SHAUKAT AZIZ SIDDIQUI, J. --- By invoking the Constitutional jurisdiction of this Court, petitioner filed instant writ petition with the following prayer:- It is, therefore, prayed that the respondents may kindly be directed to issue 'No Objection Certificate" to the petitioner for raising construction on the land owned by the petitioner or in the alternative pay the present market price as per order of the Hon'ble High Court dated 2.11.1999."
AND presented the facts as under:
2. That petitioner is owner of land measuring 26 kanals, 15 marlas bearing khasra Nos. 19, 20, 22, 26, 28 & 23 situated in Mauza Dina Hardo Sheri, Tehsil & District Rawalpindi. On 18.11.1997, petitioner moved an application for demarcation of above land, to the A.D.C. (Rev), who marked the same to Tehsildar Consolidations. Petitioner's land was demarcated and, vide demarcation report dated 26.12.1997, land measuring 15 kanals and 17 marals belonging to petitioner was found to be 300 feet within the boundary of CDA. The Tehsildar Settlement, Rawalpindi as well as Addl. Deputy Commissioner confirmed the ownership of petitioner, vide their reports dated 05.6.1998 and 15.7.1998, respectively. On 19.12.1998, the Deputy Director Land informed Tehsildar (Settlement), Rawalpindi that authorities have decided to acquire land bearing khasra Nos. 19, 20, 22, 23, 26 & 28 as the same fell within right of way of I.J. Principal Road and for this purpose a committee had been constituted. Moreover, vide Report dated 08.1.2009, the Tehsildar Consolidation, Rawalpindi, informed A.D.0 (Revenue), Rawalpindi that Deputy Director (Lands) had no objection regarding demarcation of Settlement Commissioner made on 26.12.1997. It is pertinent to mention here that, vide notification dated 20.7.1965, CDA acquired land in Mousa Hardu Sheri for construction of the Federal Capital, award dated 15.02.1966 was announced and in that award petitioner's land measuring 16 marlas in Khasra No. 28/1 out of 02 kanal, 14 marlas was acquired. Later, the petitioner applied CDA for No Objection Certificate regarding construction of residential house at one of the Khasra situated within the area of 15 kanals, 17 marlas but, vide reply dated 22.11.1995, he was informed that his request could not be acceded to as the land fell within the right of way of I.J.P. Road. As CDA neither acquired the total land nor any No Objection Certificate was issued to the petitioner, hence, the petitioner preferred W.P. No. 3567-1999 on 25.02.1999 before the Lahore High Court with the following prayer:---
(a) The respondent No. 1 may be directed to pay the compensation of marlas of land in khasra No. 28, partially acquired by the CDA out of ownership of the petitioner.
(b) They may be directed not to interfere with the peaceful possession of the petitioner and to allow him to raise the construction on the land admittedly belonging to the petitioner.
(c) If in any case they decide to acquire the total land, they be directed to pay the market price to the petitioner or in the alternative, they should issue the No Objection Certificate to the petitioner so as to enable him to raise construction of the house or place on the land measuring 15 kanals, 17 marlas, which is situated in commercial area of CDA.
With the consent of parties, the said writ petition was disposed of, vide Judgment dated 02.11.1999, and Tehsildars, Rawalpindi and Islamabad were appointed to visit and demarcate the land in presence of parties and submit joint report in this regard. It was further directed that in case the report is to the effect that any part of the land belonging to petitioner falls within the area of CDA, respondents will either acquire the same within one month, by completing the proceedings in accordance with laws and making payment of compensation to the petitioner and, if not interested to acquire the same, will permit the petitioner to raise construction by granting necessary NOG, subject to the rules. Moreover, as regard the payment of compensation of 16 marlas of land in Khasra No. 28/1 already acquired, the petitioner was allowed to approach the functionaries concerned for payment of the same as already assessed under the award. In view of the said order, demarcation of the land was done and joint report of the concerned Tehsildars was submitted on 28.12.1999, in which it was founds out that area of 1.5 kanals 17 Marlas belonging to the petitioner fails within 300 feel limit of CDA. After submission of the said report, petitioner through application dated 24.1.2000, applied for issuance of HOC for construction of house. Respondents did not pass any order on his application and preferred application before the Deputy Commissioner, Islamabad containing certain objections on the report of Local Commission, whereas, petitioner was informed that objection petition had been moved before the Deputy Commissioner, Islamabad, which is pending adjudication and his application would be decided in the light of its decision. However, the said objection petition was dismissed, vide order dated 15.08.2000. On the other hand. Petitioner being aggrieved of the reply of CDA filed W.P.No. 14504/2000 before the Lahore High Court, Lahore which was accepted and respondents were directed to issue NOC to the petitioner within two months. The said order of the learned Single Judge was assailed by the respondents by filing I.C.A. No. 878/2000 which was allowed, vide order dated 14.04.2003 and impugned order was set aside with observation that objections of CDA to demarcation report be decided first before disposal of writ petition. The petitioner being aggrieved of the same approached the learned, apex Court through Civil Petition No. 1074 of 2003, which, with consent of the parties , remanded the case to this Court with the following observations:--- "1. Let learned High Court dispose of objections raised by CDA on the joint report of Tehsildar dated 28th December, 1999 as if has been observed by the teamed ICA Bench expeditiously.
2. Learned High Court shall not be influenced in any manner from the observations which have been made in para No. 18 of the impugned judgment that the property, Khasra numbers of which are mentioned therein, stood acquired by the Housing and Physical Planning Department Punjab because in our considered opinion there was no necessity of making such observation while disposing of ICA particularly when the Court had intended to remand the case to the learned Single Judge for disposal of the objections.".
3. Learned counsel for the petitioner submits that CDA was bound to implement the consent order, passed by the High Court in W.P.No. 3567/1999. The demarcation report is strictly in accordance with the Order XVI, Rules 9 & 10, CPC read with High Court Rules and Orders, hence no interference is called for and the objections raised by CDA are patently without any substance and are aimed at prolonging the agony of petitioners who is deprived of his valuable property. Moreover, report submitted by the Local Commission appointed with the consent of both the parties is binding on the parties and cannot be objected to. Reliance in this regard was placed on Abdus Shakoor v.
Muhammad Zafarullah Khan and others (2007 CLC 1661), Bhai Khan and others v. Shakeel and others (2009 SCM R 594 p 597) Muhammad Khan v. Nazir Ahmad (2003 SCM R 1911 & Barkat Masih v.
Barkat Bibi and three others (1999 YLR 1215). It was argued that above-said objection petition of the respondents against the demarcation report dated 28.12.1999, before the Deputy Commissioner, was dismissed and respondent neither filed any appeal/revision before the higher authorities of the revenue nor the same was challenged at some judicial forum, therefore, findings of the" said report are binding on the respondents. Learned counsel added that the respondents have no authority to wriggle out from the operative part of the judgment passed in W.P.No. 3567/1999 on the principle of approbate and reprobate. Reliance, in this regard, was placed on the case of Ghulam Rasool reported as PLD 1971 SC 376.
4. On the other hand, learned counsel for respondents contended that the petitioner has approached this Court with unclean hands as it was in his knowledge that respondents had filed objection petition before the Deputy Commissioner against demarcation report dated 28.12.1999 who was duty bound to decide the same in view of mandatory provisions of West Pakistan Land Revenue Act i.e. Section 117 and Mile 67-A framed thereunder. He further contended that the respondents are well within their right to file objections against the demarcation report as the same was made without notice to the respondents and they did not, at any stage accepted its contents. Regarding dismissal of objection petition, learned course!,, submitted that Deputy Commissioner acknowledged the filing of objection, by the respondents and, vide order dated 15.06.2000, did not dismiss the same, whereas; CDA was advised to file the objections. Before competent Court; hence, there was no need, to assail the 'said order of the Deputy Commissioner.
Learned ,counsel further submitted that respondent authority is not in a position to grant NOC to the petitioner for construction on the disputed land unless objections raised by them on the demarcations report, in light of orders dated 14.04.2003, passed in I.C.A. No. 878/2000 as well as observations of the apex Court, are not decided.
5. Arguments heard, record perused.
6. It is better and -appropriate to reproduce the material facts in chronological order to resolve the controversy between the parties:-
(I) Petitioner filed suit for declaration against Director Housing and Physical Planning Department rand others before the Civil Judge, Rawalpindi on 01.09.1994.
(ii) The suit of the petitioner was dismissed by the learned Civil Judge vide Judgment and decree dated 30.01.1996.
(iii) Petitioner filed appeal before the Addl. District Judge, Rawalpindi on 28.02.1996;
(iv) Appeal was accepted vide judgment and decree dated 13.05.1996.
(v) Judgment and decree of the Court was not challenged by the Director Housing and Physical Planning Department and others till date, which attained finality.
(vi) Petitioner fifed W.P. No. 3567/99 on 25.02.1999 before the Lahore High Court, Rawalpindi Bench, Rawalpindi.
(vii) The Writ Petition was disposed of with the consent of the parties vide judgment dated 02.11.1999.
(viii) The Tehsildar concerned prepared demarcation report on 28.12.1999 which reveals that area 15 Kanals, 17 Marlas belonging to the petitioner fails within 300 feet limit of CDA.
(ix) The petitioner filed an application before Chairman CDA for issuing NOC on 24.01.2000.
(x) The Deputy Commissioner submitted report in pursuance of the judgment dated 02.11.1999 to the Deputy Registrar Lahore High Court.
(xi) The respondents filed Objections before the Deputy Commissioner against the aforesaid report dated 28.12.1999.
(xii) The Deputy Commissioner dismissed the objections of the respondents vide order dated 15.06.2000.
(xiii) Respondents informed the petitioner that respondents had moved the objection petition to the Deputy Commissioner and his application would be decided after the decision on the objections through letter dated 06.06.2000.
(xiv) Petitioner has filed present petition on 17.07.2000.
7. So far as the question of ownership of the petitioners over the subject land is concerned, at this stage, it has lost its significance in view of the fact that the dispute between the parties is only to the extent of location of the property and not with regard to its title in the name of petitioner. This aspect of the matter has very briefly been discussed in the judgment dated 14.04.2003 passed in S.C.A. No. 878/2000 filed by the respondent. Para-6 of the Judgment dated 14.04.2003 is quite relevant to be reproduced here:--- "In our opinion the dispute between CDA and Muhammad Sadiq has a limited not posited over any rival claims to the land in question. Learned counsel for CDA stated before us that CDA did not assert any title in the,.. Disputed land. The controversy between the parties simply put, relates to the location of the land in ,dispute. If the land is within the jurisdiction of sCDA, Muhammad Sadiq will entitled to the recognition of his lights therein by the CDA, lf, however, the land is outside CDA Muhammad Sadiq, would have no cause of action against CDA. It is clear to us that the controversy between the parties cannot be resolved without determining the exact location of Muhammad Sadiq's land. This was also the conclusion reached by the learned Judge in Chamber, who decided the earlier Writ Petition No. 3567/1999. In his judgment he observed that the question arising in the petition can be attended to only after an agreed demarcation and identification of the land of the petitioner (Muhammad Sadiq) is made.
The parties agreed with this observation. Writ Petition No. 3567/1999 was, therefore, disposed of with the consent of the parties in the following terms:---
7. In this view of the matter, the Tehsildar Rawalpindi and Tehsildar, Islamabad are appointed to visit the site with nodes to the parties and in their presence, to demarcate the land comprised of Khasra No. 19/2 (5 kanals, 3 marlas, 20/1 (6 kanals, 1 marla), 22 (1 kanal, 5 marlas), 189/285 (2 kanals, 4 marlas, total measuring 15 Kanals and 17 marlas, as detailed in the document annexed at page 23 of the writ petition. The two officials will prepare a joint report by spot inspection and will identify the location of the land, and also as to whether any part of the same falls within 300 feet of the CDA limits and if so, to what extent. In case the report is to the effect that any part of the land of the petitioner falls within the area of the CDA, the respondents will either acquire the land within one month, by completing the proceedings in accordance with law and making payment of compensation to the petitioner. If the CDA will or be interested to acquire the land, it will permit the petitioner to raise construction by granting necessary N.O.C. Subject to the rules.
8. In view of the above, I am of the considered opinion that now the CDA is completely debarred from raising any objection with regard to the ownership of the petitioner as the same has firstly attained finality in civil proceedings and then the same has been admitted in Writ Petition No. 3567/1999 and later on conceded in unequivocal terms before the learned Division Bench at time of the hearing of I.C.A. No. 878/2000.
9. The second question for determination before me is whether the report of the local commissioners appointed by the High Court is liable to be set aside in the light of the objections raised by the respondent CDA or not? At the very outset, it is an admitted position on record, which has been acknowledged by the respondent CDA in its report and parawise comments as well as Objections Petition that both the parties were represented at the time of demarcation, it is respondents own case that Naib Tehsildar namely Muhammad Ajaib alongwith Ahmad Khan Gardawar and Faiz Rasool Halqa Patwari were representing the respondent CDA at the time of demarcation, therefore, in my view the requirement of law with regard to opportunity of hearing and presence was duly met with by the local commissioners, more particularly, when the staff of respondents concerned with the revenue matters was duly deputed to watch and assist the demarcation proceedings. The only objection of respondents in this regard is that no physical representation of CDA from the Land Survey Division was provided although the local commissioners were requested to adjourn the proceedings to some other date to ensure the presence of some representation from Land Survey Division. This objection seems to be an afterthought and an objection for the sake of objection, otherwise, the record shows that no such inquest was ever made. The above-said officials of the respondents attended the proceedings and put their attendance at attendance sheet with their signatures without any protest or resistance.
Moreover, no verbal or written request in this regard made by the respondent depicts from the record. Even otherwise, such objection loses its significance when the respondents were admittedly served with the notice and were at liberty to depute any officer they wished to. Moreover, no plausible reason or justification has ever been advanced by the respondents for not deputing officer of their choice to attend proceedings, I am unable to agree with such farfetched and after thought objection of the respondents.
10. The respondents rest of objections over the report mainly concern with the wrong fixation of the starting point of commencement of the measurement for the placement of disputed khasra numbers. A perusal of the report of the local commission makes It abundantly clear that the learned local commissioners, in the peculiar circumstances, have very rightly fixed the Nullah Lel as their starting point of demarcation, In this regard, the report itself is very comprehensive. The report also reveals that the point at North pointed by the staff of CDA was also; taken into consideration, however, the same was found to be constructed and populated. It is respondent's own case as gleans out from the report and parawise comments that the permanent "sarhadah" are not available at the site. In such eventuality when the respondents themselves have admitted the non- availability of "sarhadah"; then obviously the local commissioners rightly and justifiably determined the Bourjees; therefore, this objection is also devoid of any merit or substance. It is also observed that both the local commissioners were the most senior field officers in Rawalpindi and Islamabad.
Even otherwise, the objection No. 6 taken by the respondent itself contradicts its stance with regard to the location of the land, in para No. 6 the respondents have taken the plea that the area which fails within the 300 feet of the land for I.J. Principal Road and land for extension of I.J. Principal Road has already been acquired by the Housing and Physical Planning Department Government of Punjab, therefore, the CDA is unable to acquire the same as number of constructions have been existing there. This objection by itself leads to an irresistible conclusion that the location of the suit land as determined by the local commissions is correct and the disputed property falls within the 300 feet of the limits of CDA and the CDA as per its version is unable to acquire the same on the ground that the suit property has already been acquired by the Housing and Physical Planning Department Government of Punjab. It is further observed that the local commissions appointed by the Honourable Lahore High Court vide order dated 02.11.1999 were not the first to report in the subject but prior to this, admittedly two demarcations were made which are in consonance with the present report and those reports also establish the location of the suit property as claimed by the petitioner. I have gone through the objections filed by the CDA but I failed to find out any reference to any legal flaw, procedural irregularity, material defect or violation of any mandatory provision of law by the local commissioners. It is a miter of fact on record that the joint commission was appointed with that consent of the parties and the 'respondents have failed to point out any legal infirmity or defect In the demarcation report, And the same is In accordance with the provisions of law, therefore, no interference in the same is called for and the objections are without any substance, therefore, the same are rejected/repelled.
11. So far as the application of the Housing and Physical Planning for impleading it as party is concerned it has no merits as the matter has finally been decided in the Civil Court qua the ownership of the land in question between the petitioner and Housing and Physical Planning, therefore, judgment of Addl. District Judge dated 13.05.1996 is final between them and Housing and Physical Planning is not proper and necessary party.
12. In view of what has been discussed above, the instant writ petition is accepted with no order as to costs and respondents are directed to issue N.O.C. To the petitioner within two months from today. .