GOVERNMENT OF THE PUNJAB through Chief Secretary, Punjab, Lahore vs

' TARIQ PARVEZ KHAN, J.--- The matter was filed before this Court through Civil Petition for Leave to Appeal No,1579 of 2001, wherein leave to appeal was granted on 18-10-2002 to the appellant, inter alia, on the following grounds:--

(i) What is the legal status of the Ordinance XXV of 1963 of the West Pakistan Acquisition of property (Residence of Government Officials) Ordinance, 1963?

(ii) As held by the Courts below, -whether this Ordinance can fall into the category of law?

(iii) Whether issuance of notice was necessary before proceeding this matter under the afore-said Ordinance?

(iv) If at all, the acquisition is valid, then as to -whether a proper compensation as envisaged in law has been paid?

2. Background of present litigation which has commenced in the year, 1963 is that respondent- Naseer Ahmad Khan, late now through his legal heirs, was a claimant displaced person. He has filed his claim under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and to his luck house bearing No,96-A, Upper Mall, Lahore was given to him on the transfer price of Rs,96,000.

He was issued PTO on 1-2-1960 and PTD on 16-11-1961.

3. At that stage of time Col. Mukhtar Hussain, Military Secretary to the Governor was in its occupation and when was approached by the respondent to pay them the rent, it was replied in return that said house be sold to him i,e, to Col. Mukhtar Hussain.

' To the good luck of Col. Mukhtar Hussain and bad luck of the respondent first Martial Law was imposed in the country and the country was divided into Zones for Administration purposes. In Zone "B" of the Martial Law Administrator fall Province of West Pakistan as it then was.

4. Martial Law Order No,115 was issued by the Administrator of the Zone "B" directing the Provincial Government to acquire house occupied by Col. Mukhtar Hussain for the use of Government officials. Such acquisition was challenged by Writ Petition No,121 of 1963 but it appears that such writ petition became infructuous on promulgation of the West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance XXV of 1963 (hereinafter referred to as "the Ordinance") was one time and was in respect of one house only i,e, suit-house.

5. The constitutionality and legality of the Ordinance was challenged through Writ Petition No,1625 of 1965 and matter remained pending litigation and awaiting decision till date. Writ petition was heard by a learned Single Judge of Lahore High Court and decided on 26-5-1980. The said judgment which was then challenged by the Provincial Government through filing I.C.A. No,411 of 1980. The learned Division Bench of High Court handed down the impugned judgment dated 20-3- 2001.

6. It has been ruled by the High Court that they would not dilate upon mala fides but have their finding on the constitutionality and legality of the Ordinance. Learned High Court has ruled that the Ordinance under challenge could be held to be a legislative judgment which the legislator is not permitted by the Constitution to pass as it would be intrusion in the field reserved for the judiciary.

7. Keeping in view leave to appeal granting order we are of humble view that if we decide first question as formulated by this Court remaining three questions may not be addressed.

8. Learned Additional Advocate General, Punjab appearing for the appellant has argued that the Ordinance was issued by the Authority competent to issue i,e, the then Governor and that same was placed before the province legislature which has approved its promulgation through resolution; therefore, the Ordinance is good piece of legislation. Second contention is that it is the prerogative of the Government to acquire any property of any person but for public purpose.

Contention is that the house in question after it was acquired is permanently used by the senior officers serving with the Governor of the province and therefore, the action of the Provincial Government cannot be challenged on the touchstone of mala fide. It is further submitted that if the Ordinance was competently promulgated and consequence upon Ordinance property was acquired and such property is under the use of Government officials which was the object of acquisition no exception can be taken.

9. However, as question of attributing mala fide to the legislature was left open still it was argued that the legislator being supreme institution, all wisdom is attributable to the institution therefore, the Ordinance cannot be said to be un-constitutional on any ground whatsoever.

10. Learned counsel for the respondent has argued that where the Ordinance was never put to the house for debates but was adopted, it cannot be equated with that piece of legislation which was properly moved through a bill and was debated upon by members of the Assembly. His further contention is that house was illegally acquired because it was so recorded in the Ordinance itself that no permanent transfer deed was entered in favour of the respondent when the house was acquired whereas the fact is that PTD was issued in the name of the respondents' predecessor on 16-11-1961.

11. Learned counsel argued that Rs,96,000 which was returned to the respondent who received it under protest was not market value of the house in question and that when the house was taken by the provincial Government on payment of Rs,96,000 only as is mentioned in the Ordinance itself one fail to understand as what was the yardstick for fixing the price of the house.

12. It is argued that since house was in occupation of Military. Secretary and because there was Martial Law, therefore, it has to be inferred that Military Secretary of Governor prevailed in getting such piece of Ordinance which was related to the single property therefore, no question that it was acquired is in public interest. Learned counsel has also argued that under Article 14 of Constitution of Islamic Republic of Pakistan, 1962 and now under Article 23 of the Constitution of Islamic Republic of Pakistan, 1973 no person can be deprived of his property except as envisaged in the Constitution itself.

13. After we have heard learned Additional. Advocate General, Punjab for the appellant and learned counsel for the respondents. Undisputed fact would be that the house in question was given to, the predecessor of the respondent and so transferred in his name through PTO dated 1-2-1960 and PTD dated 16-11-1961. It is also not disputed that it was acquired under Ordinance XXV of 1963 and for a price of Rs,96,000.

14. Question before us is that shall the citizen of Pakistan to be deprived of its rights which were and which are constitutionally guaranteed, can such right be taken away by any subordinate legislation including an Ordinance? Our short reply is, that it is the responsibility of the State to preserve and protect fundamental rights of its citizen whereas in the instant case instead of preservation respondent were deprived of their fundamental rights. It is also not disputed that it was a single house which was mentioned in the Ordinance and no other house was subject of the Ordinance thus it was one time one house and against one person.

15. Law has been defined by the jurist, but we take guidance from the reported judgment of Peshawar High Court reported as Nawabzada Muhanunad Umar Khan (represented by his legal heirs) and 4 others v. Pakistan through Secretary, Cabinet Division and 2 others PLD 1982 Pesh: 1 that order was upheld by this Court in its judgment reported as Pakistan through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan (deceased) now represented by Kh. Muhammad Khan of Hoti and others 1992 SCMR 2450.

16. We have our own stand point against the action of the then Governor by promulgating Ordinance as to why by-passed law on the subject i,e, the Land Acquisition Act No,1 of 1894, the Act include in itself a detail procedure through which Government can acquire property of any citizen but on payment of compensation, of course condition precedent that object of acquisition should be public interest.

17. In this case for reasons not known, novel way was adopted by, by passing the general law applicable on the subject. On no good whatsoever one can justify the issuance of the Ordinance in question which was for individual benefit and not for the benefit of public at-large. It is therefore, held that the Ordinance which has taken away fundamental rights of citizen of the country would be unconstitutional and all the acts done thereunder ab initio void.

18. For the foregoing reasons, this appeal is therefore, dismissed. There is no orders as to costs.

However, after we deliver this judgment, we feel it our legal and moral duty to bring on record our displeasure because of the agony suffered by the respondents by putting them into unnecessary legal battle for nearing half century that too under the garb of so-called legislation.

' Respondents are however, at liberty to knock the door of any forum to redress their half century long agony by filing proceedings in the shape of damages, if so desire.

(Sd.) Anwar Zaheer Jamali, J. (Sd.) Tariq Parvez Khan, J.

' I have added additional note.

(Sd.) Khilji Arif Hussain, J.

Civil Appeal No,1382 of 2002 ' KHILJI ARIF HUSSAIN, J.--- I had the privilege of reading the judgment of my learned brother and agree with it. However, I wish to record additional reasons for reaching the same conclusions. In order to appreciate the question involved in the appeal, I would like to reproduce Ordinance No,XXV of 1963 which has been impugned by the respondents by filing a Constitutional Petition under Article 98 of the Constitution of Islamic Republic of Pakistan, 1962. `AN' Ordinance to provide for a acquisition of certain proper situate in Mauza Mian Mir, District Lahore for use as residence of Government officials and to validate actions taken under the Martial Law Order No,115 issued by the Martial Law Administrator, Zone "B".

' Whereas the property described in the Schedule was evacuee property and in pursuance of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act XXVII of 1958), had been provisionally transferred to Mr. Nasir-ud-Din and party in lieu of ninety six thousand rupees.

' And, whereas, the Martial Law Order No,115 was issued by the Martial Law Administrator, Zone "B" on the 24th February 1962, providing for the acquisition of the said property for the purpose of residence of Government officials.

' And, whereas, the validity of the said Martial Law Order and the action taken thereunder has been questioned.

' And, whereas, it is expedient in the public interest to provide for the acquisition of the said property for the purpose of residence of Government officials and to validate the actions taken in pursuance of the said Martial Law Order No,115.

' And, whereas, the Provincial Assembly of West Pakistan is not in session and the Government of West Pakistan is satisfied that circumstances exist which render immediate legislation necessary.

' Now, therefore, in exercise of the powers conferred on him by clause (1) of Article 79 of the Constitution, the Governor of West Pakistan is pleased to make and promulgate the following Ordinance.

' (1) Short title and commencement.--- This Ordinance may be called the West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance, 1963.

(2) It shall come into force at once and shall be deemed to have taken effect on and from the 24th February, 1962.

' Definition.--- In this Ordinance, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say.

(a) "Government" means the Government of West Pakistan.

(b) "Martial Law Order No,115" means the Martial Law Order No,115, issued by the Martial Law Administrator, Zone "B" on the 24th February, 1962, and

(c) "Property" means the property described in the schedule to this Ordinance.

(3) Not withstanding anything to the contrary contained in the Land Acquisition Act, 1894 (Act I of 1894), the Town Improvement Act, 1922 (Punjab Act IV of 1922), as amended by the Punjab Town, Improvement (West Pakistan Amendment) (Ordinance XVII of 1962), the Municipal Administration Ordinance, 1960 (Ordinance No,X of 1960) or any other law for the time being in force, or in any decree, judgment or order of any Court or Authority.

(a) Government shall forthwith take possession- of the property, summarily ejecting, if necessary, any person in occupation of any part thereof.

(b) Government shall pay, ninety-six thousand rupees by way of compensation to Nasir-ud-Din and party or any other person found to be entitled thereto.

(c) There on the property shall be deemed to have been duly acquired by Government free from all encumbrances and the actions taken under Martial Law Order No,115 shall be deemed to have been validly taken under this Ordinance and shall be continued.

SHEDULE 96-A Upper Mall, Lahore constructed on the land bearing Khasra No,2057, Mauza Mian Mir, Tehsil and District Lahore, measuring 11 Kanals, 7 Marlas, and 205 Square feet and comprising certain buildings and vacant site."

2. From a perusal of the Ordinance, it appears that the same was issued in the exercise of power under clause (1) of Article 79 of the Constitution in respect of one specific property not withstanding anything to the contrary contained in the Land Acquisition Act, 1894 (Act I of 1894), the Town Improvement Act, 1922 (Punjab Act IV of 1922), as amended by the Punjab Town Improvement (West Pakistan Amendment) (Ordinance XVIII of 1962), the Municipal Administration Ordinance, 1960 or any other law for the time being in force.

3. The property in question at the relevant time was in possession of one Col. Mukhtar Hussain, Military Secretary to the Governor.

4. The doctrine of equality, as contained in Article 25 of the Constitution, enshrines the golden rules of Islam. It states that every citizen, no matter how highsoever, must be accorded equal treatment with similarly situated persons. The principle is well settled that a State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class. In fact almost all legislation involves some kind of classification whereby some people acquire rights or suffer disabilities whereas others do not. What, however, is prohibited under this principle, is legislation favouring some within a class and unduly burdening others.

5. The basic rule for the exercise of such discretion and reasonable classification is that all persons placed in similar circumstances must be treated alike and the reasonable classification must be based on reasonable grounds in a given set of circumstances, but the same in any case must not offend the spirit of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.##TE

6. In the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and others, PLD 1993 SC 341, this Court laid down the following principle of equality under Article 25 of the Constitution of Islamic Republic of Pakistan 1973:- ' That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; ' That reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis.

(iii) that different laws can be validly enacted for different sexes, persons in different age group, persons having different financial standing, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can, be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class, of persons may be constitutionally valid if there is sufficient basis or reasons for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) that equal protection of law means that all persons equally placed to be treated alike both in privilege conferred and liabilities imposed;

(vii) that in order to make a classification reasonable it should be based--

(a) on an intelligible differentia which distinguished persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

' Although class legislation has been forbidden, it permits reasonable classification for the purpose of legislation. Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and differentia must be on rational relation to the objects sought to be achieved by the act. There should a nexus between the classification and the objects of the act. This principle symbolizes those persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in the violation of these principles is liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrarily power enabling it to administer in a discriminatory manner, such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violative of Articles 8 and 25".

7. In the case of Sh. Liaquat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504 it was held that:---

(i) No mala fide can be attributed to the Parliament, as it is a Sovereign body, to legislate on any subject which it has been empowered under the Constitution to legislate. The Court cannot strike down a statute on the ground of mala fide, but the same can be struck down on the ground that it is violative of a constitutional provision.

8. The Executive/Legislative are expected to act like a mother, to provide protection to deprived child/class of persons, rather than to those who enjoy power and privileges. However, most of time it has been noted that those to whom power has been entrusted by the common man, use the same to provide more privilege to the elite without any just classification. In the current scenario, no reason what to say plausible, has been given for not taking action under codified law in the field, and to issue Ordinance in respect of specific property.

9. It is an admitted position of law that no law can be made against the provisions of the Constitution and that if any law is unreasonable and it offends any of the Fundamental Rights, the same can be struck down.

10. Keeping in view the principles laid down by this Court in various pronouncements and fundamental rights guaranteed under the Constitution read with Article 2-A of the Constitution, the appellant has failed to give any valid or cogent reasons as to why the Ordinance has been issued in respect of a specified property instead of proceedings, if the property is required to public interest, under the Land Acquisition Act, 1894 and to pay compensation at the prevailing market rate to the owner of the property.

11. The appeal for the foregoing reasons is therefore dismissed with no order as to costs.##TE#