' KHALIL-UR-REHMAN KHAN, J.---Petitioners, Mirza Maqbool Elahi (deceased), now represented by his legal representatives, and his brothers seek leave to appeal against the judgment dated 24-10- 1996 of the learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby their Constitution Petition (Writ Petition No,559 of 1984) alongwith another Constitution Petition and Civil Reference was dismissed with costs.
2. Relevant facts of the ease, briefly stated, are that land situate in Village Tahlian Dehati and Qasbati was acquired by the Capital Development Authority (hereinafter referred to as the CDA) by issuing directive No,43 dated 5-5-1965 under the C.D.A. Ordinance, 1960. The Deputy Commissioner, C.D.A., announced award on 25-6-1966. Appeals were filed against the award by the land owners and the same were remitted back for decision afresh and on 14-3-1967 fresh award was given which too was challenged before the Commissioner, C.D.A. The Appellate Authority, by filing appeals but the same were dismissed. The award of the Deputy Commissioner, CDA and the order of the Commissioner passed in appeals were assailed by the land owners by filing Writ Petitions Nos.33 of 1968, 34 of 1968, 440 of 1968 and 1730 of 1968 in the High Court and vide order dated 24-3- 1977 the matter was remanded to the Deputy Commissioner, C.D.A., following the dictum in Muhammad Yusuf and others v. C.D.A., Islamabad and others (PLD 1976 SC 752). Then, another award dated 20-11-1977 was given by the Deputy Commissioner, CDA. This award was also set aside on appeal and the matter was again remanded. Yet another award dated 26-10-1980 was given by the Deputy Commissioner, C.D.A. Again appeals were preferred before the Commissioner, C.D.A. And statedly those appeals have not yet disposed of.
3. During pendency of appeals, two Constitution petitions were filed in the High Court and also the matter was referred to the High Court under section 113, C.P.C. By the Commissioner, C.D.A. All these matters were disposed of by the impugned judgment. Learned Judge of the High Court dismissed the Reference holding that the same was not competent. The Constitution Petitions were dismissed observing that the petitioners in the Writ Petition No,559 of 1984 i.e,, the present petitioners, had filed Writ Petition No,33 of 1968 in the High Court earlier raising the question of quantum of compensation only and that the legality of acquisition itself was never challenged and after decision of that petition the question cannot be agitated by the present petitioner. It was also noted that Iftikhar Ahmad petitioner in the connected writ petition alongwith other landowners had filed Writ Petition No,1174 of 1965 before the erstwhile West Pakistan High Court, Lahore wherein the question of legality of the acquisition of land by C.D.A. Was raised but the said writ petition was dismissed by a Division Bench of the High Court on 2-2-1966 and the acquisition was held to be legal and valid in law. The said judgment of the High Court was not assailed further. Learned Judge of the High Court, on the above premises, observed that the order dated 2-2-1966 passed in the aforesaid Writ Petition has clinched the issue between the parties. On the question of legality of acquisition, learned Judge of the High Court noted the findings recorded by the Division Bench in the aforenoted judgment which are to the effect that the master plan was prepared and it was not shown that the International Jet Airfield was not included within the master plan; that the land which has been acquired is situate within the area specified for the Capital and the C.D.A. Was competent to acquire that land under the Ordinance within that area; and that the development, construction or expansion of an airport has a direct nexus with the requirements of the Capital and legitimately an obligation of the C.D.A. In the said judgment it was also held that the acquisition did not militate against provisions of Articles 14 and 15 of the Constitution.
4. Learned counsel in support of the petition for leave to appeal argued that though in the previous litigation the petitioners had agitated only question of compemsation. Yet the question whether the acquisition of land under directive No,43 is legal or not is a question of law, and they (the petitioners) are entitled to raise the same. Learned counsel added that as no scheme of master plan or master phase programme was prepared by the C.D.A. Under the Ordinance approved by the Central Government for construction or expansion of the airport, the act of C.D.A. In acquiring the land in question was without jurisdiction and the landowners cannot be legally deprived of their vested rights.
5. The questions raised are essentially premised on factual foundation. The case of the respondents in the parawise comments is that the land in dispute is included in the master plan and falls within the specified area as defined under section 2(p) of the C.D.A. Ordinance, 1960 and the land in the specified area can be acquired under section 22 of the Ordinance. They also controverted the plea that airport site is outside the master plan or specified area and that the extension of the said airport was to meet the requirement of Islamabad Capital after promulgation of C.D.A. Ordinance, 1960.
6. Be that as it may, the petitioners challenged the acquisition and the award made earlier and raised the question of adequacy of compensation only. The question of legality of the acquisition as such was admittedly not raised then. Much development has admittedly taken place at the site.
They, therefore, cannot be allowed to raise the question of legality at this stage after decades to the prejudice of the other party. It is well-settled that where a party omits to raise a plea or seek a relief in respect of same cause of action, it cannot be allowed to sue for such relief so omitted or raise such a plea available earlier to the prejudice of the other party subsequently. The question of compensation was raised in the earlier proceedings and for that very purpose the award was got remitted repeatedly. The question of legality of the acquisition was raised by the landowners by filing Writ Petition No,1174 of 1965 but the said question was decided against the said petitioners on 2-2-1966 and the matter rested there as that question was not agitated any further even by those writ petitioners. After lapse of almost two decades, the present petitioners raised this question by filing the Constitution petition in the High Court which suffered from inordinate delay and laches.
(See Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304). Even the bar of acquiescence was also successfully pleaded against the petitioners.
7. The main purpose of the present litigation again appears to have the compensation at enhanced rate. As learned counsel frankly conceded that the present petitioners have no objection to the acquisition of the land but after setting aside the impugned acquisition, the land can be acquired under the Land Acquisition Act, 1894 by issuing a fresh notification as the land has in fact been included in the Islamabad Airport. The question of compensation, which means due compensation in accordance with law, can well be raised by the petitioners as the appeals on the question of compensation are still pending. Learned Judge of the High Court was justified in refusing to interfere in exercise of extraordinary Constitutional jurisdiction which is essentially an equitable jurisdiction as the petition suffered from laches and acquiescence. Moreover, c successive petitions on the same cause of action were rightly held to be not competent.
8. Leave to appeal is, therefore, refused and the petition is dismissed.