2021 C L C 1738

Citation Name: 2021 CLC 1738 QUETTA-HIGH-COURT-BALOCHISTAN

[Balochistan]
Before Abdul Hameed Baloch, J
WING COMMANDER, PAF BASE, SAMUNGLI, QUETTA----Petitioner
Versus
NASEEBULLAH KHAN and others----Respondents
Civil Revision No.373 of 2018, decided on 14th June, 2021.
(a) Works of Defence Act (VII of 1903)---
----Ss.3 & 7---Constitution of Pakistan, Arts. 9, 23 & 24---Land Acquisition Act ( I of 1894),
Preamble---SRO No.706(I)/2003 dated 8 th July, 2003---Restriction in raising construction in
specified area of works of defence (Old Bomb Dump) ---Right of property---Reasonable
restrictions---Scope---Plaintiffs sought declaration and permanent injunction that the
defendants (authorities at PAF Base) could not forcibly forbid the construction at their
property---Civil Court decreed the suit holding that the defendants could not restrict the
plaintiffs without adopting procedure under the provisions of Works of Defence Act, 1903---
Petitioners/defendants contented that plaintiffs had illegally raised construction near the
boundary wall of PAF Base which caused security threat---Held, that neither the
petitioners/defendants had disputed the ownership of the respondents/plaintiffs nor they had
challenged the recorded mutation entries, in their (respondents') favour before revenue
hierarchy --- No person could be deprived from his/their proprietorship without process of
law-Right to acquire was subject to some reasonable restriction as contained in the Land
Acquisition Act, 1894---Right to hold, own and dispose of property was one of the
fundamental rights---No person would be compulsorily deprived of property save in
accordance with law---Any act of executive authority depriving a person from his property
was contrary to law unless the act was in accordance with law---Authority under the
Government could not deprive a person from the ownership of his land through executive
action ---Every citizen had a right to utilize his property, earn his/their livelihood---Article 9
of the Constitution guaranteed the life and liberty of a citizen---Record revealed that
petitioner/defendant, without adopting legal procedure provided under the law, had forbidden
the respondents from utilization of their land ---No illegality or infirmity was found in the
impugned judgments and decrees passed by both the Courts below---Revision petition was
dismissed, in circumstances.
Zubaida Yaqoob Chaudhary v. Military Estate Officer PLD 2018 Lah. 295 and Ch.
Muhammad Ishaque, Advocate v. Cantonment Executive Officer, Chunian, District Kasur
PLD 2009 Lah. 240 ref.
(b) Constitution of Pakistan---
----Art.23---"Property"---Word "property" included moveable and immoveable property---
Every citizen of the State had a right to own, hold and acquire property which right could not
be taken away other than the due process of law.
(c) Civil Procedure Code (V of 1908)---
----O.XLI, R.23 & O.XIV, R.5---Remand of case by Appellate Court---Improper framing of
issues ---Scope---Petitioner contended that case be remanded as the Trial Court had not
framed the issues as per pleadings---Held, that where parties were aware of controversy and
had also led evidence then question whether issue was properly framed or improperly framed
would become immaterial---Improper framing of issues could not be considered a ground to
remand the case unless the same had caused grave injustice to a party---Both the parties, in
the present case, had led their evidence as they were aware of the controversy---No
allegation was on the record that the Trial Court had not provided opportunity for adducing
evidence---Non-framing of issues on particular point was inconsequential---No illegality or
infirmity was found in the impugned judgments and decrees passed by both the Courts
below---Revision petition was dismissed, in circumstances.
Fazal Muhammad Bhatti v. Saeed Akhtar 1993 SCMR 2018 ref.
(d) Civil Procedure Code (V of 1908)---
----S.115(1)(a)(b)(c)---Revision---Jurisdiction of High Court---Scope of revisional
jurisdiction of the High Court was limited---Revisional Court had to examine three factors as
envisaged under S.115(1)(a)(b)(c), C.P.C.---Revisional Court was not Court of appeal---
Where conclusion of law and fact did not ,in any way, affect the jurisdiction of the Court no
matter howsoever erroneous the decision might be---Section 115, C.P.C., could not be
invoked unless impugned decision involved matter of jurisdiction.
Mst. Zaitoon Begum v. Nazar Hussain 2014 SCMR 1469 ref.
Mushtaq Anjum and Yousaf Kakar for Petitioners.
Akram Shah and Mehboob Alam and Ayub Tareen, Additional Advocate General for
Respondents Nos.1 to 5.
Date of hearing: 9th June, 2021.
JUDGMENT
ABDUL HAMEED BALOCH, J.----The petitioner/ defendant questioned judgments and
decrees dated 13th February, 2018 and 5th October, 2018 (impugned judgments and decrees)
passed by Civil Judge-II, Quetta and Additional District Judge-IV, Quetta (trial and appellate
court), whereby the suit of the respondents/ plaintiff's was decreed and appeal filed against
the same by the petitioner / defendant was dismissed.
2. Precise facts are that the plaintiffs filed a suit for declaration and permanent injunction
against the defendants in the Court of Civil Judge-II, Quetta contending that the plaintiffs are
recorded owners of land bearing khasra No. 837 Mohal Viala Nohsar, Mouza Nohsar, Tappa
Nohsar, Tehsil Saddar Quetta, comprising of two portions measuring 6 rods, 9 poles and 20
rods 27 poles. The plaintiffs after approval of site plan and required codal formalities started
construction of shops. Seventeen shops were constructed and rented out, while 27 shops were
almost near to completion as only shutter gates are to be fixed. Now the defendants forcibly
have forbidden the plaintiffs. The defendant No. 1 submitted written statement, in which he
has not disputed the ownership of the plaintiffs, but stated that the alleged construction is
within 1143 meters to PAF Base which create security threat as such prayed for dismissal of
the suit. The trial court framed issues, on which the parties produced pro and contra
evidence. On conclusion the trial court vide judgment and decree dated 13th February, 2018
decreed the suit. Being aggrieved of the same the petitioner/ defendant No. 1 filed appeal
before appellate court, but the same was dismissed, vide judgment and decree dated 5th
October, 2018, hence this revision petition.
3. The learned counsel for the petitioner contended that the judgments of both the courts
below are contrary to law and facts. The trial court failed to frame issues which contain all
controversial points which is admitted by one party and denied by other. Under SRO
No.706(I)/2003 dated 8th July, 2003 an area of 1143 meter of Old Bomb Dump Samungli
Quetta is required to be dealt with the provisions laid down in the SRO. The plaintiffs have
illegally raised construction near the boundary wall of PAF Base which caused security
threat. The learned counsel further contended that the judgments of the courts below are
based on supposition. Prayed for setting aside of the judgments of the courts below.
4. Conversely the learned counsel for the private respondents/plaintiffs vehemently
opposed the contention of petitioner stating, that the respondents/plaintiffs are recorded
owners of the land in question. The ownership of the respondents/plaintiffs have not been
disputed. The law of the land guaranteed every person has right to utilize his land, no one has
right to interfere in it: The learned counsel lastly stated that the judgments of the courts
below are well reasoned needed not to be interfered.
5. The learned Additional Advocate General supported the contention of the counsel for
the petitioner.
6. Heard and perused the record with the assistance of learned counsel for the parties. The
trial court vide judgment and decree dated 13th February, 2018 decreed the suit of the
plaintiffs. The relevant para reads as under:
"35. After declaring the plaintiffs to be entitled for the relief claimed for, the suit of
plaintiffs is hereby decreed in their favour, and it is ordered that"
"----Property bearing khasra No. 837 Mohal Viyala Noushar Moza Noushar Tappa
Noushar Tehsil Saddar Quetta, comprising of two portions measuring 6 rods 9 poles
and 20 Rods 27 poles belong to the plaintiffs, which is situated within the restricted
area of 1143 meter of the outer parapet of Samungli Air Base. The defendants, under
the provisions of Works of Defence Act, 1903 (VII of 1903), through collector are
bound to cause public notice, invite and inquire into the objections (if any) which any
interested person has stated pursuant to the notice given, and shall, after holding
enquiry have to announce the award under his hand regarding the true area, the
compensation to be allowed, and the apportionment and payment of such
compensation according to the award to persons entitled thereto. The defendants are
required to follow such procedure. Till adopting such procedure, the defendants are
strictly restrained from interference in the peaceful possession and construction work
of the plaintiffs on the suit property.
If at all, the land of the plaintiff is required by the defendants for the purpose of any
defence work the same be acquired strictly in accordance with the provisions of The
Land Acquisition Act, 1894 by payment of compensation at the present market value
 to the plaintiffs and the concerned land owners. Parties shall bear their own costs.
Decree sheet be prepared."
7. The record reveals that the petitioner/ defendant has not disputed the ownership of the
respondents/ plaintiffs. Admittedly the respondents/ plaintiffs are recorded owners of the suit
land. Neither the petitioner/ defendant nor the remaining respondents have challenged the
mutation entries before revenue hierarchy. Article 23 of the Constitution of Islamic Republic
of Pakistan, 1973 (The Constitution) reads as under:
"23. Provision as to property. Every citizen shall have the right to acquire, hold and
dispose of property in any part of Pakistan, subject to the constitution and any
reasonable restrictions imposed by law in the public interest."
8. The word property includes moveable and immoveable property. Every citizen of the
country has a right to own, hold and acquire property which right cannot be taken away other
then due process of law. No person can be deprived from his/their proprietorship without
process of law. The right to acquire own property subject to some reasonable restriction as
contained in the Land Acquisition Act, 1894. Right to hold, own and dispose of property is
one of the fundamental rights as envisaged under the above referred to Article. It would not
be irrelevant to refer Article 24 of the Constitution, which reads as under:
24. Protection of property rights. (1) No person shall be compulsorily deprived of his
property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public
purpose, and save by the authority of law which provides for compensation therefore
and either fixes the amount of compensation or specifies the principles on and the
manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of--
(a) any law permitting the compulsory acquisition or taking possession of any property for
preventing danger to life, property or public health; or
(b) any law permitting the taking over of any property which has been acquired by, or
come into the possession of, any person by any unfair means, or in any manner,
contrary to law; or
(c) any law relating to the acquisition, administration or disposal of any property which is
or is deemed to be enemy property or evacuee property under any law (not being
property which has ceased to be evacuee property under any law); or
(d) any law providing for the taking over of the management of any property by the State
for a limited period, either in the public interest or in order to secure the proper
management of the property, or for the benefit of its owner; or
(e) any law providing for the acquisition of any class 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; or
(iii) providing maintenance to those who, on account of unemployment, sickness,
infirmity or old age, are unable to maintain themselves; or
 (f) any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as is
referred to in this Article, or determined in pursuance thereof shall not be called in
question in any court."
9. The above referred Article recognize right of a person to hold the property. No person
shall be compulsory deprived of property save in accordance with law. Any act of executive
authority depriving a person from his property is contrary to law unless the act is in
accordance with law. The authority under the Government cannot deprive a person from the
ownership of his land through executive action.
10. Every citizen has a right to utilize his property, earn his/their livelihood. The Article 9
of the Constitution guaranteed the life and liberty of a citizen. The record reflects that the
petitioner / defendant without adopting legal procedure provided under the law has forbidden
the private respondents/plaintiffs from utilization of their land. Reliance is placed on case
Zubaida Yaqoob Chaudhary v. Military Estate Officer, PLD 2018 Lahore 295, wherein it was
held:
"4. All what has been done by the respondents was under the jurisdiction vested in the
said respondents/Federal Government within the meaning of a piece of legislation
enacted during the era of slavery and the Masters, who were ruling this subcontinent
enacted such law for the lands of their slaves.
Once Islamic Republic of Pakistan emerged on the globe in 1947 as an independent State,
the people of free Pakistan in 1973 through their representatives in the National
Assembly, adopt, enact and give to themselves, the Constitution, which reflects the
will of the people of Pakistan to establish an order, which inter alia guaranteed the
fundamental rights, including equality of status, of opportunity and before law, social,
economic and political justice, and freedom of thought, expression, belief faith,
worship and association, subject to law and public morality.
Article 23 thereof provides a fundamental guarantee to every citizen to have the right to
acquire, hold and dispose of property in any part of Pakistan, subject to the
constitution and any reasonable restriction imposed by law in the public interest. In
the same manner, Article 24(1) of The Constitution of the Islamic Republic of
Pakistan, 1973 provides a guarantee that no person shall be compulsorily deprived of
his property save in accordance with law, whereas Article 24(2) provides that no
property shall be compulsorily acquired or taken possession of save for a public
purpose, and save by the authority of law which provides for compensation therefor.
This schedule annexed with the impugned notification provides 10 stations, where
restrictions were imposed under Section 3 of the Works of the Defence Act, 1903 (VII
of 1903), which include Abbottabad, Peshawar, Sargodha, Multan, Karachi, Lahore,
Gujranwala, Sahiwal, Jehlum and Quetta. The list, where Ammunition Depots are
functioning, does not end here, as even other citizens of Pakistan are catering for such
services.
It reminded the day of 10th April, 1988, which in fact was a day of great calamity before
doomsday for Rawalpindi city, when all of a sudden a hell broke loose in Ojhri Camp
at Murree Road, Rawalpindi, which is almost the central point of twin cities i.e.
Rawalpindi and Islamabad, as missiles were flying across the inhabited localities of
Rawalpindi and Islamabad. Although there has been no accepted statistical data
available to date, but a careful account put the figure of deaths close to 4000 in the
said accident. No concrete inquiry was ever conducted regarding said incident and if
conducted, it never made public and it is still a mystery, as to whether it was an
accident or an intentional attempt to put cover on what was received in the said
Ammunition Depot meant for storage of ammunition of every nature received from
United States of America and its other allies meant for Afghan Mujahideen fighting
against Soviet forces in Afghanistan and twin cities were littered with missiles,
artillery shells and projectiles on a day, when American Team was arriving to take
account of the vast amount of military hardware meant to be stored in such
Ammunition Depot.
The very presence of such Ammunition Depots in the inhabited areas would be a constant
threat to the human lives both on account of an accident or an intentional step of
criminal nature, which could not be ruled out in view of accident of Ojhri Camp. It
would be beneficial to refer that veteran politician Kalsoom Saifullah in her book
published in September, 2011 in Pakistan has notified the Pakistani nation that it was
none other than the ruler of that time himself, who ordered the explosion to be carried
out in Ojhri Camp, so that the threat of American checking of stringer missiles could
be avoided.
In view of such horrifying chapter of our national life, till the time, such Ammunition
Depots are functioning in inhabited localities, the possibility cannot be ruled out that
such havoc can be played at any time in order to achieve the designs of any
stakeholders of adventurous nature. Simple answer to such big question of our
national calamity is that our inhabited localities must be saved from such dangerous
dumps, which are situated within the residential areas and such Depots, stores must be
established outside the inhabited localities.
Till the time, such alternate arrangements are made, the authorities concerned instead of
imposing such unreasonable restrictions with reference to the areas outside the
boundary walls of Ammunition Depots must be bound down to acquire the land,
which possibly would be affected from the effects of the stocks stored in such
Ammunition Depot and such required land would be subject to the land acquisition
under the law against which the land owners are supposed to be compensated
adequately as against the price of their land.
The provisions of Section 3 read with Section 7 of The Works of Defence Act, 1903 are in
fact in complete negation of the Constitutional guarantees provided under Articles 23
and 24 of The Constitution of Islamic Republic of Pakistan, 1973. The Constitution,
which the people of Pakistan through their parliamentarians adopt and enact, must be
 respected and given preference to the law promulgated by the Masters in the days of
our slavery. Practically when the provisions of The Works of Defence Act, 1903 are
acted upon and given preference, it would remind the independent nation of Pakistan
the days of slavery and the owners of the land, whose lands situate in the vicinity of
such Ammunition Depots, for which restrictions have been imposed under Sections 3
and 7 of The Works of Defence Act, 1903, can only look towards their landed
property wistfully.
5. Although the Constitutional guarantees with reference to the properties are made
subject to law, but where restrictions are imposed for unlimited period, the same
cannot be considered as "reasonable restrictions" as enshrined in Articles 23 and 24 of
The Constitution of Islamic Republic of Pakistan, 1973 and as such, the restrictions
imposed through the impugned notification for an indefinite period are not
"reasonable restrictions". This Court, while exercising its Constitutional jurisdiction
under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 is not
supposed to leave the people of Pakistan, who were subject to Constitution as helpless
against the atrocities of the public functionaries and the rights and guarantees
promised with the people of Pakistan must practically be given effect beneficially to
them and such rights must jealously be guarded."
Reliance is also placed on case Ch. Muhammad Ishaque, Advocate v. Cantonment
Executive Officer, Chunian, District Kasur, PLD 2009 Lahore 240.
11. The contention of learned counsel for the petitioner that the trial court has not framed
issues as per pleadings. It is settled law that where parties were aware of controversy and had
also led evidence then question whether issue was properly framed or improperly frame
would become immaterial. Improper framing of issues cannot be considered a ground to
remand the case unless it has cause grave injustice to a party. Both the parties led their
evidence as they were aware of the controversy. There is no allegation that the trial court has
not provided opportunity for adducing evidence. In such circumstances non-framing of issues
on particular point is inconsequential. Reliance is placed on case Fazal Muhammad Bhatti v.
Saeed Akhtar, 1993 SCMR 2018, wherein it was held:
"4. The pleadings and the issues as originally framed show that the parties were fully
aware what was the subject-matter of controversy and what evidence was to be led by
each one. The Court did not prevent the parties from leading evidence at the trial with
regard to the defects in the gift. The non-framing of a specific issue in such
circumstances is inconsequential. It was held by this Court in the Province of East
Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82) that if
issues are not framed but allegations made in the plaint are challenged in the written
statement and the Court has allowed evidence to be led, then a decision rendered
without framing of the issues is not illegal. That has been the established law in the
sub-continent as would appear from Sayed Muhammad v. Fatteh Muhammad (22
Indian Appeals 4)."
 12. The scope of revisional jurisdiction of this court is limited. The revisional court has to
examine three factors as envisaged under Section 115(1)(a), (b), (c), C.P.C. The revisional
court is not court of appeal. Where conclusion of law and fact do not in any way affect the,
jurisdiction of the court no matter however erroneous. The decision might be unless involves
matter of jurisdiction, the section 115, C.P.C. cannot be invoked. Reliance is placed on case
Mst. Zaitoon Begum v. Nazar Hussain, 2014 SCMR 1469, wherein it was held:
"19. After what has been discussed above, we are of the considered view that the learned
Judge in Chamber of the High Court was fully justified in holding almost similar view
by dismissing the two revision petitions of the appellant, after full reappraisal of
evidence, adduced by the parties at the trial and also carefully considering the
preponderance of the evidence. Thus, the conclusion drawn by the learned Judge of
the High Court is not open to any exception.
20. Even otherwise, this Court in the case of Kanwal Nain v. Fateh Khan (PLD 1983 SC
53) has held that concurrent findings of two Courts below are not open to interference
in limited revisional jurisdiction of the High Court, albeit, it may be, to some extent,
erroneous on point of fact and on point of law, both."
In view of what has been discussed above the instant petition being devoid of merit is
dismissed. The judgments and decrees dated 13th February, 2108 and 5th October, 2018
passed by Civil Judge-II, Quetta and Additional District Judge-IV, Quetta respectively are
upheld. No orders as to costs.
MQ/95/Bal. Petition dismissed.

P L D 2021 Lahore 211

Citation Name: 2021 PLD 211 LAHORE-HIGH-COURT-LAHORE
Before Jawad Hassan, J
MUHAMMAD KHALID JAVED and others---Petitioners
Versus
LAHORE DEVELOPMENT AUTHORITY and others---Respondents
Writ Petition No. 48219 of 2019, heard on 23rd November, 2020.
(a) Lahore Development Authority Act (XXX of 1975)---
----Ss. 39 & 40---Ejectment of unauthorized occupants---Removal of building, etc. erected or
used in contravention of the Act---Right to fair trial---Laches---Scope---Petitioners assailed
action of Development Authority (Authority) whereby boundary wall of their house was
demolished and a road was constructed on their property---Authority did not dispute
ownership of the petitioners, however, claimed that they had taken action under S.39(3) of
the Lahore Development Authority Act, 1975 (the Act)---Validity---Section 39 of the Act, as
a whole, empowered the Director General LDA to eject unauthorized occupants but the
powers were dependent upon mandatory condition of issuance of prior notice and providing
an opportunity of hearing to the aggrieved party---Section 39(3) of the Act was confined to
taking action and not demolishing the property---Authority could not be termed as
unauthorized occupants of the property---Authority had not raised the issue of construction
of boundary wall during the last more than thirty four years and were now estopped from
doing so being hit by laches and acquiescence---Authority's action hampered the petitioner's
fundamental right of due process of law which was protected under Art. 10-A of the
Constitution in which right of fair trial and due process was granted to all citizens---
Constitutional petition was allowed and the action of Authority was declared to have been
done in disregard and without proper procedure provided under the law.
Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; Ch. Mehraj Din v. Lahore
Development Authority 1981 SCMR 862; Shifa Laboratories (Pvt.) Ltd. through Chief
Executive v. Lahore Development Authority, through Director-General, LDA and 3 others
2004 MLD 1377; Haji Muhammad Ashraf v. The District Magistrate Quetta and 3 others
2000 SCMR 238; Muhammad Maqsood Sabir Ansari v. District Returing Officer, Kasur and
others PLD 2009 SC 28; Fida Hussain and others v. Mst. Saiqa and others 2011 SCMR 1990
and Javed Ahmad Riaz v. Government of Punjab and others 2018 PLC (C.S.) Note 25 ref.
Lord Denning in Southam v. Smout [1964] 1 QB 308 at 320 and Muhammad Aslam v.
Member (Colonies) Board of Revenue Punjab Lahore and others 2019 CLC 1141 rel.
(b) Lahore Development Authority Act (XXX of 1975)---
----Ss. 39 & 40---Constitution of Pakistan, Arts. 23, 24, 10A, 14 & 199---Constitutional
petition---Boundry wall of petitioner's house was demolished by the Lahore Development
Authority (Authority)---Protection of property rights---Right to fair trial---Inviolability of
dignity of man---Maintainability---Pendency of civil suit---Scope---Petitioners assailed
action of Lahore Development Authority (Authority) whereby boundary wall of their house
was demolished and a road was constructed on their property---Authority objected to the
maintainability of the constitutional petition on the ground that civil suit was pending
between the parties---Validity---Lis before the civil court was regarding title, declaration and
mandatory injunction whereas the constitutional petition was filed against the illegal action
of the Authority, which not only violated petitioners' Fundamental Right to privacy of home
guaranteed under Art. 14 of the Constitution but at the same time infringed their
Fundamental Right of holding property under Art. 23 of the Constitution as well as
undermined protection of their property rights as guaranteed under Art. 24 of the
Constitution---Actions of the Authority had seriously jeopardized the constitutional
protection of due process of law provided under Art. 10-A of the Constitution, therefore,
actions of the Authority breached the Fundamental Rights of the petitioners provided and
protected under the Constitution---Article 199 of the Constitution mandated that the High
Court on the application of any aggrieved person could make an order or give such directions
for the enforcement of any of the Fundamental Rights---Objection on the maintainability of
the petition did not hold water---Constitutional petition was allowed.
Mst. Asiya Ashraf Ch. v. Government of Punjab and others 2020 CLC 503; Syed Dost Ali
v. Federation of Pakistan through Secretary Defence and 2 others 2016 CLC 367;
Muhammad Raza and others v. Jammu and Kashmir Co-operative Housing Socieity, and
others PLD 2013 Isl. 49 and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery
Ltd., Tokht Bhai and 10 others PLD 1975 SC 244 rel.
(c) Lahore Development Authority Act (XXX of 1975)---
----S. 39---Ejectment of unauthorized occupants---Opportunity of hearing---Scope---Section
39(1) of the Lahore Development Authority Act, 1975 (the Act) empowers the Director
General of Authority or any person authorized by him, to summarily eject any person while
S.39(2) of the Act further empowers the Director General or any person authorized by him to
proceed on his own motion or by an application of the owner to summarily eject any person
in unauthorized occupation of any land or plot in a Housing Scheme developed and
controlled by the Authority whereas S.39(3) of the Act empowers the Director General or
any person authorized by him if he does not desire to summarily eject unauthorized occupant
and wishes to proceed against such person on commission of an offence under S.35(2) of the
Act---Although S.39, as a whole, empowers the Director General of the Authority to
eject unauthorized occupants but these powers are dependent upon mandatory condition
precedent of issuance of prior notice and providing an opportunity of hearing to the aggrieved
party.
(d) Lahore Development Authority Act (XXX of 1975)---
----S. 39(3)---Ejectment of unauthorized occupants---Opportunity of hearing---Scope---
Perusal of subsection (3) of S.39 of the Lahore Development Authority Act, 1975, reveals
that it is also subject to provision of giving hearing to the parties because it starts with the
words "Subject to opportunity of hearing" which is only confined to take action and not to
demolish the property, any building, structure or work. [p. 220] D & E
(e) Constitution of Pakistan---
----Arts. 199 & 4---Constitutional petition---Rights of individuals to be dealt in accordance
with law---Maintainability---Judicial review---Scope---Article 4 of the Constitution mandates
that it is an inalienable right of every person to enjoy the protection of law and to be treated
in accordance with law and has every right to knock the door of the High Court if his
inalienable right is denied to him---Every executive organ is obliged to perform his duties
and to exercise only those powers which law has conferred upon it otherwise same will be
subject to the judicial review of superior courts.
(f) Administration of justice---
----Where law provides a mechanism for doing an act, taking an action or initiating certain
measures then the same must be complied with as and when the law provided.
(g) Administration of justice---
----Where things are to be done in a particular manner, the same are to be done in that
manner and if anything is done contrary or in deviation to that, the same shall be deemed to
have not been done at all.
(h) Administration of justice---
----If base/foundation of any order or action is illegal then whole superstructure built
thereupon cannot be sustained---When the law specifies a particular manner and procedure
then it is obligatory for the functionary of the State to adhere to the same and comply with it
in all respects and any negligence, failure or omission to do so invalidate the proceedings on
account of which whole superstructure raised on such defective foundation automatically
crumbles down.
Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104; Executive
District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835;
Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; National Institutional
Facilitation Technologies (Pvt.) Limited through duly Authorized Officer v. The Federal
Board of Revenue through Chairman and 7 others PLD 2020 Isl. 378; Asad Jamal Daudpoto
v. Assistant Commissioner Ratodero and 4 others 2020 CLC 1945; Ahmed and others v.
Nazir Ahmed and others 2019 CLC 1841; BNP Pvt. Ltd. and others v. Capital Development
Authority PLD 2017 Isl. 81; Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd.
through Branch Manager and 3 others 2003 CLD 1693; Ali Bahadur v. Municipal
Committee, Arifwala and 7 others 1999 MLD 142 and Ghulam Hussain v. Settlement
Commissioner, Multan and others 1983 CLC 2972 rel.
Barrister Ahmad Pervaiz, Advocate Supreme Court assisted by Barrister Scheherezade
Shaharyar and Shahjahan Khan for Petitioners.
Barrister Umair Khan Niazi, Additional Advocate General for Respondents.
Sahibzada Muzaffar Ali, Senior Legal Advisor for the LDA assisted by Shayan Abbas
Shah, Advocate along with Sibtain Raza, DEM-I, LDA.
Date of hearing: 23rd November, 2020.
"'The poorest man may in his cottage bid defiance to all the forces of the Crown. It
may be frail - its roof may shake - the wind may blow through it - the storm
may enter - the rain may enter - but the King of England cannot enter - all his
force dares not cross the threshold of the ruined tenement.' So be it - unless he
has justification by law."
Lord Denning in Southam v Smout [1964] 1 QB 308 at 320
JUDGMENT
JAWAD HASSAN, J.---The Petitioners have invoked the constitutional jurisdiction of
this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the
"Constitution") with the following prayer:
"It is, therefore, most respectfully prayed that the act of the Respondents for demolishing
the boundary wall, injuring the privacy of the Petitioners, trespassing over the
personal owned property of the Petitioners and chalking out a mud track over the
property of the Petitioners without adopting due process of law which is sheer
violation of fundamental constitutional rights of the Petitioners.
It is further prayed that the Respondents may kindly be restrained from doing their
construction work over the property of the Petitioners or demolishing any further
constructions of the Petitioners in any manner whatsoever".
I. BACKGROUND OF THE CASE
2. Two pieces of land, one measuring 18-Kanal 12-marlas and the other measuring 8-
kanals 8-marlas were purchased by Dr. Muhammad Din Ch. (Predecessor-in-Interest of the
Petitioners) and the Petitioners Nos.3 and 9 through registered sale deeds on 03.07.1975. The
entries of mutation and registration of aforesaid sale deeds were also incorporated in the
revenue record accordingly. The above said properties were purchased in 1975 prior to
launch of MA Johar Town Scheme ("JT Scheme") on 28.08.1980 by the Lahore Development
Authority (the "LDA"). The Petitioners Nos.3 and 9 and the predecessor-in-interest of
Petitioners Nos.1, 2, 4, 5, 6, 7 and 8 applied to the Town Planner for approval of the sub-
division of the Property in order to allow each of them to build their homes. The application
was submitted along with a map for the sub-division which included a "street" for the
internal use of the residents of the Property. However, the LDA through its letter dated 30th
of August 1983 required the Petitioners No.3 and 9 and the predecessor-in-interest of
Petitioners Nos.1, 2, 4, 5, 6, 7 and 8 to revise the map for the sub-division by identifying and
demarcating the area for the high-tension wire already passing through the Petitioners'
Property. The revised map for the sub-division was accepted and adopted by Town Planner
which included a demarcation of the area identified for High Tension Wires and the private
street. After the map for the subdivision was accepted, the Petitioners Nos.3 and 9, the
predecessor-in-interest of Petitioners Nos.1, 2, 4 to 8 and the Respondents entered into an
Interim Development Agreement dated 12th of March, 1985 (the "Agreement").
Subsequently, LDA launched and approved its JT Scheme Phase II along with a new map in
1986. Through the said map of the Scheme, a public road was superimposed on the Property
of the Petitioners without following the proper procedure required to give effect to the same.
The boundary wall of the Petitioner's Property was still shown as intact. The Petitioners
raised an issue on the said imposition of a public road through letter dated 11th April 1992.
However, LDA did not respond to the same, slept over the issue and left the matter
unattended until June 2019 when the boundary wall was suddenly demolished and a public
road was built right through the Property of the Petitioners. The Respondents without any
notice and all of a sudden entered the Property of the Petitioners on 03.06.2019 to demolish
the boundary wall erected by the Petitioners to cordon off their property. The Petitioners
approached the Civil Court immediately against the actions of the Respondents wherein the
learned Civil Judge granted a stay order against the proceedings on 10th of June 2019. The
Respondents even then razed the boundary walls and began the construction of a double
carriageway on the Property of the Petitioners in violation of the fundamental and
constitutional rights of the Petitioners, which eventually left them with no other adequate and
efficacious remedy but to approach this Court.
II. PETITIONER'S SUBMISSION
3. Barrister Ahmad Pervaiz, ASC, counsel for the Petitioners inter-alia contends that the
Respondents have violated the principle of natural justice by demolishing the boundary wall
and constructing road in the Petitioners' property measuring 5-Kanal and 17 Marla 115 sq.ft.
and 2-kanal, 17-Marla 145 sq.ft. respectively (the "Disputed Road") without issuing any
notice to them; that the Petitioners did not violate any of the terms of the Agreement but the
Respondent-LDA before taking aforesaid action did not issue any notice to them as such it is
clear violation of Articles 4, 9, 14, 23 and 24 of the Constitution and the principles laid down
by the Hon'ble Supreme Court of Pakistan in the judgment cited as "Khalid Saeed v. Shamim
Rizvan and others"(2003 SCMR 1505); that the Petitioners are residing in the area since
1975 and pursuant to the Agreement, constructed boundary wall in order to protect their
privacy and ensure their security but the action of the Respondents by demolishing the wall,
without adopting proper procedure, is violative of section 39 of the Lahore Development Act,
1975 (the "Act") which states that any action against the occupants shall be subject to
opportunity of hearing and section 39(3) of the Act cannot be read in isolation with sections
39(1)(2) and 35(2) of the Act; that as per section 40 of the Act if any building, structure,
work or land is erected, constructed or used in contravention of the provisions of this Act or
of any rule, regulation or order made thereunder the Direction General or any person
authorized by him or the Authority in this behalf, may by ordered in writing, require the
owner, occupier, user or person in control of such building, structure, work or land to
remove, demolish or alter the building, structure or work or to use it in such manner so as to
bring such erection, construction or user in accordance with the said provisions of this Act"
whereas section 40(2) of the Act depicts that right of hearing before demolishing or
removing any part of the property has to be given to the owner or occupier of the property
but this has not been done in this case which is violation of Article 10-A of the Constitution
in which right of fair trial and due process is granted to all citizens. In this regard, learned
counsel relied on the recent judgment of this Court reported as Muhammad Aslam v.
Member (Colonies) Board of Revenue Punjab Lahore and others (2019 CLC 1141). He relied
on cases of "Ch. Mehraj Din v. Lahore Development Authority" (1981 SCMR 862) and
"Shifa Laboratories (Pvt.) Ltd. through Chief Executive v. Lahore Development Authority,
through Director-General, LDA and 3 others" (2004 MLD 1377).
III. RESPONDENTS SUBMISSIONS
4. Sahibzada Muzaffar Ali, counsel for the Respondents objected to the maintainability of
the petition on the grounds that the matter in hand revolves around factual controversies
involving disputed questions of fact and also due to pendency of civil suit this issue cannot
be decided in constitutional jurisdiction. He states that the Petitioners have concealed
material facts as such they are disentitled to discretionary relief. He further argued that the
Petitioners made illegal encroachments and erected unauthorized constructions in sheer
violation of Clause 2-A of the Agreement therefore, action taken by the Respondents by
invoking Clause 14 of the Agreement is justified. He relied on "Haji Muhammad Ashraf v.
The District Magistrate Quetta and 3 others" (2000 SCMR 238), "Muhammad Maqsood Sabir
Ansari v. District Returing Officer, Kasur and others"(PLD 2009 SC 28), "Fida Hussain and
others v. Mst. Saiqa and others"(2011 SCMR 1990), "Javed Ahmad Riaz v. Government of
Punjab and others"(2018 PLC (C.S.) Note 25).
5. Arguments heard. Record perused.
IV. DETERMINATION BY THE COURT
6. The whole case of the Petitioners is that they, being the owners of the disputed
property, erected boundary wall thereon in the year 1975 in order to protect proprietary
interests of their private property and the demolition of boundary wall as well as construction
of road on their property by the Respondents, without issuing mandatory notice or providing
an opportunity of hearing, is sheer violation of sections 39 and 40 of the Act which is also
against the principle of natural justice and infringement of their fundamental rights
guaranteed under the Constitution. While the stance of the Respondents is that they have
rightly taken the action by invoking Clauses 2-A and 14 of the Agreement read with section
39(3) of the Act. It is not disputed by all hands that the Petitioners are the owners of the
property. The boundary wall erected by them was demolished by the Respondents by
invoking Clauses 2-A and 14 of the Agreement and section 39(3) of the Act. Section 39 of
the Act is reproduced hereunder:
Ejectment of unauthorized occupants.---(1) Subject to an opportunity of hearing, the
Director General or any person authorized by the Director General may summarily
eject any person in unauthorized occupation of any land or property vested in the
Authority and may for such ejectment use such force as may be necessary.
(2) Subject to an opportunity of hearing, the Director General or any person authorized by
the Director General may, on his own motion or on the application of the owner,
summarily eject any person in unauthorized occupation of any land or plot in a
housing scheme developed and controlled by the Authority and may, for such
ejectment, use such force as may be necessary.
(3) Nothing contained in subsections (1) and (2) shall prohibit the Director General or any
person authorized by the Director General to proceed against such person on
commission of an offence, as provided in the Act.]
7. From the plain reading of aforesaid section, it clearly reveals that the said section deals
with the ejectment of unauthorized occupants. It empowers the Director General LDA or any
person authorized by him to proceed against any person who is in unauthorized occupancy of
land or property vested with the Authority but such ejectment is also subject to an
opportunity of hearing. Section 39(1) of the Act empowers the Director General of LDA or
any person authorized by him, to summarily eject any person while section 39(2) of the Act
further empowers the Director General or any person authorized by him to proceed, on his
own motion or by an application of the owner, to summarily eject any person in unauthorized
occupation of any land or plot in a housing scheme developed and controlled by the LDA
whereas section 39(3) of the Act empowers the Director General or any person authorized by
him, if he does not desire to summarily eject unauthorized occupant and wishes to proceed
against such person on commission of an offence under section 35(2) of the Act. Although
section 39, as a whole, empowers the Director General LDA to eject unauthorized occupants
but these powers are dependent upon mandatory condition precedent of issuance of prior
notice and providing an opportunity of hearing to the aggrieved party.
8. The Respondents have taken specific stance that the Petitioners violated Clauses 2-A
and 14 of the Agreement which was executed between the parties on 12.03.1985. It is also
noted that the Respondents-LDA has not taken any action for the last 35 years and now
without giving any notice or even opportunity of hearing, have taken action under section
39(3) of the Act. From the perusal of the Agreement it reveals that no mechanism was
provided therein to take any action against the Petitioners therefore, principles of natural
justice, safeguards provided under the Act and the constitutional guarantees are equally
applicable in that situation to adjudge actions taken by the Respondents against the
Petitioners and the Courts have the jurisdiction to entertain the petition under the rule of law
and access to justice for the dispensation of justice.
9. The learned Legal Advisor of the LDA was confronted that what portion of the property
they want to clear or to build the road thereon because the Court on 11.09.2019 while
appointing Commission superficially put query about the ownership of the Petitioners. The
Local Commission submitted report on 30.09.2019 and answered the query with the
observation that "as per revenue record and version of the LDA, Petitioners are owners of 27-
kanals. The LDA filed objections to the report of local commission on 05.11.2019 and did
not deny the ownership of the Petitioners. The Petitioners also filed rejoinder to the
objections of the LDA on 06.12.2019 by stating that they are the owners of the property.
Since the Petitioners are the owners of the property and are in continuous, consistent and
uninterrupted possession of the same for last more than three decades, the Respondents/LDA
has failed to justify the reasons to demolish, taken over the property not owned by it in an
arbitrary manner. Moreover, the Respondents/LDA has not taken the stance anywhere that
the property is owned by them therefore, their action to take over the property and demolish
the same in an unlawful manner is unwarranted and uncalled for. This Court in "Mst. Asiya
Ashraf Ch. v. Government of Punjab and others" (2020 CLC Lahore 503) has elaborated the
property rights of the citizen of Pakistan by declaring that "it is established that the right to
one's own Property is a fundamental right of every citizen and he/she cannot be deprived
from his/her Property by any authority in an arbitrary manner. This right is protected and
safeguarded by the constitution. Article 24 of the Constitution allows for Property to be
acquired or taken possession of in select circumstances when it is required for the public
purpose under the authority of the law".
10. Now the question is whether the Petitioners were dealt with by the Respondents in the
light of Article 4 of the Constitution which clearly states that it is an inalienable right of
every person to enjoy the protection of law and to be treated in accordance with law and has
every right to knock the door of this Court if this inalienable right is denied to him. Every
executive organ is obliged to perform his duties and to exercise only those powers which law
has conferred upon it; otherwise same will be subject to the judicial review of Superior
Courts. The Respondents/LDA had to obey the Constitution and mandate of law before
taking such action because judgments relied upon by learned counsel for the petitioners
Barrister Ahmad Pervaiz, ASC are the judgments of this Court and the august Supreme Court
of Pakistan and under Articles 189 and 201 of the Constitution, are binding on the LDA.
Under Article 5(2) of the Constitution, it is inviolable obligation to obey the Constitution and
the law as the judgment of Supreme Court of Pakistan is the law of the land which has to be
implemented in letter and spirit without any fail.
11. Basically the gist of the stance taken by the learned counsel for the Respondents
Sahibzada Muzaffar Ali, Advocate is that the LDA has taken action under section 39(3) of
the Act which was substituted through amendment in 2013 but perusal of the same reveals
that it is also subject to provision of giving hearing to the parties because it starts with the
words "Subject to opportunity of hearing" which is only confined to take action and not to
demolish the property, any building, structure or work. In this case, the property is owned by
the petitioners therefore, they cannot be termed as unauthorized occupants of the property as
provided under section 39 of the Act and thus the provision to eject the Petitioners under
section 39 is not applicable to the Petitioners, hence action taken by the Respondents is
unwarranted and uncalled for. On the other hand, perusal of section 40 of the Act reveals that
it deals with the removal of buildings but this is also subject to opportunity of being heard as
per section 40(2) of the Act. The Respondents-LDA under this section can only take an
action of removal of building, structure, work or land if it is erected, constructed or used in
contravention of the provisions of the Act or of any rule, regulation or order made
thereunder. However, in this case, the Petitioners who are owners of the property as reflected
by the local commission report and raised construction thereon including erecting boundary
wall with the permission and consent of LDA, as per the Agreement. It is also pertinent to
mention here that the Petitioners build those houses and raised that boundary wall around
their exclusively owned property three decades ago which is not in contravention of any of
the provision of the Act and this is unequivocally established from the fact that despite of the
lapse of such prolonged time, the Respondents/LDA never raised this issue in the last more
than thirty-four (40) years and now estopped from doing so being hit by laches and
acquiescence.
12. The word "land" is defined under section 2(o) of the Act and "person" is defined under
section 2(t) of the Act while the powers and functions of the authority are defined under
section 6 of the Act. The Act has chapters and provisions to deal with matter as per the
sections under the respective chapters. The provision invoked by LDA under section 40 is
under Chapter IX which deals with "Miscellaneous" subjects. For an action to be taken under
section 40 of the Act, certain limitation and conditions are necessary to be fulfilled as the
provision is only applicable for removal of a building, structure, work or land erected,
constructed or used in contravention of the provisions of the Act which is condition
precedent with the most important and necessary ingredient to be fulfilled before applying
this provision is the provision of hearing to the party against whose interest, action is going
to be taken and if the Director General is satisfied only after then it can require the owner,
occupier or person to remove/demolish or alter such construction or part. However, the Act
does not provide or give mandate to LDA for taking law in their own hands and demolish the
property or land without hearing out the parties and fulfilling the mandatory requirements of
the Act.
13. In the instant case, as discussed above, the Respondents bypassed the requirements of
law and did not give any notice to the Petitioners and without providing them an opportunity
of being heard and arbitrarily took recourse to drastic measures, which is though provided in
law but not intended to be adopted in such a manner which negates not only the mandatory
requirements provided under the Act but also hampers the Petitioners' fundamental right of
due process of law which is provided and protected under Article 10-A of the Constitution in
which right of fair trial and due process is granted to all citizens. In this regard, learned
counsel relied on the recent judgment of this Court reported as Muhammad Aslam v.
Member (Colonies) Board of Revenue Punjab Lahore and others (2019 CLC 1141) wherein it
has been held as under:-
(A) Notice:
Before any action is taken, the affected party must be given a notice to show cause against
the proposed action and seek his explanation. It is a sine qua non of the right of fair
hearing. Any order passed without giving notice is against the principals of natural
justice and is void ab initio. Before taking any action, it is the right of the person to
know the facts. Without knowing the facts of the case, no one can defend himself. The
right to notice means the right of being known. The right to know the facts of the suit
of case happens at the start of any hearing. Therefore, notice is a must to start a
hearing. A notice must contain the time, place and date of hearing, jurisdiction under
with the case is filed, the charges, and proposed action against the person. All these
things should be included in a notice to make it proper and adequate. Whenever a
statute makes it clear that a notice must be issued to the party and if no compliance or
failure to give notice occurs, this makes the act void. Non-issue of the notice or any
defective service of the notice do not affect the jurisdiction of the authority but
violates the principle of natural justice.
(B) Hearing: - Oral or Personal Hearing- How Far Necessary:
The second ingredient of audi alteram partem (hear the other side) rule is the rule of
hearing. If the order is passed by the authority without providing the reasonable
opportunity of being heard to the person affected by it adversely will be invalid and
must be set aside. The reasonable opportunity of hearing which is also well known as
'fair hearing' is an important ingredient of the audi alteram partem rule. This condition
may be complied by the authority by providing written or oral hearing which is the
discretion of the authority, unless the statue under which the action being taken by the
authority provides otherwise. It is the duty of the authority who will ensure that the
affected party may be given an opportunity of hearing. However, the above rule of
fair hearing requires that the affected party should be given an opportunity to meet the
case against him effectively.
14. It is the basic principle of law that if law provides a mechanism for doing an act,
taking an action or initiating certain measures, then the same must be complied with as and
when the law provided that things to be done in a particular manner, the same are to be done
in that manner and if anything is done contrary or in deviation to that, the same shall be
deemed to have not been done at all. Requirement of issuing prior Notice and providing
opportunity of hearing was a mandatory requirement before taking measures under section 40
of the Act, and the Respondents' failure to comply with the same before demolishing
boundary wall erected within privately owned property of the Petitioners, which was in
consonance with the Agreement executed between the parties, have rendered their action
astray from the course of law and thus cannot be termed in accordance with law and cannot
get the protection of the very provision, which is violated by the respondents themselves. It is
settled principle of law that if base/foundation of any order or action is illegal then whole
superstructure built thereupon cannot be sustained. When the law specifies a particular
manner and procedure then it is obligatory for the functionary of the state to adhere to the
same and comply with it in all respects and any negligence, failure or omission to do so
invalidate the proceedings on account of which whole superstructure raised on such defective
foundation automatically crumbles down. The Larger Bench of Honorable Supreme Court in
"Yousaf Ali v. Muhammad Aslam Zia and 2 others" (PLD 1958 Supreme Court (Pak.) 104)
expounded this principle by observing that "if on the basis of a void order subsequent orders
have been passed either by the same authority or by other authorities, the whole series of
such orders, together with the superstructure of rights and obligations built upon them, must,
unless some statute or principle of law recognizing as legal the changed position, of the
parties is in operation, fall to the ground because such orders have as little legal foundation
as the void order on which they are founded."
Similarly, the Honorable Supreme Court in "Executive District Officer (Education),
Rawalpindi v. Muhammad Younas" (2007 SCMR 1835) also held that "It is a settled law that
when the basic order is without lawful authority then the superstructure shall have to fall on
the ground automatically". Whereas the august Supreme Court in "Rehmatullah and others v.
Saleh Khan and others" (2007 SCMR 729) also upheld the similar principle by observing "it
is settled law when the basic order is without lawful authority then all the super structure
shall fall on the ground automatically as law laid down by this Court in Yousaf Ali's case
PLD 1958 SC 104 and Crescent Sugar Mills' case PLD 1982 Lah. 1". The Islamabad High
Court in "National Institutional Facilitation Technologies (Pvt.) Limited through duly
Authorized Officer v. The Federal Board of Revenue through Chairman and 7 others" (PLD
2020 Islamabad 378) examined this principle in detail in the light of earlier precedents of
Superior Courts of the Country and observed that "In the case of Yousaf Ali v. Muhammad
Aslam Zia (PLD 1958 SC 104), it has been held inter alia that if on the basis of a void order
subsequent orders have been passed either by the same authority or by other authorities, the
whole series of such orders, together with the superstructure of rights and obligations built
upon them must, unless some statute or principle of law recognizing as legal the changed
position of the parties is in operation, fall to the ground because such orders have as little
legal foundation as the void order on which they are founded. The law laid down in the said
case has consistently been followed by the Superior Courts of this country in several cases
including but not limited to Muhammad Tariq Khan v. Khawaja Muhammad Jawad (2007
SCMR 818), Rehmatullah and others v. Saleh Khan (2007 SCMR 729), Talib Hussain v.
Member Board of Revenue (2003 SCMR 549), Pakistan Industrial Promoter v. Nawazish Ali
Jafri (2003 YLR 1277) and Crescent Sugar Mills and Distally Limited v. Central Board of
Revenue (PLD 1982 Lahore 1)". Likewise, the Division Bench of Sindh High Court in "Asad
Jamal Daudpoto v. Assistant Commissioner Ratodero and 4 others" (2020 CLC 1945) also
uphold the similar principle by observing that "it is also well settled law that things required
to be done in a particular manner the same are to be done in that manner and, if anything is
done contrary to that, the same shall be deemed to have not been done at all. And, thus the
alleged sale of the subject land embodied in the aforesaid entry also does not seem to be
valid. It is also well settled law that if the foundation is illegal and defective then entire
structure built on such foundation, having no value in the eye of law would fall on the
ground". Furthermore, the Sindh High Court in "Ahmed and others v. Nazir Ahmed and
others" (2019 CLC 1841) also held that "It is also well settled that if the foundation is illegal
and defective the entire structure built on such foundation having no value in the eye of law,
would fall on the ground.". Moreover, the Islamabad High Court in "BNP Pvt. Ltd. and
others v. Capital Development Authority" (PLD 2017 Islamabad 81) held that "An illegal and
void foundation cannot create a right and any superstructure built thereon would equally
remain illegal and void. Moreover, no right can be claimed in violation or supersession of
statutory provisions". The Division Bench of this Court in "Muhammad Hassan v. Messrs
Muslim Commercial Bank Ltd. through Branch Manager and 3 others" (2003 CLD 1693)
also hold the similar principle as "it is a well settled principle of law that where the
foundation is defective, the entire edifice built thereon would fall to the ground." Similarly
this Court in "Ali Bahadur v. Municipal Committee, Arifwala and 7 others" (1999 MLD 142)
also held the same principle in the following manner "It is an established principle of law
that if a base of an action is wrong all the superstructure made thereupon has got no sanctity
under the law." Likewise this Court in "Ghulam Hussain v. Settlement Commissioner,
Multan and others" (1983 CLC 2972) uphold the similar principle by observing that:- "Mere
issuance of a P.T.D. on the basis of a void order of auction will not make the entire
proceedings lawful. As earlier pointed out, any superstructure raised thereupon is bound to
fall to the ground."
15. Learned Counsel for the Respondents has also objected to the maintainability of the
instant constitutional petition on the ground that civil suit is pending between the parties and
therefore recourse to Article 199 of the Constitution cannot be taken as the same is only
available in cases where no alternate remedy is available. I am constrained to observe that the
lis before Civil Court is regarding title, declaration and mandatory injunction whereas this
Constitutional petition has been filed against "the illegal action" of the Respondents, which
does not only violate Petitioners' fundamental right to privacy of home guaranteed under
Article 14 of the Constitution but at the same time infringed their fundamental right of
holding property as provided under Article 23 of the Constitution as well as undermined
protection of his property rights as guaranteed by Article 24 of the Constitution. More so, the
actions of the Respondents have seriously jeopardized the constitutional protection of due
process of law provided under Article 10-A of the Constitution, therefore, actions of the
Respondents which clearly breached the fundamental rights of the Petitioners provided and
protected under the Constitution, was amenable before this Court within the meaning of
Article 199 of the Constitution, which mandates that High Court on the application of any
aggrieved person can make an order or give such directions for the enforcement of any of the
Fundamental Rights. The relevant portion of Article 199 of the Constitution is reproduced
hereinbelow:-
199. Jurisdiction of High Court.- (1) ----
(a) ---
(b) --
(c) on the application of any aggrieved person, make an order giving such directions to
any person or authority, including any Government exercising any power or
performing any function in, or in relation to, any territory within the jurisdiction of
that Court as may be appropriate for the enforcement of any of the Fundamental
Rights conferred by Chapter 1 of Part II.
16. The instant constitutional petition assails the actions of the Respondents/LDA as
violative to their Fundamental Rights and constitutional guarantees and since it involves
enforcement of the Fundamental Rights, so the objection on the maintainability of the
petition raised by the respondents does not hold water. Same was the reason when this Court
while considering the fact that prima-facie, the Respondents-LDA had demolished the entire
boundary wall of the property of the Petitioners granted interim relief on the touchstone of
Articles 23 and 24 of the Constitution on 26.08.2019 as adequacy of an alternative remedy is
to be judged in relation to the requisite relief. If the relief available through the alternative
remedy, in its nature or extent is not what is necessary to give the requisite relief, the
alternative remedy is not an "other adequate remedy" within the meaning of Article 199 of
the Constitution. The Division Bench of Sindh High Court in "Syed Dost Ali v. Federation of
Pakistan through Secretary Defence and 2 others" (2016 CLC 367) also held that "in cases
where remedy including by way of a civil suit is neither adequate nor efficacious and does
not give the requisite relief then in such peculiar circumstances invoking the writ jurisdiction
even during pendency of suit is not prohibited." The Islamabad High Court in "Muhammad
Raza and others v. Jammu And Kashmir Co-operative Housing Socieity, and others" (PLD
2013 Islamabad 49) also laid down the similar principle by holding that "as far as objection
regarding the pendency of civil suit is concerned, the same loses force in the present situation
because where there is a clear violation of rules and where authority acts in a manner
altogether unwarranted by law, the remedies provided under the law need not be exhausted
before having recourse to the constitutional jurisdiction of this Court." The august Supreme
Court in an earlier judgment "Salahuddin and 2 others v. Frontier Sugar Mills and Distillery
Ltd., Tokht Bhai and 10 others" (PLD 1975 Supreme Court 244) answered such eventuality
by holding that where civil suit does not provide an alternative effective remedy then
pendency of civil suit does not bar exercise of Writ jurisdiction by the High Court. It was
observed by the apex Court "Learned counsel for the appellant is right in pointing out that
the learned Judges in the High Court overlooked the fact that in the civil suit the legality of
the proceedings of the meeting held on the 15th of June 1972 was not under challenge, as the
suit had been filed before the date of this meeting, with the object of restraining the
defendants from holding the same. The suit, however, did not prove effective, as temporary
injunction was refused by the trial Court only one day before the meeting was scheduled to
be held. It would, therefore, appear that, on the factual plane, the suit filed by the appellants
could not be regarded as an adequate alternative remedy. Even otherwise, on principle, the
weight of authority is in favour of dealing with such matters in the exercise of the writ
jurisdiction of the High Court rather than by way of civil suits."
17. The upshot of above discussion is that the instant Constitutional Petition is allowed
and the actions of Respondents for demolishing the boundary wall erected within the
privately-owned property of the Petitioners as constructed in consonance with the Agreement
executed between the parties back on 17.03.1985, is declared to have been done in disregard
and without proper procedure provided under the law.
SA/M-170/L Petition allowed.

2021 C L C 2051
Citation Name: 2021 CLC 2051 KARACHI-HIGH-COURT-SINDH
[Sindh]
Before Nazar Akbar, J
MUHAMMAD NAZIR AWAN----Plaintiff
Versus
IMTIAZ FATIMA RIZVI and another----Defendants
Suit No.1279 of 2017, decided on 12th July, 2021.
(a) Qanun-e-Shahadat Order (10 of 1984)---
----Art.17 & 117---Constitution of Pakistan, Arts. 24 & 172---Danger of mis-appropriation of
suit property---Power/duty of Court to take possession and declare as ownerless---Suit for
specific performance---Plaintiff allegedly paid Rs.27,900,000/- to defendants through
cheques for purchasing suit property---Balance amount of Rs.31,00,000/- was agreed to be
paid at the time of transfer of the property in the name of plaintiff---Plaintiff averred that he
cleared the utility bills/charges, and also paid a sum of Rs.11,00,000/- for obtaining
completion plan of the suit property to relevant authority on request of defendants; yet the
defendants not willing to transfer property despite many requests made by contacting them
through different methods---Plaintiff sent legal notice and thereafter filed suit for
declaration/specific performance---Notices sent but on non-appearance of defendants no
effort was made to serve them through publication---Court ordered for ex parte proceeding---
Plaintiff deposited balance sale consideration amount with the Nazir---Ad-interim order
earlier granted was confirmed---Held, that irrespective of absence of defendants, the plaintiff
had to prove existence of facts to get the judgment---Token money was through undated
cheque and name of the drawee bank was not disclosed---None of the two witnesses of
receipt had been produced to testify---Other cheque was in the name of none of the
defendants---Cheque was not proof of payment of sale consideration nor was there any
receipt of even handing over of such cheque to any of the defendants---Such cheque had not
been shown to have been encashed by the recipient---Plaintiff also failed to prove execution
of sale agreement under Art. 79 of Qanun-e-Shahadat, 1984---None of the witnesses of the
sale agreement was produced and a copy of another receipt annexed thereto showing
payment of amount was not attested by any one though relating to financial transaction---
Cheque number, name of recipient and bank was not mentioned in the agreement/receipt
despite the alleged fact that sale agreement was preceded by the payment---Signatures of one
of defendant on first ever receipt of token payment were entirely different from his purported
signatures on sale agreement and were even distinguishable by naked eye-Photocopy of
dubious general power of attorney not bearing specimen signature of attorney, not properly
stamped, and not authorizing the said defendant to execute sale agreement; hence further
damaged the case of the plaintiff regarding the possession of the suit property---Plaintiff's
possession on suit property was also illegal as per even the inadmissible said power of
attorney as the plaintiff admitted that he had not paid entire sale consideration to claim
possession---Alleged payment for obtaining completion plan also not proved---Copy of
alleged legal notice had not been produced---Plaintiff's deliberate failure for 5 years to verify
the particulars of seller and his/her title as prudent man before/after payment of token money
to defendant leaded that no such transaction had even taken place---Plaintiff was not entitled
to discretionary relief of specific performance---High Court directed the Nazir of the Court to
visit the suit property within 24 hours, take photographs from inside to preserve the status of
property, thereafter takeover possession of the suit property from the plaintiff within 15 days
and ensure that all the dues of bills/charges were cleared by the occupant---Area police
should also be informed in advance to handle situation in any resistance---Nazir was
authorized to remove locks and prepare an inventory of all the items lying therein and place
his locks and seal on each door of the suit property---Nazir was further directed to approach
NADRA authorities in locating the actual owner through her Overseas Pakistani NIC no. as
mentioned in evidence file, and place a board in front of property stating that property was in
possession of High Court and whoever knowing whereabouts of the owner should approach
the Nazir thereof---After six month the suit property should be deemed to have been
escheated to the State in terms of Art.172 of the Constitution---Suit was dismissed
accordingly with cost of Rs.100,000.
(b) Constitution of Pakistan---
----Art. 23, 24 & 172---Danger of mis-appropriation of un-attending party---Plaintiff's
alleged sale agreement had not been proved who attempted to misuse the process of Court for
giving legal cover to his unlawful possession of the suit property---No one had come forward
to claim the suit property, which confirmed that the whereabouts of actual female owner of
the suit property were not traceable and suit property was in danger of mis-appropriation---
As to ensure that unscrupulous person/plaintiff should not be allowed to remain in possession
of the suit property taking advantage of either his own knowledge that the defendant/owner
had expired or otherwise her whereabouts could not be traced in Pakistan, Court had duty to
invoke the provisions of clauses (b) & (d) of sub-Article 24(3) of the Constitution to remove
the illegal occupant and handover it to the State to protect the immoveable property.
(c) Constitution of Pakistan---
----Art.172---Succession Act (XXXIX of 1925), Ss.269 & 300---Power/duty of court to
declare the suit property as 'ownerless'---If Court was satisfied that none is known to the
Court for having any right/entitlement in the suit property and/or that there was 'risk of loss
or damage' to the suit property, the Court would first require to find out the actual owner/its
legal heirs before holding that the suit property was escheatable and liable to be declared as
an ownerless property.
Arshad Iqbal Rana for Plaintiff.
Imtiaz Fatima Rizvi for Defendant No.1.
Syed Muhammad Mehdi Rizvi (Nemo) for Defendant No.2.
Date of hearing: 20th April, 2021.
JUDGMENT
NAZAR AKBAR, J.----The plaintiff on 16.05.2017 has filed this suit against the
defendants for Declaration, Specific Performance of Agreement of sale and Permanent
Injunction.
2. Brief facts of the case are that the plaintiff on 30.09.2015 handed over a cheque of 10%
amounting to Rs.31,00,000/- as token payment to defendant No.2 in respect of purchase of
double storey house No.5/1, "D" Street, Phase-V, DHA, Karachi measuring 569.50 sq. yards
(the suit property) on as is where is basis. On 18.11.2015 after receipt of another amount of
Rs.2,48,00,000/-, the defendants entered into an agreement to sell with the plaintiff in respect
of the suit property for a total sale consideration of Rs.3,10,00,000/- and defendants
accordingly acknowledged in the said agreement that upto the singing of the sale agreement,
they have received Rs.2,79,00,000/- 90% of the total sale consideration and also made a
separate receipt thereof. The balance amount of Rs.31,00,000/- was agreed to be paid to
defendants at the time of transfer of the suit property in the name of plaintiff. It is averred
that the plaintiff on verbal requests of defendants, also paid and cleared the utility bills and
charges, which amount was otherwise liability of the defendants prior to handing over
possession of the suit property. It was further averred that thereafter on request of
defendants, the plaintiff also paid a sum of Rs.11,00,000/- for obtaining completion plan of
the suit property from the office of Clifton Cantonment Board. In January, 2017 the office of
Clifton Cantonment Board approved and handed over the original completion plan of the suit
property to the plaintiff and the only formality left for transfer of the suit property was to
execute sale deed in favour of the plaintiff as per agreement to sell dated 18.11.2015. It is
also averred that the plaintiff made several phone calls, messages, Whatsapp etc asking them
to come and transfer the suit property, as he is ready to pay the balance sale consideration but
the defendants have not paid any heed rather they have indicated that their family is not
willing to transfer property in the name of the plaintiff. Therefore, the plaintiff first sent legal
notice to the defendants through his counsel and subsequently filed the instant suit for
Declaration, Specific Performance of Agreement and Permanent Injunction.
3. Notices of the instant suit were sent to the defendants through courier service and the
same were declared served upon them, however, on their none-appearance no efforts were
made to serve them through publication. However, by order dated 17.09.2018 the matter was
ordered to be proceeded ex parte against them. Then on 16.01.2019 the plaintiff was directed
to deposit balance sale consideration amount of Rs.31,00,000/- and the plaintiff had
deposited the said amount with the Nazir, therefore, the ad-interim order earlier granted was
confirmed. Evidence of plaintiff has been recorded and he produced original sale agreement
as Ex:P/2; original receipt of token payment of Rs.31,00,000/- as Ex:P/3; photocopy of
general power of attorney executed by defendant No.1 in favour of defendant No.2 as
Article-1; photocopy of cross cheque dated 18.11.2015 for Rs.2,48,00,000/- as Article-2;
photocopy of payment receipt dated 13.01.2016 issued by DHA as Article-3; photocopy of
certificate for regularization completion plan of building violations issued by Clifton
Cantonment Board, DHA, Karachi dated 13.01.2017 as Article-4; photocopy of cross-cheque
of balance sale consideration in favour of Nazir of this Court and statement filed by the
plaintiff as Ex:P/4 and P/4-A. Since the defendants were not appearing before the Court,
therefore, cross-examination was marked as NIL.
4. I have heard learned counsel for the plaintiff and perused the record.
5. Learned counsel for the plaintiff has contended that the evidence of the plaintiff has
gone un-rebutted and, therefore, the suit may be decreed. However, to few queries from the
Court regarding admissibility of the document produced in evidence and the proof of
payment of sales consideration, such as that how a simple cheque issued by the plaintiff in
favour of someone else can be considered as payment through the said cheque towards sale
consideration to the owner of the suit property unless proved to have been encashed and/ or
otherwise the said amount is transferred to the account of the owner/seller of immoveable
property. He conceded that the plaintiff has not produced evidence from his bank to show
that the proceeds of cheques issued by him were transferred into the account of the owner of
the suit property. It is settled principle of law that irrespective of absence of the other side
according to Article 117 of the Qanun-e-Shahadat Order, 1984, the plaintiff has to prove
existence of facts to get the judgment as to his legal rights. Every transaction of money has to
be established through a proper receipt showing due acknowledgement in presence of
witnesses as required under Article 17 of the Qanun-e-Shahadat Order, 1984. Ex:P/3 is first
ever receipt said to have been issued by defendant No.2 on 30.09.2015 towards 10% payment
of token money for purchase of the suit property. In the first place on 30.09.2015 defendant
No.2 was not even authorized to receive the token payment and the perusal of the receipt
shows that it was through cheque No.48221270, dated NIL and even the name of the drawee
bank is not disclosed on it. None of the two witnesses of Ex:P/3 have been produced in Court
to testify that the said undated cheque of an unidentified bank was handed over by the
plaintiff to defendant No.2 as token payment. A photocopy of another cheque of
Rs.2,48,00,000/- dated 18.11.2015 produced in evidence as "Article-2" also allegedly
towards payment of sale consideration is totally out of any relevance to the so-called
transaction of sale of suit property. It is neither in the name of defendant No.1 nor in the
name of defendant No.2. This cheque, too, is not proof of payment of sale consideration nor
there is any receipt of even handing over of this cheque to any of the defendants. This
cheque, too, has not been shown to have been encashed by the recipient. In any case the
payment of Rs.2,48,00,000/- by no means can be considered as proof of payment towards
sales consideration in favour of defendant No.1.
6. The plaintiff has also failed to establish the very existence of agreement of sale
(Ex:P/2). Like his failure to produce any witness of payment receipts or otherwise any cogent
evidence to show the transaction of money as sale consideration to the owner of the suit
property, the plaintiff has also failed to prove execution of sale agreement as required under
Article 79 of the Qanun-e-Shahadat Order, 1984, which is reproduced below:-
79. Proof of execution of document required by law to be attested. If a document is
required by law to be attested, it shall not be used as evidence until two attesting
witnesses at least have been called for the purpose of proving its execution, if there be
two attesting witnesses alive and subject to the process of the Court and capable of
giving evidence.
None of the witnesses of the agreement of sale have been produced and a copy of another
receipt annexed to it showing a payment of Rs.2,79,00,000/-, too, is not even attested by any
one though it also relates to financial transaction. Independent to the agreement, this receipt
was also required to be attested by two witnesses in terms of Article 17 of the Qanun-e-
Shahadat Order, 1984, which is reproduced below:-
17. Competence and number of witnesses. (1) the competence of a person to testify, and
the number of witnesses required in any case shall be determined in accordance with
the injunctions of Islam as laid down in the Holy Quran and Sunnah.
2. Unless otherwise provided in any law relating to the enforcement of Hudood or any
other special law,
(a) In matter pertaining to financial or future obligations, if reduced to writing, the
instrument shall be attested by two men, or one man and two women, so that one may
remind the other, if necessary, and evidence shall be led accordingly;
(b) In all other matter, the Court may accept, or act on, the testimony of one man or one
woman or such other evidence as the circumstances of the case may warrant.
Besides the above, both the clause-1 of the agreement and the receipt attached to it carries
blank which needed to be filled by showing mode of payment to the Vendor, defendant No.1.
To be exact it is reproduced below:-
NOW THEREFORE THIS AGREEMENT WITNESSETH AS UNDER:-
"1. That the Vendor has this day received from the Vendee a sum of Rs.2,48,00,000/-
(Rupees Two Crore Forty Eight Lacs only) Vide
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_________________________________________________ and has already received
Rs.31,00,000/- (Rupees Thirty One Lacs only) as advance money making a total sum
of Rs.2,79,00,000/- (Rupees Two Crore Seventy Nine Lacs only) being the 90%
advance payment towards sale consideration of the 'Said Property' receipt of which
the Vender hereby fully admit and acknowledge separately."
As stated above no separate receipt of payment of Rs.2,48,00,000/-was issued and in the
agreement even cheque number is not mentioned. If the sale agreement was after the payment
of Rs.2,48,00,000/- through cheque, as averred in para-2 of the plaint, then why cheque
number, name of recipient and bank was not filled in even by handwriting in the agreement
and the so-called receipt. The photocopy of the cheque produced and marked as "Article-2"
shows that it is not in the name of the vendor. I am also surprised to note that signatures of
defendant No.2 on Ex:P/3 the first ever receipt of token payment allegedly executed by him
are entirely different from his purported signatures available on agreement of sale (Ex:P/2).
The naked eye definitely distinguishes the signatures of defendant No.1 of these two
documents.
7. The plaintiff has also averred that a general power of attorney was executed by
defendant No.1 in favour of defendant No.2 and a photocopy of the same has been produced
and marked as "Article-1". The perusal of this simple photocopy shows that it does not bear
specimen signature of the attorney. It is neither properly stamped nor it authorizes defendant
No.2 to execute even a formal sale agreement on behalf of defendant No.1. The photocopy of
dubious general power of attorney further damages the case of the plaintiff as regards the
possession of the suit property. It clearly stipulates that "the possession of the house will be
given to the purchaser once complete payment is paid to my son". It means the possession of
the plaintiff is also illegal as from the own showing of the plaintiff he has not paid entire sale
consideration to claim possession as per even the inadmissible power of attorney. Likewise,
the plaintiff has claimed to have paid a sum of Rs.11,00,000/- to DHA on oral instruction of
defendant for obtaining completion plan of the suit property from the office of Clifton
Cantonment. A photocopy of this document has been produced and marked as "Article-3" but
its original has not been produced on the pretext that it was allegedly handed over by the
plaintiff to defendant No.2 in January, 2017 (Para-4 of the plaint). The requirement of DHA
is that the payment should be through cross cheque or bank draft. If this amount has been
paid by the plaintiff from his own funds, then at least a copy of cross pay-order or bank draft
in favour of DHA should have been produced in evidence. This photocopy is not proof of
any payment made by the plaintiff and even if so, it does not improve the case of the plaintiff
for specific performance of the contract. It is pertinent to note that the suit has been filed in
May, 2017 after sending a formal legal notice to the defendants as stated in the plaint but no
such legal notice has been produced in evidence.
8. Beside the above, it may be noted that the plaintiff himself seems to be fully aware of
weakness of his claim against defendant No.1. The plaintiff is probably in some undisclosed
dispute with defendant No.2 and to settle his score with him, the plaintiff after taking illegal
possession of the suit property knowing that the owner of the suit property (defendant No.1)
is out of Pakistan, has threatened ONLY defendant No.2 to initiate criminal proceedings
against him in para-9 of the plaint in the following terms:-
"9. Hence the Plaintiff while reserving his right to initiate Criminal proceeding against
defendant No.2 if and when required, files this suit for Declaration, Specific
Performance of the agreement 18th November, 2015 and Permanent Injunction. To
 hold the defendants liable, either to compensate the plaintiff for payment of double
the amount of total agreed sale consideration and or otherwise to compel them to
immediately transfer said property in the name of the plaintiff with other prayers of
Injunction etc. therefore the Plaintiff through his Counsel have already served a Legal
Notice to defendants."
In addition to the above, since the plaintiff knew that he has not entered into any agreement
of sale with the owner of the suit property, he has not taken any step to find out the status of
suit property whether it is free from any charge/encumbrance or any other liability to protect
his possible rights under the agreement of sale for smooth and peaceful transfer of title of the
suit property to him. (i) He did not demand/obtain copy of the title documents from any of
the defendants; (ii) He has never approached the Registrar of Properties on the basis of
agreement of sale to obtain search certificate of the suit property to ascertain who is owner of
the suit property; (iii) He has not issued a public notice in newspapers inviting any objections
to sale of the suit property through the so-called sale agreement with the defendants.
9. The plaintiff's deliberate failure from November, 2015 till date to verify the particulars
of seller and his/her title as prudent man before or immediately after payment of token
money to defendant No.2 points towards the fact that no such transaction has even taken
place, therefore, he is not entitled to discretionary relief of specific performance of a contract
of sale of immoveable property owned by a woman. However, in the peculiar facts and
circumstances of this case, dismissal of suit simplicitor would not serve the ends of justice.
The record clearly suggests that the plaintiff has unlawfully and illegal occupied the suit
property. His so-called sale agreement has not been proved and his alleged possession was by
all means unfair and/or in a manner contrary to law. He through the instant proceedings has
attempted to misuse the process of Court to give some legal cover to his otherwise unlawful
possession of the suit property. This suit was filed in 2017 and irrespective of the way in
which service of summons has been declared as served on a woman, during the last 04 years
no-one has come forward to claim the suit property even as a legal heir of the owner. This
fact confirms that the whereabouts of actual owner of the suit property, who is a woman, are
not traceable and these proceedings clearly suggesting that the plaintiff has illegally and
unlawfully entered in the suit property, therefore, it is in danger of mis-appropriation only
because its owner is not available in Pakistan to diligently take care of it. In these
circumstances, it is duty of the Court to ensure that unscrupulous person like the plaintiff on
dismissal of his suit should not be allowed to remain in possession of the suit property which
he has acquired by unfair means and/or in a manner contrary to law taking advantage of
either his own knowledge that the defendant/owner has expired or otherwise his/her
whereabouts cannot be traced in Pakistan.
10. The Court cannot be oblivion of the present state of affairs in our country which at
times compels owners of immoveable properties to temporarily settle outside Pakistan
without making proper arrangement for protection of their properties back in Pakistan and
they either fell terminally ill while in a kind of self-exile and later on died and their legal
heirs keeping in view the law and order situation and corruption do not dare to come forward
to lay their hand to such properties. I am of the considered opinion that in a situation like
this, it is the duty of the Court to invoke the provisions of Article 24 of the Constitution of
Islamic Republic of Pakistan, 1973 to remove the illegal occupant and handover it to the state
to protect the immoveable property. It is indeed the duty of the State to protect all such
properties of its citizens in terms of Article 24 of the Constitution of Islamic Republic of
Pakistan, 1973 and takeover possession of such property under Article 24 clause 3(b) and (d)
of the Constitution of 1973 for a limited period to protect it for the benefit of its
owner. Article 24(3)(b) and (d) are reproduced herein below:--
24. Protection of property rights. (1) . . . .
(2) . . . . . . . . . . . . . . .
(3) Nothing in this Article shall affect the validity of __
(a) . . . . . . . . . . . . . . .
(b) any law permitting the taking over of any property which has been acquired by, or
come into the possession of, any person by any unfair means, or in any manner,
contrary to law; or
(c) . . . . . . . . . . . . . . .
(d) any law providing for the taking over of the management of any property by the State
for a limited period, either in the public interest or in order to secure the proper
management of the property, or for the benefit of its owner, or
However, the order of taking over of property by state can be passed by the Court only when
the Court is satisfied that none is known to the Court for having any right or entitlement in
the said property. In a situation like the one in hand the court is first required to find out the
actual owner and/or his/her legal heirs before holding that the suit property is escheatable
and liable to be declared as an ownerless property in terms of Article 172 of the Constitution
of Islamic Republic of Pakistan, 1973. It is reproduced below:-
172. Ownerless property. (1) Any property which has no rightful owner shall, if located in
a Province, vest in the Government of that Province, and in every other case, in the
Federal Government.
In addition to Article 24 of the Constitution, Succession Act, 1925 also deals with the
proposition that when and how the Court can interfere "for protection of property" even prior
to grant of any probate or letter of administration. Section 269 read with Section 300 of the
Succession Act, 1925 are the other enabling provisions of law to protect the suit property
pending the rightful owner or claimants of the property comes forward to the Court. These
two enabling sections are reproduced below:-
269. When and how District Judge to interfere for protection of property.---(1) Until
probate is granted of jurisdiction any part of the property of the deceased person is
situate, is authorized and required to interfere for the protection of such property at
the instance of any person claiming to be interested therein, and in all other cases
where the Judge considers that the property incurs any risk of loss or damage; and for
that purpose, if he thinks fit, to appoint an officer to take and keep possession of the
property. (Emphasis provided)
 300. Concurrent jurisdiction of High Court.---(1) The High Court shall have concurrent
jurisdiction with the District Judge in the exercise of all the powers hereby conferred
upon the District Judge.
11. In the case in hand though it is indeed not a case requiring interference for protection
of the property of a deceased person since we do not know whether the owner is alive or not,
but one thing is clear that there is "risk of loss or damage" to the suit property and the phrase
"and in all other cases" enlarges the scope of the authority of Court to cover cases of every
property at the risk of incurring loss or damage. Therefore, keeping in view of the facts of the
case in hand that the plaintiff has unlawfully occupied suit property of a citizen whose
whereabouts are not immediately traceable and the property is at risk of loss or damage by
the plaintiffs, therefore, to protect the suit property from further damage as an immediate
measure it has to be taken over by the court prior to handing it over to the State under Article
172 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the Nazir of this
Court is directed to visit the suit property within 24 hours and take photographs from inside
the suit premises to preserve' the status of the fitting and fixtures of the suit property. The
Nazir should takeover possession of the suit property from the plaintiff within 15 days and
ensure that all the dues of electricity and sui-gas bills/charges are cleared by the occupant. In
case of any resistance or if the suit property is found locked the Nazir is authorized to
remove locks and prepare an inventory of all the items lying therein and place his locks and
seal on each door of the suit property. The area police should also be informed in advance so
that if police aid is needed, it should be available readily and no fresh order to break open the
locks or police force to evict the plaintiff from the suit property is required.
12. However, Nazir is not supposed to retain the possession of the suit property of a
missing owner for an indefinite period. Therefore, Nazir is further directed to approach
NADRA authorities in locating the actual owner namely Mrs. Imtiaz Fatima Rizvi wife of
Wazir Alam Rizvi whose Overseas Pakistani NIC No.915090-115489-9 is mentioned in
evidence file (Ex:P/2) and also try to locate her legal heirs through the B-form of NADRA, if
any, was issued to the said Mrs. Imtiaz Fatima Rizvi.
13. Nazir should complete the exercise within six months and he should also put up a
board in front of the property stating that property is in possession of the High Court and if
anybody knows whereabouts of the owner or claimant may approach the Nazir of this Court.
In case nobody turns up to claim title to the suit property within six months the suit property
shall be deemed to have been escheated to the State in terms of Article 172 of the
Constitution of Pakistan, 1973 and Nazir should handover possession of the suit property to
the Deputy Commissioner (East) Karachi in whose jurisdiction the property is situated under
a proper documentation.
14. In view of the above facts and the law, the suit is dismissed with cost of Rs.100,000/-
to be borne by the plaintiff who is in illegal possession of the suit property. The Nazir while
taking over possession of the suit property will refund the amount deposited by the plaintiff
on 29.01.2019 together with returns that may have accrued on the said amount after
deducting Rs.100,000/- towards recovery of cost. Once the cost is recovered, Rs.25000 shall
be appropriated toward Nazir's fee for the exercise of recovery of possession of suit property
and out of remaining cost Rs.25000/- each may be given to the High Court Clinic, High
Court Employees' Benevolent Funds and Library of Sindh High Court Bar Association.
15. The Nazir is directed to submit compliance report on completion of 15 days from
today for perusal in Chamber by the Court.
ZH/M-91/Sindh Suit dismissed.

2019 S C M R 599
[Supreme Court of Pakistan]
Present: Qazi Faez Isa, Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ
Mst. Bibi SHAH BAN (DECEASED) through L.Rs. and others---Appellants
Versus
LAND ACQUISITION COLLECTOR, A.C., MARDAN and others---Respondents
Citation Name: 2019 SCMR 599 SUPREME-COURT
Civil Appeals Nos. 79-P and 143-P to 146-P of 2013, decided on 4th March, 2019.
 
(Against the judgment dated 01.04.2013 of the Peshawar High Court, Peshawar passed in
R.F.As. Nos. 104-P, 114-P, 116-P and 117-P of 2004)
 
(a) Land Acquisition Act (I of 1894)---
 
----Ss. 6, 23 & 48-A---Constitution of Pakistan, Art. 24---Land acquired for expansion of a
Government college---Delay of more than ten years between declaration and making of award---
Collector made his award and fixed the amount of compensation payable to the owners of the
land at the rate of Rs. 1079.37 per marla and fixed an amount of Rs. 21,994 as compensation for
the structures standing on the land---Fifteen per cent compulsory acquisition charges and eight
per cent simple interest was also awarded from date of notification by the Commissioner for
taking over the land---Collector noted that those from whom the land was acquired were left
without access to their remaining lands and therefore carved out six approach roads/pathways to
access their lands, but excluded the land falling under these approach roads/pathways for
payment of compensation---Reference filed before the Judge Land Acquisition against the award
was partly accepted and the Judge increased the price of the acquired land to Rs. 4,500 per marla,
reduced the interest per annum to six per cent and maintained the fifteen per cent compulsory
acquisition charges---High Court maintained the compensation that had been determined by the
Judge Land Acquisition, however, it awarded the cost of litigation to the land owners---Held,
that there had been an unjustifiable delay in making the Award---Declaration under S. 6 of the
Land Acquisition Act, 1894 ('the Act') was made on 14th January, 1986 and the Award was
made ten and a half years later on 4th August, 1996---Said Act envisaged an award to be made
within a year---Article 24(2) of the Constitution mandated the payment of compensation for land
compulsorily acquired---Depriving a person of property was an exception to the Fundamental
Right to hold and enjoy property---Owner must be promptly compensated for the compulsorily
acquired property---Designated authority (the Collector) had to determine the compensation
payable to the land owners (appellants) within a year but failed to do so and instead took ten and
a half years to make the Award---Judge Land Acquisition had noted that the acquired land was
situated on the main road and also had commercial value as it was situated in the vicinity of a
hospital, a college and the Office of the Forest Officer---Judge had also referred to documents,
including the fard jamabandi for the year 1994-95 produced by Patwari Halqa and the mutations
of lands in the area showing the price of land to be ten thousand rupees per marla at the relevant
time, and a judgment wherein the compensation in respect of land acquired in the same area a
few years previously was fixed at Rs. 6,000 (six thousand rupees) per marla---Despite noting
such facts, which had remained un-rebutted, the Judge increased the compensation to only Rs.
4,500 per marla---High Court had also disregarded the evidence on record, though it had noted
the price had increased and had expressed sympathy with the land owners---Land owners were
also entitled to receive compensation for the land used in approach roads/pathways, since the
value of such land had diminished because it could only be used as approach roads/pathways---
As regards the structures standing on the land the owners had valued the same at Rs. 2,000,000
(two million rupees), however, in the Award these were valued at Rs. 21,994 only---Since the
owners of the acquired area had not established that they had suffered damages on account of the
delay in making the Award beyond the period of one year, therefore, they were not entitled to
receive additional compensation under S. 48-A of the Act---Supreme Court directed that
compensation for the acquired land was to be paid at the rate of Rs. 10,000 per marla; that
compensation for the reduction in the value of land utilized for the approach roads/pathways,
was to be paid at the rate of Rs. 5,000 per marla; that compensation for the value of the
construction on the land was to be Rs. 200,000; and the cost of litigation was to be awarded to
the land owners---Appeal was disposed of accordingly.
 
(b) Land Acquisition Act (I of 1894)---
 
----S. 6---Land acquired for expansion of a Government college---College re-named after the
then serving Provincial Governor---Supreme Court raised the question whether the College
which was built on Government land and constructed out of public funds and for which land
compulsorily acquired had been paid out of public funds could be named after a living person
and one who held public office in the country---Supreme Court observed that since decision in
respect of the matter of naming the College may affect the naming of public buildings, public
parks, public roads and other public places not only in the province in question but also in other
parts of the country therefore notices were to be issued to the Advocate Generals of all the
provinces, the Federal Capital Territory and the Attorney General, all of whom were to file their
respective written submissions within six weeks---Supreme Court directed office to fix the
question raised for consideration of the Supreme Court as per the orders of the Chief Justice---
Appeal was disposed of in circumstances.
 
Abdul Sattar Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for
Appellants (in C.A. No. 79-P of 2013).
 
Ex parte for Respondents Nos. 1 - 5 (in C.A. No. 79-P of 2013).
 
Mujahid Ali Khan, Additional Advocate-General, Khyber Pakhtunkhwa for Respondent No.6 (in
C.A. No. 79-P of 2013).
 
Abdul Latif Yousafzai, Advocate-General, Khyber Pakhtunkhwa on Court's Notice (in C.A. No.
79-P of 2013).
 
Amjad Ali, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record along with Faqir
Jan, Admin Officer (in C.As. Nos.143-P to 146-P of 2013).
 
Ex parte for Respondents Nos. 1 - 7 (in C.As. Nos. 143-P to 146-P of 2013).
 
Nemo for Respondent No. 4 (in C.As. Nos. 143-P to 146-P of 2013).
 
Ex parte for Respondents Nos. 1 - 3, 5 - 10 (in C.As. Nos.143-P to 146-P of 2013).
 
Date of hearing: 13th December, 2018.
 
JUDGMENT
 
Qazi Faez Isa, J. The Government of N.W.F.P. (now Khyber Pakhtunkhwa) acting
through the Secretary Education issued notification dated 1st August, 1983 by which the
Government Comprehensive High School Mardan was renamed as the Public School Mardan
and transferred to it all lands, buildings, properties, assets and liabilities of the former. On 3rd
November, 1985 the Secretary Education issued another notification changing the name of the
school again and also upgrading it; the Public School Mardan was now named after the
incumbent Governor of the Province and made into a college, the "Fazle Haq College Mardan"
("the College").
 
2. The Government then decided to expand the College. On 24th October, 1985 the Collector,
Mardan, District Mardan ("the Collector") issued a notification under section 4 of the Land
Acquisition Act, 1894 ("the Act") identifying fifty five kanals and seventeen marlas of private
land lying adjacent to the College which could be used for the College and authorized a
preliminary investigation of the land. On 14th January, 1986 the Commissioner Peshawar
Division ("the Commissioner") issued a notification under section 17 of the Act taking over the
possession of the land and stating that the provisions of sections 5 and 54 of the Act will not be
applicable to the land. Nothing further happened for the next ten years. On 23rd January, 1996
the Commissioner issued a notification under section 6 of the Act declaring that the land was
required for a public purpose and directed the Collector to make an order for its acquisition under
section 7 of the Act.
 
3. On 4th August, 1996 the Collector made his award ("the Award") pursuant to section 11 of the
Act and fixed the amount of compensation payable to the owners of the land at the rate of
Rs.1079.37 paisas (one thousand and seventy nine rupees and thirty seven paisas) per marla and
fixed an amount of Rs. 21,994 (twenty one thousand, nine hundred and ninety four rupees) as
compensation for the structures standing on the land. Fifteen per cent compulsory acquisition
charges and eight per cent simple interest was also awarded from 14th January, 1986. The
Collector noted that those from whom the land was acquired were left without access to their
remaining lands and therefore carved out six approach roads/pathways to access their lands, but
excluded the land falling under these approach roads/pathways for payment of compensation.
Compensation was ordered to be paid only in respect of the fifty-two kanals and fifteen marlas of
land which had been acquired for the College ("the acquired land").
 
4. The owners (appellants in Civil Appeal No. 79-P/2013, "the private appellants") were
dissatisfied with the amount of the compensation fixed by the Collector and filed a reference
under section 18 of the Act against the Award. They alleged that the compensation fixed by the
Collector was well below the market price of Rs. 25,000 (twenty five thousand rupees) per marla
and the value of the construction on two kanals of the acquired land was Rs. 2,000,000 (two
million rupees). They however conceded that the law envisaged six per cent interest per annum
(instead of eight per cent interest as given in the Award). On 8th June, 2004 the reference was
partly accepted by the learned Judge Land Acquisition who increased the price of the acquired
land per marla to Rs. 4,500 (four thousand and five hundred rupees) per marla, reduced the
interest per annum to six per cent and maintained the fifteen per cent compulsory acquisition
charges; the compensation was payable from the date that the possession of the land was taken.
Thereafter, both sides filed regular first appeals ("RFAs") in the Peshawar High Court, Peshawar
against the judgment of the learned Judge Land Acquisition. In the RFAs the High Court
maintained the compensation that had been determined by the learned Judge Land Acquisition,
however, the learned Single Judge was pleased to award the cost of litigation to the private
appellants. Both sides then appealed to this Court. The private appellants seek enhancement of
compensation amount to Rs. 25,000 (twenty five thousand rupees) per marla and Rs.2,000,000
(two million rupees) for the said construction. The official appellants (who have filed Civil
Appeals Nos. 143-P to 146-P/2013) state that compensation as determined by the Collector in the
Award be reverted to.
 
5. The learned counsel for the private appellants (in Civil Appeal No. 79-P/2013) submitted as
under:
 
(i) Evidence was produced to show the sale and purchase transactions at the rate of Rs. 10,000
(ten thousand rupees) per marla during the relevant period;
 
(ii) The acquired land is situated on a main road and has the potential of considerable increase in
value;
 
(iii) The Award was made ten and a half years after the possession of the land was taken over
and during this period the price of the land had gone up considerably;
 
(iv) The owners remained deprived of the use of their land till the Award was made;
 
(v) For similar land compensation was determined at six thousand rupees per marla by the
Collector in the award dated 12th April, 1984 which was maintained by this Court on 17th
December, 1992;
 
(vi) The owners were entitled to additional compensation mentioned in section 48-A of the Act
(inserted by the N.W.F.P. Land Acquisition (Amendment) Act, V of 1987) but they were not
granted it; and
 
(vi) The land falling under the approach roads/pathways should not have been excluded from the
payment of compensation since it could only be used as approach roads/pathways.
 
The learned counsel relied upon the cases of Murad Khan v. Land Acquisition Collector (1999
SCMR 1647), Province of Punjab v. Jamil Ahmad Malik (2000 SCMR 870) and Province of
Punjab v. Begum Aziza (2014 SCMR 75).
 
6. Mr. Mujahid Ali Khan, the learned Additional Advocate General ("AAG"), and Mr. Amjad
Ali, the learned counsel for the College, opposed the appeal filed by the private appellants and
supported the appeals filed by the College. They stated that compensation was determined by the
Collector after he had personally visited the acquired land and the Award was made in
accordance with the prevailing market price and the law. Therefore, the learned Judge Land
Acquisition was not justified to increase the compensation amount. As regards the delay in
making the Award, they stated that the additional six per cent interest per annum payable to the
owners sufficiently compensates them, therefore, the delay in making the Award is
inconsequential.
 
7. We have heard the learned counsel for the parties and with their able assistance examined the
record. Section 23 of the Act stipulates the matters to be considered in determining
compensation. In the Province of Khyber Pukhtunkhwa section 48-A of the Act has been added
which states that the owner of land will also be entitled to damages suffered if the award is not
made within a year of the declaration under section 6 of the Act. Section 48-A is reproduced
hereunder:
 
"Compensation to be awarded when land not acquired within one year: (1) If within a period of
one year from the date of publication of declaration under Section 6 in respect of any land, the
Collector has not made an award under Section 11 in respect to such land, the owner of the land
shall, unless he has been to a material extent responsible for the delay, be entitled to receive
compensation for the damage suffered by him in consequence of the delay.
 
(2) The provisions of Part II of this Act shall apply, so far as may be possible, to the
determination of the compensation payable under this section."
 
8. There has been an unjustifiable delay in making the Award. The declaration (under section 6
of the Act) was made on 14th January, 1986 and the Award was made ten and a half years later
on 4th August, 1996. The Act envisages an award to be made within a year. Article 24 (1) of the
Constitution of the Islamic Republic of Pakistan ("the Constitution") stipulates that, "No person
shall be deprived of his property save in accordance with law." And, Article 24(2) of the
Constitution mandates the payment of compensation for land compulsorily acquired. Depriving a
person of property is an exception to the fundamental right to hold and enjoy property. The
owner must be promptly compensated for the compulsorily acquired property. The designated
authority (the Collector) had to determine the compensation payable to the private appellants
within a year but failed to do so and instead took ten and a half years to make the Award. The
learned High Court Judge had noted that the price of the land had increased on account of the
depreciation - devaluation of the rupee and further that the owners could not utilize their land
during the time it took to make the Award. However, he did not increase the compensation
amount despite also having observed that, "the affectees are required to be compensated to some
reasonable extent, deemed appropriate and justiciable in the circumstances of the case."
 
9. The learned Judge Land Acquisition, in deciding whether the owners were entitled to be
compensated as sought by the owners (Issue No. 5), had noted that the acquired land was situated
on the main road and also had commercial value as it was situated in the vicinity of Haroon
Surgical Hospital, the Government Commerce College, Mardan and the Office of the Forest
Officer, Mardan. He had also referred to evidence and the exhibited documents, including the
fard jamabandi for the year 1994-95 produced by Patwari Halqa and the mutations of lands in the
area showing the price of land to be ten thousand rupees per marla at the relevant time. He had
also referred to the judgment wherein the compensation in respect of land acquired in the same
area a few years previously was fixed at Rs. 6,000 (six thousand rupees) per marla. However,
despite noting these facts, which had remained un-rebutted, he increased the compensation to
only Rs. 4,500 per marla. The learned Judge of the High Court had also disregarded the evidence
on record, though he had noted the price had increased and had expressed his sympathy with the
private appellants.
 
10. To get a better understanding of the location of the acquired land and of the said approach
roads/pathways we had directed the College, "to file photographs of the land that was acquired
and the access to the remaining land of the persons from whom it was acquired." The
photographs filed by the College confirm that the land falling under the approach roads/pathways
cannot be used for any other purpose. When the use of such land is restricted in this manner then
the value of such land stands diminished, but no compensation has been awarded for such land.
 
11. This Court in the case of Murad Khan v Land Acquisition Collector (1999 SCMR 1647) with
regard to determining the compensation of land had considered the matters mentioned in section
23 of the Act and the scope of the expression market-value mentioned therein. Muhammad
Bashir Jehangiri, J writing for a three-member Bench of this Court reviewed the case law
comprehensively and derived the principles therefrom (paragraph 13, pages 1654-1657). This
seminal judgment has been continuously followed by this Court, including in the cited cases of
Province of Punjab v. Jamil Ahmad Malik (2000 SCMR 870) and Province of Punjab v Begum
Aziza (2014 SCMR 75). Applying section 23 of the Act and the principles expounded in the case
of Murad Khan the compensation payable to the private appellants needs to be revised.
 
12. The market-value of the acquired land at the relevant time as per the evidence on record was
Rs. 10,000 (ten thousand rupees) per marla. The owners of the acquired land therefore had to be
compensated at the rate of Rs. 10,000 (ten thousand rupees) per marla together with fifteen per
cent compulsory acquisition charges and six per cent interest per annum from the date of taking
possession of the acquired land, that is from 14th January, 1986.
 
The private appellants will also be entitled to receive compensation for the land used in approach
roads/pathways, measuring 2 kanals, 9 marlas and 7 sersais (as mentioned in the Award) since
the value of such land had diminished because it could only be used as approach roads/pathways.
However, evidence with regard to the reduction in the value of such land is not available. It has
been decades since the land was acquired and the approach roads/pathways were created,
therefore, it would not now be appropriate to remand the matter for the determination in the
reduction in the value of such land. This land also constitutes a very small portion of the acquired
land. Accordingly, we fix the compensation for the reduction in the value of the land used in the
approach roads/pathways at Rs. 5,000 (five thousand rupees), which is half the compensation
payable for the acquired land.
 
As regards the "abad houses on an area of 2 kanals of land" the owners had valued the same at
Rs. 2,000,000 (two million rupees), however, in the Award these are valued at Rs. 21,994
(twenty one thousand, nine hundred and ninety four rupees). The Award doesn't mention the
nature of such construction nor how its price was determined, instead the Collector relied on the
value as determined by the Patwari. Taking into account the value of the land, the area on which
the construction was raised and when it must have been raised (that is before the possession of
the land was taken over) we think that it would be valued at Rs. 200,000 (two hundred thousand
rupees) at the relevant time.
 
13. Since the owners of the acquired area had not established that they had suffered damages on
account of the delay in making the Award beyond the period of one year, therefore, they are not
entitled to receive additional compensation under section 48-A of the Act.
 
14. The compensation therefore payable by the College/Collector/ Government of Khyber
Pakhtunkhwa to the owners of the land (the private appellants herein) is as under:
 
(a) Compensation for the acquired land at the rate of Rs.10,000 (ten thousand rupees) per marla;
 
(b) The reduction in the value of 2 kanal, 9 marlas and 7 sersais of land utilized for the approach
roads/pathways, being at the rate of Rs. 5,000 (five thousand rupees) per marla;
 
(c) Compensation for the value of the construction to be Rs.200,000 (two hundred thousand
rupees); and
 
(d) The cost of litigation granted by the High Court.
 
15. For the reasons mentioned above Civil Appeal No. 79-P of 2013 is partly allowed in the
aforesaid terms and Civil Appeal Nos.143-P to 146-P of 2013 are dismissed. The order whereby
judgment in these appeals was reserved had concluded as under:
 
" After the announcement of the judgment in these appeals the office is directed to send the files
to the principal seat of this Court at Islamabad for determination of the question noted in the
following paragraph.
 
2. The learned counsel for the College informed us that previously the College was known as the
Government Comprehensive School and the land on which it stood was owned by the
Government, however, subsequently the said School was converted into the College and was
named after General Fazal Haq, the then Governor of the Province, when he was in office. The
question arises whether the College which was built on Government land and constructed out of
public funds and for which land compulsorily acquired had been paid out of public funds can be
named after a living person and one who held public office in Pakistan. The learned counsel for
the College is directed to submit concise statement in this regard and attach therein all
documents pertaining to the naming of the College. The learned Advocate General, Khyber
Pakhtunkhwa seeks time to take instructions and to formulate his views on the noted question.
Since our decision in respect of the matter of naming the College may affect the naming of
public buildings, public parks, public roads and other public places not only in the province of
the Khyber Pakhtunkhwa but also in other parts of Pakistan notices be issued to the Advocate
Generals of all the four provinces, the Islamabad Capital Territory and the Attorney General for
Pakistan, all of whom are directed to file their respective written submissions within six weeks,
whereafter the matter be fixed in Court for hearing."
 
16. After the announcement of this judgment the office is directed to fix the aforenoted question
for consideration of this Court as per the orders of the Hon'ble Chief Justice.
 
MWA/S-8/SC Order accordingly.