1. This writ petition has emanated from Writ Petition No,7459 of 1993, which in turn had originated from the Press reports alleging arbitrary allotment of a large number of residential plots by Mian Manzoor Ahmad Wattoo, the former Chief Minister of the Punjab, during his short tenure of a few months, especially during the last night of his rule, in various Housing Schemes of different official Development Agencies in the Province, mostly of Lahore Development Authority.
2. 2.During the hearing of original writ petition referred to above, when it was still at the initial stage, on the persistent demand of the National Press it was considered expedient in the public interest to enlarge the scope of inquiry so as to bring within its purview similar arbitrary allotments of the State-owned plots allegedly made by different former Prime Ministers in the post-Third Martial Law period in various Housing Schemes of the Capital Development Authority, Islamabad. So, vide order, dated 1-8-1993, passed in the original Writ Petition (No, 7459 of 1993), this Court decided to commence the inquisitorial probe accordingly and directed the learned Attorney-General of Pakistan to place before, this Court on 8-8-1993, with the assistance of the Chairman of Capital Development Authority, Islamabad, a list, duly authenticated by him of the persons, whether individuals or firms or companies, who, during the period from the date on which late Mr. Muhammad Khan Junejo had assumed the office of the Prime Minister of Pakistan, till the dissolution of National Assembly on 18-7-1993, had been allotted residential or commercial plots within the Capital Territory by the Prime Ministers in exercise of their discretionary powers or from their discretionary quotas. The relevant portion of the order is reproduced hereunder:-- "As already mentioned, the Press, has suggested different points of time for the commencement of this probe. This Court would have commenced it from the time when the plots system in this country had been introduced for the first time during the regime of late Mr. Z.A. Bhutto but it will be too lengthy a period. Besides, he was succeeded by a Martial Law regime spreading over about 11 years and, as we all know, the Martial Law Administration being conscious of their excesses and illegalities on account of the arbitrary exercise of their unbridled authority, take particular care to give legal protection to their acts and actions so that no subsequent regime can question their deeds or misdeeds. General Zia-ul-Haq, while lifting the Third Martial Law in the country, also resorted to this device and from the first civilian regime headed by late Mr. Muhammad Khan Junejo, got enacted and inserted Article 271-A in the Constitution. Therefore, this Court is not in a position to probe into anything done by him till 30-12-1985.
3. As already indicated, the curse and malpractice of allotment of residential and commercial plots at the throw-away reserve prices by the Chief Executives of the country and those of the Provinces to their relations, friends and political associates began sometimes during mid-seventies and the allegations in this respect are not only against the Chief Ministers of the Provinces but also against the Prime Ministers of Pakistan. Therefore, it would be just and proper to include in this exercise, the Prime Ministers as well. So, it is directed that this inquisitorial probe shall commence from 30-12- 1985, the day the third Martial Law was formally lifted, or from the date on which the late Mr. Muhammad Khan Junejo had assumed the office of the Prime Minister of Pakistan, whichever is earlier. To give prompt effect to this order, it is directed that the learned Attorney-General of Pakistan, to whom this order shall be conveyed on Fax, with the assistance of the Chairman of Capital Development Authority, Islamabad, shall lay before this Court on 8-8-1993, a list, duly authenticated by the Chairman, of persons, whether individuals or firms or companies who, during the period from the abovesaid date till the dissolution of National Assembly on 18-7-1993, have been allotted residential or commercial plots within the Capital Territory by the Prime Ministers in the exercise of their discretionary powers or from their discretionary quota. This list shall contain the period of each Prime Minister, the names and full addresses of the allottees, the dates of the allotments, location, number and dimension of the plots and their price."
4. 3.In compliance of the said order, Mr. Faqir Muhammad Khokhar, the learned Deputy Attorney- General stationed at Lahore on 8-8-1993 placed on the file duly authenticated lists of plots allotted within the jurisdiction of Capital Development Authority from the discretionary quota by different Prime Ministers from March 1985 to 18th of July, 1993. According to the periodwise break-up of the plots so allotted, late Muhammad Khan Junejo had allotted 129 residential plots; Ms. Benazir Bhutto during her tenure 561 plots Mr. Ghulam Mustafa Jatoi, the Care-taker Prime Minister 59 plots; and Mian Nawaz Sharif during his regime 23 plots, total being 772 plots.
5. 4.On the receipt of this information, on the same day notices were directed to be issued to the three former Prime Ministers of Pakistan, namely, Ms. Benazir Bhutto, Mr. Ghulam Mustafa Jatoi and Mian Nawaz Sharif for their appearance on 19-8-1993, either personally or through their counsel and explain in their respective written statements as under what law or authority, they, during their respective tenures as Prime Ministers of Pakistan, had been allotting different kinds of plots to different persons mentioned in the lists provided by the learned Deputy Attorney-General? Copies of the lists were directed to be supplied to each of them to enable them to prepare their written statements. The relevant portion of the order, dated 8-8-1993, so made is reproduced hereunder:- "Since the information regarding the allotment of plots in Capital Development Authority by different Prime Ministers from their discretionary quotas has come on the record, notices similar to those already issued the Chief Ministers of the Punjab, should now be issued to Ms. Benazir Bhutto, Mr. Ghulam Mustafa Jatoi and Mian Nawaz Sharif, for the date fixed, to appear either personally or through their counsel and in their respective written statements explain as under what law or authority they, during their respective tenures as Prime Ministers, had been allotting different kinds of plots to different persons mentioned in the lists provided by the learned Deputy Attorney- General. Copy of this order alongwith the copy of the lists so provided be supplied to each of them to enable them to prepare their written statements."
6. 5.It may be mentioned here that eversince the proceedings in this writ petition commenced on 1-8- 1993, when the learned Attorney-General was asked to place on the record the lists of plots allotted by the former Prime Ministers, Mr. Habib-ul-Wahab Al-Khairi, Advocate who was even previously appearing in the main' writ petition as counsel for Aljahad Trust, Rawalpindi, the writ petitioners therein, continued to appear in this writ petition as counsel for the writ petitioner hereinbefore and after its separation from the main writ petition.
7. 6.On 19-8-1993 W. Habib-ul-Wahab Al-Khairi, Advocate for the petitioner, adverted attention of the Court to the amended writ petition already placed by him on the file, indicating therein the names of Ms. Benazir Bhutto, Mr. Ghulam Mustafa Jatoi and Mian Nawaz Shag, the former Prime Ministers, as added respondents besides Mian Manzoor Ahmad Wattoo, Mr. Ghulam Haider Wyne and Mian Nawaz Sharif, who were already respondents in the main writ petition. The copies of the amended writ petition were directed to be given to the aforesaid respondents and they were asked to file written statements on 25-8-1993. As the proceedings concerning the allotments of plots by the former Prime Ministers were considered as separate and independent ones from the main writ petition concerning allotments of plots by the Chief Ministers, the former were directed to be separated from the latter and assigned a separate number as an independent writ petition. It is in this manner that the present Writ Petition No,8623 of 1993 came into existence. The relevant portion of the order dated 19-8-1993, passed in Writ Petition No,7459 of 1993 is reproduced for the facility of reference:-- Mr. Habib-ul-Wahab Al-Khairi, Advocate for the Petitioners.
8. Sardar Latif Khan Khosa, Advocate for Mian Manzoor Ahmad Wattoo (respondent No,1).
9. Mr. Rashid Murtaza Qureshi, Advocate for Syed Sarfraz Ahmad, respondent No,5.
10. Mr, Faqir Muhammad Khokhar, Deputy Attorney-General for Government of Pakistan/C.D.A., Islamabad.
11. Syed Tasadaq Hussain Mani, Acting Advocate-General assisted by Mr. A.R. Arshad Malik, Advocate for Government of the Punjab,including Housing and Physical Planning Department/L.DA.
12. Mr. Maqbool Elahi Malik and Mushtaq Ali Tahirkhali, Advocate for Mian Nawaz Sharif and Mian Ghulam Haider Wyne respondents.
13. Mr. Abdul Sattar Najam and Syed Sharif Hussain Bokhari, Advocates for Ms. Benazir Bhutto respondent.
14. Mr. Muhammad Hussain, Advocate for Mr. Ghulam Mustafa Jatoi, respondent.
15. Nemo for applicants in C.M. Nos.1826 to 1829 of 1993 nor for C.M. No,1850 of 1993.
16. Mr. Haider Usman and Mr. S.M, Bashir in person.
17. Dr. Rashid Randhawa, Amin of Federal Bait-ul-Maal alongwith Mr. Muhammad Ismail Qureshi, Advocate.
18. "On the last date of hearing, Mr. Habib-ul-Wahab Al-Khari, Advocate, representing the writ petitioner had placed before this Court the amended petition, indicating therein Mr. Ghulam Haider Wyne, Mian Nawaz Sharif, Mr. Ghulam Mustafa Jatoi and Ms. Benazir Bhutto and some officials as respondents besides Mian Manzoor Ahmad Wattoo, who is already a respondent, but the Court thought that it was a miscellaneous application and for that reason it was not given due weight.
19. Now it has been noticed that it was in fact an amended writ petition which he filed in view of the aforesaid persons having been impleaded by this Court. It is, therefore, now treated as a regular amended writ petition, copy of which should now be passed on to the respondents and if they want to file written statements, they can do till the next date of hearing i,e, 25-8-1993. Copies have been passed on by Mr. Khairi, Advocate to the Advocates of the respondents. Since the matter regarding the allotment of plots by the Prime Minister, from their discretionary quota, is separate and independent one, it should be separated from this file and given a separate number as writ petition. A copy of the amended writ petition be placed on that file alongwith the list of plots supplied by the C.DA. Through Deputy Attorney-General, Lahore, and other relevant papers or their copies."
20. 7.Pursuant to the said order, the present writ petition bearing No,8623 of 1993 had simultaneously come into existence on that very date i,e, 19-8-1993 and the following opening order was passed thereon:- Mr. Habib-ul-Wahab Al-Khari, Advocate for the petitioner. Mr. Faqir Muhammad Khokhar, Deputy Attorney-General.
21. Mr. Maqbool Elahi Malik and Mushtaq All Tahirkhali, Advocates for Mian Nawaz Sharif respondent.
22. Mr. Abdus Sattar Najam and Syed Sharif Hussain Bokhari, Advocates for Ms. Benazir Bhutto.
23. Mr. Muhammad Hussain, Advocate for Mr. Ghulam Mustafa Jatoi.
24. "Proceedings relating to plots in C.DA., Islamabad are being treated as a separate writ petition.
(2) Request for adjournment, in order to file written statements, has been made on behalf of all the respondents for different reasons. Counsel for Ms. Benazir Bhutto and Mr. Ghulam Mustafa Jatoi say that the office has not supplied the list of plots brought on the file by the Deputy Attorney-General, despite a direction of this Court, nor allowed access to the record, and perhaps without much valid reasons. Malik Maqbool Illahi, Advocate is, however, making request for adjournment for the second time.
(3) The office should allow access of the record to the counsel for the respondents and supply them the copies of the lists of the plots submitted by the Deputy Attorney-General at their expenses, if necessary, as they are ready to pay the costs, if any.
(4) Relist for filing of written statements on 25-8-1993. This shall be the last opportunity for them to do so. Arguments shall also be heard."
25. 8.Proceedings in the present writ petition continued and on 26-8-1993 Mr. Habib-ul-Wahab Al- Khairi, Advocate appeared for the writ petitioner; Mr. Faqir Muhammad Khokhar, Deputy Attorney- General for the Federal Government (though it is not a party); Mr. Abdus Sattar Najam and Syed Sharif Hussain Bokhari, Advocates for Ms. Benazir Bhutto (respondent No,1); Ch. Muhammad Hussain, Advocate for Mr. Ghulam Mustafa Jatoi (respondent No, 2) and Mr. Mabqool Elahi Malik and Mr. Mushtaq Ali Tahirkheli, Advocates for Mian Nawaz Sharif (respondent No,3).
26. 9.Learned counsel for Mr. Jatoi brought on the file his written statement but the learned counsel for Ms. Benazir Bhutto and Mian Nawaz Sharif requested for another adjournment in order to file their respective written statements. Their request was granted and the proceedings were adjourned to 30-8-1993 with the caution that no further adjournment would be given to them for this purpose.
27. On 30-8-1993 learned counsel representing the parties appeared in the same manner as they had put in appearance on the preceding date of hearing. Learned counsel for Mian Nawaz Sharif respondent placed on the file his written statement. However, another adjournment was requested on behalf of Ms. Benazir Bhutto respondent for filing written statement. The adjournment was granted to her counsel with the observation that she was apparently avoiding to file written statement by making repeated requests for adjournment and she should file the same till 8-9- 1993, with a copy thereof to the learned counsel for the petitioner and to the learned counsel for other respondents, failing which, she would be deemed to have forfeited her right to file it and final arguments would be heard on 12-9-1993. However, if this Bench was not available on that date, then the matter would be listed during the week commencing 18-9-1993.
28. 10.The matter was listed by the office for 18-9-1993 and during the course of hearing it was brought to the notice of this Court that Ms. Benazir Bhutto respondent had meanwhile filed an I.CA. And the learned Division Bench of this Court passed an interim order. According to the learned counsel for Ms. Benazir Bhutto respondent, the proceedings being taken by this Court had been stayed by the Division Bench, while the petitioner's counsel was of the opinion that operation of certain interim orders passed by this Court had been suspended and the proceedings had not been stayed.
29. 11.To resolve this controversy, the original record of I.CA. No,363 of 1993 was summoned and perused with the help of the learned counsel representing the parties. To appreciate the implication of the order, dated 5-8-1993, it is reproduced hereunder:-- "Messrs Sharif Hussain Bokhari and Mian Abdus Sattar Najam, Advocates, for the appellant, Syed Tassadaq Hussain Jilani, Advocate-General, Mr. Wahab-ul-Khairi, Advocate respondent No,3.
30. On the controversy, I.C.A. No,359 of 1993 (Mian Manzoor Ahmad Wattoo v. Mr. Abdul Wahab-ul- Khairi and another) and I.CA. No,360 of 1993 (Ghulam Haider Wyne v. Mr. Wahabul Khairi and another) were admitted to regular hearing by this Court on 1-9-1993. This appeal shall also be admitted for regular hearing. It shall be heard and decided alongwith the connected matters, referred to above.
(2) The impugned orders dated 8th August and 19th August, 1993 shall remain suspended meanwhile, subject to notice.
(3) Mr. Wahabul Khairi, respondent No3, acceptes notice. Office shall issue notices to the remaining respondents.
(4) A request has been made by respondent No3 for fixation of the main appeal at an early date.
31. He may move an application for fixation of the appeal at an actual date before the Honourable Chief Justice, keeping in view the urgency involved in the matter."
32. 12.The perusal of the aforesaid order indicates that it was passed on 5-8-1993. In the first instance, it apparently could not suspend the interim orders of this Court dated 8-8-1993 and 19-8-1993 passed in the present Writ Petition (No,8623 of 1993). It appears that the date of the order passed by the learned Division Bench is incorrect. Further, no order was passed by this Court in this Writ Petition on 8-8-1993 as the opening order herein is dated 19-8-1993 as reproduced in para. 7 ante.
33. It is, therefore, not ascertainable as which order, dated 8-8-1993, passed by this Court was suspended by the learned Division Bench. But if the order, dated 8-8-1993, passed in Writ Petition, No,7459 of 1993 was sought to be suspended, then Ms. Benazir Bhutto respondent-appellant should, in her I.CA. No,363 of 1993; have so prayed but she prayed for the suspension of the order, dated 8-8-1993, passed in the present Writ Petition No,8623 of 1993 besides the order, dated 19-8- 1993 passed herein and the learned Division Bench suspended the operation of these orders subject to notice. Therefore, the order, dated 8-8-1993, passed in Writ Petition No,7459 of 1993, which stands reproduced in para. 4 ante and by which Ms. Benazir Bhutto, Mr. Ghulam Mustafa Jatoi and Mian Nawaz Sharif were called upon by this Court to appear either personally or through their counsel and in their respective written statements to be filed by them explain as under 'what law or authority they, during their respective tenures as Prime Ministers, had been allotting State- owned plots of different kinds to different persons mentioned in the list provided by the learned Deputy Attorney-General, still remains intact. In other words, the learned Division Bench suspended only the order, dated 19-8-1993, passed by this Court in this Writ Petition (No,8623 of 1993). The necessary effect of its suspension is that Ms. Benazir Bhutto respondent could not be compelled to file written statement on 25-8-1993 and it did not affect any other portion of the order especially to the extent it related to Mr. Ghulam Mustafa Jatoi and Mian Nawaz Sharif whose learned counsel had also sought adjournment for filing their written statements. The order of the learned Division Bench did not affect them because they are not a party to I.CA. No,363 of 1993 and Ms. Benazir Bhutto respondent, who is the sole appellant in that matter, could only pray for any relief for herself and not for her corespondents who were not even party to the appeal.
34. 13.In the prayer appended to the abovementioned I.CA. There was also a request for the stay of proceedings before this Court but it was not granted by the learned Division Bench. So I agree with the contention of the learned counsel for the petitioner that proceedings in this writ petition are to continue. This being so, on 26-8-1993, the learned counsel representing Mr. Ghulam Mustafa Jatoi (respondent No,2) rightly filed the written statement of his client persuant to the earlier order and Ms. Benzair Bhutto (respondent No,1) and Mian Nawaz Sharif (respondent No,3) were rightly granted further adjournment for filing written statements on 30-8-1993. The latter through his learned counsel filed his written statement but the fomer did not and as such she will be deemed to have chosen not to file her written defence.
35. 14.It may be mentioned here that on 18-9-1993 the learned counsel for Mian Nawaz Sharif and the learned counsel for the writ petitioner addressed arguments on the question of jurisdiction of this Court involved in this writ petition as also in the connected one (7459 of 1993) and the learned counsel for Ms. Benazir Bhutto and Mr. Ghulam Mustafa Jatoi remained present but since arguments could not be concluded on that day, both the writ petitions were adjourned to 19-9- 1993. On this date of hearing, arguments were addressed only by the petitioner's counsel assisted by Mr. Rashid Murtazh Qureshi, Advocate, and by Mr. Maqbool Elahi Malik, Advocate representing Mian Nawaz Sharif respondent in reply as also by the learned Acting Advocate-General who could not address argument earlier due to his preoccupation elsewhere. Neither the learned counsel for Ms. Benazir Bhutto respondent nor that of Mr. Ghulam Mustafa Jatoi respondent addressed any arguments, perhaps for the reason that their view point on the question of jurisdiction had already been conveyed during the arguments addressed by Mr. Maqbool Elahi Malik, the learned counsel for Mian Nawaz Sharif and the learned Acting Advocate-General of the Punjab. So the hearing was concluded and the order was announced.
15. Before proceeding to consider the legal aspect of the matter, I would like to refer to the contents of the written statement filed by Mr. Ghulam Mustafa Jatoi respondent and that of Mian Nawaz Sharif respondent. The former without raising any legal objection in his written statement, straightaway stated that during his tenure as Prime Minister of Pakistan he did not utilize 40 per cent. Discretionary quota of plots reserved for the Prime Minister for allotment in various Housing Schemes of the Capital Development Authority and it was under his directives that the said quota was voluntarily reduced from 40 per cent. Specified by the previous Government, to 10 percent so that the remaining 30 per cent. May be utilized by other deserving persons. He alleged that from the reduced 10 per cent. Quota he allotted most of the plots of smaller size measuring 10 Marlas each and only a few plots allotted by him were of the area of 1 Kanal. He claimed that he properly exercised the discretion vested in him in this respect on the advice of the concerned department without gaining anything for himself nor any allotment was made by him as a political bribe.
36. 16.Mian Nawaz Sharif respondent in his written statement raised preliminary objections to the effect that this Court had no suo motu jurisdiction to initiate proceedings under Article 199 of the Constitution, not other provisions of various Acts and Instruments invoked by this Court permit the exercise of this jurisdiction. On merits he alleged that the plots allotted by him were available for allotment in the Prime Minister discretionary quota and he properly exercised the discretion vested in him which cannot be mad( subject of inquiry by this Court. He added that during his tenure as Prime Minister no one made any complaint to him that he was more deserving person than those whom he had allotted the plots and if any body had made such complaint, he would have definitely redressed his grievance. He claimed that he had made allotments of the plots to the deserving persons.
37. 17.As already indicated, neither the learned counsel representing Ms. Benazir Bhutto respondent nor the learned counsel for Mr. Ghulam Mustafa Jatoi respondent addressed any argument. It was only Mr. Maqbool Flahi Malik, Advocate (who represented Mian Nawaz Sharif respondent in this writ petition as also in the connected Writ Petition No,7459 of 1993 alongwith Mr. Ghulam Haider Wyne) and the learned Acting Advocate-General (who was in fact only concerned with the connected Writ Petition (No,7459 of 1993) and had nothing to do with the one in hand) addressed elaborate arguments on the question of jurisdiction of this Court in the connected writ petition comprehensive arguments have been addressed on the question of jurisdiction by Mr. Habib-ul- Wahab Al-Khairi, Advocate, learned counsel for the petitioner therein assisted by Mr Rashid Murtaza Qureshi, Advocate as also in this writ petition as the counsel for the petitioner in reply to the arguments of the learned opposing counsel. In this writ petition Mr. Khaki, Advocate is rather on better footing as he has remained associated as the petitioner's counsel from the very inception. In the connected writ petition the question of jurisdiction of this Court to initiate proceedings against the three Chief Ministers of the Punjab for the allotment of State-owned plots from their discretionary quota has elaborately been discussed and I do not feel the necessity of walking over the same ground again in this writ petition. Therefore, for the reason stated in the connected writ petition, suffice is here to say that this Court has ample jurisdiction to look into the allotment of plots by the respondents in their capacity as former Prime Minister of Pakistan, in various Housing Schemes of the C.D.A. From their discretionary quota and the preliminary objection regarding lack of its jurisdiction is overruled.
38. 18.With reference to the provisions of Article 173 of the Constitution, the main contention of the learned counsel for the petitioner is that in the first instance the Federal Government has not got enacted any law from the Parliament for the grant, sale, disposition or mortgage of any property, including the State-owned plots in question, vested in it and the respondents had no authority whatsoever to allot a large number of plots worth billions of rupees to their friends, relations and political associates at the throw-away reserved price in the exercise of their so-called discretion from the quota reserved for the Prime Ministers which had no legal sanction behind it. He submits that if the C.D.A. Ordinance, 1960, by any stretch of imagination, is considered to be a law enacted within the meaning of Article 173 ibid, then no rules have so far been framed under section 50 of the said Ordinance by the Federal Government for the disposal of its property and the so-called Regulations framed under section 49:- mad with section 51, thereof by the Capital Development Authority established under section 4 could not provide for the discretionary quota of the Prime Minister for the allotment of plots in various Homing Schemes of the C.D.A. To the persons of their choice. He is of the opinion that even if the discretionary quota for the Prime Ministers, the percentage of which has been varying from time to time, was lawfully provided, the discretion vesting in them was not lawfully and judiciously exercised by them and for that reason too the plots allotted by the respondents from their discretionary quota were allotted without lawful authority and as such they are liable to.Be cancelled for resumption to the Authority.
39. 19.Learned counsel for Mian Nawaz Sharif has not addressed any argument on this point and I have examined the legal position with the assistance of learned Deputy Attorney-General in the light of the above arguments of the petitioner's counsel.
20. For the facility of reference Articles 172 and 173 of the Constitution are reproduced hereunder:- "172.-(1) Any property, which has no rightful owner shall, if located in a Province, vest in the Government of that Province, and in every other case, in the Federal Government.
(2) All lands, minerals and other things of value within the continental shelf or underlying the ocean within the territorial waters of Pakistan shall vest in the Federal Government.
40. 173.---(1) . The executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislature, to the grant, sale, disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts.
(2) All property acquired for the purposes of the Federation or of a Province, shall vest in the Federal Government or as the case may be, in the Provincial Government.
41. Transfer of land by the Federal Government or a Provincial Government shall be regulated by law.
42. 21.The President had promulgated the Capital Development Authority Ordinance, 1960 for the establishment of an Authority known as C.DA. For making all arrangements for planning and development of Islamabad within the framework of a regional development plan. The Authority was to be established under section 4 thereof. Its general direction administration and its affairs were to vest in a Board to be constituted under section 6 thereof whose Chairman, Vice-Chairman and a Financial Advisor were to be appointed by the Federal Government for such period and on such terms and conditions as specified in this section. Under section 50 of the Ordinance, the Federal Government was to frame rules by a notification in the official Gazette for carrying out the purpose of, the Ordinance except on the matters specified in section 38 thereof. It is an admitted position that no rule, as contemplated by this section, have so far been framed by the Federal Government.
43. 22.Under section 51 the Authority was competent to make regulations, not inconsistent with the rules, if any (framed under section 50) on all matters for which regulations are necessary or expedient and such regulations were to be published in the official Gazette. It has been ascertained from the C.DA. Through the learned Deputy Attorney-General, Lahore that the Authority had, for the first time, framed regulations in the year 1985 known as "Land Disposal in Islamabad Regulation, 1985" but these regulations were neither approved by the Federal Cabinet nor they were published in the official Gazette as contemplated by section 51 ibid. He has supplied a copy of these regulations as also a Gazette copy of "Land Disposal in Islamabad Regulation, 1988" which were published in the Gazette of Pakistan, dated 20th of September, 1989 and, according to him, these regulations are still in force. However, under section 49 of the Ordinance, the Authority has the power to retain lease, sale, exchange, rent or otherwise disposed of any land vesting in it.
44. 23.Under Article 172 read with Article 173 of the Constitution, the land which does not belong to any person and is not located within the boundaries of a Province, vests in the Federal Government.
45. Similarly, the land acquired by or for the Federal Government vests in it. In the absence of any specific delegation of this power or authority by the Federal Government in favour of the Authority, it is doubtful if the land situated within the Capital Territory vesting in the Federal Government automatically vested in the authority under section 49 of the said Ordinance. Anyhow, without entering into this delicate controversy, it is presumed that the land vesting in the Federal Government in the Capital Territory also vested in the Authority for carrying out purposes of the Ordinance Proceedings on this presumption, I now undertake the examination of the above arguments of the petitioners' counsel.
24. To my mind, section 50 and section 51 of the Ordinance both are ambiguously worded inasmuch as neither of them lays down any guidelines as on which subjects are Federal Government was to frame the rules and on which topics the Authority to frame the regulation, except to the extent that the rules could not be framed on certain service matters mentioned in section 38. If section 49 be read with section 51 then it can be said that the Authority could frame rules for the disposal of the land vesting in it and it did frame regulation for the first time eversince the promulgation of the 1960 Ordinance, in 1985 but these regulations were neither approved by the Federal Cabinet nor they were published in the official Gazette to satisfy the requirement of section 51 and as such they were a waste piece of paper incapable of being acted upon. If the Authority or any of its functionary has acted upon these regulations, all that has been done by it or by him is without lawful authority and of no legal effect.
46. 25.The set of regulations having statutory force and having been framed Note.---Applicants eligible for specific quota would also have the for the first time ever since the promulgation of the 1960 Ordinance appears to be 'The Land Disposal in Islamabad Regulation, 1988" which came into force w,e,f, 20th of September, 1989 on its publication in the Gazette of Pakistan of this date as required by section 51 of the Ordinance. These regulations seems to have been framed during the regime of Ms. Benazir Bhutto respondent as Prime Minister of Pakistan. For our purpose paragraph No,15 of this regulation is relevant and for the convenience of reference it is reproduced hereunder:-- "15.A certain percentage of residential plots in each Sector shall be reserved for Government/Public Servants housing which will be allotted to various ministries and concerned departments at a price to be determined by the Authority from time to time. The percentage shall be regulated by planned demand and special terms for its usage by Homing Societies/Corporations. Rest of the residential plots will be available for allocation under the guidelines shown below:- 15.Residential plots:--
(i) Large Residential Plots (More than 200 sq. Yds.)
47. (1)General Public 35% (2)Serving Federal Government Employees 10% (3)Overseas Pakistanis 5% (4)Professionals 5% (5)Serving Defence Personnel 5% (6)Prime Minister's discretionary quota 40% (ii)Small Residential Plots.-- (200 sq. Yds. Or less): (1)General Public 35% (2)Serving Federal Government Employees 10% (3)Overseas Pakistanis 5% (4)Professionals 5% (5)Serving Defence Personnel 5% (6)Industrial Workers of Islamabad 5% (7)Prime Minister's discretionary quota 35% Note.---Applicants eligible for specific quota would also have the option to be considered for the 50 per cent. Quota of general public instead of their respective quota.
(iii) Area will be reserved-
(a) for affectees of Islamabad in certain Sectors schemewise at the time of acquisition of their immovable property for sale under normal rules;
(b) for employees of C.DA. In certain Sectors schemewise for sale under normal rules;
(c) for registered Government and Semi-Government housing societies in certain Sectors for sale under normal rules;
(d) for followers in each Sector wherein plots will be available for sale under normal rules for sanitary workers, Dhobis and other similar categories."
48. 26.It may be mentioned here that by means of an amendment apparently made by Notification/Letter No,CDA/703/BF-Coord/93, dated Islamabad the 19th May 1993 (which does not seem to have been published in the official Gazette) the following new sub-clause was added to paragraph No,15 above.
49. (ii-a) Small Residential plots in Sectors 1-15 and 1-16. Mode of allotment
(i) General public 50% by ballot
(ii) The Prime Minister's discretionary quota 10% discretion.
50. (iii)
51. (iv)
52. (v)
53. (vi)
54. (vii)
55. (viii)
(ix) ..................................................................
56. 27.Thus it will be seen that original para. 15(i)(6), as reproduced above, places 40 per cent. Of the total number of large residential plots in each sector, each measuring more than 200 sq. Yds., in the Prime Minister's discretionary quota, and para. 1500(7) places 35 per cent. Of small residential plots, each measuring 200 sq. Yds. Or less, in his discretionary quota. The new amendment, dated 19-5-1993, which added sub-clause (ii-a) to paragraph 15 and which does not seem to have been published in the official Gazette and as such has no statutory force whatsoever, reserves 10 per cent. Of small residential plots for discretionary quota of the Prime Minister in Sector 1-15 and Sector 1-16. In other words, the Prime Minister still retains the discretionary quota of 40 per cent. Of big residential plots in all the Sectors in Islamabad, and the discretionary quota of 35 per cent. Of small plots in all the Sectors, excepting sectors I-15 and 1-16 wherein his discretionary, quota has been reduced to 10 per cent. Of the total residential plots. The said amendment, which seems to have been made during the regime of Mian Nawaz Sharif, has not taken effect due to its non-publication in the official Gazette.
28. In my opinion, neither the reservation of 40 per cent. Of large residential plots in the discretionary quota of Prime Minister as contemplated by paragraph No,15(i)(6) nor the reservation of 35 per cent. Of small residential plots in his discretionary quota as embodied in paragraph 15(li)
(7) ibid, nor the reservation of .10 per cent. Of small residential plots in his discretionary quota in Sector 1-15 and Sector 1-16, vide paragraph 15(ii-a)(ii) which is even otherwise without legal force on account of this amendment not having been published in the official Gazette, are intra vires of the Capital Development Authority Ordinance, 1960 as these sub-paragraphs/sub-clauses clearly go beyond the scope of this Ordinance because the Prime Minister does not figure in the Ordinance in any capacity. Section 49 of the Ordinance empowers the Authority for the disposal of land, which includes plots, by various modes such as lease, sale, exchange etc. And not any other State functionary how high so ever he may be. Even the Authority itself cannot exercise any discretion under paragraph 18(c) and paragraph 19(b)(iii), which reserve 5 per cent. Discretionary quota for it, because these provisions are also ultra vires of the said Ordinance and are hereby struck down alongwith paragraph 15(i)(6), 15(11)(7) and 15(ii-a).
57. 29 Land in Islamabad, whether it is in the form of residential, commercial, industrial, agro-farming plots or in any other form, is very valuable, more valuable than in any other part of the country, and no law would permit the Prime Minister, who is Head of the Government and exercises immense powers in our political system, to reserve for himself 30 to 40 per cent. Of residential plots for distribution to the persons of his choice. Neither the Constitution nor any law, muchless Shariah, which is now the supreme law of the country by virtue of section 3 of the Enforcement of Shariah Act, 1991, leaves any discretion whatsoever for the State functionary of his status. Therefore, no law could be enacted nor shall in future be enacted by any Legislature or by any Authority having delegated powers, which would override Shariah. The reservation of a sizable percentage of residential plots or any other kind of plots, located in Islamabad, in the discretionary quota of the Prime Minister by means of the aforesaid regulation was therefore, illegal and without lawful authority and if the present Care-taker regime has decided to do away with the discretionary quota of plots for the Prime Minister in the Federal Capital and for the Chief Minister in the Provinces, it has done no favour to the nation and the country because power for the reservation of plots in the discretionary quota of the Prime Minister and the provisions of discretionary quota itself; has never existed from the very inception, nor it shall be exercisable in future.
58. 30.Alternatively speaking, if the abovementioned provisions of the regulations are infra vires of the Ordinance and have the force of law conferring discretion on the Prime Minister to distribute certain percentage of residential plots in any way he likes, even then nothing has been brought oi the record to show that during the post-martial law period till the dissolution of the National and Provincial Assemblies on 18-7-1993, the Prime Ministers had been exercising their respective discretion in alloting residential, as also some commercial plots, to certain persons, in a reasonable and equitable manner and for that reason too all allotments made by. Them during this period were without lawful authority, having no legal effect. To be a little more precise, certain guidelines and principles have been laid down by the Honourable Supreme Court in a recent ruling reported as Chairman, RTA, Rawalpindi v. Pakistan Mutual Insurance Co. PLD 1991 SC 14. These are for the guidance of public functionaries for the efficient performance of their official duties and for the fair exercise of discretion vested in them. The same are reproduced under for their benefit:- "A Oblic official who undertakes to perform an act, even an act which is completely discretionary, mist do so reasonably and in complete good faith without such delay as would frustrate its ultimate objective. One who accepts a public office does so cum onere, or with the burden, and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all Constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office, and while he remains in such office the public has the right to demand that he performs such duties. The acceptance of every public office implies an agreement on the part of the officer that he will execute his duties with diligence and fidelity. The duty of the public officer to fulfil the obligations of his office should take precedence over all other matters. Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect. In other words, he is bound, virtue officio, to bring to the discharge of his duties that prudence, caution, and attention which careful men usually exercise in the management of their own affairs."
59. It was further observed that:--- "Wherever, wide-worded powers conferring discretion are found in a statute, there remains always the need and the desirability to structure the discretion.
60. Structuring discretion means regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents, and fair informal procedure. When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. The movement from vague standards to definite standards to broad principles to rules may be accomplished by policy statements in any form, by adjudicatory opinions, or by exercise of the rule-making power."
31. In view of the above, all plots of whatever size and dimension and of whatever kind i,e, residential, commercial, industrial, agro-farming and agro industrial situated in any residential, commercial, industrial, agro-farming sector or in any agro-village or sub-urban centre in Islamabad Capital Territory allotted by or under the direction of any Prime Ministers from his discretionary quota in favour of any person, firm or company during the period after the lifting of Third Martial Law in the country till the dissolution of National and Provincial Assemblies on 18-7- 1993, are against law, without lawful authority and have no legal effect and it is hereby declared accordingly.
61. 32.To be a little more specific 129 plots, including 1 commercial plot, allotted by late Mr. Muhammad Khan Junejo from his discretionary quota as Prime Minister of Pakistan as detailed in the list (Annexure I) 561 plots, including 14 commecial and 3 industrial plots, allotted by Ms. Benazir Bhutto from her discretionary quota as Prime Minister of Pakistan as detailed in (Annexure II), 59 plots, including 2 commercial, allotted by Mr. Ghulam Mustafa Jatoi from his discretionary quota as Care-taker Prime Minister of Pakistan as detailed in list (Annexure HI) and 23 plots, including 1 commercial plot, allotted by Mian Nawaz Sharif from his discretionary quota as Prime Minister of Pakistan as detailed in list (Annexure IV) were allotted without lawful authority and the allotments so made by them have no legal effect. As a result, all these plots stand reverted to the Capital Development Authority, Islamabad.
62. 33.However, the matter does not end here. I am conscious of the fact that the abovementioned findings on legal aspect of the matter may have far-reaching repercussion and keeping in view the dictates of justice and equity an effort has to be made to cause minimum possible inconvenience to the affected persons. With the passage of time and change of circumstances it is possible that some of the original allottees of the aforesaid plots might have built houses or raised other structures on their plots, while others might have transferred them and the transferees might have erected buildings thereon.
63. Thus, where, it is necessary to denude the original allottees of the undue monitary benefits reaped by them from the public property by purchasing it at the throw-away reserved price due to the Mehrbani of the high political personalities, it is also necessary to protect the interest of genuine transferees from them. The Authority is, therefore, directed to charge from the original allottees of the aforesaid plots, including their legal heirs if some of them are dead, the market value of the plots prevalent at that time in the locality, after complying with the necessary legal formalities of serving show-cause notice on them and affording the opportunity of being heard, and in case of their failure to pay the market price, to resume the plot for public auction after allowing them an opportunity to remove the structures, if any. To give effect to this decision, the Authority can enforce the contractual obligations if there is a stipulation to that effect in the allotment order or transfer deed, whatever may be the nature of agreement or contract between it and the allottees, and if there is no such contractual rights and obligations between it and the allottees, then it shall acquire necessary power or authority by resorting to necessary legislation.
64. 34.As regards the liability incurred by the respondents for doling out valuable public property to the persons of their choice, it is for the Federal Government to initiate such action, if any, against them as it may. Deem proper.