Secretary, Establishment Division Member (v) Secretary, Finance Division Member (3) The Executive Committee, which exercises all powers, delegated by the Board for effective control, management, supervision and evaluation of all activities of the Housing Foundation is composed of the following by virtue of their offices: ‑‑ (i) Secretary, Housing and Works Division Chairman (ii) Joint Secretary Vice‑Chairman (Works) (iii) Director‑General Member Pak PWD (iv) Joint Secretary, Member Cabinet Division (v) Financial Advisor, Member Works Division (vi) Joint Engineering Member Advisor Works Division (vii) Deputy Secretary Member (Adorn.) Works Division (viii) Director‑General FGE Member Housing Foundation (5) The available residential plots shall be distributed among the various categories of applicants who fulfil the criteria for eligibility as given below:‑‑ (a) Judges of the Supreme Court, High Courts and Federal Shariat Court and Federal Government employees who have been declared as civil servants as defined under Civil Servants Act, 1973 (including civilian employees paid from defence estimates) and were in service on 1‑4‑1996. (b) Employees of autonomous/semi autonomous organizations and public sector corporations under the administrative control of the Federal Government (including employees serving in the Federal Government Employees Housing Foundation), who were in service on 1‑4‑1996. (c) Journalist, (d) Retired Federal Government employees governed under Civil Servants Act, 1973 . (e) Widows of those eligible Federal Government Employees who died during service or those Federal Government Employees who became disabled during service or extremely hardship cases. Note.‑‑Armed Forces personnel are not eligible to participate in the scheme. (a) The applications received from the Judges shall be forwarded to the Law and Justice Division for their scrutiny and their recommendations for allotment in the light of the laid down criteria for eligibility and allotment of plots as in the case of other Civil Servants as defined under Civil Servants Act, 1973. (b) Allotment to the Journalist shall be made on the recommendations of the Ministry of Information and Broadcasting who will draw up criteria for the purpose. (c) The applications received from the Federal Government Employees and employees of the autonomous/semi autonomous organization and public sector corporations under the administrative control of the Federal Government including those of the retired employees shall be scrutinized by the Housing Foundation. (a) Most of scrutiny of applications and seniority for the purpose of allotment shah‑‑be determined in the order of the date of birth of the applicant. In case, of widows of the Federal Government Employees, and those who became disabled during service, the seniority shall be determined on the basis of length of the Federal Government service of the deceased/disabled employee. (b) First priority shall be given to those applicants who or whose spouse(s) or any other member of their families neither own plot/house in Islamabad on 1‑4‑1996, nor any plot/house was ever allotted to them, by C.D.A., Federal Government Employees Housing Foundation, Defence Housing Authorities. Each applicant shall have to submit an affidavit to this effect duly countersigned by a First Class Magistrate. If at any stage, contents of the affidavit are found to be fictitious or false or any material facts found to have been concealed/misstated or suppressed deliberately and _ knowingly, the allotment will be cancelled. In addition. the amount deposited will be forfeited and such legal action as deemed appropriate will also be taken. (c) Second priority shall be given to those applicants who or those spouse(s) and any other member of their families own plot/house in Islamabad on 1‑4‑1996 but were never allotted a plot in Islamabad by the C.D.A., Federal Government Employees Housing Foundation/ Defence Housing Authorities or any other authority."

15. The first question requiring consideration is regarding the maintainability of this petition under Article 199 of the Constituti6n of Islamic Republic of Pakistan, 1973, against the Housing Foundation, a registered company. The petitioners through this petition have not only challenged the notifications on technical ground but they have also questioned the notification under section 4 and section 17(4) of the Land Acquisition Act, 1894, on a substantial question of law that the land being acquired by the Land Acquisition Collector for Housing Foundation was not a "public purpose". Therefore, the objection that the Housing Foundation being a registered Company, which is beneficiary of the land, is not amenable to the writ jurisdiction of this Court has no force. The notification for acquisition, of land under challenge has been issued by the Land Acquisition Collector, Islamabad, and not by the Housing Foundation, therefore, the objection is not entertain-able and the petitioners can competently invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in the matter. It may also be observed that despite the fact that the Housing Foundation is a registered Company, but it is being run officially by the Federal Government and thus, has assumed a role of an official Agency of Federal Government under the direct control of the Federal Government. The members of the Executive Committee and the Board of Governors act ex officio in their official capacity. The machinery of Federal Government is being utilized in the management of the affairs of the Housing Foundation and practically this Foundation having acquired the character of an official Organization discharges its function in connection with the affairs of Federal Government. Therefore, it is difficult to digest that such Government controlled and supervised Companies are not amenable to the judicial review of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

16. The second question relates to the acquisition of land by a Company for Housing Scheme. The land forming part of Capital Territory, Islamabad, is utilized under Capital Development Authority Ordinance, 1960, under the zoning System according to which a private Housing Scheme can only be established in Zone‑5 and the Housing Foundation, a registered Company, which is being run under the direct control of Federal Government has established its Housing Scheme in the Sectors which do not form part of Zone‑

5. This Company under the protection of Federal Government got the land acquired for its scheme in an area which was to be offered for sale to public in General after acquisition by the C.D.A. for establishment of a housing scheme by the C.D.A. for the benefit of public in general and the plots were to be allotted to the individuals through ballot on invitation of applications from the public in general The Housing Foundation while restricting the benefit of this land to a limited class of civil servants of Federal Government has deprived a common person to acquire the property through C.D.A. in Islamabad in violation of Article 23 of the Constitution of Islamic Republic of Pakistan, 1973. The Housing Foundation for the benefit of a limited class of person while assuming the role of an official Agency on the pretext of "public interest" acquired the land to utilize the same to establish the individual interest, therefore, this Court in public interest litigation can extend its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to examine the validity of acquisition and its purpose. The apex Court in Fauji Foundation v. Shamimur Rehman (PLD 1983 Supreme Court 457) held as under: ‑‑ "Here I may add that the power of eminent domain is a propriety aspect of sovereignty, and is inseparable from it, and the justification for acquisition of property for 'public purpose' is on the principle that the interests of the public are paramont and that private interests have to be subordinated to public, interest and the necessities of Government. This right is constitutionalized as a fundamental right in our Constitutional system, so much so that no private property can be expropriated save in accordance with law and that too for a public purpose and on payment of compensation. This fundamental right also provides an exception whereby property can be compulsorily acquired despite the aforesaid limitation, as, for instance clause (3) of Fundamental Right No.14 of the 1962 Constitution, clause (3) of Article 21 of the Interim Constitution of 1972 and clause (3) of Article 24 of the 1973 Constitution."

17. The acquisition of land for a "public purpose" for welfare of the community or general utilization would not be against law and unconstitutional and advance spirit of principles of policy as provided under Chapter 2 of the Constitution of Islamic Republic of Pakistan, 1973, read with Objectives Resolution, 1949, which has been made part of the Constitution by virtue of Article 2A of the Constitution but the distribution of State or a private property as booty is prohibited. The private property of the people cannot be acquired for individual benefit of other except for public purpose. This may be pointed out that during the period of Hazrat Umar (r.a.) at one occasion such a situation had arisen with regard to some land and the Mujahidden demanded the distribution of the said land to them but the Caliph refused to give the said land to the Mujahidden with the consideration that Islam strictly prohibits the establishment of the individuals interest in the State property in preference to the public interest.

18. As observed in the preceding paragraphs that the Housing Foundation like such other Companies can establish a Housing Scheme in the specified Zone for its members but cannot establish such scheme in an area of remaining residential Sectors except the specified Zone‑5 for such Schemes and thus, the Housing Foundation cannot be allowed to establish a private Scheme in regular Sector for individual interest of civil servants in violation of general policy as a special case and privilege. Therefore, the Foundation .in the light of the definition of "public interest" unless includes all the employees of the Federal Government inside or outside Islamabad and all those persons who are discharging functions in connection with the affairs of the Federation such as employees of the National Assembly, Election Commission of Pakistan, Supreme Court of Pakistan, the employees of High Court discharging function at Rawalpindi Bench of Lahore High Court, Federal Sharait Court and the autonmous Bodies, Corporations, Institutions, Government or semi‑Government Organizations which are directly or indirectly discharging the functions under the control of the Federal Government, Doctors, Engineers, Lawyers and Educationist, who in any mariner are connected with the Federal Government and Federation in public or private sectors are bonafidely running their affairs in Islamabad, such‑like Journalists, the acquisition of land for a Housing Scheme exclusively for the benefit of a limited class of civil servants in Sector G‑13 will not be in the "public interest". Similarly, the senior members of the Armed Forces who having completed their service are at the verge of their retirement or being in the retirement tenure or retired are discharging their function at their Headquarters in Islamabad and Rawalpindi are also entitled to be given representation in the Housing Scheme of Housing Foundation like the members of the superior judiciary. Thus, the Housing Foundation without extending the benefit of the scheme to the public and private sectors on the basis of a reasonable classification and ratio by including people from every walk of life in official or semi‑official position cannot justifiably acquired land for the benefit of only for the employees of Federal Government in Sector G‑13 as such employees are not definable as a Community for the purpose of "public purpose". Therefore, the Housing Foundation notwithstanding its Memorandum and Article of Association without enlarging the purpose of acquisition of land to the general use for 1 benefit of public‑at‑large can neither establish such Scheme out of Zone‑5 nor use the machinery of law and Government for such purpose.

19. The Housing Foundation confined entitlement only to the following categories of persons in its brochur: ‑‑ "The available residential plots shall be distributed among the various categories of applicants, who fulfil the criteria for eligibility as given below:‑‑ (a) Judges of the Supreme Court, High Courts and. Federal Shariat Court and Federal Government employees who have been declared as civil servant as defined under Civil Servants Act, 1973 (including civilian employees paid from defence estimates) and were in service on 1‑4‑1996. (b) Employees of autonomous/semi autonomous organizations and public sector corporations under the administrative control of the Federal Government (including employees serving in the Federal Government Employees Housing Foundation), who were in service on 14‑1‑1996 (c) Journalists (d) Retired Federal Government employees governed under Civil Servants Act, 1973. (e) Widows of those eligible Federal Government employees who died during service or those Federal Government employees who became disabled during service or extremely hardship cases. Note.‑‑Armed Forces personnel are not eligible to participate in the scheme."

20. The Executive Committee of the Housing Foundation made the following decision in its 47th meeting on 11‑6‑1997 as under:‑‑ "The Director‑General, Housing Foundation informed that the Judges of the Supreme Court, High Courts and Federal Shariat Court were made eligible to participate in Phase‑III of the Housing Scheme at Islamabad under the directions of the then Prime Minister. In all, 87 Judges had applied in the scheme and their applications were being referred to Law Justice and Parliamentary Affairs Divisions for scrutiny and recommendations for allotment of plot in the light of the laid down criteria. He, however, explained that 77 % of the available plots for category‑I had been earmarked for Judges and Federal Government employees of BS‑20 and above. He further elaborated that age of superannuation in case of Judges was 65 years whereas that for the civil servants as 60 years. So, in order to rationalize the distribution of Category‑I plots between the two classes of applicants, it was proposed that Category‑I plots earmarked under 77 % quota may be further bifurcated in the ratio of 30:70 for allotment to the eligible Judges and civil servants respectively. The Committee approved the allotment of Category‑I plots earmarked for the Judges and civil servant in the ratio 30:70. "

21. Thus, in the light of the above decision, a percentage was a separately fixed in the Scheme for the Judges of the superior Court, Journalist, the retired Federal Government employees and disabled person. As per above calculation, 120 plots were kept for allotment to the members of the superior judiciary in Sector G‑13 and only 87 applications were initially received by the Housing‑Foundation but allotment titters have been issued only to a limited number of Judges of the superior judiciary with the excuse that the remaining applicants were not found eligible while mixing the Judges with civil servant without realizing that the entitlement of the members of superior judiciary was to be determined inter se Judges and were not to be clubbed with the civil servant for the purpose of determining their eligibility. This is noticeable that the Housing Foundation voluntarily offered allotment of the residential plots to the members of the superior judiciary in Sector G‑13 and made special allocation to accommodate all applicants Judges, therefore, the subsequent change to a different direction was in conflict to the policy decision and hit by promissory estoppel. 1, therefore, hold that all members of the superior judiciary, whether sitting or retired who applied for an allotment of the plot in Sector G‑13 or not irrespective of age and category, if they were holding office on the date of issue of notification under section 4 of the Land Acquisition Act, 1894, and if earlier were not allotted a plot by the Housing Foundation in any capacity are entitled to be allotted the residential plots on the basis of their entitlement from the special allocation of plots for Judges in Sector G‑13, Islamabad.

22. The Headquarters of Pakistan Army and Pakistan Air Force are in the shifting process to Islamabad whereas ' the Headquarters of Pakistan Navy is already functioning in Islamabad, therefore, the Housing Foundation shall also allocate a special percentage of plots in its Scheme namely Sector G‑13 and Sector G‑14 for the senior members of the Armed Forces who before their retirement are generally stationed at their headquarters and are in need of a residential plot in Islamabad for allotment to them through the Ministry of Defence in a reasonable proportionate for Pakistan Awry, Pakistan Navy and Pakistan Air Force. The Journalist, Doctors, Engineer and Lawyers who are discharging their functions in the Government or semi‑Government Organization being stationed at Islamabad directly or indirectly in connection with the affairs of the Federation are equally entitled to be given representation in the Housing Scheme of Federal Government Employees Housing Foundation. This may be pointed out that during the year 1974, under a similar scheme, the Judges of superior Courts and senior Lawyers who were practising in the Supreme Court of Pakistan were allotted plots through the C.D.A. and now the Supreme Court is permanently functioning at Islamabad for the last about twenty‑six years but no such facility was extended to the lawyers who are discharging their functions in the Supreme Court or who are permanently practising in Islamabad, therefore, in view of the status of the lawyers as officer of the Court, the Housing Foundation shall fix a special quota for lawyers who are discharging their functions in the Supreme Court of Pakistan, the Federal and Provincial Law Officers and the lawyers who practise in Islamabad District Courts, in the High Court at Rawalpindi or in the Federal Shariat Court at Islamabad.

23. The Director‑General Housing Foundation while appearing in person has stated that the judgment shall be implemented as such to avoid any complication in the acquisition of land for Housing Scheme and that the same shall be extended to all above referred categories of people without any distinction with a view to extend the benefit of shelter to a maximum number of people to make the acquisition of land in public interest for "public purpose". He, however, states that since a large number of allotments have been made in Sector G‑13, therefore, after accommodating the applicants of different categories as per their entitlement, the remaining plots shall be allotted in the light of the direction of this Court through the heads of respective Institutions and Organizations. He undertakes that in any case, the applicants of the above‑referred categories shall be accommodated in the next scheme of Sector G‑14, which is under progress.

24. The acquisition of land for a Housing Scheme introduced by the Housing Foundation for public utility in the form of an Agency like Capital Development Authority under the control of Federal Government and if such scheme is executed in the benefit of public‑at‑large and is not confined to a limited class, it will definitely advance the spirit of Constitution. Therefore, the acquisition of the land by the Housing Foundation for the benefit of all the above referred categories of persons can be for the "public purpose" and the same will not be in violation of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973, which do not prevent establishment of Housing Colonies in the public interest. Article 24 (1) (e)(i)(ii) provides as under:‑‑ 24.‑‑(1) No person shall be deprived of his property save in accordance with law. (2) ............. .. (3) Nothing in this Article shall affect the validity of‑‑‑ (a) .. (b) .. (c) .. (d) .. (e) any law providing for the acquisition of any class ‑of property for the purpose of‑‑ (i) providing education and medical aid to all or any specified class of citizens; or (ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens."

25. Consequently, the short order passed on 8th November, 1999, which is read as follows is made part of this judgment:‑‑ "In the present Constitution petition, the acquisition of land of Village Akko and Maira Jaffar located in Sector G‑13 in the Capital Territory of Islamabad for development of a Housing Scheme on ownership basis by Federal Government Employees Housing Foundation under the administrative control of Ministry of Housing and Works, Government of the Pakistan, through notification under section 4 read with section 17 (4) of the Land Acquisition Act 1894, issued on 10‑6‑1996 and 23‑11‑1996 respectively is under challenge and the said notifications have been called in question on the ground that the land was being acquired for individual interest in contravention to the provisions of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973. Since the acquisition of land and legality of the notifications under section 4 and section 17(4) of the Land Acquisition Act, 1894, has been questioned to be in violation of Article 24 of the Constitution, therefore, said Article as well as Articles 2, 2A and 4 of the Constitution and the relevant provisions of the Land Acquisition Act, 1894. The Capital Development Authority Ordinance, 1960, and the Land Acquisition Regulations, 1991, requires examination.

2. Articles 2, 2A and 227 of the Constitution of Islamic Republic of Pakistan, 1973, enunciated that Islam shall be followed as supreme law in individual as well as national life whereas Article 3 has ensured the elimination of all forms of exploitation with fulfilment of the fundamental principle of Islam. Article 4 of the Constitution has guaranteed the protection of law as inalienable right of every citizen, and every person from any action detrimental to his life, liberty, body, reputation or property except in accordance with law. According to the principle of policy set out in Chapter 2 of Part II of the Constitution, the State is responsible to ensure the observance of fundamental principle of Islam individually and collectively.

3. Article 23 of the Constitution provides that every citizens shall have right to acquire, hold ‑ and dispose of property subject to the condition and restriction imposed by law in public interest, whereas under Article 24 of the Constitution, no person can be deprived of his property save in accordance with law and no property can be compulsorily acquired of take possession without payment of compensation save for public purpose subject to the exceptions given therein.

4. The examination of the provisions of Article 24 of the Constitution with the remaining Articles on the subject, and Islamic provisions through valuable assistance rendered by the learned counsel for the parties the following conclusions are drawn:‑‑ (a) That the word 'public purpose' used in Article 24 of the Constitution connotes that public purpose would generally mean a purpose which is for the benefit of general public or a purpose which is of public utility, and expression 'public purpose' used in generic. sense includes any purpose through which even a fraction of community may be benefited; (b) That the definition of 'public purpose' by the State or the acquiring Agency is always subject to determination of the nature of purpose by the Court if such questions raised before the Court; (c) That in view of the relevant provisions of the Constitution and the law as well as the pronouncement of the superior Courts, every citizen has a legitimate right to acquire and hold the property any where in Pakistan and he cannot be deprived of such right save in accordance with law. However, the Constitution does not prohibit the acquisition of land for providing housing and public facility and service such as roads, water supply, sewerage, gas, and electric power to all or any specified class of citizens is permissible under the law; (d) That the private property cannot be acquired for the benefit of individuals or a limited class of persons either by the Government or a public or private Company except for 'public purpose' and thereafter, the acquisition of land for a housing scheme by a Company in the Capital area except in specified Zone cannot be acquired for the benefit of a limited class of persons and not general public without associating and including various classes of persons who are directly or indirectly connected with the affairs of the Federation either in official or semi‑official capacity or in any other position will not be for the 'public purpose'.

4. The Director‑General, Federal Government Employees Housing Foundation in attendance has given assurance to extend the benefit of Housing Scheme to certain other classes of persons and given effect the directions being made in this behalf in letter and spirit. In the light of the above said conclusions, the following directions are made: ‑‑ (i) That the landowners shall be paid compensation per Kanal as agreed with them by the Land Acquisition Collector through negotiation with separate compensation of built‑up properties within a reasonable time. (ii) That benefit of the Housing Scheme of the Federal Government Employees Housing Foundation under execution shall be extended to all such employees, whether civil servants or not who are directly or indirectly discharging the functions in connection with the affairs of the Federation and Federal Government and the Constitutional Institutions. (iii) That all such persons belonging to various categories (subject to their eligibility) shall be entitled to the allotment of residential plots in the Housing Scheme of Federal Government Employees, Housing Foundation in their respective categories. Since the Award has been announced recently, therefore, any such employee eligible for allotment if for some good reasons could not apply earlier shall subject to the satisfactory explanation of delay will be entitled to apply within thirty days from the date of this order. (iv) That the criteria of eligibility fixed for Government employees and other categories of applicants shall not be made applicable to the members of superior judiciary who are enjoying officer under the Constitution and notwithstanding their induction in office as Judge of a superior Court before or after the target date i.e. 6‑4‑1996, as well as age and earlier allotment in any other capacity other than a Judge of superior Court by the C.D.A. or any other authority except the Housing Foundation, shall be entitled for the allotment of a residential plot in the Housing Scheme in Sector G‑13, Islamabad, whether applied or not from the allocation of 120 plots for the superior judiciary with the ratio of 30.70 out of 77 per cent plots earmarked for Category‑I, as per decision made by the Executive Committee. The Housing Foundation shall issued allotment letters within one month from the date of this order to members of superior Judiciary who either have already applied or will not apply within the above said period. (v) That after accommodating all Judges less than one hundred on the roll of Housing Foundation as applicants, the surplus plots of the allocation of superior judiciary shall be offered to the Judges who retired within two years before the target date i.e. 6‑4‑1996 like retired civil servants and sitting Judges who either were not in office on 6‑4‑1996 or ‑ for some reasons could not earlier apply. If they now apply within one month from this order shall be entitled on the basis of their priority in age inter se from the quota of plots allocated for them through the Ministry of Law and Parliamentary Affairs, Government of Pakistan. (vi) That like employees of Autonomous and Semi‑Autonomous Organization and Public Sectors Companies under the control of Federal Government, the employees of the Election Commission of Pakistan, Supreme Court of Pakistan, Federal Shariat Court and Rawalpindi Bench of the Lahore High Court, National. Assembly and such other Institutions who are discharging functions in connection with the affairs of the Federation and Federation Government in Islamabad subject to their eligibility shall be considered' for allotment of residential plots in the Housing Scheme of Federal Government Employees Housing Foundation. (vii) That like members of superior Judiciary, senior members of Armed Forces i.e. Pakistan Army, Pakistan Navy and Air Force who normally stationed at their Headquarters which either have been shifted to Islamabad and such members are in their tenure of retirement notwithstanding the exclusion of participation of Armed Forces Personnel from the Scheme shall be given representation in the Housing Scheme through their Headquarters by way of special allocation for each Headquarters. (viii) That like journalists, the Doctors and Engineers who directly or indirectly, in their official or semi‑official capacity are rendering services in Islamabad in connection with the Government or semi‑Government organizations shall be considered for allocation of special quota in the Housing Scheme of the Foundation. (ix) That a special allocation of residential plots was made by the C.D.A. for the lawyers on the shifting of Supreme Court to Islamabad in 1974 and, thereafter no such facility was provided for the lawyers, therefore, like Journalist and employees of Autonomous Bodies, the lawyers who normally practise in the Supreme Court of Pakistan at Islamabad including the Law Officers of the Federal and the Provincial Government, who are attached with the superior Courts as well as the lawyers of the Courts at Islamabad shall considered for a specials Sector G‑13 and Sector G‑14 disposal of the Ministry of Law Parliamentary Affairs.

5. Any allotment made by the Housing Foundation after 8th of November, 1999, in contravention to this order, shall be invalid. The above directions shall be given effect within one month from the date of this order."

26. I, therefore, in the light of foregoing without commenting upon the matter relating to the claim of the landowners for the payment of compulsory charges declare that subject to the conclusions and direction made herein before, the acquisition of land for establishment of a Housing Scheme in Sector G‑13 is valid. The matter relating to the inadequacy of the compensation and non-payment of compulsory charges are to be decided by the Collector while announcing the Award and subsequently through alternate remedies provided under the law. The Director‑General has undertaken to implement this judgment in letter and spirit within one month. This petition is accordingly disposed of with no order as to costs. Q.M.H./M.A.K./G‑40/L Order accordingly.