The present Writ Petition bearing No.938 of 1999 and Writ Petitions Nos.939 of 1999 and 884 of 1999 involving common question of law and facts are proposed to be disposed of through this single judgment.
2. The petitioners namely Ikram-ul-Haq, Khalil Ahmad Khan and Dr. Ehsan-ul-Haq, being purchase of residential plots of the size of one Kanal each in Block-C, Area Development Scheme (old Central Jail), Khyaban-e---Muhammad A.I Jinnah, in .The open auction from Housing and Physical Planning Department Government of the Punjab, filed the present writ petitions against the Province of the Punjab through Secretary, Housing and Physical Planning Department, Government of the Punjab and seven others including the Secretary, Ministry of Defence arid President, Cantonment Board, Rawalpindi.
3. The grievance of the petitioners is that they having purchased the residential plots measuring one Kanal each in the above scheme in open auction have paid full consideration of their respective plots to the Housing and Physical Planning Department, Government of the Punjab and in consequence thereto, the department on execution of a registered agreement delivered possession of the plots and also approved site plans for the construction of the residential houses but since the site was located in the area adjacent to the Army House and residents of senior members of Defence Services, therefore, respondents Nos.6 to 8 have restrained them from raising construction on the plots allotted to them due to the security reasons. The petitioners have sought a direction to the said respondents not to interfere in their possession or restrain them from raising construction.
4. Lt.-Col. Iqbal Hashmi, A.J.A.-G. Representative of respondents Nos.6 and 7 while appearing before this Court on 3-7-2000 staffed that no doubt the land in question belonged to the Provincial Government which was purchased by the petitioners in open auction, but the same being situated in the most sensitive area of the Cantonment, Rawalpindi, could not be allowed to be utilized for construction of a residential colony. He added that the proposed Area Development Scheme was being-established adjacent to the Army House and the residences of the senior members of Defence Service and if the construction of houses by the petitioners would be allowed, it would be a permanent source of insecurity to the Army House. He with reference to the correspondence made on the subject (a) letter, dated 11-12-1997 of Q.M.G's. Branch, G.H.Q.. Rawalpindi, sent to the Commissioner, Rawalpindi Division, Rawalpindi, (b) letter, dated 17-8-1998 of Director-General of Intelligence, I.S.I., Islamabad and (c) letter dated 15-7-1999 addressed to the Chief Minister of Punjab, by the Secretary, Ministry of Defence, Islamabad, submitted that the matter was taken up with the concerned authorities much before the auction of plots not to establish a Housing Colony in the area with an offer to the concerned quarters in the Government of the Punjab for exchange of this land with the land of Ministry of Defence situated in Dhoke Syedan (left west curtain Redoubt), Rawalpindi, and such other sites namely (1) Nougazi camping ground, (2) Mandara and
(3) Gujjar Khan, to accommodate the allottees of the land in question.It was further proposed that the area should be conveted into a park.The contents of the letters dated 11-12-1997 17-8-1998 and 15-7-1999 are as under:- Letter dated 11-12-1997 Subject: Security /Environmental Aspects Senior Officers Colony at Gold Road Rawalpindi.
(1) Golf Road, Rawalpindi Cantonment houses residences of Chairman joint Chiefs of Staff Committee and Chief of the Army Staff.In addition a number of General Officers are residing in the locality G.O.R. Colony is also part of this area.
(2) A vacant space between the National Park Road and Golf Road adjoins the residential area.
Reportedly 10 Marlas plots have been carved in this area by the Housing and Physical Planning Department (Punjab). The mushrooming of such a colony is likely to bring undesirable people in the area, which could pose a security threat at some stage and have adverse environmental effects.
(3) To overcome the above anomaly, it is strongly recommended that the subject area be kept open to serve as a Lung Space' for which a beautiful Park would serve the dual purpose e.g. Security as well as environmental .
(4) Your indulgence and cooperation in the matter would be much appreciated.
(Sd.) Brig, Muhammad Humayun Khan."
Letter, dated 17-8-1998 "Subject: Security/Environmental Aspects-Senior Officers Colony at Golf Road, Rawalpindi.
(1) Reportedly Housing and Physical Planning Department of Punjab is planning to launch a colony comprising of 10 Marlas plots in the vacant space between the National Park Road and Golf Club Road, Rawalpindi, Cantonment.
(2) This area of the Cantonment houses residences of Chairman, Joint Chief of Staff Committee/Chief of the Army Staff. In addition, a number of other serving and retired Generals Officers are residing in the close vicinity. G.O.R. Colony is also part of this area. This Mushrooming of the proposed colony through open auction by Housing and Physical Department of Punjab/Local Administration in this area is likely to pose a serious security threat to this sensitive locality, and will also create adverse environmental effects. It may be mentioned here that sometimes earlier the Rawalpindi Chamber of - Commerce and Industries wanted to build a complex at the site but was disallowed for the same reasons.
(3) It is, therefore, requested that the subject area be kept open and converted into a Park which could serve a dual purpose i.e. Security as well as environmental uplift.
(4) For your kind consideration/action deemed appropriate please."
(Sd.) Major-General Shujaat A.I Khan."
Letter dated 15-17-1999 "I wish to seek your personal indulgence in an important matter concerning the Khayaban-e-M.A.
Jinnah Area Development Scheme, Old Central Jail, Rawalpindi.
(2) A sketch of the area is enclosed and may please be glanced through. As could be seen, part of Old _ Central Jail Area (Block-A) has been converted into Jinnah Park and Block-B is being used for Police Lines. A small piece of land measuring 11.27 area (Block-C) recorded in the Revenue Record of the Government of the Punjab is reportedlyplanned to be divided into residential plots by the Provincial Housing and Physical Planning Department.
(3) In close proximity of Block-C, residences of senior military Officers, including Chairman, J.C.S.C.
And C.O.A.S. Are located. It is felt that conversion of Block-C into a small sized residential colony could pose a security hazard. Moreover, the area is too small for a housing colony and may have related environmental effects.
(4) I would like to propose, as also requested by G.H.Q. That the Revenue Department Punjab may be directed to transfer the said land to the Federal Government and place the same under the management of the Rawalpindi Cantonment Board (RCB) in the Ministry of Defence for the purpose of a Public Park. Pending formal transfer of land, the management of this land may be transferred to R.C.B.
(5) I may add that transfer/exchange of land between Federal and Provincial Governments is a routine affair. If desired, Federal/Defence land of equivalent value can be given in lieu of this land.
(6) Lt.-General Naseem Rana, former Director-General I.S.I. Had also discussed this case and you had very kindly agreed with the above contention and had assured to have the whole matter looked into.
(7) I hope you will kindly have the matter examined and give a favourable decision on our submission.
(Sd.) Lt. -Gen. (Retd.) Iftikhar A.I Khaa."
Learned counsel representing the petitioners submitted that originally the site of the Old Central Jail was earmarked for the establishment of the Housing Scheme by the Housing and Physical Planning Department arid the plots at that site having auctioned, the possession was also delivered to the allottees but subsequently, on the change of the Government, the Housing Scheme was disbanded in the said area and instead a park wasestablished by the C.D.A. Under the direction of Federal Government and the allottee of the said site were returned the principal amount with 12-1/2% mark-up as compensation. He frankly submitted that if the petitioners are treated at par, they are also prepared to surrender their rights in the area Development Scheme on the payment of compensation with 12-1/2% mark--up.
6. The Commissioner, Rawalpindi Division present in person while confirming the above state of affairs has acknowledged the return of the principal amount with payment of 12-1/2% mark-up to the allottees of the plots in the Area Development Scheme established at the site of Old Central Jail. However, according to him, the Housing and Physical Planning Department. Government of the Punjab due to non-availability of funds would not be in a position to make payment to the petitioners and that the same should be arranged by the Federal Government. The learned Assistant Advocate-General on instructions from the Deputy Director, Housing and Physical Planning Department, Government of the Punjab, who is also present in -Court has submitted that a summary has already been moved for the return of the principal amount paid by the allottees with payment of 12-1/2% mark-up to them as compensation. Learned counsel representing respondent No.8 and the learned Standing Counsel have submitted that the exchange of the land of the site in question with suitable land owned by the Ministry of Defence as described above shall be settled in due course of time with Provincial Government.
7. The establishment of Area Development Scheme known as Khayaban-e-Muhammad A.I Jinnah at Old Central Jail, Rawalpindi, was notified by the Government of Punjab. The scheme consisting upon three Blocks namely (A), (B) and (C) having introduced by the Housing and Physical Planning Department, Government of Punjab for generation of funds, the development of the scheme was in progress when the area of Blocks "A" and "B" of the scheme was converted into the Jinnah Park whereas out of the area of Block "C" a few plots of the size of one Kanal each were auctioned by the Housing and Physical Planning Department, Government of the Punjab and the major portion of said Block was still available for sale through auction. On behalf of the Ministry of Defence, Government of Pakistan, it was brought to the notice of Government of Punjab that Block "C" of the Area Development Scheme in close proximity of Army House and residences of senior members of Defence Service would be a security hazard and a request was made for exchange of this land with the land under the control of Ministry of Defence. In consequence thereto, a joint meeting of the representatives of Government of Pakistan and the Ministry of Defence was arranged on 4th May, 2000, which was attended by the officers namely:--
(1) The Commissioner, Rawalpindi Division. Rawalpindi.
(2) Deputy Director Quart Ring, (Col. Aamir Jalees Ahmad) Q.M.G's. Branch, G:H.Q. Rawalpindi.
(3) Station Headquarters, (Lt.-Col. Shafiq Ahmad Khan, A.Q.), Rawalpindi.
(4) Lt.-Col. Iqbal Hussain Hashmi, Assistant J.A.G.,- J.A.G. Branch G.H.Q. Rawalpindi.
(5) Mr. Muhammad Saeed Chaudhry, Deputy Director, Housing and Planning Government of Punjab, Rawalpindi.
The following decisions were taken in the meeting:--
(a) Q.M.G's. Branch will suggest/indicate three alternative sites of defence land for exchange with the Provincial Government at Old Central Jail Area Defence land may be offered at Rawalpindi Cantt. Area or Murree.
(b) Deputy Director, Housing and Town Planning will visit the sites of Dhoke Syedan alongwith the representative of Qtg. Die GHQ, Station Headquarters and MEO Rawalpindi for assessm ent/valuation of the land.
(c) The matter would be resolved as early as possible.
It was further decided that the area in question would be kept open as a park and since Provincial Government Housing Scheme was abandoned, the same would not be replaced by a Housing Scheme by the Army.
8. It being a matter of common sense that the establishment of a Housing Scheme in such a sensitive area would definitely be a permanent source of insecurity to the area, the Commissioner, Rawalpindi Division, Rawalpindi and Deputy Director, Housing and Physical Planning Department, Government of the Punjab, who are present in Court on realizing the importance of the matter have frankly conceded that establishment of such a Housing Scheme in such locality being a threat to the security of the area would not be feasible and agreed for the exchange of this land with the land of Federal Government under the control of Ministry of Defence as proposed in the joint meeting of the representative of the Provincial Government and the Ministry of Defence. Learned counsel for the. Petitioners on instructions from the petitioners who are present in person have stated that the petitioners are prepared to surrender their rights in the plots subject to the return of principal amount with 12-1/2% mark-up. The learned Standing Counsel for the Federal a Government, learned A.A.-G. The Commissioner, Rawalpindi Division and Deputy Director, Housing and Physical Planning Department, Government of the Punjab, the learned counsel for Cantonment Board, Rawalpindi, and Lt.-Col. Iqbal Hashmi.A.J.A.-G., the representative of Ministry of Defence have readily consented nor the disposal of these petitions in the following terms:--
(a) The petitioners hereby surrender their rights in the plots purchased by them in the Area Development Scheme subject to the return of principal amount with 12-1/2% mark-up with the option to accept the allotment of a suitable alternate plots in lieu thereof at the substituted site, if any.
(b) The Provincial Government will surrender the proprietary rights in the land of Block "C" Area Development Scheme in favour of Ministry of Defence, Government of Pakistan, in exchange of any of the land owned by the said Ministry in Dhoke Syedan, Rawalpindi, (left west curtain Redoubt), Nougazi Camping ground's, Mandra and Gujjar Khan.
(c) The control and management of the land of Block "C" Area Development Scheme with its possession shall vest in the Ministry of Defence and shall be deemed to have always been vested in the said Ministry.
(d)That in terms of the decision taken in the joint meeting of the representatives of Government of Punjab and Ministry of Defence, the area in question shall be kept open as a park and shall be developed as such by the Rawalpindi Cantonment under the control of Ministry of Defence strictly in accordance with the provisions of Cantonment Act, 1924.
9. As envisaged under -Article 23 of the Constitution of Islamic Republic of Pakistan, 1973, it is right of every citizen to acquire, hold and Repub dispose of property in any part of Pakistan, subject to any reasonable restrictions imposed by law in the public interest, but at the same time, the 6 private property of a person can be taken by the Government in the public interest with payment of compensation as provided under Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 since the property subject-matter of the present petitions is located within the limits of Cantonment Board, Rawalpindi and no building in the cantonment area can be erected without the permission of cantonment Board as provided under c Chapter X1 of Cantonment. Act, 1924, therefore, the Cantonment Boardwithout being owner of land can in such sensitive cases prohibit erection of building in exercise of its power under subsection (2),of section 181 of Cantonment Act, 1924, which is read as under: 181 (2)The Board may refuse to sanction the erection or re-erection of any buildingeither on grounds sufficient in the opinion of the Board affecting the particularbuilding or in pursuance of a general scheme sanctioned by the Competent Authorityrestricting the erection or re-erection of buildings within specified limits forthe prevention of over-crowding or in the interest of persons residing within such limits or for of any other public purpose."
10. The erection of buildings in this sensitive area being the permanent source of insecurity to the senior members of Defence Service can be prevented for public purpose and since the area is subject to control of Cantonment Board, Rawalpindi, therefore, its management by another authority except the Ministry of Defence would undo such purpose and further it is in the public as well as national interest that the said area should not be utilized for establishing the Housing Schemes either by the Provincial or the Federal Government and the concerned department in the Government of the Punjab in the light of the decision taken by the representatives of the Government of Punjab and Ministry of Defence and the agreement arrived at between the parties before this Court in the present petitions, for the return of principal amount with mark-up to the petitioners and the exchange of the land under discussion with the proposed land of Ministry of Defence should take effective steps for an early implementation of the agreement in question.
11. In consequence to the above settlement between the parties, it is held that the land of Block "C" of Area Development Scheme in question shall vest to the Ministry of Defence and the said Ministry shall be entitled to 4 manage the land at the spot under the agreement and while giving priority to the matter will make efforts for the completion of the transaction of exchange of land without loss of time. The petitioners having surrender their proprietary rights in the land in question shall not claim any right, title and interest in the said land and shall be returned the principal amount paid by them as the price of the land with 12-1/2% mark-up by the Housing and Physical Planning Department, Government of the Punjab, within three months, failing which the petitioners shall be entitled to recover the said amount from the Provincial Government through process of law. These petitions stand disposed of accordingly with no order as to costs.