' CH. SHAHID SAEED, J.--- Through this single judgment, I intend to dispose of Writ Petitions Nos.1065 of 2006, 1342 of 2006, 1323 of 2006, 1468 of 2006, 1334 of 2006, 1173 of 2006, 1174 of 2006, 1149 of 2006, 1180 of 2006, 1209 of 2006, 1303 of 2006, 1339 of 2006, 1359 of 2006, 1019 of 2006, 1030 of 2006, 2998 of 2006, 1469 of 2006,]520 of 2006, 588 of 2006 and Criminal Original No,29-W of 2012 as common questions of law and fact are involved therein.
2. Brief facts of the case are that the Collector published a Notification No,594/LAC/DOR, dated 14- 11-2005 under section 4 of the Land Acquisition Act, 1894 for compulsory acquisition of land measuring 9996 kanals, 18 marlas, owned by the petitioners, for Army Welfare Housing Scheme
(AWHS) to meet the housing requirements of army personnel at the expense of the State. On 13-3- 2006, EDO(R), Rawalpindi published a notification under section 17(4) and 6 of Land Acquisition Act, 1894 for urgent acquisition of the land which was notified in the earlier notification dated 14-11- 2005. The notification dated 13-3-2006 was issued to dispense with the provisions of sections 5 and 5(a) of the Act ibid. Afterwards the award was announced and compensation was also- made to about 30% of landowners. The petitioners through the instant writ petitions have challenged the notifications dated 14-11-2005 and 13-3-2006 as well as subsequent proceedings praying that these be declared null and void and ineffective upon the rights of the petitioners.
3. Learned counsel for the petitioners inter alia contend that under the provisions of Land Acquisition Act, land can be acquired for a public purpose but no public purpose is involved in acquisition of land for AWHS. They submit that as per Article 243 of the Constitution of Islamic Republic of Pakistan, 1973, Army is a federal subject, therefore, if the land is required for army personnel in a province, the Federal Government will write so to the province as provided under Article 152 of the Constitution which is missing in this case. They aver that the AWHS is neither a company nor Housing Society nor Co-operative Society nor State nor it holds the power or authority to ask the province of Punjab for acquisition of land. Learned counsel maintain that DHA has no authority to acquire land situated in the province directly. They assert that the impugned notifications are illegal and unlawful, therefore, the instant petitions be allowed and the impugned notifications be set aside.
4. Learned counsel for DHA/AWHS has mainly stressed that factual controversies are involved in the cases in hand which cannot be resolved through invoking constitutional jurisdiction of this Court.
He further contends that since no person has shown his interest as required under section 3(b) of Land Acquisition Act through documentary evidence, as such, they are not aggrieved person whereas, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, only an aggrieved person can approach the court for redressal of his grievance. He further states that other remedies are available to the petitioners and where other remedies are available, the writ petition is not maintainable. Learned counsel avers that the award has already been announced and hundreds of landowners have received compensation and they are satisfied therewith. He also argues that once an award has been Made, this Court cannot exercise its constitutional jurisdiction. Learned counsel for DHA/AWHS lastly submits that the AWHS is a scheme of Army Welfare Trust which being a company has been acquiring land and can acquire land, therefore, the instant writ petitions being without any substance merits dismissal. In support his contentions, he has relied upon the-ratio laid down in case Raja Basharat Hussain and 3 others v. Capital Development Authority, Islamabad through Chairman and 3 others (2004 YLR 629).
5. Learned Law Officer submits that the land can be acquired by Federal Government through Provincial Government. He further states that the notification under section 4 of Land Acquisition Act for acquisition of land measuring 9996 kanals, 18 marlas situated in different villages was issued by the Land Acquisition Collector on the request of Director (Land), Defence Housing Authority. Vide Notification dated 13-3-2006, the provisions of sections 5 and 5-a of Land Acquisition Act were dispensed with while declaring urgency under section 17 of the Act. He, on the instructions of Zahid Sohail, Assistant Commissioner (Saddar), Rawalpindi, submits that award was announced and almost 30% of land-owners have got compensation whereas the rest have refused to accept the compensation.
6. Arguments advanced from all corners have been heard and record made available before me has been perused with able assistance of learned counsel for the parties.
7. It reveals from bare reading of Notification No . 594/LAC/D 0(R), dated 14-11-2005 and Notification No, 10/EDOR/ LAC, dated 13-3-2006 that the land measuring 9996 kanals, 18 marlas was, compulsorily acquisitioned by the Province of the Punjab for Army Welfare Housing Scheme
(AWHS) to meet the housing requirements of army personnel at the expense of the State in different mauzas situated in Tehsil and District Rawalpindi.
8. Section 6 of Land Acquisition Act, 1894 provides that the land can be acquired by the provincial government for public purpose or for a company. The question arises whether the AWHS is a company, State or public purpose. Admittedly, AWHS is neither a company registered under Companies Ordinance nor it is a housing or a Co-operative Society registered under Co-operative Societies Act, 1925, therefore, it does not fall within the meaning of a company, Housing Society or a Cooperative Society in any way.
9. Adverting to status of AWHS as "State", Article 7 of the Constitution of Islamic Republic of Pakistan, 1973 defines the word "state" as Federal Government, Majlis-e-Shura (Parliament), a Provincial Government, a Provincial Assembly and such local or other authorities in Pakistan as or by law empowered to impose any tax or cess. Since AWHS is not a Federal Government, Provincial Government, Provincial Assembly or an authority holding powers to impose tax therefore, it also does not fall within the definition of "State".
10. As per Article 243 of the Constitution, the Federal Government has to look into the affairs of the Armed Forces having control and command over them. The Armed Forces as well as army personnel is a federal subject and not provincial one. The welfare of the army personnel undeniably lies with,the Federal Government..
11. Under Article 152 of the Constitution, the Federation may acquire land situated in a province, at the expense of the Federation, for which it will make request to that province. In the present case, the Federal Government, if the land was required by it may require the Province of .Punjab for acquisition of land but no request, admittedly, has been made by the Federal Government in this context, therefore, the basic notification dated 14-11-2005 issued under section 4 of the Land Acquisition Act is without any lawful authority because no proper request, as required under Article 152 of the Constitution, was ever made by the Federal Government.
12.. It is settled law that when basic document on which the super structure is built is void, the whole structure will automatically, collapse. As such, subsequent notification dated 13-3-2006 and proceedings are illegal and unlawful and have no validity in the eye of law.
13. So far as acquisition of land for public purpose is concerned, the notifications themselves deny the "public purpose" as these clearly state that the land is being acquired for welfare of army personnel only and not for general public. It has been argued by learned counsel for DHA/AWHS that AWHS is a scheme of Army Welfare Trust which is a company but in the relevant documents, Army Welfare Trust does not figure anywhere nor any document has been produced before the Court to show if AWHS has any authority to acquire-land from the province directly, therefore, the contention of learned counsel seems to be an afterthought. Furthermore, housing schemes being launched under the banner of Defence Housing Authority are on commercial basis earning a lot of profit therefrom, therefore, these cannot be said a "public purpose".
14. Another important , aspect of the matter is that under section 3(2)(g) of Punjab Private Site Development Schemes (Regulation) Rules, 2005, the land required to be acquisitioned for a housing scheme shall not exceed 20% of the total area of such Scheme. There is nothing on record to show that the AWHS when asked for acquisition of land owned 80% land of the total proposed scheme except an affidavit furnished by D.D.O.(R), Rawalpindi in Writ Petition No,588 of 2011 which has been controverted by the petitioner of that writ petition C through a counter-affidavit. In the circumstances, it cannot be held that the AWHS owned 80% land of the total scheme as required under section 3(2)(g) of Punjab Private Site Development Schemes- (Regulation) Rules, 2005 at the time when the notice dated 14-11-2005 under section 4 of Land Acquisition Act fore acquisition of land was issued, as such, the said notification was also invalid and unlawful on this account also.
15. It has been intimated by learned Law Officer that almost 30% out of total landowners have received compensation as per award. It means that they have accepted the award with their own consent, as such, their right to the land stands extinguished and they are no more owners of their lands.
16. The contention of learned counsel for DHA/AWHS that the matters in hand involving factual controversies cannot be invoked in constitutional jurisdiction is misconceived as in my considered view, this Court has all powers to look into the bona fide or mala fide of the authority while acquiring the land because valuable rights of the general public are involved in the matter which are protected under Article 24 of the Constitution as it guarantees that no person shall be compulsorily deprived of his property except in accordance with law. The law referred by learned counsel for DHA/AWHS is distinguishable on the point that in referred case the land was proposed to be acquired for Army Welfare Trust but in the instant case, the land was acquired far Army Welfare Housing Scheme.
17. The other argument of learned counsel for DHA/AWHS that the petitioners are not aggrieved persons, therefore, they have no locus standi to invoke constitutional jurisdiction of this Court does not hold water because when the land of the petitioners is being acquired illegally and unlawfully, they are aggrieved persons in the eye of law and can approach this Court for redressal of their grievance.
18. In a nutshell, neither the Federation made request to the Province for acquisition of land nor Army Welfare Housing Scheme has status of company nor the land was required for any public purpose. As a result, all the writ petitions in hand are allowed, the notifications dated D 14-11-2005 and 13-3-2006 as well as all subsequent proceedings are set aside. The result would be that the landowners who have accepted compensation as per award shall have no right in their lands as they have already accepted the offer, however, the landowners who have not accepted the compensation shall have right in the terms that where the land owners are in possession of their lands, they will not be. Disturbed therefrom. In case, the possession of the land has been taken over but nature of it has not changed, it will be returned to its owner(s) and where the nature of land has changed, the DHA shall pay present market value of the land to its respective landowner(s) within a period of two months positivelyy. As a consequence, Cr1. Org. No,29-W of 2012 also stands disposed of.