This judgment shall dispose of Writ Petitions bearing Nos.977 of 1993 and 1237 of 1999.
2. Colonel (Retd.) Muhammad Saleh petitioner has filed this Writ Petition bearing No,977 of 1993 in the nature of a mandamus writ so that a notification is issued for inclusion of 52 villages lying on the boundary between District Rawalpindi and Islamabad to be included in the Capital Territory. As a consequential relief, he asked for injunction against the Local Taxation Authorities at Rawalpindi so that they were restrained from Imposing property tax and other taxes against these villages.
3. It appears that at the time of demarcation of the boundary of the Islamabad a line was drawn which passed through these 52 villages perhaps dividing them in such a way that it disturbed the homogeneity of these villages. In this connection and on the plea of the residents of 52 villages, duly mentioned in the writ petition, the President of Pakistan on 26th of August, 1998, directed as follows:-- "While I was reviewing the problems of Shakrial village it was brought to my notice that there are 52 villages on the, boundary of the Federal Capital Territory which fall partly .In Islamabad and partly in Rawalpindi. In some of these villages, the lands of the villagers are in one jurisdiction and the houses in the other; in other cases, the line drawn passes through some houses. This is a very unsatisfactory arrangement, causing great inconvenience to the inhabitants of these villages, specially in the construction of roads and dispensaries and in the allocation of ration depots and registration of criminal cases, etc. After meeting the affected people and discussing the matter with Interior Secretary, Administrator Islamabad, Local Councilors, and others, I have directed that the boundary of the Federal Capital Territory will be drawn afresh to facilitate administrative arrangements and development work in these villages. The rural areas of the 52 Revenue estates named in the annexure, would in the future, be in the Federal Capital Territory. I would like to visit Shakrial village and perhaps some other villages in September, 1981 to see whether needful has been done. A number of administrative problems would be solved if the Revenue Estates are reassigned as above. All laws be amended accordingly, and the Revenue Record transferred within the next three months to give effect to the decision."
4. This Presidential directive was put up before the Federal Capital for a few times giving effect to the desire of the .President which obviously envisaged an amendment in the Constitution and the law. The summary for the Cabinet which was prepared on this issue by the Government of Pakistan and Ministry of Interior and a copy of which has been attached with the petition although this appears to be a secret document, shows the following statement of the Ministry of Interior:- "The Justice Division have given the opinion that since there shall be a change in the limits of Province, necessary amendments will have to be made in the 1973 Constitution by the Parliament.
Ministry of the Interior should move a Bill in the Assembly after consulting all concerned. It has now finally been agreed between all concerned agencies, as under:--
(i) Whether area falls on eastern side of Islamabad Highway up to Lohi Bher, should continue to remain with ICT.
(ii) The area falling on northern side of the Khayaban-i-Sir Syed which constitutes the developed area of Sector 1-8 to 1-12 right up to Peshawar Road, will continue to remain with Islamabad Capital Territory on the "status quo principle".
(iii) Islamabad Highway and Khayaban-i-Sir Syed would continue to be maintained by the Capital Development Authority.
(iv) The area on the Southern side of Khayaban-i-Sir Syed comprising Satellite Town, Sir Syed Colony, Pirwadhai would remain with Rawalpindi. In view of the revival of the Parliament in the country, it may not be possible to promulgate a supra-Constitutional order at this stage to put the order of the President into effect."
5. A copy of the legal opinion sent by the Attorney-General for Pakistan at the relevant time, is also placed on record. This is dated 21st April, 1997. Briefly, the learned Attorney-General referred to the provisions of Article 239(4) of the Constitution and the following suggestions were made:-- "To sum-up. I am of the view that provisions for allocation of the limits of the Federating Units of Pakistan including the Islamabad Capital Territory cannot be made without a Constitutional amendment under Article 239 of the Constitution and further complying with the provision of the sub-Article (4) thereof i,e, getting the amendment passed by the Provincial Assembly of the Province concerned (from which any area is to be taken or given) by votes of not less than 2/3rd of its total membership before ,presentation of the Bill to the President for assent."
6. This opinion of the learned Attorney-General for Pakistan further finds mention in the summary of the Ministry of Interior which was submitted to the Cabinet and is dated 20th July, 1987, wherein the following proposals were made:-- "It has now finally been agreed between all concerned agencies, as under:--
(i) Re-adjusting of the existing boundaries of 52 Revenue Estates on the basis of principle of majority area is restricted to the Urban and Rural Areas of Rawalpindi/Islamabad (18 Estates to ICT Area, 34 to Rawalpindi).
(ii) Whatever area falls on eastern side of Islamabad Highway from Faizabad to LohiBher should continue to remain with ICT.
(iii) The area falling on northern side of Khayaban-i-Sir Syed which constitutes the developed area of Sector 1-8 to 1-12 right up to Peshawar Road will continue to remain with Islamabad Capital Territory on the 'status quo principle'.
The Justice Division have obtained the opinion of the Attorney-General for Pakistan (Annexure III) on the subject. According to his opinion, since there shall be a change in the existing boundary limits of the Punjab Province, necessary amendments will have to be made in the Constitution by Parliament. A Bill for the purpose will have to be moved in Parliament after consulting all concerned. This Bill after it has been passed by both Houses of Parliament by two-thirds majority, will have to be transmitted to the Provincial Assembly of the Punjab and passed by the votes of not less than two-thirds of its total membership. In view of the revival of the Constitution in the country, it would not be possible to promulgate a supra-Constitutional order to put the order of the President into effect (President's Order at Annexure I). A Bill to amend the Constitution will have to be moved in the Parliament as explained in para. 6 above."
7. Obviously, the desire of the President as reflected in his letter of 1981 was much discussed in the various summaries which were presented to the Cabinet but nothing concrete was done either before the revival of the Constitution of 1973 at that time or subsequently through amendment in the Constitution and, therefore, the boundaries which have already been settled in view of the acquisition of land under section 22 of the Capital Development Authority Ordinance, 1960. Capital of the Republic (Determination of Area) Ordinance, 1963 and other laws including the Capital Development Authority Ordinance, 1960 cannot be now altered without following the provisions of Article 239 of the Constitution and therefore, any directive or notification requiring any change cannot be enforced now.
8. Anyway, while these legal provisions were discussed in the open Court, the petitioner was convinced that short of a Constitutional amendment there was no shortcut to fulfill his desire. But in his alternate plea while pleading the case himself, he stated that even with respect to the boundaries fixed and determined by law, he has an objection because these have not been correctly drawn physically on the site and this has led to a lot of confusion. He emphasized that the boundaries were only made in the plans and in the papers.
9. If that is so, the Capital Development Authority and the District Co-ordination Officer of Rawalpindi should hold a meeting for determining a date for joint demarcation of the boundaries in accordance with law and to effect the physical demarcation of the boundaries within a period of three months from today while submitting a compliance report to this Court ensuring that it reaches this Court by the 1st of March, 2003.
10. Consequently, both the writ petitions are disposed of in view of the observations made hereinabove. No costs.