MUHAMMAD NAWAZ ABBASI, J.- The petitioners are the land- owners in Villages Maira Akko arid Maira Jaafar which are located in Islamabad Capital Territory and form part of Sector G-13, Islamabad. The petitioners through this Constitution petition have questioned the validity of the notifications dated 10.6.1996 issued by the Land Acquisition Collector, Islamabad, under Section 4 of the Land Acquisition Act, 1894, for the acquisition of their lands situated in the above-named Villages to be illegal and without lawful authority. The Land Acquisition Collector after issuance of notification dated 10.6.1996 under Section 4 of the Land Acquisition Act, issued another notification dated 23.11.1996 Under Section 17(4) of the Land Acquisition Act, 1894, for the acquisition of the land of the petitioners as well as the other land-owners in the area forming part of Sector G-13, Islamabad, for the use of Federal Government Employees Housing Foundation, Islamabad, a registered Company under Companies Ordinance, 1984. The objections under Sections 5 and 5-A of the above- said Act having called a notice under Section 9 of the Land Acquisition Act,' 1894, was issued on 28.1.1998. However, the announcement of Award remained pending with the Land Acquisition Collector till filing of this petition.
2. In the light of report and parawise comments submitted to this petition, the learned counsel representing the respondent raised objection to the maintainability of this petition and contended that the present petitioners, cannot invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against, the respondent a company limited by guarantee registered under Companies Ordinance, 1984 which has been established with the name of Federal Government employees Housing Foundation to be run by the Board of Governors and Executive Committee of the Foundation with the object to execute Housing Schemes for Federal Government Employees on ownership basis in Islamabad, with a view to provide shelter to the homeless Federal Government employees who are near their retirement and that the land for such schemes if. To be arranged through acquisition with the consent and approval of the Federal Government. It is stated that previously a specified number of plots in the various developed Sectors of Islamabad used to be placed at the disposal of the Federal Government Employees Housing Foundation by the Capital Development Authority for allotment to bona fide applicants but later the C.D.A, showed inability to meet the requirement of the Federal Government Employees Housing Foundation. Therefore, Cabinet Division in its meeting held on 20.2.1993 approved a proposal for the development of Housing Schemes for MNA's, Journalists, civil servants, Judges and such other categories of persons in Islamabad. Consequently a Committee was constituted for the implementation of the Scheme and in the light of the recommendations made by the said Committee, the proposal with the consent of the Prime Minister was given effect through a directive of Cabinet Division and the Ministry of Housing and Works, Government of Pakistan was engaged to implement the schemes. In consequence thereto, the Federal Government Employees Housing Foundation initiated the process for the acquisition of land in Sector G-13, Islamabad, through Land Acquisition Collector, Islamabad, and a notification under Section 4 of the Land Acquisition Act, 1894, was issued on 10.6.1996 and Federal Government Employees Housing Foundation floated a housing scheme in Sector G-13, Islamabad. The Foundation placed an amount of rupees three hundred anil lions collected from the applicants at the disposal of the Deputy Commissioner, Islamabad, for payment of compensation of land to the land-owners. The comments submitted on behalf of the Foundation contained that the land- owners including the petitioners did not object to the acquisition of the land and the same being required urgently, a declaration under Section 17(4) read with Section 6 of the Land Acquisition Act, 1894, was published in the extraordinary Gazette on 26.11.1996. The possession of the land was to be taken immediately on announcement of the Award by the Land Acquisition Collector under Section 11 of the Land Acquisition Act, 1894. It is stated that initially the price of the land was assessed at Rs.75,000/- per Kanal on the basis of the average price of the land but subsequently the same was increased to Rs.2,30,000/- per Kanal through negotiation and the Executive Committee of the Housing Foundation in its meeting held on .11.3.1999 decided to make payment to the land-owners accordingly.
4. During the course of hearing of this petition, learned counsel representing the petitioners informed the Court that the petitioners agreed to deliver the possession of the land to the Land Acquisition CoUedtor subject to the payment of price at the rate, of Rs.2,30,000/- per Kanalas per their agreement with the Land Acquisition Collector and the Lahd Acquisition Collector passed the following order on 7.6.1999: "Learned counsel representing the petitioners states that the land-owners in the area including the petitioners ar,prepared to deliver the possession of the land before 10th of July, 1999",
5. The Director General of the Housing Foundation under the direction of this Court appeared before the Court on 6.8.1999 and stated that the housing scheme was at advance stage and the allotment letters would be issued shortly but the possession of the plots would be delivered to the allottees only after the announcement of the Award for the payment of compensation. In the light of the statement made by the Director General, the following order was passed on-6.8.1999:-- "The Federal Government Housing Foundation, a company limited by guarantee and incorporated under the Companies Ordinance, 1984, was established to launch and implement Housing Schemes for the Federal Government employees on ownership basis in Islamabad and other cities of the country. According to the Memorandum of Association and Articles of Association, the Executive Committee of the Foundation retains the authority to deal with the affairs of the Housing Cell of the Foundation under the police decision taken by the Board of Governors. However, the Executive Committee and the Board of Governors are independent in exercise of their powers mentioned therein and the Chief Executive of the Foundation is overall Incharge of the Foundation.
The Housing Foundation launched a housing scheme Phase-III in Sector G-13, Islamabad, and invited applications from the different categories of the persons mentioned in clauses 5(a) to (e) of the brochure of the scheme and requested Land Acquisition Collector, Islamabad, for acquisition of the land in die said Sector under the Land Acquisition Collector, Islamabad, for acquisition of the land in the said sector under the Land Acquisition Act, 1894.
2. The petitioners who are the land-owners have challenged the acquisition of the land and the publication of notification under Section 4 of the Land Acquisition Act, 1894, on various grounds including that formation of Housing Foundation and acquisition of land for its members in capital area as well as the right of the employees of the Federal Government to get the private properties through the official Agency of Land Acquisition Collector and the company, namely, Housing Foundation of the Federal Government employees depriving the owners of the land from their' properties as well as the citizens of Pakistan to acquire the residential plots in the said Sector through the Capital Development Authority is not legal. Learned counsel also contended that the acquisition is in violation of the Capital Development Authority Land Disposal Regulation, 1993.
3. Learned counsel representing the Foundation contends that the land located in the capital area can be acquired for the public purpose of establishing the Housing Scheme by the Foundation under Section 39 read with Section 4 of the Land Acquisition Act, 1894. The Director General of the Foundation present in Court states that the housing scheme is at advance stage and the entitlement of the categories mentioned under clause 5 of the Brochure have already been determined for allotment and the allotment letters shall be issued shortly. He, however, states that the possession of the plots shall be delivered to the allottees immediately after the announcement of the Award and payment of compensation to the land-owners. He added that the persons who fulfilled the criteria for the eligibility as mentioned in clauses 5(a) to (e) in the Brochure of the Scheme, Phase-III, Sector G-13, Islamabad, shall be entitled for the allotment subject to the approval of the Prime Minister Implementation and Inspection Team in the light of the letter dated 16th June, 1998, written by a Member of Prime Minister Inspection Team intimating the Foundation that a complete ban will exist on the allotment of plots in respect of Phase-III of Islamabad Housing Scheme as well as reserved/discretionary quota of Phase-I and Phase-II of the said Housing Scheme. He added that the said Commission through letter dated 26th of June, 1999, informed that the inquiry regarding the entertainment of the application of the persons who were not eligible to become a member of the Housing Foundation-under the Memorandum of Association and Articles of Association of the Foundation has been completed which is under consideration with the Prime Minister's Office and unless some decision is taken, no farther action should be taken by the Housing Foundation with the result that the Chief Executive of the Foundation cannot proceed independently to implement the Scheme and probably the proposal of withdrawal of some of the categories of applicants from the, scheme as mentioned in clause 5(a) of the Brochure is under active consideration. However, the Legal Advisor of the Foundation as well as the Director General have not been able to give a satisfactory explanation regarding the exclusive right of the Federal Government employees to establish such a company and acquire the land for their benefit in violation of the law and general policy of the Housing Scheme of the C.D.A, in Islamabad.
4. It is not understandable that how the affairs of the Housing Foundation, a Company Limited by guarantee incorporated under the Companies Ordinance, 1984, can be regulated and controlled by the Prime Minister Inspection Team or any other authority in the Federal Government over and above the authority Of the Executive Committee and the Board of Governors unde* the Memorandum and Articles of Association of the Company.
5. Be that as it may, since a number of questions regarding the validity of the acquisition of land by the Housing Foundation and the exclusive right of the Federal Government employees as civil servants and exercise of authority by the Federal Government in the affairs of the Housing Foundation, which is neither a Statutory Body nor an Official Agency or Organization of the Federal Government are involved in this petition for examination, therefore, the same is admitted to regular hearing and notice is issued to the respondents.
6. The Director General as well as the Legal Advisor of the Housing Foundation accepts notice on behalf of the respondents and request that the writ petition may be heard at an early date. Since the services complete, therefore, the office shall fix this petition for final hearing in the third week of September, 1999. The identical writ petitions, if any, shall also be fixed alongwith this petition. The respondents may, in the meanwhile file written statement to this petition.
C.M. No.645 of 1999 7.
Pending disposal of-the writ petition, the acquisition of proceedings shall remain continue in terms of the order dated 7.6.1999 including the announcement of Award with permission to the Housing Foundation to issue provisional letters of allotment to the applicants tor allotment in residential Sector G- 13, who fulfil the criteria of eligibility as given in clauses 5(a) to (e) of the Brochure to the Housing Scheme in question without any discrimination, which shall be subject to the final decision of the writ petition. However, the Foundation or any other Authority in the Federal Government shall not disturb, ^ recall or rescind the entitlement/allotment of any person in any Sector including Sector G-13, Islamabad, in the Housing Scheme arid the Prime Minister Inspection Team or any other functionary in the^ Federal Government either in official or in an individual capacity is restrained from interfering in the affairs of the Foundation and from taking any action detrimental to the entitlement and interest of the categories of applicants mentioned in clauses 5(a) to (e) of the Brochure in any manner and any such action if has already been taken by any such authority in relation to the allotment of plots in Sector G-13 or any other Sector by the Housing Foundation shall be of on consequence in the meanwhile."
6. The Director General Housing Foundation, Islamabad, while appearing in person on 1.11.1999 sought further time to seek instructions on the issue under discussion. The Land Acquisition Collector who was also present in Court states that the Award with respect to the land having been announced, the compensation would be paid to the land-owners within two months. He further stated that on receipt of assessm ent of compensation of built-up properties, a separate Award would be announced in due course of time. The case was, therefore, adjourned for today with the following order:-- "The Director General, Federal Government Housing Foundation present in Court stated that a special quota of residential plots in the Housing Scheme for Journalist, retired and disable employees of Federal Government as well as the widows of the employees of Federal Government and handicapped civil servahts have been allocated whereas all other categories of entitles have been clubbed together. The learned counsel for the land-owners states that the Housing Foundation for the benefit of a particular class of civil servants has acquired the land on the pretext of public interest. He states that although the Judges are not the civil servants yet they have been mixed with civil servants. It is noticeable that there being no explanation of placing the Judges of the superior Courts in the general category of civil servants, the determination of their eligibility for allotment of a plot in the Housing Scheme cannot be judged on the basis of criteria of civil servants, it may be observed that a Judge, who is not already an- allottee of the Housing Foundation if has applied for the plot notwithstanding the condition that he was earlier holding an allotment of a residential plot in Islamabad in any other capacity, would be entitled for allotment of a plot in the Housing Scheme of the Foundation in the first category of allottee and cannot be pushed to second category. Further, the Judges who retired within two years before the publication of notification for the acquisition of land on the basis of the principle made applicable to the retired civil servants would be entitled for the residential plot alongwith the Judges in office and since the number of applicant Judges are muchless to that of the total number of plots allocated for the Judges i.e. With the ratio of 30:70, the retired Judges can be accommodated against the surplus plots through the Ministry of Law and Parliamentary Affairs. It may also be pointed out that since the, headquarters of Pakistan Army and Air Force are under shifting process to Islamabad, whereas the headquarters of Pakistan Navy is already located in Islamabad, therefore, in the light of the policy of Housing Foundation to provide residential plots to the employees of the Federal Government posted in Islamabad or to be posted in Islamabad, the senior members of the Armed Forces who are normally stationed at their headquarters shall have also been included in the scheme and some percentage of plots in the Scheme should be allocated for them to be allotted through the Defence Ministry. The Director General, Housing Foundation needs time to discuss the matter with the Executive Committee of the Housing Foundation and also seeks instructions from the concerned quarters regarding the issue of provisional allotment letters to all the applicant Judges irrespective of th$ condition of age and earlier allotment of plot in Islamabad in^ny other capacity by any authority other than the Housing Foundation and for allocation of plots in Sectors G- 13 and G-14 for senior members of Armed Forces I.e. Pakistan Army, Air Force and Pakistan Navy and as well as the retired and sitting Judges who are not the applicants.
2. The Land Acquisition Collector, Islamabad, states that the Award in respect of the land of Sector G-13 as well as G-14 has been announced but the compensation has not been paid to the land- owners so far which expectedly will be paid within two months. He, however, clarified that on receipt of the assessm ent qua the built-up properties made by the P.W.D, a separate Award of the same shall be announced in due course of time?
3. Learned counsel for the petitioners at this stage stated that since the land has been acquired for the purpose of private Company, therefore, the compulsory charges at the rate of 25% should be payable.
4. The Land Acquisition Collector will also contact the concerned authorities in P.W.D, and make effort for the announcement of Award of built-up property. This petition is adjourned to 8.11.1999 for further proceedings."
7. Learned counsel for the petitioners has raised the following three issues in support of this petition:--
(1) That the land was being acquired tor the benefit of a limited class of persons to establish their individual rights as a,privilege without any "public purpose".
(2) The acquisition of land for a Company is not permissible except in the "public interest" whereas the housing scheme in question has been established in the interest of individuals.
(3) That in case of acquisition of land tor a Company, the consideration being different, the payment of 25% compulsory charges is mandatory.
Learned counsel for the petitioners, however, submitted that he would not challenge the notification under Section 4 read with Section 17(4) of the Land Acquisition Act, 1894, as well as the Award, if the "public purpose" is established and 25% compulsory charges are paid on the price of the land at the rate of Rs.2,30,000/- per Kanal as agreed by the land-owners with the Land Acquisition Collector, Islamabad.
8. Learned counsel representing the Housing Foundation on the other hand argued that the initial price of the land was assessed at Rs.75,000/- per Kanal which was enhanced to Rs.2,30,000/- through negotiation with the land-owners which included the compulsory charges and, therefore, on issuance of a notification under Section 4 read with Section 17(4) of the Land Acquisition Act, 1894, with the consent of the representatives of the land-owners, the compulsory acquisition charges of land stood converted into acquisition by negotiation and, therefore, the land-owners would not be additionally entitled to the compulsory charges as provide under Section 39 of the Land Acquisition Act, 1894.
9. In reply to the first objection of the learned counsel for the petitioners that the land was not being acquired for "public purpose", therefore, the acquisition of land for a Private Housing Scheme was not possible under Land Acquisition Act, 1894, the learned counsel for die respondent submitted that the land under acquisition shall be utilized for a housing scheme being established by die Company in the "Public interest" for the benefit of the employees of Federal Government, therefore, the objection was not entertainable. In reply to the second objection, the learned counsel submitted that since the price of the land to be paid to the land-owners was setded through negotiation, therefore, the compulsory charges were not supposed to be paid to the land-owners by the acquiring Agency. He next submitted that the foundation in its Memorandum of Association and Articles of Association has undertaken the responsibility of providing shelter to the employees of the Federal Government and that the company has no legal obligation to generalize it and include public at large in its Schemes and that without enlarging the scope of scheme beyond its purpose and objection, the acquisition of land for a Housing Scheme for the civil servants of the Federal Government is a "public purpose."
10. The fundamental question for determination in the present petition is as to whether the acquisition of land in an area kept for public residential Sector in the Master-Plan prepared by the C.D.A, under Capital Development Authority Ordinance, 1960 and Buildings Regulation, 1993, can be allowed as an exception to general rule for establishment of Housing Scheme by the private Societies and registered Companies in the specified area and the Federal Government Employees Housing Foundation for the benefit of civil servants exclusively can establish a Housing Scheme in an area as special privilege, in which principally as per Scheme of C.D.A., a residential Scheme for general public is to be established and the plots are offered for sale through inviting applications publicly. The "public purpose" for the purpose of Land Acquisition Act, 1894, is defined as under:-- "The acquisition of land for "public purpose" generally means for a purpose which is for the benefit of general public or for the purpose of establishing an Institution which can be utilized for public for certain benefits and not for the interest of a limited class of persons to establish their individual rights over the property. The acquisition of land for construction of a building which-is not built for 'common utilization is not "Public Purpose".
11. The expression "public purpose" is used in genetic sense, which is extendable even to a fraction of community. However, the Government or acquiring Agency is not the final authority to determile, whether or not the purpose for which the land being acquired is "public purpose" and ultimate decision given by the Court on the question of "public purpose" would prevail, if it is brought before the Court. The procedure for acquisition of land for Companies is provided under Part-VII of the Land Acquisition Act, 1894, under which a charitable of educational Institution or a profit earning concern may seek acquisition of land for the Project if the essential requirement as provided under Section 40(1) of the ibid. Act is fulfilled and the acquisition is needed for a purpose, which is useful to public. There is still further division of acquisition of land for a private Company and a Public Limited Company, but in any case, the basic element of "public purpose" must exist.
12. The acquisition of private property of the people is not allowed except for "public purpose" as envisaged under Article 24 of the Constitution of Islamic Republic of Pakistan, 1973. The acquisition of land for a "public purpose" is different to that of a "private purpose" which is restricted to individual interest. The distinction is that a Company requiring land for any other purpose other than those mentioned in Section 40 of the Land Acquisition Act, 1894, cannot request for acquisition through the machinery of law for compulsory acquisition under Land Acquisition Act,. 1894, and the procedure provided for compulsory acquisition cannot be invoked except in public interest. Since the power of acquisition of land is restricted to "public purpose" under Article 24 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the existence of a "public purpose" is always open to judicial review. The classical definition of the expression of "public purpose" is an object or aim in which the general interest of the community as opposed to particular interest of individuals is directly and vitally concerned. The Supreme Court of India in A.I.R. 1963 151 observed, the phrase "public purpose" whatever else it may mean must include a purpose that is an object or aim in which ,the general interest of the community as opposed to the particular interest of individuals is directly or vitally concerned. The acquisition for personal benefit of a person or' class of persons is ultra vires to the Constitution. The acquisition for the accommodation of the worker of an Industrial concern without ownership rights is acquisition for "public purpose", but the acquisition of land for onward establishment of personal interest and title as owner would not be permissible. The Government or an Agency can acquire the private property and the land of the people only for a "public purpose" i.e. For the use of public in general but this is not possible under the Land Acquisition Act, 1894,'to take land of one to give it to another in private interest.
13. The Supreme Court of Pakistan in Fauji Foundation Vs. Shamimur Rehman (P.L.D. 1983 Supreme Court 457) observed as under:- "Here as against Justice Holmes's "concise comment", I would refer to his subsequent observations in Rindge Co. V. Los Angeles, (1) reproduced in the case of People of Pureto Rit V.
Eastern Sugar Association (2): Mr. Justice Holmes Speaking for* a unanimous Court said: "The inadequacy of use by the general public as a universal test is established". Then later on 1923 in Rindge Co. V. Los Angeles,.... The Supreme Court said: "It is not essential that the entire community, nor even any considerable portion, should directly enjoy or participate in any improvement in order to constitute a public use." Accordingly, the inadequacy test is no longer now in vogue to constitute public use. Here "public purpose" includes any purpose in which even a fraction of community may be interested or by 1 which it may be benefited.
Similarly here too, the expression "public purpose" has not pre else and rigid meaning except that it should have the criterion of benefit or advantage to the public as distinguished from the private interest of an individual. In this connection, I would refer to D.D. Basu's "Commentaries on the Constitution of India", Vol.II, page 217: "The definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society and its needs. The point to be determined in each case is whether the acquisition is in the general interest of the community as distinguished from the private interestx)f the individual.
No hard and fast definition of a 'public purpose' can, therefore, be laid down. Whether features the general interests 'of the community as opposed to the particular interests of the individual must be regarded as a public 1 purpose and expression has to be construed according to the spirit of the times in which the particular legislation is 1 enacted. Thus: "With the onward march of civilization our nation as to the scope of the general interest of the community are fast . Changing and widening with the result that our old and narrower notions as to the sanctity of the private interest of , the individual can no longer stem the forward flowing tide of time and must necessarily give way to the broader notions of the general interest of the community." It will be seen that conceptually the expression "public purpose" has also the same connotation and I do not see why it should not be taken to be included within the concept of public welfare which according to the Schwartz, - is a broader expression and includes within the ambit both, "public use" and "public purpose". This wider interpretation is given because of the changing times', state of society and its needs. However, the basic requirement nonetheless remains, that is, the general interest of the community as distinguished from the private interest of an individual.
Accordingly, the element of "public purpose" or "public welfare" cannot be divorced from the charitable activities in which the appellant is engaged. On this view of the matter, the mere label of "charitable purpose" does not render it conceptually different from "public purpose" or "public welfare", which is obvious, if I may say so, not only from the enacting part of the impugned legislative instrument but also from its operation and the facts established on record, and this was the foundation for the exercise of the power of eminent domain.
Once the "public purpose" is evident the means for executing the- project is for. The law-giver and it is for the lawgiver alone to determine as to how the public may better be served as through an agency of private enterprises or through a department of the government. It is n6t open to the Court to give its on opinion on a matter of which the law-giver is the sole Judge. - The inquiry is limited only to the extent of determining the existence of "public purpose". One thing, is, however, conclusive that the necessity of taking a private property for, "public purpose" is a legislative determination, be if of a Legislature or a law-giver such as the President or the Chief Martial Law Administrator, and .Blackstone's view cannot be a constraint one the exercise of this sovereign power. Under our Constitutional system if there is reasonable differentia, specificity in the exercise of the power of eminent domain does not offend against "equal protection clause". In this connection, I would refer to the dictum in Azizur Rehman Chowdhury's case, . Namely:- "Under the late Constitution also a law could have been enacted' for the taking over a commercial or industrial : undertaking for the benefit of its owner without affecting the fundamental rights of the property assured thereby, as this power is inherent in the sovereign powers of a State which has a right to protect the properties of its citizens".
Here mis-management and misconduct were regarded as a valid differentia for exercising the power of eminent domain. Perhaps the reference here is also to the exercise of police power which is contained in the exception to the Constitutional provision protecting private property such as clause (3) of Fundamental Right No. 14 of the 1962 Constitution, clause (3) of Article 1 of the Interim Constitution, and clause (3) of Article 24 of the 1973 Constitution."
14. The Federal Government Employees Housing Foundation is a registered Company with its Memorandum and the Articles of Association. However, this company having distinguishable features is a Government controlled Body. The Chief Executive of the Foundation is Secretary, Ministry of Housing and Works. The object of this Company is to provide houses to Federal Government employees in the Housing Scheme in Islamabad on ownership basis and the office bearer run its management in their official capacity as employees of Federal Government. The salient features of the Housing Scheme as described in the Blucher are as under:- Introduction.
"Shelter is the basic human need like food and clothing. A welfare State committed to the development of society and betterment of its people must give high priority to providing basic necessities to its citizens. In this endeavour, importance of decent housing and proper residential environment cannot' be over-emphasized. Direct and indirect contribution of housing programmes to the national economy and a positive co-relationship between housing and productivity has long been recognized universally.
2. The Federal Government took a major intiative to provide shelter to its employees by launching a self-financing housing scheme for them on ownership basis in Islamabad in 1988. Being the first venture of its kind, there was termendous response from the Federal Government employees who welcomed and deeply appraciated the scheme. The seconde phase of the Housing Sheme was launched in March, 1992 which provided a major breakthrough to overcome the acute shortage of housing in the Federal Capital. Subsequently, similar housing schemes were launched in Karachi and Peshwar to meet the growing demand of the Fedral Government employees.
3. The Federal Government Employess Housing Foundation was set-up in March, 1990, and registered as a company limited by guarantee under the Companies Ordinance, 1984. It was entrusted with the task of implementing the self-financing housing schemes on ownership basis for Fedral Government employees. Within a span of five years, about 1600 houses were constructed under the said scheme in Islamabad and about 4000 polts were allotted to the successful applicants with an option to undertake construction under their own arrangements.
Management.
The Federal Government Employees Housing Foundation has a three-tier managment system; a Board of Governores headed by the Minister for Housing and Works; an Executive Committee headed by the Secretary, Housing and works and a Directorate General headed by a Senior Engineer designated as Director General.
2. The Board of Governors, which gives policy directions to the Exevutive Commitee, consists of the following by virtue of their offices:-
(i) Minister for Housing and Works Chairman
(ii) Secretary, Works Division Vice-Chairman
(iii) Secretary, Cabinet Devision Member
(iv) Secretary. Establishment Division Member
(v) Secretary, Finance Division Member
3. The Executive Committee, which exercises all powers, delegated by the Board for effective control, management, supervision and evaluation of all activities of the Housing Foundation is composed of the following by virtue of their offices :--
(i) Secretary, Housing and Works Division Chairman
(ii) Joint Secretary (Works) Vice-Chairman
(iii) Director Genera! Pak PWD Member
(iv) Joint Secretary, Cabinet Division Member
(V) Financial Advisor, Works Division Member
(Vi) Joint Engineering Advisor Works Div. Member
(vii) Deputy Secretary (Admn.) Works Div. Member
(viii) Director General FGE Housing Foun. Member Terms and conditions Allocation/Distribution of the plots.
5. The available residential plots shall be distributed among the various categories of applicants who fulfil the criteria for eligibility as given below
(a) Judges of the Supreme Court, High Courts and Federal Shariat Court and Federal Government Employees who have been declared as civil servants as defined under Civil Servants Act, 1973, (including civilian employees paid from defence estimates) and were in service on 1.4.1996. ....77%
(b) Employees of autonomous/semi-autonomous organizations and public sector corporations under the administrative control of the Federal Government (including employees serving in the Federal Govempient Employees Housing Foundation, who were in service on 1.4.1996...................................
10%
(c) Journalist. ...3%
(d) Retired Federal Government employees governed under Civil Servants Acf, 1973. ....5%
(e) Widows of those eligible Federal Government employees who died during service or those Federal Government employees who became disabled during service or extremely hardship cases. .....5% Note: Armed Forces personnel are not eligible to participate in the scheme.
Procedure for allotment.
(a) The applications received from the Judges shall be forwarded to the Law and Justice Division for their scrutiny and their recommendations for allotment in the light of the laid down criteria for eligibility and allotment of plots as in the case of other Civil Servants as defined under Civil Servants Act, 1973.
(b) Allotment to the Journalist shall be made on the recommendations of the Ministry of Information and Broadcasting who will draw up criteria for the purpose.
(c) The applications received from the Federal Government employees and employees of the autonomous/semi- autonomous organization and public sector corporations under the administrative control of the Federal Government including those of the retired employees shall be scrutinized by the Housing Foundation.
Criteria for allotment.
(a) Mode of scrutiny of applications and seniority for the purpose of allotment shall be determined in the order of the date of birth of the applicant. In case of widows of the Federal Government Employees, and those who became disabled during service, the seniority shall be determined on the basis of length of Federal Government service of the deceased/disabled employee.
(b) First priority shall be given to those applicants who or whose spouse(s) or any other member of their families neither on plot/house in Islamabad on 1.4.1996, nor any plot/house was ever allotted to them by the C.D.A., Federal Government Employees Housing Foundation, Defence Housing Authorities. Each applicant shall have to submjt an affidavit to this effect duly countersigned by a First Class Magistrate. If rtit any stage, contents of the affidavit are found to be fictitious or false or any material facts found to have been concealed/mis-stated or suppressed deliberately and knowingly, the allotment will be cancelled. In addition, the amount deposited will be forfeited and such legal action as deemed appropriate will also be taken.
(c) Second priority shall be given to those applicants who or those spouse (s) and; any other member of their families on plot/house in Islamabad on 1.4.1996 but were never allotted a plot in Islamabad by the C.D.A;; Federal Government Employees; Housing Foundation/Defence Housing Authorities or any other authority."
15. The first question requiring consideration is regarding the maintainability of this petition under Article 199 of the Constitution of Islamic Republic of Islamic Republic of Pakistan, 1973, against the Housing Foundation, a registered company. The petitioners through this petition have not only challenged the notifications on technical ground but they have also questioned the notifications under Section 4 and Section 17(4) of the Land Acquisition Act, 1894, on a substantial question of law that the land being acquired by the Land Acquisition Collector for Housing Foundation was not a "public purpose". Therefore, the objection that the Housing Foundation being a registered Company, which is beneficiary of the land, is not amenable to the writ jurisdiction of this Court has no force. The notification for acquisition of land under challenge has been issued by the Land Acquisition Collector, Islamabad, and not by the Housing Foundation, therefore, the objection is not enteitainable and the petitioners cain competently invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973, in the matter. It may also be observed that despite the fact that the Housing Foundation is a registered Company, but it is being run officially by the Federal Government and thus has assumed a role of an Official Agency of Federal Government under the direct control of the Federal Government. The members of the Executive Committee and the Board of Governors act ex-officio m their official capacity. The machinery of Federal Government Js being utilized in the management of the affairs of the Housing Foundation and practically this Foundation baying acquired the character. .Of Official .Organization discharges its functions in connection with the affairs, of Federal Government. Therefore, it is, difficult to digest, that such Government controlled and supervised Companies are not amenable to the judicial review of this Court under Article 1.99, of the Constitution of Islamic Reublic of Pakistan, 1973. ,,
16. The second question relates to the acquisition of land by a Company for Housing Scheme. The land forming part of Capital Territory, Islamabad, is utilized under Capital Development Authority, Ordinance, 1960, under the Zoning System according to which a private Housing Scheme can only be establ ished in Zone-5 and the Housing Foundation, a registered Company, which is being run under the direct control of Federal Government has established its Housing Scheme in the Sectors which do not form part of Zone-5. This Company under the protection of Federal Government got the land acquired for its scheme in an area which was to be offered for sale to public in general after acquisition by the C.D.A, for establishment of a housing scheme by the C.D.A, for the benefit of public in general and the plots were to be allotted to the individuals through ballot on invitation of applications from the public in general. The Housing Foundation while restricting the benefit of this land to a limited class of civil servants of Federal Government has deprived a common person to acquire the property through C*D;A. In Islamabad in violation of Article 23 of the Constitution of Islamic Republic of Pakistan, 1973. The Bousing Foundation for the benefit of a limited c|as$ of persons while assuming the role of an Official Agency on the pretext pf ,"public interest" acquired the land to utilize the same to establish the individual interest, therefore, this Court in public.
Interest litigation can extend its ,jurisdiction under Article i99 of die Constitution pf Islamic Republic of Pakistan 1973 to examine the validity of acquisition and its purpose. The apex Court in Fayji Foundation Vs. Shamimur Rehrnan (P.L. D. 1983 Supreme Court 457) held as under:- "Here I may add that the power of eminent v domain is a propriety aspect of sovereignty* and is inseparable from it, and the justification for acquisition of property for "public purpose" is on the principle that the interests of the public are paramount ; and that private interests have to be .Subordinated to public a interests and the necessities Of government. This right is Constitutionalized as a fundamental right in our constitutional system, so much so that no private property can be expropriated save in accordance with law and that too for a public purpose and on payment of compensation. This fundamental right also provides an exception whereby property can be compulsorily acquired despite the aforesaid limitation, as, for instance clause (3) of Fundamental Right No. 14 of 1962 Constitution clause (3) of Article 21 of the Interim Constitution of 1972 and clause (3) of Article 24 of the 1973 Constitution."
17. The acquisition of land for a "public purpose" for welfare of the community or general utilization would not be against law and unconstitutional and advance spirit of principles of policy as provided under Chapter-2 of the Constitution of Islamic Republic of Pakistan, 1973, read with Objectives Resolution, 1949, which has been made part of the Constitution by virtue of Article 2-A of the Constitution but the distribution of State or a private property as booty is prohibited. The private property of the people cannot be required for individual benefit of others except for public purpose.
This may be pointed out that during the period of Hazrat Umar at one occasion such a situation had arisen with regard to some land and the Mujahideen demanded the distribution of the said land to them but the Caliph refused to give the said land to the Mujahideen with the consideration that Islam strictly prohibits the establishment of an individual interest in the state property in preference to the public interest.
18. As observed in the preceding paragraphs that the Housing Foundation like such other Companies can establish a Housing Scheme in the specified Zone for its members but cannot establish such scheme in an area of remaining residential Sectors except the specified Zone-5 for such Schemes and thus the Housing Foundation cannot be allowed to establish a private Scheme in regular Sectors for individual interest of civil servants in violation of general policy as a special case and privilege. Therefore, the Foundation in the light of the definition of "public interest" unless includes all the employees of the Federal Government inside or outside Islamabad and all those persons who are discharging functions in connection with the affairs of the .Federation such as employees of the National Assembly, Election Commission of Pakistan, Supreme Court of Pakistan, the employees of High Court discharging functions at Rawalpindi Bench of Lahore High Court, Federal Shariat Court and the autonomous Bodies, Corporations, Institutions, Government or semi- Government Organizations which are directly or indirectly discharging the functions under the control of the Federal Government, Doctors, Engineers, Lawyers and Educationist, who in any manner are connected with the Federal Government and Federation in public or private sectors and are bona fidley running their affairs in Islamabad, such like Journalists, the acquisition of land for a Housing Scheme exclusively for the benefit of a limited class of civil servants in Sector G-13 will not be in die "public interest". Similarly, the senior members of the Armed Forces who having completed their service are at the verge of their retirement or being in the retirement tenure or retired are discharging their function at their Headquarters in Islamabad and Rawalpindi are also entitled to be given representation in the Housing Scheme of Housing Foundation like the members of the superior judiciary. Thus, the Housing Foundation without extending the benefit of the scheme to the public and private sectors on the basis of a reasonable classification and ratio by including people from every walk of life in official or semiofficial position cannot justifiably acquire land for the benefit of only for the employees of Federal Government in Seetor G-13 as such* employees are not definable as a Community for the purpose of "public purpose". Therefore, the Housing Foundation notwithstanding its Memorandum and Articles of Association without enlarging the purpose of acquisition of land to the general use for benefit of public at large can neither establish such Scheme out of Zone-5 nor use the machinery of law and Government for such purpose.
19. The Housing Foundation confined entitlement only to the following categories of persons in its Blucher:-- "The available residential plots shall be distributed among the various categories of applicants, who fulfil the criteria for eligibility as given below:
(a) Judges of the Supreme Court, High Courts and Federal Shariat Court and Federal Government Employees who have been declared as civil servant as defined under Civil Servants Act, 1973 (including civilian employees paid from defence estimates) and were in service on 1.4.1996. ....7% Doctors, Engineers and Lawyers who are discharging their functions in the: Government or semi- Government Organization being stationed at Islamabad directly or indirectly in connection with the affairs of the Federation are equally entitled to be given representation in the Housing Scheme of Federal Government Employees Housing Foundation. This may be pointed out that during the year 1974, under a similar scheme, the Judges of superior Courts and senior Lawyers who were practicing in the Supreme Court of Pakistan were allotted plots through the C.D.A, and now the Supreme Court is permanently functioning at Islamabad for. The last about twenty-six years but no such facility was extended to the lawyers who are discharging their functions in the Supreme Court or who are permanently practicing in Islamabad, therefore, in view of the status of the lawyers as Officer of the Court, the Housing Foundation shall fix a special quota tor lawyers who are discharging their functions in the Supreme- Court of Pakistan, the Federal and Provincial Law Officers and the lawyers who practice in Islamabad District Courts, in the High Court at Rawalpindi or in the Federal Shariat Court at Islamabad.
17. The Director General Housing Foundation while appearing in person has stated that the judgment shall be implemented as such to avoid any complication in the acquisition of land for Housing Scheme and that the same shall be extended to all above-referred categories of people without any distinction with a view to extend the benefit of shelter to a maximum number of people to make the acquisition of land in public interest for "public purpose". He, however, states that since a larjge number of allotments have been made in Sector G-13, therefore, after accommodating the applicants of different categories as per their entitlement, the remaining plots shall be allotted in the light of the direction of this Court through the heads of respective Institutions and Organizations. He undertakes that in any case, the applicants of the above-referred categories shall be accommodated in the next schfme of Sector G-14, which is under progress.
18. The acquisition of land for a Housing Scheme introduced by the Housing Foundation for public utility in the form of an Agency like Capitel Development Authority under the control of Federal Government and if such scheme is executed in the benefit of public at large and is not confined to a limited class, it will definitely advance the spirit of Constitution. Therefore, the acquisition of the land by the Housing Foundation for the benefit of all the above-referred categories of persons can be for the "Public.
Purpose" and the same will not be in violation of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973, which do not prevent establishment of Housing Colonies in the public interest. Article 24(l)(e)(i)(ii) provides as under:- 24(1).- No person shall be deprived of his property save in accordance with law.
(2) ............................................. (3) Nothing in this Article shall affect the validity of-
(a) ............ .....
(b) ..................... (c) ............ .......
(d) ............... (e) any law providing for the acquisition of any cla&s of property for the purpose of-
(i) providing education and medical aid to all or any specified class of citizens; or (ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens.
19. Consequently the short order passed on 8th November, 1999, which is read as follows is made part of this judgment:- "In the present Constitution petition, the acquisition of land of Village Akko and Maira Jaffar located in Sector G-13 in the Capital Territory of Islamabad for development of a Housing Scheme on ownership basis by Federal Government Employees Housing Foundation under the administrative control of Ministry of Housing and Works, Government of the Pakistan, through notification under Section 4 read with Section 17(4) of the Land Acquisition Act, 1894, issued on 10.6.1996 and 23.11.1996 respectively is under challenge and the said Notifications have been called in question on the ground that the land was being acquired for individual interest in contravention to the provisions of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973. Since the acquisition of land and legality of the notifications under Section 4?atidSection: f7{f) Land Acquisition Act, 1894, has been questioned to be in violation of Article 24 of the Constitution, therefore, the said Article as as Articlesi 2, 2-A and Article 4 of the Constitution and the relevant provisions of the Land Acquisition Act, 1894. The Capital Development Authority Ordinance, 1960, and the Land Acquisition Regulations, 1991, requires examination.
2. Articles 2, 2-A and 227 of the (institution of Islamic Republic of Pakistan, 1973, enunciated that Islam shall be followed as supreme law in individual as well as national life whereas Article 3 has ensured the elimination of all forms of exploitation with fulfilment of the fundamental principle of Islam. Article 4 of the Constitution has guaranteed the protection of law as inalienable right of every citizen, and every person from any action detrimental to his life, liberty, body, reputation or property except in accofdarice with law. According to the principle of policy set out in Chapter 2 of Part-II of the Constitution, the State is responsible to ensure the observance of fundamental principle of Islam individually and collectively.
3. Article 23 of the Constitution provides that every citizens shall have right to acquire, hold and dispose of property subject to the condition and restriction imposed by law in public interest, whereas under Article 24 of the Constitution, no person can be deprived of his property save'in accordance with law and no property can be compulsorily acquired or take possession ^without payment of compensation save for public purpose subject to the exceptions given therein.
4. The examination of tfe provisions of Article 24 of the Constitutioti with the remaining Articles on the subject, and Islamic provisions through valuable assistance rendered by the learned counsel for the parties, the following conclusions are dralvn.
(a) That the word. "Public Purpose" used in Article 24 of the Cqnstitqdop connot^ that public purpose would generally following directions are made:--
(i) That the land-owners shall be paid compensation per Kanal as agreed with them by the Land Acquisition Collector through negotiation with separate compensation of built-up properties within a reasonable time.
(ii) That benefit of the Housing Scheme of the Federal Government Employees Housing . Foundation under execution shall be extended to all such employees, whether civil servants or not who are directly or indirectly discharging the functions in connection with the affairs of the Federation and Federal Government and the Constitutional Institutions.
(iii) That all such persons belonging to various categories (subject to their eligibility) shall be entitled to the allotment of residential plots in the Housing Scheme of Federal Government Employees Housing Foundation in their respective categories. Since the Award has been announced recently, therefore, any such -employee eligible for allotment if for some good reasons could not apply earlier shall subject to the satisfactory explanation of delay will be entitled to apply within thirty days from the date of this order.
(iv) That the criteria of eligibility fixed for government employees and other categories of applicants shall not be made applicable to the members of superior Judiciary who are enjoying office under the Constitution and notwithstanding their induction in office as Judge of a superior Court before or after the target date Le. 6.4.1996, as well as age and earlier allotment in any other capacity other than a Judge of Superior Court by the C.D.A, or any other authority except the Housing Foundation, shall be entitled for the allotment of a residential plot in the Housing Scheme in Sector G-13, Islamabad, whether applied or not from the allocation of 120 plots for the superior Judiciary with the ratio of 30:70 out of 77 percent plots earmarked for category-I, as per decision made by the Executive Committee. The Housing Foundation shall issue allotment letters within one month from the date of this order to members of superior Judiciary who either have already applied or will now apply within the abovesaid period. , (v) That after accommodating all Judges less than one hundred on the roll of Housing Foundation as applicants, the surplus plots of the allocation of superior Judiciary shall be offered to the Judges who retired within two years before the target date i.e. 6.4.1996 like retired civil servants and sitting Judges who either were not in office on 6.4.1996 or for some reasons could not earlier apply. If they now apply within one month from this order shall be entitled on the basis of their priority in age inter se from the quota of plots allocated for them through the Ministry of Law and Parliamentary Affairs, Government of Pakistan.
(vi) That like employees of Autonomous and Semi-Autonomous Organization and Public Sectors Companies under the control of Federal Government, the employees of the Election Commission of Pakistan, Supreme Court of Pakistan, Federal Shariat Court and Rawalpindi Bench of the Lahore High Court, National Assembly and such other Institutions who are discharging functions in connection with the affairs of the Federation and Federal Government in Islamabad subject to their eligibility shall be considered for allotment of residential plots in the Housing Scheme of Federal Government Employees Housing Foundation.
(vii) That like members of superior Judiciary, senior members of Armed Forces i.e. Pakistan Army, Pakistan Navy and Air Force who normally are stationed at their Headquarters which either have been shifted to Islamabad and such members are in their tenure of retirement notwithstanding the exclusion of participation of Armed Forces Personnel .
From the Scheme shall be given representation in the ' Housing Scheme through their Headquarters by way of special allocation for each Headquarter.
(viii) That like Journalists, the Doctors and Engineers who directly or indirectly, in their official or semi-official capacity are rendering services in Islamabad in connection with the Government or semi-Government Organizations :i. Shall be considered for allocation of special quota in the Housing Scheme of the Foundation.
(ix) That a special allocation of residential plots was made by the C.D.A, for the lawyers on the shifting of Supreme Court to Islamabad in 1974 andi thereafter no such facility 1 waor: provided for the lawyers,; theretorej like Journalists and employees of Autonomous Bodies, the lawyers who normally practice in the Supreme Court of Pakistan at; Islamabad including the Law Officers of the Federal and the j .. ? Provincial Government, who are attached with the superior Courts as well as the Lawyers of the District Courts at Islamabad shall be considered for a special allocation in Sector G-13 and Sector G44 at the disposal of the Ministry of Law and Parliamentary Affairs.
5. Any allotment made by the Housing Foundation after 8th of November, 1999, in contravention to this order shali be invalid. I The above directions shall be given , effect within one month from the date of this order."
20. I, therefore, in the light of foregoing without Commenting upon the matter relating to the claim of the land-owners for the payment of compulsory charges declare that subject to the conclusions and directions made herein before, the acquisition of land for establishment of a Housing Scheme in Sector G-13 is valid. The matter relating to the inadequacy of the compensation and non- payment of compulsory charges are to be decided by the Collector while announcing the Award and subsequently through , alternate remedies provided under the law. The^ Director General has undertaken to implement this judgment in letter and spirit within one month. Thispetifron is accordingly disposed of with no order as to costs.