Order dated 08.6.2007 passed by the Director General Lahore Development Authority (the respondent) whereby he declined to exclude the property of the petitioner from the scheme known as Avenue-1 Housing Scheme is sought to be assailed through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973. The background forming part of the petition briefly stated is that:-
1. The petitioner had purchased land measuring 30-Kanals 18-Marlas comprising Khasra No, 392, 393, 394 and 395 Mauza Mussala Tehsil & District Lahore vide sale-deed date 03.12.1995 followed by revenue entries i,e, Mutation No, 648 which was sanctioned soon thereafter. His case is that he had also taken possession of the said land and made some development there. On 27.2.1998 notification under S.4 of the Land Acquisition Act, 1894 for acquiring land for Jubilee Town Housing Scheme was issued, which included the property of the petitioner, but on his objections the same was excluded from that scheme. Later on, the same land was sought to be acquired for a scheme known as IDA Avenue-1 Housing Scheme'. This was vide notification dated 18.12.2002 published on 24.12.2002. The petitioner again agitated the matter by raising objections, which remained undecided, therefore, W.P. No, 15162/2003 had to be filed by him. His writ petition was disposed of on 16.5.2006, with the direction to the Director General, Lahore Development Authority to consider the matter and pass speaking order. Pursuant thereto application dated 06.6.2006 was filed by him which was eventually dismissed by the respondent on 08.6.2007, through the order impugned herein.
2. The learned counsel have been heard.
3. The case of the petitioner centres around primarily on twin pleas that being Pakistani American his investment through remittances (foreign exchange) for the purchase of the land in dispute, was protected under the provisions of the Protection of Economic Reforms Act, 1992; and that many of the landowners whose land fell within the Scheme, was excluded or de-notified but the petitioner was being denied similar treatment without there being any legitimate justification. Instances, of such exclusion are mentioned in clause 'H' of the petition also. The learned counsel while stressing for exclusion of the land of the petitioner from the Scheme has endeavoured to bring his case within the ambit of Protection of Economic Reforms Act, 1992 (Act XII of 1992) and Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. The learned counsel/Legal Advisor for the respondent has vehemently sought to support the order passed by the Director General and contends that a new case for invoking the provisions of Act XII of 1992 is sought to be made for the first time in the petition and that no such exclusion,/ exemption can be claimed as of right as the land has been acquired for public purpose falling within the controlled area.
4. In order to consider the first objection of the respondent as to the plea about the petitioner's stance based upon the provisions of Act XII of 1992, it is not necessary to go beyond the pleadings of the parties in this petition and the previous one. W.P.No, 15162/2003, which was filed by the petitioner for a direction to the respondent to exclude his land from the Scheme remained pending for a considerable period. In that C.M. No, 1/2004 as also C.M. No, 1/2005 was filed. The object of these applications was to seek exclusion of the land of the petitioner from the Scheme and for placing documents i,e, bank statements as to remittances of foreign exchange to Pakistan for claiming protection of Act XII of 1992. The said petition as mentioned above, was disposed of on 16.5.2006 with the direction to the respondent to decide the controversy for which purpose he intend to file a petition containing grounds raised in writ petition and accompanying Civil Miscellaneous." Such a direction was indeed issued by the Court without any objection from the respondent side to decide the matter through a speaking order. It was thus that the impugned order was passed which makes mention of the plea of the petitioner as to the protection claimed under Act XII of 1992. Thus the objection that some new case is sought to be built up by the petitioner or a belated plea is being raised is hardly of any tenability and deserve to be repelled.
5. Adverting now to the crucial aspects of the matter, it may be observed that the land of the petitioner was initially covered by Jubilee Town Housing Scheme but was excluded as is mentioned in the impugned order itself. It had been purchased by him from remittances from USA through Citibank/Bank of America for the development of the site i,e, Farm House, Fishpond, Plantation of Fruit Garden, Hospital/Care Centre. That the petitioner was Pakistani, American and had made foreign exchange remittances finds support from the bank statements on the record, which relate mostly to the same period (when the land was purchased by him i,e, year 1994-1995) and thereafter. Since he was those days settled in America it is hard to disbelieve his assertion and deny his claim. Indeed the provisions of Act XII of 1992 had attracted and lured many such citizens of Pakistan, resident in Pakistan or outside Pakistan "to bring, hold, sell, transfer and take out foreign exchange" (S. 4). The provisions of the Act are of overriding effect. After remittances or bringing such foreign exchange into Pakistan the mode of investment thereof in projects was left to themselves. Indeed the provisions of S. 8 of the Act are of extensive nature and of wide amplitude.
Section 8 reads like this; "8. Protection of foreign and Pakistani investment.----No foreign, industrial or commercial enterprise established or owned in any form by a foreign or Pakistani investor for private gain in accordance with law; and no investment in share or equity of any company, firm, or enterprise. and no commercial bank or financial institution established, owned or acquired by any foreign or Pakistani investor. shall be compulsorily acquired or taken over by the Government." The scope and import of such ,provisions cannot be curtailed or restricted to any particular industrial or commercial enterprise. In case the approach adopted by the respondent about the said provisions of law is upheld, the whole rationale, object and purpose of the said legislation is likely to be frustrated leaving such persons in a state of quandary. It is thus hard for the Court to uphold the view expressed in the impugned order as to the import and effect of provisions of Act, XII of 1992.
6. Another aspect of equally importance, which cannot be lost sight of is that the properties of number of persons, companies, societies have been excluded from the purview of the Scheme. The petitioner can thus have a legitimate grievance to urge that he is not being dealt with like others similarly placed and situated. One may at this juncture revert to the provisions of Constitution of the Islamic Republic of Pakistan, 1973. According to Article 23, every citizen has the right to acquire, hold and dispose of property in any part of Pakistan subject to the Constitution and any reasonable restrictions imposed by law in the public interest. Article 24 further guarantees that "No person shall be deprived of his property save in accordance with law": Laws relating to compulsory acquisition of property are also taken care of by this provision. Article 25 enshrines a salutary guarantee that "All citizens are equal before law and are entitled to equal protection of law". To possess and make use of property clearly falls within the scope of Article 23 of the Constitution of the Islamic Republic of Pakistan, 1973. To acquire a property compulsorily under a law as envisaged by the provisions of Article 24 of the Constitution of the Islamic Republic of Pakistan, 1973. provided it fulfills the requisite conditionalities, is undeniable. However, in the instant case the perusal of location plan/map of the Scheme for which the land is sought to be acquired, will make it abundantly clear that large many scattered chunks of land/properties owned by individuals/companies/societies have already been either left out or excluded from the purview of the Scheme. He is merely invoking his right to be dealt with equally like many others. Justice (R)
Fazal Karim at Page-871 of "Judicial Review of Public Actions" while dealing with "Equality and Discretionary Powers" comments:-- "Equality, so runs the maxim, is equity. The very concept of discretion, so said Lord Diplock in Secretary v. Tameside "means a right to choose more than one possible course of action." Thus, discreption by its very nature contains an element of discrimination, but as we shall see, it is the vice of arbitrariness that attracts the equality clause. As was said by Justice Douglas, in his opinion for the Court in Furman, discretionary statutes are unconstitutional in their operation, when they are pregnant with discrimination" for "discrimination is an ingredient not compatible with the idea of equal protection of the laws...." Again at Page-879 while dealing with subject of "Discrimination in entering into Contract and Conferring Benefits" it is said that "In Arif Builders v. Gout., it was held that the Government does not have unfettered powers to deal with its properties and to award contracts, licences or other benefits and "unlike private individuals, it cannot arbitrarily pick and choose persons for bestowing favours:" And in Aneel Kumar v. University of Karachi, though the petitioners had no right to claim migration from one college to another, yet, as similar requests of other students, similarly placed, had been allowed, treating the petitioners differently was held to be an infraction of Article 25."
The concept of equality is indeed negation of arbitrariness. Every power has its extent and legal limits. The exercise of such power should be based on fairness and reasonableness. Persons in similar circumstances should have similar treatment, unless the differentiation is based upon a valid classification, which should not have the taint of arbitrariness that is the hallmark of any ideal dispensation of justice.
Even if it be assumed for the sake of argument that all the owners of land cannot be treated similarly for any reason, the petitioner would still be on a better footing having brought in foreign exchange, in claiming the exclusion of his land, which was purchased by him from his foreign savings and remittances. It is thus that the petitioner is clamouring and craving for the exclusion of his, piece of property, which is not so large as may be likely to in any way disturb the plan, effectiveness and utility of the said scheme.
7. It may be recalled that previously as well when the property of the petitioner was acquired for Jubilee Town Housing Scheme, it was excluded. It could not be again acquired for a similar purpose as on such exclusion he had earned a right to hold the same, which also gave rise to a legitimate expectancy that in future his property will not be subjected to a similar acquisition. The contents of paragraph-6 of the petition that the land of the petitioner was excluded from the first acquisition has not been specifically denied and thus is to be taken as correct.
8. The contention as to whether the acquisition was for public purpose. or not and other peripheral matters having no substantial bearing on the fate of the matter need not be gone into, as the petitioner is found entitled to the exclusion of his property from the operation of the Scheme, on the grounds mentioned above.
In view of the above, the petition succeeds which is accepted with no order as to costs.