Through this order, I intend to dispose of this Writ Petition, alongwith applications filed during pendency of this petition as well as HYPERLINK http://Crl. Org Crl. Org. No.2410-W/2014, having arisen out of same set of circumstances.
2. Shorn of unnecessary details, the facts as divulged in the instant petition, as well as those brought to the notice of this court through subsequent miscellaneous applications, are that one Ali Mehdi Qizalbash, being owner of land measuring 1280-Kanals in Mouza Musallah, Lahore, in the year 1985 submitted a proposal before the Lahore Development Authority (hereinafter to be referred as the Authority) seeking approval for development of a private housing scheme with the name of "Mahrukh Housing Scheme". On the move of said Ali Mehdi Qizalbash the requisite planning permission was granted in his favour. Pursuant to the said planning permission, the original applicant deposited the requisite scrutiny fee of Rs.15,200/-.
3. Prior to final sanction of the housing scheme in the name of Ali Mehdi Qizalbash, in the month of January 1987, the petitioners purchased a chunk of land measuring 599-Kanals & 10-Marlas, falling in Khasra Nos.352, 431, 852 to 866, 899 to 829, 944 to 951 and 954 to 984 out of the above holding of Ali Mehdi Qizalbash. After purchase of a reasonable portion of the land, subject matter of the aforementioned "Mahrukh Housing Scheme" the petitioners approached the Authority for change of the name of the Housing Scheme as "Mumtaz Housing Scheme". The request of the petitioners was acceded to and the name of the proposed Housing Scheme was changed as prayed for.
Pending sanction of the scheme of the petitioners, the Authority, on 20.04.1994, issued Notification under section 13(3) of the LDA Act, 1975 (hereinafter to be referred as the Act 1975) which was followed by a Notification under section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred as the Act, 1894), dated 03.08.1994, for acquisition of land measuring 16000-Kanals for Mohlanwal (Ext.) Housing Scheme Lahore. The land underneath the proposed scheme of the petitioners was also included in the said Notification. Being aggrieved by the inclusion of their land in the aforementioned Notifications, the petitioners filed Writ Petition (No.13404/1994) before this Court. Since no decisive step was taken by the Authority in furtherance of the Notification under section 4 ibid, despite expiry of one year as stipulated under Rule 7 of the Land Acquisition Rules, 1983, the Notification issued under section 4 ibid died its natural death.
4. After expiry of Notification, dated 03.08.1994, the Director General of the Authority, on 16.10.1995, submitted a summary to the Chairman of the Authority with the averments that as the petitioners had already completed the requisite formalities, their land be excluded from the proposed housing scheme of LDA but no decision was taken by the competent authority on the move of the Director General of the Authority. Resultantly, the petitioners instituted Writ Petition (No.12750/1996) with the prayer that the respondents be directed to exclude their land from Notification, dated 20.04.1994.
5. On 09.10.1996, the District Collector, Lahore, issued another Notification under section 4 ibid for acquisition of land measuring 2-Acres, for the Punjab Workers Welfare Board to develop a Labour Colony. As the land of the petitioners was included in the said Notification, they were constrained to file Writ Petition (No.20394/1996) before this Court. All the above three Writ Petitions, filed by the petitioners, came up for final hearing on 05.06.1997 when the same were disposed of as having borne fruit as no further step was taken by the Authority pursuant to the aforementioned notifications issued under section 4 ibid. After decision of their above-referred petitions, the petitioners, through their written request dated 09.07.1997, requested the Authority to finalize the case of Mumtaz Housing Scheme but instead of paying any heed to the legitimate request of the petitioners, the Workers Welfare Board, on 06.12.1997, issued Notifications under sections 6 & 17(4) of the Act, 1894. In addition thereto, the Additional Deputy Commissioner (General), Lahore also sanctioned the compensation to be awarded to the land owners in lieu of their land acquired for the Labour colony.
6. As the request of the petitioners for issuance of NOC to develop a private housing scheme was not being acceded to and their land was included in the aforesaid schemes, they opted to file Writ Petition (No.812/1998) praying therein that the Authority as well as the Workers Welfare Board be restrained from including their land in their respective schemes. During pendency of the said Writ Petition, the Authority announced another scheme in the name of "Jubilee Town Housing Scheme Phase-II". To acquire the land for the said scheme, the Land Acquisition Collector issued Notification under section 4 ibid on 27.02.1998. Again the land, underneath the proposed private housing scheme of the petitioners, was included in the area proposed for newly announced scheme. The Writ Petition (No.812/1998) filed by the petitioners, alongwith other matters, including W.P.
No.12750/1996, referred Supra came up for final hearing on 16.11.1999 when the same were disposed of in terms of judgment dated 18.11.1997 passed in ICA No.146/1996 whereby the Authority was directed to decide application of the petitioners for issuance of NOC for establishment of private housing scheme within two months in the light of judgment dated 18.11.1997 passed in ICA No.146/1996. Pursuant to the direction issued by this Court, the petitioners, through Letter dated 07.02.2001, submitted revised layout plan for approval by the Authority but the same was turned down on the plea that the area of the proposed private housing scheme of the petitioners was in conflict with the proposed "Jubilee Town Housing Scheme Phase-II" of the Authority. Thereafter, though the petitioners approached the Authority on number of occasions for exclusion of their land from acquisition and issuance of requisite NOC for development of a private housing scheme but there was no response on its part. As a last resort, the petitioners filed instant writ petition with the prayer that the Authority be directed to implement order dated 16.11.1999 passed in W.P.
No.12750/1996 as judgment dated 18.11.1997 passed in ICA No.146/1996, on the basis whereof the afore-referred order was passed, was affirmed by the apex Court of the country through orders passed in Criminal Petitions No.194-L/2000 to 199-L/2000. They also prayed that in addition to directing the respondents to pay special costs, the Authority be directed to issue requisite approval in their favour to develop a private housing scheme.
7. During pendency of the instant petition, the Land Acquisition Collector, LDA, Lahore, issued Notification under section 4 ibid for acquisition of land for "LDA Avenue-I Housing Scheme" Lahore.
The petitioners filed an application (C.M. No.1/2003) seeking a restraint order against the respondents to include their land in the said scheme. In addition thereto, the petitioners also filed application (C.M. No.86/2003) seeking amendment/addition in the prayer clause of the present petition wherein notices were issued to the respondents on 22.01.2003. Besides, the petitioners moved two other applications (C.M. No.605/2003 & C.M. No.824/2003) for exclusion of the Khasra Numbers underneath their proposed private housing scheme from the Notification under section 4 ibid. The above applications filed by the petitioners apart, the Authority also moved an application (C.M. No.825/2003) for decision of the instant Writ Petition on the ground of having become infructuous as well as for vacation of stay order. Furthermore, the petitioners submitted another application (C.M. No.1188/2003) seeking exclusion of their land from the Notifications issued under sections 4, 6 & 17(4) of the Act, 1894. Later on the Authority filed an application (C.M. No.1/2012) for decision of instant petition on the question of maintainability in the first instance. The petitioners also moved another application (C.M. No.2/2014) seeking restraint order against announcement of Award. Lastly, the petitioners filed application (C.M. No.3/2014) seeking direction for restoration of their possession over land in question.
8. The petitioners have also filed the connected contempt petition agitating non-compliance of order dated 20.10.2014 passed in the present Writ Petition. As all these matters have emanated from same set of facts, thus, the same are being decided through this single consolidated order.
9. The legal formulations put forwarded by the learned counsel representing the petitioners at the bar as well as those submitted in written form can be summed up as follows: - i) That order dated 16.11.1999, having been passed in W.P. No.12750/1996, with the consent of the learned counsel representing the respondents and having not been challenged any further attained finality, thus, had binding force upon the respondents and they were under legal obligation to issue requisite NOC in favour of the petitioners. Relies on Mst. Surayya Aziz v. Collector Lahore, District Lahore (PLJ 2003 Lahore 971), M/s United Kashmir Flour Mills (Pvt.) Ltd. v. Govt. Of AJK (2003 YLR 2835), Rukhsar Ali and others v. Govt. Of N.W.F.P. (2003 PLC (C.S.) 1453), Muhammad Afsar v. Muhammad Sharif (1989 CLC 1850), A.R. Khan v. P.N. Boga through Legal Heirs (PLD 1987 SC 107 India), Muhammad Rafique Gazdar v. Additional Commissioner, Karachi (PLD 1972 Karachi 119) and Century Spinning and Manufacturers Co. Ltd. And another v. The Ulhasnagar Municipal Council & others (AIR 1971 SC 1021); ii) that according to judgment, dated 18.11.1997, rendered in ICA No.146/1996 on the basis whereof order dated 16.11.1999 was passed in favour of the petitioners, the respondents were bound to decide the fate of acquisition proceedings within a period of one year and in case of their failure to finalize the same within the said period, they were bound to reprocess the application of the petitioners and issue requisite NOC in their favour; iii) that the act of the Authority towards non-exclusion of the land of the petitioners from the acquisition process is discriminatory inasmuch as in similar set of circumstances, the Palace Town Housing Scheme (presently known as Avenue One Housing Scheme) was excluded from the acquisition proceedings on the basis of the decision rendered in ICA No.146/1996. Adds that NOCs have been issued to the sponsors for development of the private housing schemes known as "Land Breeze Housing Scheme" and "Ali Raza Park Housing Scheme" despite the fact that those housing schemes are in conflict with the LDA Avenue-I Housing Scheme whereas the petitioners, who have been clamouring for their cause before the Authority since the year 1987 have been discriminated.
To fortify their contention, learned counsel refer to Shaukat Ali and others v. Govt. Of Pakistan (PLD 1997 SC 342), Suleman Daud v. LDA (2008 CLD 850) and Afzaal Ahmed v. District Officer Revenue (2004 CLC 1714); iv) that Notification, dated 24.12.2002, under section 4 ibid having been issued during currency of Status-Quo order issued by this Court on 04.07.2001 is inconsequential upon the rights of the petitioners, thus, the same cannot be used against them. In support of their plea learned counsel have relied upon the cases reported as Muhammad Sabir Khan v. Rahim Bakhsh (PLD 2002 SC 303), Mst. Sharifan Bibi v. Allah Bakhsh (1996 SCMR 1823), Bakhtawar etc. v. Amin etc. (PLJ 1980 SC 252), Vidur Impex & traders (Pvt.) Ltd. And others v. Tosh Apartments (Pvt.) Ltd. (2013 SCMR 602 India), Haji Muhammad Hussain v. Muhammad Abbas (2001 YLR 1767), Surjit Singh and others v.
Harbans Singh and others (AIR 1996 SC 135), Mst. Hamida Akhtar v. Nazir Muhammad and 2 others (1995 CLC 2020), Muhammad Boota v. Allah Ditta etc. (1989 Law Notes Lahore 1187), Clarke and others v. Chanburn and others ([1985] IAII ER 211) and Century Flour Mills Ltd. v. Suppaiah and others (AIR 1975 Madras 270); v) that Notification, dated 24.12.2002, was purportedly issued in view of the statement made by the petitioners' counsel during the course of hearing on 22.07.2002 but the said offer, being conditional and having not been accepted by the respondents in unequivocal words, had no binding force upon the petitioners, thus, the very basis of the Notification, under discussion, is untenable. In this regard, learned counsel have relied upon the cases reported as City Schools (Pvt.) Ltd. Lahore v.
Privatization Commission and others (2002 SCMR 1150), M/s Airport Support Services v. The Airport Manager Karachi (1998 SCMR 2268), AlHuda Hotels and Tourism Co. v. Paktel Limited and others (2002 CLD 218), Khadim Hussain v. Deputy Commissioner Hafizabad (2000 MLD 577), Pakistan Steel Products v. M/s Indus Steel Pipes Ltd. (1996 CLC 118), M/s Shalsons Fisheries Ltd. Karachi v. M/s Lohmann & Co. And others (PLD 1982 Karachi 76), Custodian of Enemy Property, Islamabad v.
Hoshang M. Dastur & 6 others (PLD 1977 Karachi 377) and Dr. Azeem Shad v. Municipal Committee Multan (PLD 1968 Lahore 1419); vi) that prior to filing of the instant writ petition, the request of the petitioners for issuance of NOC was regretted on the ground that the proposed scheme of the petitioners fell within the area which was earmarked for the proposed housing scheme of the Authority itself and the respondents had completed file work to establish the scheme in the name of "Jubilee Town Housing Scheme Phase- II" but the said ground was not available to the respondents as they left the idea of development of aforesaid scheme. To fortify his contention learned counsel have referred to Para No.3 of the application (C.M. No.825/2003) in addition to Letter, dated 30.07.2007, and Para No.3(i) of the skeleton written arguments submitted on behalf of the respondents; vii) that mala fide on the part of the respondents is manifest from the fact that on the one hand they exempted the land still to be purchased for the Judicial Officers Cooperative Housing Society Phase-III, Lahore but on the other have refused the said relief to the petitioners, whose matter regarding issuance of NOC for establishment of a private housing scheme on the basis of valid title documents is pending since the year 1987. Relies on Mst. Surayya Aziz (Supra); viii) that uncalled for conduct of the respondents is apparent from the fact that during pendency of the instant petition, the respondents were restrained in clear cut words not to allot plots carved out on the land underneath the proposed private housing scheme of the petitioners but the stance taken by them in their skeleton arguments is that as allotment letters have already been issued in favour of the allottees it is not possible for them to retract from the acquisition of the petitioners' land; ix) that the respondents were estopped to include the land of the petitioners in the acquisition proceedings in view of their clear cut stand taken in C.M. No.825/2003 coupled with the fact that they abandoned the idea of development of schemes wherein the land of the petitioners was previously included. Relies on Muhammad Saleem Ullah v. District Judge, Gujranwala (PLD 2005 SC 511) and Pir Bakhsh and others v. The Chairman Allotment Committee and others (PLD 1987 SC 145); x) that the respondents are bound by the various undertakings given by them before this Court as well as before the Apex Court of the country during the course of hearing of different matters and any act in violation of the said undertakings cannot be bestowed with stamp of authenticity rather deserve to be dealt with strictly; xi) that after admission by the Director General of the Authority, in its summary dated 16.10.1995, submitted for approval of the competent authority, that the petitioners completed all the codal formalities for development of a private housing scheme and there was no impediment in the way of issuance of required NOC, the respondents were under bounden duty to issue requisite NOC in favour of the petitioners; xii) that mala fide attitude of the respondents is crystal clear from the fact that just to deprive the petitioners of their right to develop a private housing scheme, the respondents had been including their land in the various proposed housing schemes of the Authority but none of them matured into reality. Further, the act of the respondents to include land of the petitioners in LDA Avenue-I Housing Scheme despite subsistence of status quo order, issued by this court, is part of their nefarious designs to deprive the petitioners from development of a private housing scheme; xiii) that it has been mandated in the Constitution of the Islamic Republic of Pakistan, 1973 that the similar persons/entities be treated alike and in case of any discrimination the Constitutional jurisdiction of this Court is aptly attracted. Adds that it is a fit for exercise of such jurisdiction as discriminatory attitude of the respondents is apparent from the facts and circumstances narrated above; xiv) that since the acquisition process qua land of the petitioners for LDA Avenue-I Housing Scheme was issued while suppressing the factum of pendency of instant writ petition before this Court wherein status-quo order had already been issued, the respondents cannot take any premium on the ground that they after taking over the land owned by the petitioners have already carved out plots which have further been allotted to the proposed allottees. Rely on Principal King Edward Medical College, Lahore v. Ghulam Mustafa etc. (1983 SCMR 196), Zafarullah v. Board of Intermediate and Secondary Education and others (1982 SCMR 571), Pir Saleh Shah and others v.
The Custodian of Enclave Property and others (1971 SCMR 543), Abdul Rasheed v. Pakistan and others (1969 SCMR 141), Sheikh Ghulam Shah v. K.D.A and others (2003 YLR 1501), Mubarak Ali v.
Muhammad Anwar (2000 YLR 652), Gulfam and another v. Ali Muhammad and others (PLD 1989 Karachi 499), Shahah Din v. Mst. Khadija Begum and three others (PLD 1983 LHR 591), Noor Muhammad and others v. Nawaz and another (PLD 1975 LHR 1518), Wali Muhammad v. The Security, Home Department, Government of Balochistan and 2 others (PLD 1972 Quetta 33), Liaqat Hossain Khan v. The Secretary Basic Democracies Local Government Department, Govt. Of East Pakistan, DACCA & 3 others (PLD 1971 DLC 176) and Ramzan v. Chief Settlement and Rehabilitation Commissioner and others (PLD 1968 LHR 258); xv) that the petitioners cannot be deprived of their property except under provisions of the Act, 1894, whereas in the instant case the operation of the Notifications under sections, 4, 6, & 17(4) having been suspended by this Court, any action taken by the respondents in violation of an injunctive order cannot be let unnoticed. Refer to Haji Nawaz Khan and others v. Rabnawaz and others (1992 SCMR 993), F.K. Abbasi v. M.I. Malik (1985 CLC 1603), Mst. Dolat Bibi and 4 others v.
Multan Improvement Trust (PLD 1977 LHR 655) and Mst. Sardar Begum v. Lahore Improvement Trust (PLD 1972 Lahore 458); xvi) that nobody can be left at the mercy of the public authorities and in case of an unlawful act, the aggrieved person should be restored to his original position. Rely on Yousaf Ali v. Muhammad Arslan Zia and 2 others (PLD 1958 SC (Pak.) 104), Mst. Surayya Aziz (Supra) and Amir Latif Qureshi v.
Controller Examination, Board of Intermediate & Secondary Education, Lahore (PLD 1994 LHR 3); xvii) that when no further step is taken within one year of issuance of Notification under section 4 ibid, the acquisition proceedings die their natural death. Rely on Touqir Ahmed Khan and others v.
Govt. Of Pakistan (1994 MLD 1866), Qudrat Ullah and others v. Govt. Of West Pakistan and others (1992 CLC 680), Muhammad Afzal v. Land Acquisition Collector etc. (NLR 1992 Rev. 34), Mukhtar Ahmed & others v. Commissioner Sargodha Division & others (1991 CLC 1539), Kh. Zubair Ahmed v.
Collector & others (1990 MLD 1941), Nazar ul Hussain v. The Collector Lahore District, Lahore and others (PLD 1990 LHR 472) and Syed Mehboob Alam Shah and other v. Deputy Commissioner & others (1989 CLC 1801).
10. The legal formulations canvassed by learned counsel representing the respondents as well as those forming part of their written submissions (skeleton arguments) can be detailed in the following lines: - i) That order, dated 16.11.1999, being relied upon by the petitioners, cannot be dubbed as consent order, thus, no obligation was casted upon the respondents; ii) that as order, dated 16.11.1999, was passed on the basis of judgment dated 18.11.1997, rendered in ICA No.146/1996, the said judgment should be read as a whole and petitioners cannot be allowed to introduce interpretation of their own choice; iii) that the period of one year stipulated in judgment, dated 18.11.1997, was backed by the peculiar circumstances of the said case and the said stipulation in no way can be applied to the petitioners.
Adds that contents of order, dated 16.11.1999, show that the time frame given in the said order was confined only to the decision of application of the petitioners; iv) that despite issuance of status-quo order in the present writ petition, the petitioners have been approaching the respondents for issuance of requisite NOC to develop their private housing scheme while pressing into service the precedent of Palace Town Housing Scheme which is proof positive of the fact that the petitioners themselves have been violating the injunctive order passed by this Court; v) that the acquiring agency enjoys the power to use the acquired land for the purpose other than that for which the same was acquired. Relies on Fazal Rahim and 6 others v. Commissioner, Peshawar Division and another (PLD 1979 Peshawar 91) and Sahib Dad Khan Advocate v.
Commissioner, Rawalpindi Division and others (PLD 1969 LHR 267) and; vi) that after issuance of injunctive order by this Court, no further step could be taken towards the acquisition of the petitioners' land and it was only in the wake of their statement recorded in order, dated 22.07.2002, the acquisition proceedings were initiated, thus, no exception can be taken to the said proceedings on the ground that they were initiated in violation of the status-quo order passed by this Court; vii) that vide order, dated 11.06.2003, though this Court stopped the respondents to allot plots, however, it observed in unequivocal words that further proceedings shall continue which fact lends support to the respondents' version that the Court was aware about the circumstances forming background of the petitioners' statement incorporated in order dated 22.07.2002; viii) that if, for the sake of arguments, it is admitted that the orders passed in the earlier writ petition was a consent order, even then there was no order by this Court regarding issuance of NOC in favour of the petitioners rather it was observed that in case the LDA did not finalize the matter of acquisition within one year, the petitioners' application would be reprocessed and in compliance with the orders passed by this Court the application of the petitioners was not only reprocessed but the order of the competent authority regarding rejection of their request was also conveyed to the petitioners, thus, no order was flouted by the respondents; ix) that as per section 35 of the Act, 1975, it is discretion of the authority either to grant approval for setting up of a private housing scheme or refuse to do so. The only condition is that reasons for rejection of an application for issuance of NOC regarding development of a private housing scheme, should not be arbitrary, capricious or fanciful. The grounds pressed into service by the respondents while turning down request of the petitioners to set up a private housing scheme, in no way, can be considered as arbitrary, capricious or fanciful inasmuch as the request of the petitioners was refused on the premises that as the site of their proposed private housing scheme was in conflict with the proposed housing scheme of the Authority itself; x) that after submission of revised lay out plan by the petitioners for approval, the same was to be processed afresh according to the relevant rules and regulations irrespective of an order passed by any Court of law; xi) that this Court while hearing a petition under Article 199 can only adjudge as to whether the reasons advanced by the Authority while refusing approval to a person are valid or not but it cannot substitute findings of the competent authority while directing sanctioning of site plan of a private housing scheme; xii) that the tenor of the judgment passed in ICA No.146/1996, being relied upon by the petitioners, is that the same was decided after full-fledged arguments by both sides thus same cannot be considered as consent order. In support of his contention learned counsel has referred to Para No.3 of the application (C.M. No.1/2003) filed by the petitioners; xiii) that the entire case of the petitioners has been set out in letter dated 13.01.2000, addressed by petitioner No.1 to the Director General of the Authority and in the said communication, the petitioners only prayed for decision of their application regarding issuance of NOC; xiv) that the letter issued by the respondents conveying the petitioners that their request could not be acceded to in view of the fact that their proposed scheme was in conflict with Authority's own housing scheme, having not been challenged, the petitioners were debarred to file the instant petition; xv) that bona fide on the part of the respondents is manifest from the fact that not only Notification under section 4 ibid was issued for acquisition of land for Jubilee Town Housing Scheme Phase-II but certain practical steps were also taken towards implementation of the said scheme. To fortify his contention, learned counsel has referred to the establishment of Grid Station etc.; xvi) that the acquiring agency enjoys the power to use the acquired land for some alternate purpose other than the purpose for which the same was acquired and the land owners after receiving compensation cannot challenge the acquisition on the ground that the land was not used for the purpose for which it was acquired. Adds that as basic infrastructure was laid by the respondents towards execution of Jubilee Town Housing Scheme Phase-II, they opted to use the land forming part of the proposed Jubilee Town Housing Scheme Phase II for LDA Avenue-I Housing Scheme; xvii) that during pendency of the instant petition the petitioners gave consent to receive compensation and in view of said consent Notification, dated 24.12.2002, was issued, thus, no exception can be taken thereto at this stage; xviii) that the offer assimilated in order, dated 22.07.2002, being not a formal agreement, it was not required by the respondents to fulfill the conditions of a valid agreement/contract prior to issuance of Notification dated 24.12.2002; xix) that the condition of pendency of proceedings, if any, put by the petitioners was not only confined to the proceedings pending at that time rather it also included those which were to be undertaken by the respondents in future; xx) that it was not possible for the respondents to issue Notification under section 4 ibid as there was status-quo order in favour of the petitioners in the instant petition and they only proceeded to issue the same after the petitioners expressed their consent towards acceptance of cash compensation; xxi) that despite repeated requests of the petitioners through C.M. Nos.1/2003, 6/2003, 824/2003, they did not succeed to get an injunctive order against acquisition proceedings apparently for the reason that this Court was cognizant of the fact that Notification under section 4 ibid was issued pursuant to the consent contained in order dated 22.07.2002; xxii) that intention of the petitioners to receive compensation instead of issuance of NOC for development of a private housing scheme is also clear from different letters addressed by them including order, dated 15.04.2002, passed by this Court, thus, at this stage the petitioners cannot ask for issuance of NOC rather they can only pray for compensation; xxiii) that order, dated 20.10.2014, is being misconstrued for the reason that the statement of the counsel representing the respondents was regarding payment of market price prevalent at the time of issuance of Notification under section 4 ibid. Adds that specific reference has been made to section 23 of the Act, 1894 which clearly stipulates that the market price is to be reckoned according to the rate prevalent at the time of issuance of Notification under section 4 ibid. Relies on Land Acquisition Collector, G.S.C. N.T.D.C. (WAPDA) Lahore and another (2015 SCMR 28), Province of Punjab through Land Acquisition Collector and another v. Begum Aziza (2014 SCMR 75), Askari Cement Ltd. (Formerly Associated Cement Limited) through Chief Executive v. Land Acquisition Collector (Industries) Punjab and others (2013 SCMR 1644), and Civil Aviation Authority through Project Director and others v. Rab Nawaz and others (2013 SCMR 1124), Kolkata Metropolitan Development Authority and another v. Gobinda Chandra Makal and another (2012 SCMR 1201), Special Land Acquisition Officer v. Maharani Biswal and others (2012 SCMR 1179), Sardar Muhammad Ashraf (deceased) through LRs. And others v. Government of N.W.F.P. (now K.P.K) through Collector and others (2011 SCMR 1244), Province of Sindh through Collector of District Dadu and others v. Ramzan and others (PLD 2004 SC 512), Hyderabad Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 SC 84), Sardar Abdul Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCMR 2164), Mrs. Gunj Khatoon and another v. The Province of Sindh through Secretary, Revenue Department, Karachi and another (1987 SCMR 2084), Fazalur Rahman and others v. General Manager, S.I.D.B. And another (PLD 1986 SC 158), National Highway Authority v. Sher Zaman (2015 MLD 913), Water and Power development Authority Pakistan through Chairman WAPDA and 4 others v. Haji Muhammad Riyaz-Ul-Hassan and 9 others (2014 MLD 1528) and Akhtar Hussain and 2 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 2 others (2014 MLD 179); xxiv) that a Court, while deciding a lis, can take into consideration the events occurred during pendency of a lis. Relies on Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others (PLD 2002 SC 723), Syed Ali Asghar and 3 others vs. Creators Builders and 3 others (2001 SCMR 279) and Mst.
Amina Begum & others v Mehar Ghulam Dastgir (PLD 1978 S.C 220); xxv) that order, dated 26.11.2014, having been passed in continuation of earlier order dated 20.10.2014 and in absence of respondents, is also result of some misconception regarding the statement made by the respondents counsel on 20.10.2014; xxvi) that the petitioners contention that without completion of acquisition proceedings the respondents could not carve out plots on the land subject matter of their private housing scheme is not entertainable for the reason that after issuance of Notification under section 4 ibid the acquiring agency can further proceed with the matter; xxvii) that vide order, dated 11.06.2003, though the respondents were restrained to issue allotment letters in view of the consensus arrived at between the parties but they were allowed to proceed with the acquisition proceedings, thus, the actions of the respondents undertaken during pendency of the present petition do not offend against any order passed by this Court; xxviii) that operation of Notifications issued under sections 4, 6 & 17(4) of the Act 1894 was suspended to the extent of the land of the petitioners while hearing C.M. No.1188/2003 when the respondents were not being represented by anybody. Adds that while filing the said application the respondents did not bother to disclose that their earlier applications, on the same subject, were also pending adjudication wherein only notices were issued;
(xxix) that mala fide on the part of the petitioners is clear from the fact that in none of the applications submitted by them after issuance of Notification dated 24.12.2002, they have referred to their statement contained in order dated 22.07.2002; xxx) that issue regarding payment of compensation cannot be decided in Constitutional jurisdiction rather the same is to be determined by the Land Acquisition Collector and in case of any grievance the petitioners would be at liberty to challenge the same before the competent forum; xxxi) that as the petitioners did not challenge the acquisition proceedings relating to LDA Avenue-I Housing Scheme in the instant writ petition, as a matter of fact, it has become infructuous as no relief can be granted beyond the prayer clause; xxxii) that stance of the petitioners that as the matter regarding issuance of NOC in their favour for development of a private housing scheme was pending final decision with the Authority, their land was immune from acquisition is not worth consideration for the reason that the Authority has the power even to acquire land under a private housing scheme which has been approved by way of issuance of NOC but no substantive step has been taken towards execution of development work.
In support of his plea learned counsel has referred to Mehraj Din v. Lahore Improvement Trust (PLD 1986 SC 673); xxxiii) that the government enjoys power to acquire land owned by private persons for public use and no exception can be taken thereto by any of the land owners except to claim for reasonable compensation. Adds that issuance of Notifications under sections 6 & 17(4) ibid is proof positive of the fact that the land of the petitioners was acquired for public purpose. Relies on Suo Motu Case No.13 of 2007 (PLD 2009 SC 217), Muhammad Ashiq and another v. Water and Manpower Development Authority Lahore and another (PLD 2008 SC 335), Muhammad Afzal Bhatti and 17 others v. Province of Punjab and 4 others (1997 SCMR 296), Pakistan through Ministry of Works Karachi and another v. Muhammad Ali and others (PLD 1960 SC (Pak.) 60), Mrs. Salma Muazzam v.
S. No. Of order/ Date of order/ Order with signature of Judge, and that of proceeding proceeding parties or counsel, where necessary Lahore Development Authority through Director General and 30 others (2015 MLD 1014), Said Qamash v. Govt. Of Khyber Pakhtunkhwa through Chief Secretary and 5 others (2014 YLR 2400), Muhammad Khan v. Federation of Pakistan and 4 others (2012 CLC 101), Muhammad Shafi and 8 others v. Multan Development Authority and 7 others (2010 YLR 1161), Al-Riaz (Pvt.) Ltd. v. Province of Sindh and others (2007 YLR 568), Muhammad Khan and another v.
Government of the Punjab and 2 others (2005 YLR 1133), Raja Basharat Hussain and 3 others v.
Capital Development Authority, Islamabad and 3 others (2004 YLR 629), Bostan v. Land Acquisition Collector and 4 others (PLD 2004 LHR 47), Faiz Elahi and 3 others v. Multan Improvement Trust, Multan (1992 CLC 267), Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd.
(PLD 1983 LHR 552) and Ratilal Shankarabhai and others v. State of Gujrat and others (AIR 1970 SC 984); xxxiv) that conduct of the petitioners seems to be dubious from the fact that instead of referring to order, dated 18.11.1997, passed in ICA No.146/1996 in entirety chose to refer to certain portions of their choice; xxxv) that order, dated 16.11.1999, passed in the writ petition filed by the petitioners cannot be amalgamated to those contained in judgment dated 18.11.1997; (xxxvi) that there is no question of discrimination on the part of the respondents for the reason that the cases referred to by the petitioners to press into service the said plea are distinct in nature inasmuch as the land underneath the said schemes was not part of the land acquired for LDA Avenue-I Housing Scheme; xxxvii) that since there was no undertaking by the respondents towards issuance of NOC in favour of the petitioners the question of promissory estoppel is also not applicable in the instant case; xxxviii) that lapse of one year after issuance of Notification under section 4 ibid does not debar the acquiring agency to acquire the land in question through fresh proceedings; xxxix) that the mainstay of the petitioners is that in view of letter dated 30.07.2007 whereby it was conveyed that the Authority abandoned the idea to set up housing scheme in the name of "Jubilee Town Housing Scheme Phase-II" the respondents were debarred to acquire the land owned by them as the letter, relied upon by the petitioners, is not traceable from the record of the Authority and it would not be safe to rely upon contents thereof; xl) that insofar as the exclusion of land underneath the Palace Town Housing Scheme is concerned, as no practical step was taken by the Authority towards development work the same was rightly excluded, thus, the same cannot be quoted as a precedent; xli) that request of the Secretary, Judicial Employees Cooperative Housing Society for exclusion of certain land from Mohlanwal (Ext.) Housing Scheme was acceded to pursuant to order dated 20.08.1996 passed by the Chief Minister in the capacity of Chairman of the Authority whereas treating alike the Director General of the Authority also referred the matter of the petitioners to the competent authority with favourable recommendations but they did not find favour at the hands of the competent authority, thus, there is no question of discrimination; xlii) that after expressing their consent before this Court during the course of hearing on 22.07.2002 the petitioners have neither any legal nor ethical cause to pursue this petition; xliii) that the respondents submitted application (C.M. No.825/2003) with the clear cut stand that after giving consent before the Court towards acceptance of compensation instant petition was not proceedable further and in the light of said fact the instant petition also merits outright dismissal; xliv) that after acquisition of the petitioners land, the Authority has already deposited two billion of rupees and the petitioners are at liberty to receive their respective share and in case of any grievance regarding quantum of compensation they can agitate the matter before the forum concerned; xlv) that the instant petition merits dismissal on the principle that public interest should be given precedence over the individual; xlvi) ) that the assertion of the petitioners regarding the alleged mala fide on the part of the respondents cannot be taken as a gospel truth as no material has been produced by the petitioners in support of said plea, thus, the same deserves to be discarded straight-away; xlvii) that case of the present petitioners is also distinguishable from the persons who were party in ICA No.146/1996 for the reason that the affectees in the said case filed contempt petitions whereas the petitioner did not opt to do so; xlviii) that on account of delay in issuance of Notification u/s 4 ibid not only the petitioners are sufferers but the Authority has also suffered a lot on account of payment according to the rate prevalent at the time of issuance of Notification u/s 4 ibid; xlix) that no time frame having been given in the order passed in favour of the petitioners, the Authority cannot be penalized on account of expiry of one year as stipulated in judgment dated 18.11.1997 passed in ICA No.146/1996; l) that the petitioners have not denied the fact that LDA Avenue-I Scheme was launched for public purpose viz. Establishment of housing scheme for government servants.
11. Learned counsel for the petitioners, while exercising their right of rebuttal, submit that the petitioners have sought implementation of order dated 16.11.1999 as they were never afforded an opportunity of hearing by the respondents as mandated in the said order; that since the petitioners were not interested to prosecute anybody for violation of the order passed by this Court rather their prime goal was to get implemented the decision of this Court, therefore, they did not opt to file contempt petition; that even otherwise, non-filing of contempt petition, while toeing the line of the parties in ICA No.146/1996, does not adversely affect the rights of the petitioners; that as the respondents did not turn up after getting time from this Court on 22.07.2002, the issuance of Notification u/s 4 ibid purportedly on the basis of statement of the petitioners contained in the said order not only amounts to fraud but is contemptuous as well; that as a matter of fact, no land was earmarked by the respondents to establish a grid station in Jubilee Town Housing Scheme, Phase- II, rather a chunk of land measuring 20-Kanals was handed over to WAPDA to lay its infrastructure towards supply of electricity to the inhabitants of Jubilee Town Housing Scheme, Phase-I; that the assertion of the respondents that after showing their readiness to accept compensation, the prayer of this petition cannot be granted rather the legal proposition has boiled down to the question of compensation is not tenable as till date the petitioners are interested to get implemented the earlier decision of this Court; that filing of miscellaneous applications by the petitioners at different points of time are justified for the reason that whenever respondents opted to issue any proclamation or to take any further action, the petitioners challenged the same through miscellaneous applications; that the stance of the respondents that Notification u/s 4 ibid was issued consequent upon the statement of the petitioners contained in order dated 22.07.2002 stands negated from the contents of their own application (C.M. No.825/ 2003) wherein in addition to other limb of prayer the respondents also beseeched for vacation of status-quo order and that if status-quo order issued by this Court lost its efficacy after the conditional consent of the petitioners which was never accepted by them, there was no reason with the respondents to move for vacation of status-quo order.
12. I have given patient hearing to the learned counsel for the parties spreading over five dates of hearing (26.06.2015, 03.07.2015, 07.07.2015, 10.07.2015 & 15.07.2015) and have also gone through the voluminous record as well as the case-law with their able assistance.
13. Before delving deep into merits of this case, I deem it expedient to deal with the objection raised by the learned counsel representing the respondents that relief cannot be granted to the petitioners beyond prayer clause and after expressing their willingness to accept compensation, their prayer regarding implementation of the earlier order of this Court and issuance of NOC to establish private housing scheme has become redundant. Firstly, taking up the objection regarding jurisdiction of this Court to take notice of the subsequent events which neither were narrated in the body of the petition nor were challenged in the prayer clause rather came to the knowledge of the court during pendency of a lis before it, I am of the view that generally relief cannot be granted in favour of any party beyond the scope of prayer clause, however, it is equally true that the jurisdiction of this Court to look into the subsequent events, in particular those which surfaced during pendency of a lis before it and has direct nexus with the subject of the pending lis, cannot be abridged while following the principle that relief cannot be granted beyond the prayer clause.
The said proposition came under discussion before the apex court of the country in number of cases including that reported as Muhammad Shehzad Malik v. Muhammad Suhail and another (2010 SCMR 1825) wherein the august Supreme Court, while dealing with the powers of the superior courts to look into the subsequent events irrespective of the fact as to whether they are part of the prayer clause or not, has inter alia held as under:- "The learned High Court had also not taken note of the subsequent events as stated by the parties before us that legal heirs of original owner Noor Mohammad have filed suit against the petitioners and others for securing compensation of land in question. It is also settled principle of law that superior courts had ample jurisdiction to look into the subsequent events at the time of deciding the case. (emphasis provided)
Moreover, the stance taken by the learned counsel representing the respondents stands negated from the fact that on the one hand he is of the view that relief cannot be granted beyond the prayer clause and on the other has referred to the cases of Mst. Amina Begum and Syed Ali Asghar and 3 others (Supra) to argue that this Court can take into consideration the subsequent events as well. In this scenario, the query regarding jurisdiction of this Court to look into the events occurred during pendency of this petition has become more important. In case the plea of the respondents that this Court can take note of subsequent events is accepted, then said power cannot be confined only to order dated 22.07.2002 or the orders preceding the same rather this Court can consider all events surfaced during pendency of this petition, including Notification, dated 24.12.2002, and the subsequent proceedings conducted on the basis thereof.
14. Now coming to second limb of the objection posed by the learned counsel for the respondents that after expressing their willingness to accept the compensation, they cannot press their petition seeking implementation of earlier order of this court as the same has already become infructuous, I am of the humble opinion that the offer of the petitioners contained in order, dated 22.07.2002, being conditional and the same having not been accepted by the respondents in unequivocal words, did not assume the role of a binding promise/undertaking. Further, during the pendency of this writ petition when the status quo order was in the field the respondents not only proceeded to issue Notification dated 24.12.2002 but also conducted proceedings on the basis thereof. In these circumstances, the controversy cannot be limited to the prayer clause rather while discharging its constitutional duties, this court is bound to determine the fate of the proceedings which were not only initiated in violation of an injunctive order but also have direct nexus with the controversy involved in the present petition.
15. The next question which requires determination by this court is as to whether Notification issued u/s 4 ibid had any relevancy with the controversy involved in the instant petition and if so, as to whether this Court has the power to determine its legality. To determine the said proposition, a bird's eye view of the factual background of the instant case is very relevant. A glance over the factual narration, discussed in the fore-going paragraphs, shows that the matter regarding issuance of NOC for establishment of a private housing scheme by the petitioners had been pending decision before the Authority since the year 1985 when the original owner, namely, Ali Mehdi Qizalbash submitted his application for approval of a housing scheme in the name of "Mahrukh Housing Scheme" which was later on changed into "Mumtaz Housing Scheme" on the request of the petitioners. As a last resort the petitioners approached this court by filing various petitions (referred supra) including W.P. No.12750/1996 which was disposed of through order dated 16.11.1999, relevant part whereof is reproduced herein below:- "8. This petition is, therefore, disposed of with the direction that the respondents shall consider the application of the petitioners for issuance of NOC for their private Scheme, fairly, independently and in accordance with law and to decide the same finally within two months, in the light of observations made in the order dated 18.11.1997, passed in ICA No.146 of 1996 and by allowing due hearing to the petitioners."
Since the aforementioned writ petition was disposed of in terms of judgment, dated 18.11.1997, rendered in ICA No.146/1996, the dispute between the parties cannot be decided without going through the operative part whereof, which for facility of reference is reproduced herein below: - "We find that the learned Single Judge in Chamber without adverting to section 13(5) of L.D.A. Act, 1975 proceeded to accept the writ petitions mainly on the consideration that the Government intended to encourage private sector. We observe, with respect to the learned Single Judge, that while accepting the writ petitions the legality or otherwise of the impugned letter refusing N.O.C. To the respondents was not scrutinized. In this view of the matter the impugned judgment cannot be sustained. Accordingly, the appeals are accepted and after setting aside the impugned judgment the writs issued thereunder are recalled.
11. However, LDA cannot be permitted/granted indefinite period for launching its proposed Housing Schemes, thereby denying the respondents a chance to develop their private Housing Schemes.
We, therefore, direct that substantial steps shall have to be taken by LDA in the matter of Acquisition of the disputed lands and development of its Housing Schemes thereon within a period of one year, failing which it would be under an obligation to reprocess the applications of the respondents for issuance of NOC for their private housing schemes and pass fresh orders thereupon, strictly in accordance with law."
According to the afore-quoted portion of the order dated 16.11.1999 read with the relevant part of judgment dated 18.11.1997 passed in ICA No.146/1996, reproduced above, it was incumbent upon the respondents to decide as to whether they were interested to acquire land of the petitioners within one year and in case of their failure to do so, they were bound to reprocess the application of the petitioners for issuance of NOC to develop a private housing scheme. Learned counsel for the respondents has vehemently argued that direction was confined only to reprocess the application of the petitioners and the same, in no way, can be taken as that for issuance of NOC. It has further been contended by learned counsel representing the respondents that as per direction of this Court, the application of the petitioners was taken up and the same was rejected on the ground that the proposed housing scheme of the petitioners was in conflict with the proposed housing scheme of LDA known as "Jubilee Town Housing Scheme, Phase-II". The said assertion of the respondents is not worth consideration for the reason that after abandoning the idea of developing its own above-named housing scheme the said ground was not available to the respondents to turn down the request of the petitioners for issuance of requisite NOC to develop a private housing scheme. Further, the said stance stands falsified from the contents of application (C.M. No.825/2003) filed by the respondents wherein they averred in clear cut words that the earlier Notifications, issued under section 4 ibid, with the passage of time, died their natural death. After abandoning the idea of development of the aforesaid scheme the reason for refusal of NOC to the petitioners evaporated and the same could not be used against the petitioners in future rather their request was to be considered in accordance with law on the subject. This Court in the case of Suleman Daud (Supra) while dealing with the powers of the acquiring agency towards refusal of the request of a person for exemption of his land from acquisition process especially when many other persons were accommodated in that regard, inter alia held as under:- "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."
16. It is important to mention over here that the petitioners having fed up with the attitude of the respondents towards non-issuance of requisite NOC for establishment of a private housing scheme or non-payment of anything in lieu of compensation against proposed acquisition of their land, filed the present petition. Alongwith the main petition, the petitioners also filed an application for interim relief (C.M.No.1/2001) with the following prayer:- "In view of the above, it is respectfully prayed that respondents be directed not to proceed in any manner for the acquisition of the suit land and an order to maintain status quo be passed."
On 04.07.2001, this Court while dealing with C.M. No.1/2001 passed the following order: - "In the meanwhile, the parties shall maintain status-quo."
To determine extent and scope of an injunctive order, in particular status quo order, the contents of the application for temporary relief are of paramount consideration. In this regard, latest judgment of a learned Division Bench of the Sindh High Court in the case of Fakhurl Arfin and 2 others v.
Federation of Pakistan through Secretary, Ministry of Works and 9 others (2015 CLC 318) can be quoted with convenience. On the basis of above principle, the scope and extent of the status-quo order, issued in favour of the petitioners, is to be determined according to the contents of their application moved for interim relief. A perusal of the prayer clause of application for interim relief (C.M.No.1/2001), reproduced above, shows that they specifically prayed that respondents be restrained from acquiring their land. This fact leaves no ambiguity that the status quo order was also applicable to the acquisition proceedings.
It is also very imperative to note that the respondents were being represented by Mr. M. Rasheed Advocate/Legal Advisor on the date when the afore-quoted status quo order was passed. Despite currency of the aforesaid status-quo order the respondents proceeded to issue Notification, dated 24.12.2002 in addition to taking various steps in pursuance thereof, which were promptly challenged by the petitioners through aforementioned miscellaneous applications.
Initially, this Court while restraining the respondents to carve out the plots on the land of the petitioners and their further allotment to the prospectus allottees did not suspend the operation of the said Notification, however, later on, by virtue of order dated 23.07.2003, passed in C.M.
No.1188/2003, operation of Notifications issued under sections 4, 6 & 17(4) of the Act, 1894 was suspended in the following manner:- "Notice for 18.9.2003. In the meanwhile, the operation of the notifications No.2385/2386 dated 4.7.2003 issued under section 17(4), 6 and Under Section 4 Dated 24.12.2002 of the Land Acquisition Act, 1894 are suspended only to the extent of disputed land as claimed by the petitioners/applicants." The facts discussed in the preceding paragraphs show that Notification, dated 24.12.2002, was issued in defiance of a status-quo order and operation thereof, alongwith subsequent Notifications, was suspended by this Court on 23.07.2003 while considering that the plea of the petitioners had due weight age. In this backdrop, I have no doubt to hold that Notification u/s 4 ibid, alongwith the subsequent proceedings conducted on the basis thereof, having direct nexus with the controversy involved in the present petition can be looked into by this Court.
17. One of the moot points which requires determination by this court is as to whether the prayer of the petitioners, as contained in the instant petition, can be granted or not especially visualized in the light of the fact that the petitioners are still pressing for the same irrespective of any offer made by them or any consensus arrived at between the parties during pendency of the instant petition.
Further, if the answer is in the negative to which extent this court can see into the legality of the acquisition proceedings conducted by the respondents. A perusal of the prayer clause of the instant petition shows that the petitioners, while beseeching for implementation of order dated 16.11.1999, also prayed for issuance of a direction to the respondents regarding issuance of requisite NOC for development of a private housing scheme named above. In my humble opinion the said prayer at this juncture cannot be granted for the reason that by virtue of order dated 16.11.1999 the respondents were directed to reprocess the application of the petitioners within two months in terms of judgment dated 18.11.1997. According to the documents being relied upon by learned counsel for the respondents, the application of the petitioners was taken up and their request for issuance of NOC was turned down and factum whereof was duly conveyed to the petitioners in written form. The petitioners have not specifically denied the assertion of the respondents regarding refusal of their request but they have pleaded that any order passed by the respondents without associating them is insignificant as it offends against the clear cut direction of this court contained in order dated 16.11.1999 whereby the respondents were directed to decide the issue after associating the petitioners. In this scenario, prima facie the direction contained in order, dated 16.11.1999, has been complied with irrespective of the fact that as to whether the order conforms with the legal norms or not as the same has not specifically been challenged by the petitioners and in case the petitioners are still aggrieved of the refusal order, they can challenge the same in appropriate proceedings subject to the question of limitation/laches. Moreover, it is admitted position that at present the land owned by the petitioners is part of the LDA Avenue-I Housing Scheme and according to the law on the subject, no person can be allowed to develop a private housing scheme which clearly is in conflict with a housing scheme of the Authority. In these circumstances, the prayer, as contained in the instant petition, cannot be granted at this stage.
However, the said fact, in no way, can be used to curtail the jurisdiction of this Court to take care of the actions of the respondents which were not only undertaken during pendency of the instant petition but also were in utter disregard of the status quo order passed by this Court. In this backdrop, I proceed to look into the validity of the acquisition proceedings conducted by the respondents relating to the land of the petitioners.
18. The crux of the petitioners' arguments is that during subsistence of status-quo order issued by this Court the respondents had no authority to issue Notification, dated 24.12.2002 whereas the respondents have adopted the plea that when the petitioners themselves covenanted to accept compensation, factum whereof was duly incorporated in order dated 22.07.2002, they have no cheeks either to press for the relief claimed in this petition or to call in question the vires of S. No. Of order/ Date of order/ Order with signature of Judge, and that of proceeding proceeding parties or counsel, where necessary Notification, dated 24.12.2002 and the subsequent proceedings conducted on the basis thereof. To appreciate the contention of the learned counsel for the respondents, in my humble opinion, a perusal of order dated 22.07.2002 is inevitable which for facility of reference is reproduced herein below: - "The learned counsel for the petitioner has made an offer that he has no objection, if pending formal proceedings for acquisition of petitioners' land, if any, compensation is paid to him at the market rate. It is further contended that the land of the petitioner is not included in the proposed 3 Marlas Scheme. The learned counsel for the respondents requests for time to obtain instructions from the concerned authorities. To be relisted after the summer vacations."
A bare reading of the afore-quoted order renders it conspicuously clear that the offer of the petitioners was conditional inasmuch as they showed their readiness to accept compensation provided any acquisition proceedings qua their land were underway. Secondly, the said offer was subject to the acceptance by the respondents. It is well settled by now that an offer does not assume the role of a binding promise or undertaking till the time it is accepted by the other side in clear cut words. In this regard, I stand guided by the verdicts in the cases of Muhammad Umar Khan and others v. Habib Bank Ltd. And others (2009 SCMR 886), Anjuman Falah-e-Bahbood v.
Government of Pakistan and others (2013 PLC (C.S.) 465) and Treat Corporation Ltd. v. ELMAC LTD.
Through Liquidator and Another (2011 YLR 2825). In the case of Muhammad Umar Khan and others (Supra) the august Supreme Court of Pakistan, which dilating upon the issue under discussion, has laid law to the following effect:- "12. Mr. Kamal Azfar, however, seems to be right in contending that the respondents' letter dated 24- 6-1997 was merely an offer, while we are not impressed by the contention that such offer was conditional upon execution of a fresh lease, which was not the requirement of law. Learned counsel, however, appears to be right in emphasizing that there ought to be a categorical acceptance of the offer to constitute a binding contract. Admittedly the letter in question was not responded to by the petitioner. Mere affixation of signatures at its bottom could only indicate the petitioner's receipt of the offer, but not acceptance of its terms. On the contrary the petitioner himself has admitted that he demanded three years rent in advance and this demand could only be treated as a counter-offer. At the same time his contention that a fresh agreement was not executed "for some reason" clearly indicates his conscious reluctance to accept the offer."
(emphasis provided).
Further, in the case of Treat Corporation Ltd. (Supra), a learned Division Bench of this Court, while dealing with the question as to which proposal converts into contract/promise, has interalia held as follows: - "The conversion of proposal into a contract must be absolute and unqualified in terms of section 7 of the Contract Act. The question whether the contract between the parties is absolute and concluded agreement is a question of fact which can only be proved from the evidence oral and documentary and which in this case is lacking rather in this case it is proved that appellant knowingly entered into a MOU agreeing to enter into formal S. No. Of order/ Date of order/ Order with signature of Judge, and that of proceeding proceeding parties or counsel, where necessary agreement to sell on fulfilment of certain conditions."(emphasis provided)
It is important to observe over here that order, dated 22.07.2002, cannot be read in piece-meal rather to determine the liabilities and rights of the parties in the background of the said order, if any, it is to be read as a whole. There is no cavil with the proposition that petitioners' counsel made a statement on their behalf that they were ready to accept the compensation provided any proceedings regarding acquisition of their land were under-way. The said offer of the petitioners was subject to two conditions viz. Pendency of any acquisition proceedings at the relevant time and acceptance of the same by the respondents. There is nothing on record to show that on the fateful day i.e. 22.07.2002 any acquisition proceedings qua the land of the petitioners were under- way. Moreover, the offer of the petitioners was not accepted by the learned counsel representing the respondents straight-away rather he sought time to obtain fresh instructions. Moreover, despite the fact that time was granted by this court to the learned counsel for the respondents to seek instructions in the wake of offer of the petitioners enshrined in order dated 22.07.2002 but a perusal of subsequent orders shows that the respondents never turned up to show their intention to accept the offer made by the petitioners on 22.07.2002 prior to publication of Notification, dated 24.12.2002. The above narration of facts renders it indubitably clear that the offer made by the petitioners had neither attained the status of binding promise nor created any right in favour of the respondents and against the petitioners.
Though the learned counsel appearing on behalf of the respondents with a view to meet the above situation has argued that since the offer of the petitioners was not pursuant to a formal agreement the conditions necessary for a valid contract were not applicable in the present case but the said plea does not carry any weightage for the reason that when it has been decided by the apex court of the country that in absence of clear cut acceptance by the opposite side an offer does not assume the role of a binding valid promise, this court cannot sit over the judgment of the Hon'ble Supreme Court as in view of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, it is bound to follow the decisions rendered by the august Supreme Court of Pakistan and any deviation on the part of this Court would amount to declare it as per incuriam. In the given circumstances, the plea of the respondents that Notification, dated 24.12.2002, was based upon the offer of the petitioners is not justified.
19. Another important feature of the instant case is that Notification, dated 24.12.2002, was admittedly issued during continuation of a status quo order. Prior to entering into the arena to determine the legality of the said Notification, I would like to discuss the term "status-quo order" in view of its meaning in different lexicons as well as definitions introduced in various judgments of the superior courts. According to Oxford Advanced Learner's Dictionary, 8th Edition it means- "the situation as it is now, or as it was before a recent change to defend/restore the status quo"
In Black's Law Dictionary, 9th Edition, the same has been elaborated as under: - "The situation that currently exists" In P Ramanatha Aiyar's Advanced Law Lexicon, 4th Edition, Volume 4 (Lexisnexis Page 4597), the said term has been clarified as under: - "The existing state of things at any given date. Existing condition." Moreover, a learned Division Bench of the Sindh High Court, in the case of Fakhurl Arfin and 2 others v. Federation of Pakistan through Secretary, Ministry of Works and 9 others (2015 CLC 318), has discussed the said term in the following manner:- "Additionally, the term status quo means the state of events existing during the period immediately before the injunction application has been filed, and the grievance/cause of action in such cases is that which the application for status quo reveals... "
Further, the said term has beautifully been defined by the Chief Court of Gilgit-Baltistan in the case of Musharaf Ahmad v. Sher Ahmad and another (2011 CLC 391) in the following words: - "*Status quo means to maintain the subject matter as it was at the day the suit was instituted.
It does not mean to alter the Situation or create new situation as such is obligatory on the Judicial Officers to satisfy themselves about the state of affairs on the day the order is passed particularly when parties are at variance in their pleas about the situation of the subject-matter on the day, the Courts must not issue status quo blindly as usual practice but to inquire into the matter to ascertain the real and existing situation of the subject matter on the day."
From the conjunctive reading of the afore-quoted meanings/definitions, one thing is clear that it means to maintain the state of affairs which was prevalent at the time of filing any lis before a court of law. Further, it also connotes to the situation which was occurring at the time of issuance of an order of status quo. In the wake of the above meanings/definitions, I proceed to determine the legal character of Notification, dated 24.12.2002, and the subsequent proceedings initiated on the basis thereof. It is well entrenched by now that after issuance of status quo order, the aggrieved party can either move for vacation thereof before the same court which issued the same or can approach the higher forum for recalling/setting aside thereof. The said situation came under discussion before a learned Division Bench of this Court in the case of Iftikhar Ali v. Javed Dastgir Mirza and 6 others (PLD 1975 LHR 126) wherein it was responded in the following words: - "**An injunction is a most solemn and authoritative form of order made by the Court expressly enjoining a party either to do a particular act, in which case the injunction is known as a mandatory injunction, or to refrain from doing a particular act, in which case the injunction is known as a prohibitory injunction. When an injunction order has been issued, it must be obeyed; and the only remedy of the aggrieved party is to come up in appeal to a superior Court to have the order vacated."(emphasis provided)
As far as the case in hand is concerned, after issuance of status-quo order neither the respondents moved this Court for vacation/recalling thereof nor approached the Hon'ble Supreme Court of Pakistan for the self-same relief prior to issuance of Notification, dated 24.12.2002. This fact renders it explicitly clear that the said Notification was issued during continuation of an injunctive order issued by this Court in presence of the learned counsel representing the respondents.
20. It is well settled by now that an act of a public functionary in violation of an injunctive order issued by a Court of law can only be dubbed as illegal, unlawful and void ab initio. A learned Division Bench of this Court in the case of Iftikhar Ali (Supra), while highlighting the consequences of violation of an injunctive order issued by a Court of competent jurisdiction and the measures to be adopted by the Court in such an eventuality, has inter-alia observed as under: - "*So long as the order stands and its operation has not been suspended by another Court or by the Court which passed the order, it will not be tolerated that any person should disobey that order.
It is so because the administration of justice can only be effective if it has the means to enforce Court orders and to punish acts tending to impair public confidence in the authority or integrity of the Judges who administer the course of justice." (emphasis provided)
At the cost of repetition it is observed that Notification, dated 24.12.2002, having been issued in clear cut violation of status-quo order issued by this Court cannot be blessed with legal blanket rather deserves to be looked into critically. Moreover, this Court, while looking into any matter regarding conduct of a government functionary towards defiance of any order, in addition to punishing the contemnor can also order for restoration of the position which was occurring prior to such violation. The fate of the acquisition proceedings, conducted in violation of an order of a Court of law, came under discussion before this court in the case of Mst. Surayya Aziz (Supra) when the same was replied in the following words: - "*It is also settled principle of law that public functionaries are also duty bound to act in accordance with law in view of Article 4 of the Constitution. The respondents can acquire the land/property of any citizen subject to the condition that acquisition proceedings must be in accordance with law in view of Articles 23, 24 read with Articles 4 and 5 of the Constitution. It is also admitted fact that requisition order was set aside by the Division Bench of this Court therefore, respondents have no lawful authority to initiate proceedings under the provisions of the Land Acquisition Act in the garb of public interest and public purposes. It is also settled principle of law that once the action of the public functionaries is based on malice then the same is not sustainable in the, eyes of law." (emphasis provided)
Moreover, the learned Division Bench of this Court in the case of Iftikhar Ali (Supra), while referring to an observation of Sir George Farewell in Eastern Trust Co. v. McKenzie Mann & Co. Ltd. (1915 AC 750 PC), has held that an interim or interlocutory injunction has the same force as a final order and that the same principles of obedience apply. It is thus settled that a person cannot be allowed to violate an order or injunction of a Court, and if he, in fact, disobeys it, he does so at his own peril.
These observations make it indubitably clear that acquisition proceedings conducted in violation of Court order irrespective of the fact that as to whether it is final or interim in nature, are nullity in the eye of law.
21. Considering from another angle, if the respondents were of the view that the consent given by the petitioners on 22.07.2002 amounted to vacation of status-quo order, they were not obliged to file an application (C.M. No.825/2003) inter-alia for vacation of status-quo order, relevant portion whereof is reproduced herein below for ready reference: - "6. That LDA was encouraged by the offer of the learned counsel for the petitioners which is contained in the order of this Hon'ble Court dated 22-7-2002.
7. That since the proceedings under the provisions of Land Acquisition Act, 1894, have commenced and objections have been invited from the General public, particularly the owners, therefore, pendency of writ petition will be an exercise in futility and the interim order dated 4-7-2001 is to be recalled and set-aside in the interest of justice.
Under these circumstances it is, therefore, respectfully prayed that the above-noted writ petition may kindly be disposed of as having become infructuous and the interim stay order dated 4-7- 2001 may graciously be vacated to secure the ends of justice."
The prayer clause, quoted above, makes it more than clear that the respondents were cognizant of the fact that at the time of filing of afore-mentioned miscellaneous application the status quo order was intact. Moreover, a status quo order operates till the time it is not specifically recalled/set aside. Fate of an injunctive order, even issued for a specific period but not recalled in clear cut words, was elaborately discussed by the apex Court of the country in the case of Raja Talat Mahmood v. Ismat Ehtishamul Haq (1999 SCMR 2215) inter alia with the following observation: - "In the present case, by order, dated 10-4 1998, the trial Court directed issuance of summons in the main suit and also notice of the application for interim injunction against the defendants including the petitioner for 24.4.1998. Status quo order was also passed on the same day. Order-sheet of the trial Court shows that neither any written statement nor any reply/objection/counter- affidavit to the application for interim injunction was filed by the petitioner/defendant No. 2 till 28-7-1998 and that between 10-4-1998 to 28.7.1998 six dates were fixed by the trial Court and on all such dates counsel for the petitioner was present and the same was adjourned as reply/written statement was not ready. Ultimately the written statement was filed on 28-7-1998 and therein plea was taken regarding oral compromise between the parties. In the circumstances, where neither any reply was filed nor any request was made for discharge of the interim injunction/status quo order, the legal position would be that the interim order would continue despite no specific order having been passed extending the order, dated 10-4-1998 granting status quo." (emphasis provided).
In the given circumstances, the action of the respondents towards issuance of Notification, dated 24.12.2002 and subsequent proceedings can be considered nothing else but violation of an injunctive order passed by this Court. Thus, the same cannot be validated just for the reason that the same was issued on the basis of a conditional offer which never saw the light of acceptance by the respondents in unambiguous words. No person, including government functionaries, can be allowed to blow hot and cold in the same breath as inconsistent pleas at different times always prove to be fatal for a party. The shaky stand taken by the respondents is clear from the fact that on the one hand they are of the view that after expressing their intention to accept compensation the petitioners cannot ask for anything else but on the other they moved the aforementioned application for vacation of status quo order for the apparent reason that the same was operative till that time.
22. Learned counsel for the respondents has vigorously argued that in the order, being relied upon by the petitioners, the respondents were only asked to reprocess the application of the petitioners but the said observation cannot be stretched to the extent that there was a direction by this Court regarding issuance of NOC in favour of the petitioners. In this regard, I concur with the learned counsel of the respondents to the extent that only direction was issued to the respondents to reprocess the application of the petitioners for issuance of NOC to establish a private housing scheme but at the same time I have no hesitation to observe that the said application was to be decided by the respondents through well-reasoned order. After abandoning the idea of developing a housing scheme, as is apparent from the contents of letter dated 30.07.2007 and C.M.
No.825/2003, the respondents, irrespective of any direction passed by this Court in the earlier round, were under bounden duty to consider the request of the petitioners for issuance of NOC to develop a private housing scheme in accordance with the relevant law and the observations contained in judgment dated 18.11.1997. The said fact also finds support from the contents of the summary submitted by the Director General of the Authority to the competent authority with the averments that since the petitioners fulfilled all the codal formalities, their land was to be excluded from acquisition process. For ready reference, relevant portion of the summary dated 16.10.1995, submitted by the Director General of the Authority reads as follows: - "7. MUMTAZ HOUSING SCHEME WAS SUBMITTED IN LDA IN 1985. THE SPONSOR OF THE SCHEME SUBMITTED SOME OWNERSHIP DOCUMENTS, LAYOUT PLAN, TOPOGRAPHICAL SURVEY PLAN AND SCRUTINY FEE. BUT DUE TO NON SUBMISSION OF DETAILED LAYOUT PLAN, THE SCHEME FILE WAS CLOSED.
AS THE SPONSOR HAS ALREADY COMPLETED THE REQUIREMENTS OF LDA FOR THE SUBMISSION OF A PRIVATE HOUSING SCHEME, THEREFORE, THE LAND OF THE SCHEME UNDER QUESTION MAY BE DENOTIFIED/EXCLUDED FROM THE LDA'S PROPOSED SCHEME AS A SPECIAL CASE. HOWEVER, THIS PRECEDENT WILL NOT BE QUOTED FOR THOSE PRIVATE HOUSING SCHEMES WHICH HAVE NOT BEEN SUBMITTED IN LDA BEFORE THE NOTIFICATION OF THE PROPOSED LDA'S HOUSING SCHEME.
8. IN CASE THE REQUEST OF APPLICANT IS ACCEPTED, THE AREA OF THE SAID PRIVATE HOUSING SCHEME WILL BE EXCLUDED FROM THE NOTIFIED AREA OF MOHLANWAL EXTENSION HOUSING SCHEME. SUBMITTED FOR INFORMATION/ ORDERS OF THE CHIEF MINISTER, PUNJAB/CHAIRMAN, LDA."
23. There is no second opinion that the government has the power to acquire land for public purpose but the said power cannot be exercised to deprive an individual of the rights he is enjoying as owner of the land except under due process of law. If the government functionaries are allowed to put the citizens of the country in a state of lurch, while imposing unjustifiable restrictions on the use of their properties according to their own wishes, the said act would be in sheer violation of Articles 23 & 24 of the Constitution of Islamic Republic of Pakistan, 1973. Article 24 ibid provides a protection to the individuals against compulsory acquisition of land without following due process of law. At the cost of repetition, it is observed that during the presence of a status quo order, the respondents could not issue Notification, dated 24.12.2002. The act of the respondents to issue Notification, dated 24.12.2002, during existence of status quo order is also not justifiable for the reason that to follow the due process of law it was incumbent upon the respondents either to move this Court for vacation/recalling of status quo order or to institute proceedings before apex Court of the country as the term "under due process of law" means every act should be in accordance with law on the subject.
24. Now coming to the contention of the learned counsel for the respondents that discretion lies with the acquiring agency to determine as to which land is appropriate for any public purpose and any action taken by the government functionaries in this regard is immune from interference by this Court in exercise of its constitutional jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, I am of the view that there is no cavil with the proposition that the acquiring agency enjoys the power to select any particular patch of land for any public purpose but the said discretion cannot be used to deprive a citizen of lawful use of his property according to his own wishes and to violate an order passed by a Court of law. The resume of the facts of the present case speaks volumes about the inaction on the part of the government functionaries towards issuance of requisite NOC in favour of the petitioners despite elapse of about three decades. Firstly, the land of the petitioners was proposed for Mohlanwal (Ext.) Housing Scheme.
Later on, the same was declared as part of the "Jubilee Town Housing Scheme Phase-II".
Subsequently as the respondents could not convert their idea of development of aforesaid housing schemes into reality, they included the land of the petitioners which was proposed for establishment of a labour colony under the control of Punjab Workers Welfare Board. When the said idea did not even mature into reality, the respondents, as a last resort, during pendency of the instant writ petition wherein status quo order had already been passed proceeded to include the land of the petitioners in the LDA Avenue-I Housing Scheme. With a view to justify the untoward conduct of the respondents, learned counsel representing them has argued that it was decided by the competent authority that the land which was part of the proposed "Jubilee Town Housing Scheme Phase-II" would be used for the scheme known as LDA Avenue-I Housing Scheme. Learned counsel for the respondents has not referred to any document in support of his contention.
Moreover, after abandoning the idea of setting up "Jubilee Town Housing Scheme Phase-II", the respondents had no cheeks to proceed with the acquisition of the petitioners' land during continuation of injunctive order. Moreover, a learned Division Bench of this Court, while concluding judgment dated 18.11.1997, observed in unequivocal words that LDA cannot be permitted/granted indefinite period for launching its proposed housing schemes thereby denying the citizens to develop their private housing schemes. The act of the respondents being in sheer violation of the observation of this Court invites stern action against them.
25. While responding to the contention of the petitioners that issuance of Notification, dated 24.12.2002, speaks volumes about the mala fide on the part of the respondents, learned counsel for the respondents has submitted that to allege mala fide is very easy but to prove the same is equally too tough. He has further stated that as neither the petitioners have specified the names of the respondents with their respective roles nor have referred to any material tending to show that the actions of the respondents form mala fide on their part, the same is nothing but a mere assertion. Prior to dealing with the plea of the respondents, I deem it appropriate to have glance over the definition of term "mala fide". In Black's Law Dictionary, Seventh Edition (p.967), the term "mala fides" has been equated with "bad faith" and on page 134 "bad faith" has been assigned the following meanings:-- "A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions evasion of the spirit of the bargain, lack of diligence and slacking off, wilful tendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance."
In Ballentine's Law Dictionary, Third Edition (p.766) the term "mala fide" or "mala fides" is assigned the meaning of bad faith and the term "bad faith" is defined on p.118 as under.-- "The antithesis of good faith; a state of mind affirmatively operating with a furtive design, with a motive of self-interest or ill-will, or for an ulterior purpose."
Further, the apex Court of the country, in the case of The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151) has defined the said term in the following words: - "Male fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also male fide.
It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above.
A mere allegation that an action has been taken wrongly is not sufficient to establish a case of male fides, nor can a case of male fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken male fides. But in order to make out a case of male fides, an individual must establish that his land was taken not for the purposes authorised by the law but for the personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken."
Further, a learned Division of the Sindh High Court in the case of National Development Finance Corporation v. Wafaqi Mohtasib, Islamabad and others (2004 CLD 260) has discussed the said term in the following words: - "Relative to the issue of mala fides though no specific observation or pronouncement was made by the Supreme Court, it is to be observed that this issue was raised before the Banking Tribunal of which notice was taken by the Supreme Court and it nowhere held that such issue could not have been raised before the Banking Tribunal. "Mala fide" literally means in bad faith. An action taken with mala fides is an action taken maliciously for personal motives whether to hurt the person against whom action is taken or to benefit oneself......"
From the above-quoted meanings/definitions of mala fides it is to be noted that mala fides has a much wider scope and would cover within its definition the act of maladministration and negligence of a public functionary to deprive a person of a legal right or to accommodate a person who otherwise is not entitled for such relief. Now I venture to adjudge the acts of the respondents towards refusal of requisite NOC to the petitioners and issuance of Notification, dated 24.12.2002, in addition to the subsequent proceedings conducted on the basis thereof. Admittedly, initially the land of the petitioners was proposed for acquisition for Mohlanwal (Ext.) Housing Scheme but when the said idea of the respondents did not mature into reality, instead of acceding to the genuine request of the petitioners regarding exclusion of their land from acquisition process and issuance of prescribed NOC, they proceeded to include the land of the petitioners in the Notification issued under section 4 ibid for acquisition of land for "Jubilee Town Housing Scheme Phase-II" but when the respondents also failed to implement/develop the said scheme they again included the land of the petitioners in the Notification issued under section 4 ibid for establishment of a colony for the employees of Workers Welfare Board and even after abandoning the idea to set up the said scheme the respondents failed to discharge their legal duty towards issuance of NOC to the petitioners despite the fact the Director General of the Authority fully supported plea of the petitioners for exclusion of their land from acquisition process. These facts undeniably speak about mala fide of the respondents in different phases.
Learned counsel for the respondents, during the course of arguments, has admitted that certain other societies, in particular Palace Town Housing Scheme, whose land was also included in the Notification issued under section 4 ibid for acquisition of land for Mohlanwal (Ext.) Housing Scheme was subsequently excluded from the acquisition process pursuant to judgment dated 18.11.1997 passed in ICA No.146/1996. To draw a line of distinction between the said housing scheme and that of the petitioners, learned counsel for the respondents has argued that the case of the petitioners is not at par with that of the Palace Town Housing Scheme for the reason that no development work was undertaken on the land forming part of the said scheme whereas certain measures towards basic infrastructures were taken by the respondents on the land owned by the petitioners.
The said argument might have due weightage if the land of the petitioners would have been utilized for any of the schemes regarding which Notifications under section 4 ibid were issued prior to filing of instant petition. When the respondents gave up the idea of Mohlanwal (Ext.) Housing Scheme, the said distinction, which otherwise is not of much importance, could not be used by the respondents to discriminate the petitioners while refusing their request to exclude their land from acquisition. Likewise, the respondents also excluded the land which was not yet purchased by the Judicial Employees Cooperative Housing Society on the request of the administration of the said Society. This fact also lends support to petitioners' version that act of the respondents towards inclusion of their land in various proposed schemes one after the other was tainted with mala fide.
Another important aspect which speaks volumes about the untoward conduct of the respondents is the issuance of Notification, dated 24.12.2002, during subsistence of an injunctive order. At the cost of repetition it is observed that admittedly Notification, dated 24.12.2002, was issued during subsistence of a status-quo order, which was not only passed in presence of the learned counsel representing the respondents but also the respondents were very much aware about the same as is manifest from the contents of application (C.M. No.825/2003) filed on behalf of the respondents.
The discussion made in the above paragraphs has left no ambiguity that the status quo order was operative at the time of issuance of Notification, dated 24.12.2002 and the acts of the respondents in contravention of the said order were subject to scrutiny by this Court. This fact alone is sufficient to show that the respondents were all out to deprive the petitioners to use their land according to their own wishes irrespective of any restraining order passed by this Court. Such act of the government functionaries can only be hailed as mala fide and this Court should not feel any hesitation to call for stern action. The Hon'ble Supreme Court of Pakistan in the case of Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others (2005 SCMR 678) while dealing with the powers of the superior Courts to undo an act, which is proved to be result of mala fide on the part of government functionaries, has inter-alia observed as under: - "There is no cavil with the proposition that mala fides are required to be pleaded specifically and proved as a question of fact, as held in the case of Government of Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 but when mala fide on the part of concerned authority is apparent on the face of record, then a Court of law, seized with the matter, is not supposed to shut its eyes, without taking notice thereof." (emphasis provided)
Further, the apex Court of the country has also dealt with the said situation in the case of Brig.
Muhammad Bashir v. Abdul Karim and others (PLD 2004 SC 271) in the following manner: - "There is no cavil with the proposition that "so long as statutory bodies and executive authorities act without fraud and bona fide within the powers conferred on them by the Statute the judiciary cannot interfere with them. There is ample power vested in the High Court to issue directions to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party "
(emphasis provided)
On the touchstone of the afore-quoted judgments of apex Court of the country, this Court has ample power to take action when the mala fide conduct of the respondents is floating on the surface. Further, any order of the executive authority during continuation of an injunctive order not only depicts mala fide on the part of the said authority but also proves to be contumacious and contemptuous.
It is relevant to note that during pendency of the present writ petition the petitioners moved various applications challenging the acts of the respondents towards inclusion of their land in Notification, dated 24.12.2002 and the subsequent proceedings. Though initially, the operation of the Notification was not suspended and the respondents were allowed to continue with the acquisition proceedings but it was directed in unequivocal terms that they shall not carve out any plot on the land owned by the petitioners for further allotment to the prospective allottees but the learned counsel representing the respondents has prayed for dismissal of the petition on the ground that a lot of water has flown under the bridge as not only plots have been carved out on the land owned by the petitioners but the same have further been allotted to the prospective allottees and the physical possession could not be handed over to them due to pendency of the instant petition. The said fact also supports the view of this Court that the conduct of the respondents since submission of application by the original owner for permission to develop a private housing scheme till this day seems to be somewhat dubious.
Admittedly, the operation of the Notification, dated 24.12.2002 and the subsequent Notifications issued under sections 6 & 17(4) of the Act, 1894 were suspended by this Court but despite that not only the respondents took over the possession of the land owned by the petitioners but have also demolished the superstructure raised by them worth millions of rupees. This fact, coupled with the episodes narrated above, are sufficient to show that the demeanour of the respondents throughout the proceedings was not above board rather it smacks some foul play on their part. In this situation, in my humble view, the jurisdiction of this Court to take care of the acts of the respondents is aptly attracted. The fate of possession by the acquiring agency on the basis of an award which was not in line with the law on the subject has elaborately been discussed in the case of Sardar Begum (Supra) inter-alia with the following observations: - "17. However, even if possession had been taken by the Trust, the property would not have vested into the Trust for the reason that the Award in pursuance of which the possession is alleged to have been taken was not valid and had no existence in the eye of law. It was held in Yousaf Ali v. Mohd.
Aslam Zia (PLD 1958 SC (Pak.) 104): "If on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognising as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded".
It has been admitted by learned counsel representing the respondents that summary was initiated by the Director General of the Authority for exclusion of the land of the petitioners from the acquisition process. There is nothing on record to show the fate of that summary. In case no decision was taken by the competent authority, the respondents were not obliged to take any further step towards acquisition of land of the petitioners till decision of same by Chairman of the Authority. The undue haste shown by the respondents to include the land of the petitioners in one scheme after the other is proof positive of the fact that they did so just to deprive the petitioners to develop their private housing scheme.
26. To justify the issuance of Notification, dated 24.12.2002 and the proceedings conducted pursuant thereto, learned counsel representing the respondents has argued that the land acquired for one purpose can be utilized by the government for some alternate public purpose. I fully concur with the learned counsel that power of the government to use the acquired land for alternate purpose cannot be curtailed by this Court, however, the said principle is not applicable in the present case for the reason that if the acquisition of the land of the petitioners was completed for any housing societies for which Notifications u/s 4 ibid were issued prior to filing instant petition then the Authority had the power to utilize the said land for any other purpose, including LDA Avenue-I Housing Scheme. Since the acquisition process qua the land of the petitioners was never finalized, its use for alternate purpose did not arise.
27. As far as the plea of the learned counsel for the respondents that since it was decided by the competent authority that the land forming part of the proposed "Jubilee Town Housing Scheme Phase-II" would be used for LDA Avenue-I Housing Scheme, there was no legal impediment to include the land of the petitioners in Notification, dated 24.12.2002 is concerned, suffice it to note that despite repeated queries, learned counsel for the respondents has failed to refer to any material in support of his contention, thus, the same cannot be taken as a gospel truth. Moreover, if the competent authority decided to use the land proposed for the "Jubilee Town Housing Scheme Phase-II" there was no occasion for the Land Acquisition Collector, LDA, to issue independent notification under section 4 of the Act, 1894 to acquire land for LDA Avenue-I Housing Scheme.
28. A cursory glance over the proceedings of the present case shows that during pendency of the present petition, the parties arrived at a consensus factum whereof was duly incorporated in order dated 20.10.2014 which for facility of reference is reproduced herein below: - "After arguing the mater at some length, the parties have arrived at a consensus that the petitioners are willing to forego their claim in the instant petition and have no objection if the land acquisition proceedings are initiated against the land in question provided the compensation is worked out strictly in terms of Section 23 of the Land Acquisition Act, 1894, in accordance with the prevalent market price. The petitioners are agreed to appear before the Land Acquisition concerned for the preparation of the Award.
2. In this view of the matter, respondent LDA is directed to proceed with the land acquisition of the land in question strictly in accordance with the provisions of Land Acquisition Act, 1894 and the Land Acquisition Collector is directed to grant a hearing to the parties before calculating the compensation payable to the petitioner and shall thereafter announce the award.
3. Let this matter come up for perusal of the Award on 21.01.2015. Office will reflect this case in the cause list as a "Announcement of Award Case".
Since the afore-quoted order was not being adhered to by the respondents in its letter and spirit, the petitioners were compelled to file an application (C.M.No.2/2014) seeking direction to them to determine the compensation amount in line with the said order. This application was disposed of vide order dated 26.11.2014 inter-alia in the following terms: - "C.M. No.2 of 2014 The learned counsel for the applicant submits that the order dated 20.10.2014 passed by this Court requiring the acquisition proceedings to be commenced and completed strictly in terms of section 23 of Land Acquisition Act, 1894 specifically mentioned that the compensation be determined in accordance with the prevalent market price. Further submits that this part of the order is being violated during the proceedings and it is apprehended that the compensation will not be given on the basis of prevalent market price. He submits that the terms of the order are not being complied with by Land Acquisition Collector.
2. Be that as it may, it needs no reiteration that the order passed by this Court on 20.10.2014 will have to be complied with in its true spirit and the compensation should be determined at the prevalent market price. If any deviation is made from the said order while making the Award, this will be seen and taken up on the date fixed for perusal of the Award i.e. 21.1.2015. With these observations, the instant petition is disposed of."
According to the spirit of the afore-quoted orders the respondents were to determine the quantum of compensation according to the prevalent market price. Despite clear cut understanding that the quantum of compensation would be decided according to the prevalent market price, the respondents, while retracting from their undertaking contained in order dated 20.10.2014, pleaded that in fact they gave consent regarding determination of the compensation according to section 23 of the Act, 1894. It is astonishing to note that on the one hand the respondents are of the view that the amount of compensation against the acquired land has already been deposited with the Land Acquisition Collector according to the rate prevalent at the time of issuance of Notification u/s 4 ibid and on the other they have argued that they covenanted before this Court on 20.10.2014 to determine the amount of compensation payable to the petitioners in terms of Section 23 of the Act, 1894. If the amount of compensation payable to the petitioners in lieu of their land in question had already been determined, according to the rate prevalent at the time of issuance of Notification, dated 24.12.2002, there was no necessity for the learned counsel for the respondents to make such statement. After such retraction, the consensus of the parties, incorporated in order dated 20.10.2014 came to an end and on 01.06.2015 the matter was fixed for arguments of the parties on merits for 08.06.2015. Moreover, the term prevalent market price refers to the price which was in vogue on the date when the parties arrived at a consensus.
The chain of facts, discussed in fore-going paragraphs, is sufficient to show that the respondents neither fulfilled their legal obligation nor showed a scant regard either to the injunctive order issued by this Court or the undertakings given by them during the course of proceedings in the instant petition. Such a callous and sinister attitude cannot be let spared rather deserves to be deprecated with full vigor so that in future nobody dare to flout an order of the court while dealing with the matters of public-at-large.
29. Learned counsel for the respondents has repeatedly argued that judgment dated 18.11.1997 passed in ICA No.146/1996 having distinct factual background was not applicable to the case of the petitioners in stricto senso rather it was only applicable to the extent of the time period given for decision of the application of the petitioners. In this regard, I do not find myself in agreement with the learned counsel for the reason that when a matter is decided in terms of an earlier judgment or order, all the directions and the conclusions arrived at by a Court of law are applicable in the subsequent matter. Admittedly, the matter in afore-mentioned ICA also revolved around exclusion of land of a private housing scheme from the acquisition by the acquiring agency and issuance of NOC for development of the said scheme. Thus, not only the legal controversy but the factual background of both the cases was somewhat similar. In this backdrop, this Court cannot hold that the judgment dated 18.11.1997 was not applicable to the case of the petitioners. Had there been any ambiguity regarding application of the judgment dated 18.11.1997 to the case of the petitioners either the respondents could have approached the higher forum or moved this Court for clarification of order dated 16.11.1999.
As they did not opt to avail any of the said remedies, they cannot be allowed to impeach the validity of order dated 16.11.1999 on the plea that under the said order the respondents were not bound to implement the judgment dated 18.11.1997 passed in ICA No.146/1996.
30. Now taking up the contention of the learned counsel for the respondents that acquisition proceedings qua the land of the petitioners are valid for the reason that acquiring agency can acquire land which is part of a private housing scheme which has been approved by the competent authority but no substantial step has been taken towards execution of development work, I agree with the learned counsel for the respondents to the extent that the acquiring agency can acquire land of a private housing scheme which has been approved but no substantial step has been taken towards development work but the said jurisdiction cannot be allowed to be used for the land which is subject matter of litigation before a Court of law wherein order of status quo was already passed. As far as the case in hand is concerned, the acquisition process was initiated during subsistence of a status quo order passed by this Court in presence of the learned counsel representing the respondents. Thus, this case stands distinguished from the legal proposition formulated by the learned counsel for the respondents.
31. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, ensures that every individual should be treated in accordance with law whereas Article 18 safeguards the rights of the citizens to choose the profession of their choice to earn livelihood for their sustenance while Article 25 prohibits any kind of discrimination. Any act of the public authorities in violation of a clear cut mandate provided in the Constitution amounts to misuse of powers. It is the spirit of the Constitution that similarly placed persons should be treated alike and any act of discrimination on the part of the competent authority should be dealt with iron hands and protection of fundamental rights of the citizens should be jealously guarded. The Hon'ble Supreme Court of Pakistan in the case of Syed Zafar Ali Shah v. General Pervez Musharaf, Chief Executive of Pakistan and others (PLD 2000 SC 869), while dealing with the subject, has inter-alia observed as follows: - "It is such an efficient and independent Judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of cast; creed, colour, culture, gender or place of origin, etc. It is indeed such a legal and judicial environment, which is conducive to economic growth and social development."
Insofar as the case, under discussion, is concerned admittedly Palace Town Housing Scheme was also part of Notification issued under section 4 ibid for acquisition of land for Mohlanwal (Ext.)
Housing Scheme but the land underneath the said scheme was excluded from the acquisition process pursuant to the judgment dated 18.11.1997 passed in ICA No.146/1996. Though Writ Petition No.12750 of 1996 filed by the petitioners was disposed of through order, dated 16.11.1999, in terms of judgment dated 18.11.1997 passed in afore-referred Intra Court Appeal but while dealing with the petitioners, the respondents adopted totally discriminatory attitude and refused to exclude their land from the process of acquisition. The explanation provided by learned counsel for the respondents to bifurcate the case of the petitioners from the Palace Town Housing Scheme, incorporated in the earlier part of this order, does not appeal to reason. According to the learned counsel for the respondents no development work on the land of Palace Town Housing Scheme was undertaken by the Authority the same was distinguished from the petitioners as considerable steps were undertaken towards development work on the land forming part of the proposed Housing Scheme of the petitioners. I differ with learned counsel for the respondents on the premises that according to plethora of judgments of the superior courts, issuance of Notification u/s 4 ibid only shows the intention of the acquiring agency to acquire any particular land but mere issuance of said Notification does not create any interest in favour of the acquiring agency except the permission to enter and inquire into it. There is nothing on record to show that the respondents proceeded further pursuant to Notification issued u/s 4 ibid. If the respondents proceeded to take certain measures towards development work, without finalization of acquisition proceedings, the said fact does not provide a shield against their discriminatory acts. It is of common knowledge that the Authority can only proceed with development work of a Housing Scheme after publication of Notification u/s 6 and 17(4) of the Act, 1894. In the case in hand the act of the respondents to undertake development work, if any, without awaiting finalization of acquisition proceedings, can only be hailed illegal and improper and no leniency can be shown to the respondents.
Moreover, on the request of the administration of the Judicial Employees Cooperative Housing Society Phase-III certain land was excluded from acquisition despite the fact that the said land was not purchased by the administration of the said Society on the fateful day. Further, the request of the Secretary, Judicial Employees Cooperative Housing Society was acceded to on the move of Director General of the Authority in the shape of a summary to the Chairman of the Authority with the clear cut averments that there is no precedent regarding the exclusion of such land from notified LDA Scheme. Learned counsel for the respondents with a view to justify the exclusion of particular land from acquisition on the request of the Secretary, Punjab Judicial Employees Cooperative Housing Scheme has referred to the decision of the Chairman of the Authority. In my humble opinion, said fact instead of lending any support to the respondents goes otherwise.
Admittedly, the Director General of the Authority referred the matter of the petitioners for exclusion of their land from acquisition in the year 1995 with positive recommendations. The same authority forwarded the request of the Secretary, Judicial Employees Cooperative Housing Society, with clear cut note that there was no precedent for exclusion of land from acquisition proceedings on the request of the administration of the Housing Scheme which had not purchased the said land. The Chairman of the Authority while misusing his power to exclude any land from acquisition process under the Act, 1975, ordered for exclusion of certain land on the request of the administration of Judicial Employees Cooperative Housing Society whereas the summary regarding land of the petitioners was put in the dust bin as no order of the competent authority was conveyed to the petitioners. The mala fide and discriminatory conduct of the respondents is floating on the surface.
It is pertinent to mention over here that learned counsel for the respondents has repeatedly argued that the case of the petitioners was not at par with that of the Palace Town Housing Scheme but no satisfactory reply has been given by the learned counsel regarding exclusion of the land from LDA Avenue-I Housing Scheme which was part of the societies known as Ali Razabaad Park Housing Scheme and Land Breeze Housing Scheme. A cursory survey over the map of LDA Avenue-I Housing Scheme shows that afore-referred schemes were excluded from LDA Avenue-I Housing Scheme despite the fact that they were situated in the center of the said scheme whereas the petitioners have been discriminated while refusing their request regarding exclusion of their land from the acquisition process despite the fact that the land of their proposed housing scheme was situated in a corner easily separable from rest of LDA Avenue-I Housing Scheme.
32. Learned counsel for the respondents, while referring to offer of the petitioners incorporated in order, dated 22.07.2002, argues that the requisite amount against acquisition of land for LDA Avenue-I Housing Scheme has already been deposited with the Land Acquisition Collector and the petitioners can move for withdrawal thereof in addition to agitating their grievance regarding insufficiency thereof before the appropriate forum. The assertion of the respondents is not worth consideration for the reason that the petitioners filed the instant petition seeking implementation of the earlier order passed by this Court. Moreover, not only Notification, dated 24.12.2002, was issued in violation of status-quo order but also the subsequent proceedings were conducted in a surreptitious manner. The deposit of the compensation by the acquiring agency with the Land Acquisition Collector does not render the acquisition proceedings qua land of the petitioners legal especially when the same are considered while putting in juxtaposition to the background of the case as well as the injunctive order issued in the instant petition. There is no denying the fact that this Court cannot indulge into an exercise regarding determination of the amount of compensation rather in case of any grievance in this regard the person concerned has to approach the Referee Court in terms of section 18 of the Act, 1894. As far as the case in hand is concerned, when the acquisition proceedings regarding land of the petitioners have been found mala fide, discriminatory and violative of fundamental rights guaranteed under Chapter II of the Constitution, the question of deposit of compensation by the respondents is immaterial. It is cardinal principle of good governance that nobody can be deprived of his property except under due process of law.
When the respondents have failed to justify their act of acquisition during currency of an injunctive order, the same is illegal, unlawful and result of mala fide. Further, the entire superstructure raised on the basis of Notification, dated 24.12.2002, cannot be let unnoticed on the ground that after issuance of said Notification material steps have already been taken by the respondents towards development of plots and their allotment to the prospective allottees.
33. According to the acknowledged concept of good governance, government functionaries are bound to strictly adhere to the mandate of the Constitution and the relevant laws. Any act of the public functionaries in derogation of clear cut provisions of the law of the land can be taken care of by the Superior Courts as the Constitution has casted heavy duty upon them to ensure the protection of the fundamental rights guaranteed under the Constitution. If the government functionaries are allowed to play havoc with fates of the citizens, our social fabric would totally be devastated and the public-at-large would be justified to show their lack of confidence upon the judicial system. It is of common knowledge that judicial system in a country has the nucleus role and stability of the society hinges upon the impartiality and effectiveness of the judicial system.
The Superior Courts, being the custodian of the fundamental rights of the citizens, cannot shut their eyes from the follies of the executive while dealing with the day to day affairs of the State. In the present case, the questionable conduct of the respondents is apparent from the resume of the discussion recorded above. In case they were sincere to acquire the land of the petitioners, irrespective of the finalization of the fate of the proposed housing schemes of the Authority, they were to pay the amount of compensation at the relevant time. The respondents tried their best to keep the petitioners in limbo for indefinite period. The helplessness of the petitioners is clear from the fact that from the very first day they had been clamouring and craving either for issuance of NOC or for payment of compensation to them but the respondents did not budge. The chain of episodes of the instant case proves that it is a classical example of red-tapism and misuse of powers by the government functionaries aiming at to deprive the citizens to use their land according to their own will.
34. Learned counsel for the respondents with a view to justify the acts of the respondents towards acquisition of petitioners land had adopted the plea that after taking over the possession of the land in question, not only plots have been carved out but the same have also been allotted to the prospective allottees. Adds that in case the acquisition proceedings are set aside by this Court on the one hand there would be a colossal loss to the national exchequer and on the other the prospective allottees would not be able to take physical possession of the plots allotted to them. In this regard, without any fear of contradiction, I am of the view that the said plea is of no help to the respondents for two reasons viz. Firstly they opted to allot plots to the prospective allottees in clear cut violation of the order passed by this Court wherein they were specifically directed that they shall not allot any plot to the prospective allottees and secondly if the prospective allottees opted to get allotted the plots carved out on the land which was subject of the lis before this Court, they have no legal title to claim that any order passed by this Court would adversely affect their right.
Somewhat similar situation came under discussion before the august Supreme Court of Pakistan in the case of Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) whereby the apex Court of the country has laid law to the following effect: - "Thus, the transferee of the suit property, even the purchaser for value, without notice of the pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchaser, in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto senso in all respects, as his transferor would be bound. The transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest. The rule of lis pendens is founded upon the principle that it would be impossible that any action or suit could be brought to a successful termination if the alienations pendente lite are permitted to prevail and the subsequent transferee is allowed to set out his own independent case, even of being the bona fide transferee against the succeeding party of the matter and ask for the commencement of de nova proceedings so as to defeat the claim which has been settled by a final judicial verdict. The foundation of the doctrine is not rested upon notice, actual or constructive, it only rests on necessity and expediency, that is, the necessity of final adjudication that neither party to the litigation should alienate the property so as to effect the rights of his opponent. If that was not so, there would be no end to litigation and the justice would be defeated."
Principle of lis pendens apart, the prospective allottees can be accommodated by the Authority by way of allotment of alternate plots as is being done in the matters of thousands of other allottees whose plots are under litigation before different forums. In this way the grievance of the prospective allottees shall be redressed.
35. As a necessary corollary to the discussion made in the above paragraphs, I have no doubt to hold that at the time of issuance of Notification, dated 24.12.2002, the status quo order was operative and the acts of the respondents starting from publication of Notification, dated 24.12.2002, till the taking over of possession by them are declared illegal, unlawful and in clear cut violation of an injunctive order. Consequently, while disposing of instant petition, Notification, dated 24.12.2002, is declared illegal, unlawful and void ab-initio. Resultantly, the same is set aside and the subsequent proceedings taken on the basis thereof are quashed.
36. Since the possession is already with the respondents, if they are interested to continue with the same they shall initiate the process of acquisition of the land of the petitioners afresh from the initial stage of issuance of Notification under section 4 ibid. Further, if they opt to proceed with the acquisition proceedings afresh the same shall be concluded within a period of six months as the petitioners have already been suffering at the hands of the respondents since the year 1987. In the alternate, the respondents shall hand over the possession of the land in question to the petitioners forthwith in addition to paying compensation of Rs.6,000,000/- (six million rupees) towards the cost of the superstructure admittedly demolished by the respondents. The parties shall bear their respective costs.
37. Since the acquisition proceedings by the respondents regarding the land of the petitioners during currency of a status quo order have been declared illegal, the connected Criminal Original No.2410-W of 2014 as well as the miscellaneous applications filed during pendency of the instant petition shall stand disposed of accordingly.
38. Before parting with this order, I think it would be ungenerous if the assistance rendered by the learned counsel representing the parties is omitted to be admired. The manner of addressing the Court and presentation of voluminous record in a very articulate manner is not only laudable but a source of enlightenment and guidance for the beginners in the profession. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.