IN THE SUPREME COURT OF PAKISTAN 
(Appellate/Original Jurisdiction) 
Present: 
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE UMAR ATA BANDIAL 
MR. JUSTICE QAZI FAEZ ISA 
MR. JUSTICE IJAZ UL AHSAN 
 
CIVIL APPEALS NO.1476 TO 1485 OF 2018 
 
(on appeal from the judgments/orders 25.09.2018 of the Islamabad High Court, 
Islamabad, passed in I.C.A.365/2017 In W.P.308/2016, I.C.A.366/2017 In 
W.P.309/2016, 
I.C.A.367/2017 
In 
W.P.310/2016, 
I.C.A.368/2017 
In 
W.P.2128/2015, C.M.A.3053/2018 In I.C.A.365/2017, C.M.A.3055/2018 In 
I.C.A.365/2017, I.C.A.22/2018 In W.P.308/2016, I.C.A.23/2018 In W.P.308/2016, 
I.C.A.24/2018 In W.P.308/2016) 
 
AND 
C.M.A.10393/2018 and 7403/2019 in C.A.1476/2018, 
C.M.A.10950/2018 in C.A.1477/2018, C.M.A.10398/2018 in 
C.A.1480/2018, 
C.M.A.10951/2018 
in 
C.A.1483/2018, 
C.M.A.10952/2018 
in 
C.A.1484/2018 
AND 
C.M.A. 
10953/2018 in C.A.1485/2018 AND Crl.O.P.166/2018 in 
Crl.O.P.7/2016 
AND 
Crl.M.A.2083/2018 
in 
Crl.O.P.166/2018          
AND 
WRIT PETITIONS NO.4270, 4723 OF 2016 AND WRIT 
PETITION NO.3594 OF 2018 
Federal Government Employees Housing     
Foundation (FGEHF), Islamabad    
(In C.A.1476-1480/2018) 
Sohail Ahmed Mian  
 
 
 
(In C.A.1481/2018) 
Najma Siddiqi  
 
 
 
 
(In C.A.1482/2018) 
Manzar Hafeez Mian & others  
 
(In C.A.1483/2018) 
Khizer Hayat Khan & others  
 
(In C.A.1484/2018) 
Ms. Sameera Yasin & other   
 
(In C.A.1485/2018) 
Supreme Court Bar Association 
 
(In Cr.O.P. 166 /2018) 
Noor Elahi Chuhan & others  
 
(In WP 4270/2016) 
Multi Professional Cooperative  
 
(In WP 4723/2016) 
Nazeer Hussain Chuhan etc  
  
(In WP 3594/2018) 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                    
…Appellant(s)/Petitioner(s) 
 
C.As N.1476 – 1485/18 etc. 
 
2 
 
VERSUS 
Malik Ghulam Mustafa & others   
(In C.A.1476/2018) 
  
Malik Bashir Ahmed (since deceased)  
through. LRs & others   
 
 
(In C.A.1477/2018) 
 
Zulfiqar Hussain & others 
 
 
(In C.A.1478/2018) 
 
Malik Dad & others  
 
 
 
(In C.A.1479/2018) 
 
Muhammad Sabir & others   
 
(In C.A.1480/2018) 
 
Malik Bashir Ahmed & others  
 
(In C.A.1481-1482/2018) 
Federal Government of Pakistan,  
Through its Secretary, Cabinet  
 Division, Islamabad & others  
 
(In C.A.1483-1485/2018) 
Amer Ali Ahmed and others  
 
(In Crl.Org. P. 166/18) 
Chief Commissioner, Islamabad, etc. 
(In WP 4270/2016) 
Federation of Pakistan & others 
 
(In WP 4723/2016) 
Land Acquisition Collector, ICT 
 
(In WP 3594/2018) 
 
 
 
 
 
 
 
…Respondent(s)  
 
For the Appellant(s): 
 
Mr. Mansoor Ahmed, ASC  
(in CAs 1476 to 1479/18) 
Syed Rifaqat Hussain Shah, AOR 
(in CAs 1477 & 1480/18): 
Sardar Muhammad Aslam, ASC 
In CA 1481/18:  
 
In person 
In CA 1482/18:  
 
In person 
In CA 1483-1485/18:  
Mr. Shah Khawar, ASC 
IN CMA 10950/18: 
 
Mr. Khushdil Khan Malik, in-
person   
In CMA 10951-10953/18: Nemo 
In CMA 10393, 10398/18:  Syed Rafaqat Hussain Shah, AOR 
In CMA 7403/2019: 
 
Syed Iqbal Hashmi, ASC 
Ch. Akhtar Ali, AOR 
In CMA 9756/19: 
 
Syed Zulfiqar Abbas Naqvi, ASC 
In CMA 9210-9213  
& CMA 9835/19: 
 
Mr. Sajeel Sheryar Swati, ASC 
 
C.As N.1476 – 1485/18 etc. 
 
3 
 
In Crl.O.P 166/18: 
 
Mr. Rasheed A. Rizvi, Sr.ASC  
Mr. Hamid Khan, Sr. ASC 
Mr. Amanullah Khan Kanrani, ASC 
Mr. Syed Qalb-i-Hassan, ASC 
Mr. Mehmood A. Sheikh, AOR 
 
Syed Rafaqat Hussain Shah, AOR 
Ms. Shireen Imran, ASC 
Mr. Liaqat Ali Tareen, ASC 
Mr. Aurangzeb Asad Khan, ASC 
Mr. Shamim-ur-Rehman, ASC 
 
 
 
 
 
Mr. Ehsan Qadir Sial, ASC 
 
In Cr.O.P 166/18: 
 
Mr. Naeem Bokhari, ASC 
(for Private Respondents) 
Ch. Akhtar Ali, AOR 
& for Petitioners   
 
 
(in W.Ps 4270/16, 4723/16 
& 3594/18)  
 
On Court Notice:  
 
Mr. Niaz Ullah Niazi, AG Islamabad 
 
 
For CDA:  
 
 
Ch. Riasat Ali Gondal, ASC 
Raja Abdul Ghafoor, AOR 
 
For Federation:  
 
Mr. Sajid Ilyas Bhatti, Addl. AGP  
For Private Respondents: 
Syed Feisal Hussain Naqvi, ASC 
in CAs 1476-1480/18:  
Ch. Hassan Murtaza Mann, Adv.  
 
 
 
  
 
 
Dates of Hearing: 
15th,16th,20th,21st,22nd,23rd May, 2nd,      
7 th,10 th,23rd   October, 12th,25th 
November of 2019 and  7th,9th,13th, and 
14th of January, 2020. 
 
 
C.As N.1476 – 1485/18 etc. 
 
4 
 
JUDGMENT 
MUSHIR ALAM, J.— Since the issue involved in all these cases is 
almost identical, therefore, we find it expedient to decide the titled 
cases together through this common judgment.   
 
Facts 
1.  
 
Facts forming matrix of the proceedings in hand are that 
on 20.01.2014, the Senate Committee on Housing and Works 
recommended that Sector F-14 be allocated by Capital Development 
Authority (herein referred to as CDA) to Federal Government 
Employees Housing Foundation (herein referred to as FGEHF) 
[(converted into authority under Federal Government Employees 
Housing Authority Act, 2020 during the pendency of proceedings], the 
appellant herein, for preparing a housing scheme. After meetings and 
deliberations, the CDA and FGEHF agreed to initiate a housing scheme 
in Sector F-14 with mutual collaboration. Accordingly, Secretary 
Ministry of Housing and Works initiated a summary on 06.01.2015 
regarding acquisition of land for the FGEHF in Sector F-14 and some 
parts of Sector F-15 in Islamabad Capital Territory (ICT). The Prime 
Minister approved the summary on 01.05.2015 and notifications 
under Section 4 and later under Section 17 of the Land Acquisition 
Act of 1894 (herein referred to as LAA, 1894) were issued by the 
Commissioner ICT on 20.05.2015 and 04.12.2015 respectively. On 
29.09.2016, a development contract was awarded to the Frontier 
Works Organization (FWO). Then an award was announced by the 
Collector on 15.11.2016 regarding land in F-14. The Commissioner 
ICT issued a notification regarding land in F-15/3 & F-15/4 on 
15.06.2017. The Collector then announced the award for land situated 
in revenue estates of Tarnol and Jhangi Syedan in ICT in favor of 
FGEHF on 06.07.2017. The land owners/natives of the area 
challenged the above said notifications and the awards in writ 
jurisdiction before the learned Islamabad High Court, Islamabad, 
C.As N.1476 – 1485/18 etc. 
 
5 
 
which were allowed vide judgment(s)1 dated 23.10.2017. The 
judgment(s) were challenged through Intra-Court Appeals No. 
364/2017 to 368/2017, 412/17-415/17, 417/17, 22/18-24/18, 
306/08 and 307/18, which was maintained through the common 
impugned judgment(s) dated 25.09.2018.2  
2.  
 
The Appellant/FGEHF, Islamabad (since succeeded by 
Federal Government Employees Housing Authority), have, with the leave 
of the Court, filed Civil Appeals No.1476 to 1480/2018, assailing the 
judgment rendered by learned Division Bench of the Islamabad High 
Court, Islamabad, passed in the Intra-Court Appeals noted above 
whereby not only the acquisition proceedings carried out under the 
LAA,1894 but, also all the actions and orders relating to acquiring of 
land for the appellant in Sectors F-14 and F-15, Islamabad (subject 
sectors) were declared illegal, void and without jurisdiction and as such 
notifications impugned in writ petitions were also set aside. The 
impugned judgment held that the land within Islamabad Capital 
Territory can only be acquired by the Capital Development Authority 
under the provisions of the Capital Development Authority Ordinance, 
1960 (herein referred to as the CDAO, 1960), which being special and 
later law, has precedence over the LAA 1894, which was held to be  
general in nature. The Learned bench further directed that ‘the land 
owners and owners of built up properties who have received the 
payment through Land Acquisition Collector to return the amount within 
(3) three months from the date of judgment through pay orders”.  The 
Appellant was left with discretion to recover the amount paid for their 
own purposes, to the private parties/contractors, through their own 
mechanism and or legal process. Lastly, CDA was held to be entitled 
“to implement the master phased program as provided in section 11 and 
12 of the CDAO, 1960 and develop Sectors F-14 and F-15 as per their 
own decision in consultation with the Federal Government, if so 
required”. 
 
1 Since reported as Malik Bashir Ahmed v. Federal Government of Pakistan (PLD 2018 
Islamabad 68) 
2 Reported as FGEHF and others v. Malik Ghulam Mustafa and others (PLD 2019 Islamabad 
1) 
C.As N.1476 – 1485/18 etc. 
 
6 
 
3.  
 
The Appellants, in Civil Appeals No.1481 to 1485/2018, 
being serving and retired Government servants, are the allottees of 
plots/land in Subject Sectors. The Appellants have also assailed the 
judgment of the learned Division Bench of the Islamabad High Court 
and claimed their respective plots/land as they have already deposited 
the requisite amount since long with the Appellant in lieu of their 
allotted plots.  
4. 
 
Persons considering that they may be prejudiced by order 
that may be passed in instant proceedings have made applications to 
be added as party. Such persons fall in two categories, the first being 
serving and retired federal government employees, who have been 
offered plots (CMA 10950, 10951, 10952 & 10953/2018 filed by the 
allottee/federal government employees) and second category of 
persons are the land owners, whose land is subject matter of 
acquisition, who have also filed (CMA No. 7403/2019, 9210-9213, 
9835/19 & 9756/19) applications to be added as party as it is claimed 
that unless they are made party and heard, they will be seriously 
prejudiced. All such persons were aware of the acquisition 
proceedings, and some also made applications before the Islamabad 
High Court, some have directly approached this Court. All such 
persons claim to have interest in the outcome of the instant 
proceedings, either as allottee or as land owner, and all such persons 
have interest common to persons already represented by eminent 
counsels. Without entering into much debate as to such persons, being 
necessary or proper party, at this stage of proceedings, in order to do 
complete justice3, we consider it expedient to hear all such persons 
without formally adding them as party to the respective appeals or 
petitions, to avoid delay in the matter. Such course is acceptable to all 
such parties and it would also meet the ends of justice4. However 
C.M.A.10393 (in CA 1476/18) and CMA 10398/18 (in CA 1480), moved 
by the FGEHF, Appellant, to add CDA as party is allowed. CMA 35/19 
(in CA 1477/18) to bring legal heirs of Respondent No.1 on record is 
granted, subject to all just exceptions; amended title may be filed and 
 
3 Multiline Associate v. Ardeshir Cowasjee PLD 1995 SC 423 (para 11) 
4 Federation of Pakistan v Muhammad Aslam 1997 SCMR 607 
C.As N.1476 – 1485/18 etc. 
 
7 
 
taken on record. All other CMAs seeking permission to bring additional 
documents on record, file reports and or compliance etc. are granted, 
subject to all just exception and, disposed of accordingly.  
5. 
 
The land owners and residents of the locality, whose land 
has been acquired, have also filed Writ Petitions No.4270 & 4723 of 
2016 and 3594 of 2018 before the learned Islamabad High Court, 
challenging the very acquisition of the land for the purposes of, inter 
alia, developing a housing society for lawyers etc. However, on 
27.12.2018, while hearing of Criminal Original Petition No.166/2018, 
at the request of their counsel and land owners present in Court, 
subject Writ Petitions were requisitioned from the concerned High 
Court so that the same may be considered along with Civil Appeals 
No.1476/2018 etc.  
6.  
 
The Supreme Court Bar Association of Pakistan (herein 
referred to as the SCBA), through its President, filed Criminal Original 
Petition No.166/2018, which is an off shoot of Cr.O.P 41/17 seeking 
implementation of the order of this Court dated 10.08.2018 (arising out 
of C.P 38/2013 SCBA v Amer Ali Ahmed Chief Commissioner 
Islamabad) with regard to a settlement arrived at between the office 
bearers of the SCBA and the FGEHF & other government functionaries 
relating to issuance of Notification under section 4 and 17(4), decision 
of objections under section 9 and issuance of Award under Section 11 
of the LAA, 1894. According to learned ASC for the SCBA, Mr. Rasheed 
Rizvi, settlement arrived at by and between the Respondents in Cr.O.P 
166/18 has not been complied with. He also opposed Cr.MA No. 
2083/18  
7. 
 
Mr. Nazir Hussain Chohan represented by Mr. Naeem 
Bukhari, Senior ASC, has filed Cr.MA No. 2083/18 in Cr.O.P No. 
166/2018 seeking setting aside  of Order dated 10.8.2018 passed on 
Cr.O.P 41/2017 (which is an off shoot of CP 38/2013 filed by SCBA) 
as noted above, Cr.O.P No.166/2018 and Cr.MA No. 2083/18 will be 
attended separately.  
 
 
C.As N.1476 – 1485/18 etc. 
 
8 
 
I. 
Judgment of the Honorable Islamabad High Court: 
General Overview: 
8.  
 
The learned bench of the Islamabad High Court 
considered all the facts in detail from paragraph 1 to 9, including the 
issuance of Notification by the Additional Deputy Commissioner 
Revenue under Section 4, 6 and 17 of the LAA, 1894 dated 20.5.2015 
which was later converted into the amended notification dated 
02.12.15. The relevant portion of the same has been reproduced below: 
"WHEREAS, it appears to the Land Acquisition Collector, 
Islamabad District Islamabad that the land is likely to be 
taken 
for 
Federal 
Government 
Employees 
Housing 
Foundation, under the administrative Control of Ministry of 
Housing and Works; Government of Pakistan for its expense 
for public purpose namely for launching housing scheme in 
Sector F-14 as well as contiguous area of F-15 prior to G. T. 
Road falling in Zone-1 for the Federal Government Employees 
in villages Tarnol, Mara Sumbal Akku, Mara Sumbal Jaffar, 
Thalla Syedan and Jhangi Syedan, Tehsil and District 
Islamabad. It is hereby notified that the land in the locality 
described below is likely to be acquired for the above purpose. 
(Emphasis supplied)." 
9.  
 
The learned bench then elaborately explains the Scheme 
of Sector F-14 & 15 in paragraph 14 to paragraph 16 when the 
notification by the Commissioner later culminated into an Award dated 
15.06.2017 in respect of land situated in Sector F-14 (measuring 7003 
Kanals & 10 Marlas) namely Moza Tarnol, Jhangi Syedan, Thallah 
Syedan, Mehra Sumbal Akku, and Mehra Submal Jaffar. The second 
award was issued by the Land Acquisition Collector vide notification 
dated 28.9.2017 for land situated in F-15/3 & 4 (measuring 300 
Kanals) falling in Moza Tarnol and Jhangi Syeda.  
10.  
  
In paragraph 17 to 22, the Learned Bench considered the 
principles of interpretations enunciated by apex court as to general 
and special law and then compared LAA, 1894 to CDAO, 1960. In 
paragraph 23 to, arrive at the conclusion that: “ we are also of the view 
that CDA Ordinance, 1960 is purpose specific law to cater the 
requirement of new capital of Pakistan and such kind of enactment 
provides a complete mechanism in itself, which has no nexus with the 
Land Acquisition Act, 1894.” It was further held that FGEHF, should 
have invoked the CDAO, 1960 and not LAA 1894 for the acquisition of 
C.As N.1476 – 1485/18 etc. 
 
9 
 
land, and the things were not done in the manner required by law, to 
buttress the conclusion, learned bench relied on Muhammad Anwar 
etc. v Mst Ilyas Begum etc5. 
 
II. 
Reasoning of the IHC 
i. 
Intent and Purpose of the Legislation: 
11.  
 
The learned bench, to discover the intent and purpose of 
the impugned legislation, examined the contemporary provisions of 
both the statutes. In paragraph 24 of the impugned judgment, learned 
bench placed reliance on the case of Syed Mehmood Akhtar Naqvi vs. 
Federation of Pakistan6 to hold that: 
“no provision should be rendered meaningless and there was 
no scope of placing unnatural interpretation on the meaning 
of language used by the legislators, especially when the 
language of legislative provision was clear, it was not the duty 
of the Court to either to enlarge the scope of legislation or the 
intention of the legislators.” 
It was further concluded that: 
“It is also settled that in case of conflict, preference is to be 
given to the new law and the implied repeal of earlier law 
could be inferred only when there was enactment of a later 
law which had the power to override the earlier law, and was 
totally inconsistent with the earlier law and when there are 
two laws, the earlier and the later law, could not stand 
together, therefore, later laws abrogate the earlier contrary 
laws.” 
For the conclusion so arrived at reliance was placed on the judgments 
rendered in the cases of Lahore (Inland Revenue) RTO v M/s Almakdi 
International7, and Tanveer Husain v. Division Superintendent Pakistan 
Railways8. 
 
 
 
 
5 PLD 2013 SC 255 
6 PLD 2012 SC 1089 
7 2013 PTD 2125 
8 PLD 2006 SC 249 
C.As N.1476 – 1485/18 etc. 
 
10 
 
ii. 
Public Purpose under the CDAO, 1960: 
12.  
 
In paragraph 25 to paragraph 27 of the impugned 
judgment, it was held that Section 11 and Section 12 of the CDAO, 
1960 provided for the larger purpose of the development of ICT and 
the acquisition of land for development of specified area, which shall 
be done under Section 22 of the CDAO, 1960. It was further held that 
that the requirements enunciated within Section 4 of LAA, 1894 had 
been applied by implication within Section 22 of CDAO, 1960. 
Although, the term “public purpose”, originally provided under Section 
4 of LAA, 1894, was not defined under the CDAO, 1960, the latter 
provides for a different scheme for the acquisition of land as mentioned 
above. Given the existence of the larger purpose within the CDAO, 
1960, it was held that the acquisition of land under the LAA, 1894 
for public purpose is not acceptable. It was further mentioned that the 
‘public purpose’ needs to be seen in the light of the ‘general interests of 
the community’ as opposed to the ‘particular interest of the individual’. 
Therefore, it was held that“it is not permissible to take land of one and 
give it to another in private interest”. Reliance was placed on Ghulshan 
Hussain etc. v Commissioner (Revenue), Islamabad, etc.9, Smt. 
Somavant and Others v. The State of Punjab and Others10, Suo Moto 
Case No. 13 of 200711.  
 
13.  
 
In paragraph 28, the learned bench then relied on the 
English saying “you cannot rob Paul to pay Peter” to further elaborate 
how the interests of the general community must be furthered instead 
of the interests of the individual for ‘public purpose’ as only the 
community of Federal Government servants are the beneficiaries 
under the objectives of the Federal Government Employees Housing 
Foundation and not the general community at large. Reliance was 
placed on Muhammad Akbar v. Commissioner Rawalpindi12, Dr Nasim 
Javaid v. Lahore Cantt. Cooperative Society Ltd13. 
 
9 2000 YLR 1711 
10 AIR 1963 SC 151 
11 PLD 2009 SC 217 
12 PLD 1976 Lah 747 
13 PLD 1983 Lah. 552 
C.As N.1476 – 1485/18 etc. 
 
11 
 
iii. 
Federal Government Employees Housing Foundation as a 
Private Enterprise: 
14.  
 
In paragraph 29, the learned bench then builds on the 
proposition regarding public purpose with respect to the FGEHF, as a 
company established with a specific objective, which does not cover 
private individuals as the FGEHF can only provide housing to its 
members by remaining within the scope of its objectives. This is to be 
categorized as a private interest only to be exercised in favor of the 
members of the FGEHF. Reliance was placed on Muhammad Ishaq etc. 
v. Govt. of Punjab etc14. Therefore, it was held that:  
”when they use the state machinery with their limited 
objective under the Companies law, their entire working has 
to be seen in the light of their objective only and the purpose 
for which the land was acquired was too limited to hold that 
the same would be used for public purpose” 
15. 
 
In Para 26, 29, 30 and 35 of the impugned judgment, the 
learned bench concurred with the single judge that the land was 
acquired under the LAA, 1894 and not under the CDAO, 1960. The 
learned bench, relying on the arguments of the private respondents, 
further agreed with the single judge that the FGEHF, being a private 
enterprise, and a juristic person, any land acquisition, if at all was 
permissible, should have been under the CDAO, 1960. The FGEHF 
was treated as a company, no different than a land developer, society, 
and therefore, not permitted to initiate any land acquisition 
proceedings in any part of ICT.  
 
iv. 
Enactment of Law to Qualify as an Exception within Art. 
24(3) of the  Constitution, 1973. 
16.  
 
In Para 29 of the impugned judgment, it was also ruled 
that certain exceptions are provided under sub-article (3) of Article 24 
(wrongly quoted as Clause 3 of Article 4) of the Constitution, “……that 
for acquisition of any property under any one of the exceptions, a law 
has to be enacted. It follows, therefore, that in any case, without specific 
 
14 2002 SCMR 1652 
C.As N.1476 – 1485/18 etc. 
 
12 
 
law, no person can be deprived of from his property or the possession 
taken by the government.”  Reliance was placed on Nazim F Haji, Chief 
Citizen Police Liaison Committee Karachi v. Commissioner Karachi15.  
 
v. 
Property Rights within the Constitution, 1973 
17. 
 
The learned bench also relied on Article 24 of the 
Constitution, in extenso within paragraph 30 to, draw a conclusion 
that “in accordance with law” as referred in the Article is CDAO, 1960 
and acquisition of land for the Appellant was considered to be for self-
serving benefit of its member, do not figure out under the scheme of 
the CDAO, 1960 for which reliance was placed on Suo Moto Case No. 
13 of 200916.  
 
vi. 
Determination of Public Purpose: 
18.  
 
The learned bench, in Paragraph 30 of the impugned 
judgment, recognized that determination of public purpose objectively 
is domain of the Government and is subject to judicial review. Reliance 
was placed on Messer Eden Developers Pvt. Limited Pakistan v. 
Government of Punjab etc.17.   
 
vii. 
Regulatory Capture:  
19. 
  
Learned bench of IHC, from paragraph 31 to 34, viewed 
the acquisition of land for the Appellant in concert with CDA authority 
as a ‘regulatory capture’, and not in public interest. For this conclusion, 
reliance was placed on Barrister Sardar Muhammad v. Federation of 
Pakistan18, Lahore Development Authority v. Mrs. Imran Tiwana19, 
Muhammad Ashraf Tiwana v. Pakistan20, and Mrs. Imran Tiwana v. 
 
15 PLD 1993 Kar. 79 
16 PLD 2011 SC 619 
17 PLD 2017 Lah. 442 
18 PLD 2013 Lah 343 
19 2015 SCMR 1739 
20 2013 SCMR 1159 
C.As N.1476 – 1485/18 etc. 
 
13 
 
Province of Punjab21. The learned Bench also heavily relied on The 
Murree Brewery Co Ltd. V. Pakistan through Secretary to Govt. of 
Pakistan, Works Division22. 
 
20.  
 
In Paragraph 33 of the impugned judgment, the learned 
Division bench extensively dilated upon purported illegalities and 
irregularities committed by CDA and considered various provisions of 
the CDAO, 1960, Islamabad Land Disposal Regulations 2005 (ILDR, 
2005), and ICT Zoning Regulations 1992, inter-alia, and read them to 
exclusion of the LAA 1894. The learned bench further viewed that 
acquisition of land in Sector F-14 under the LAA, 1894, at the behest 
of FGEHF, is in violation of ILDR, 2005. No agency other than the CDA 
can acquire land in the Specified Area which comprised of five (5) Zones 
 
viii. 
State Largesse: 
21.  
 
In paragraph 34, of the impugned judgment it was 
opinioned that acquisition of land should have been routed under the 
CDAO, 1960, and concept of State largesse has been flouted. It was 
further held that the land could only be acquired under Article 173 of 
the Constitution. The Appellant, a company registered with SECP, is no 
different than any other land developers (since given status of 
authority under FGEHF Authority Act, 2020). Any permission or 
NOC extended by the CDA Board or Authority were held to be illegal 
and void. It was concluded that acquisition of land within Islamabad 
Capital Territory is within the domain of CDA Ordinance, in terms of 
Article 24 Constitution of Pakistan, read with Article 173, and 
application of any other law and procedure stands excluded. Land in 
specified areas could only to be utilized in accordance with Section 11 
and Section 12 of the CDAO, 1960. Therefore, the learned bench held 
that the Notification under Section 4 of the Land Acquisition Act was 
“illegal and void.”   
 
21 PLD 2015 Lah. 522 
22 PLD 1972 SC 279 
C.As N.1476 – 1485/18 etc. 
 
14 
 
III. 
Leave Granting Order 
22.  
 
In the back drop of above factual and legal matrix, leave 
was granted in C.A. No.’s 1476 to 1485/2018 vide order dated 
06.12.2018 inter-alia to consider whether: 
1. Capital Development Authority (CDA) under the Capital 
Development 
Authority 
Ordinance, 
1960 
(the 
Ordinance) has exclusive jurisdiction to acquire land 
and it excludes acquisition under the Land Acquisition 
Act, 1894 (the Act); 
2. The provisions of the Ordinance exclude those of the Act 
with respect to acquisition of land for a public purpose; 
3. Acquisition 
for 
a 
housing 
scheme 
for 
Federal 
Government Employees and allied group constitutes a 
valid public purpose; 
4. Acquisition under the Act becomes State largesse under 
Article 173 of Constitution of the Islamic Republic of 
Pakistan, 1973 read with Section 16 of the Act, and  
5. In view of the alternate and efficacious remedy 
available under Section 18 of Act, the constitutional 
petitions before the learned High Court were not 
maintainable.  
6. In the meantime, the operation of the impugned 
judgment is suspended. Any acquisition would be 
subject to the final decision of the instant cases and 
any construction raised from today onwards shall be at 
the risk and cost of the person(s) doing so. 
We have extensively heard the arguments of all the learned Counsels 
for the parties and heard some of the parties present in persons as 
well, perused the record with the assistance of all the learned Counsels 
and parties in person.  
 
IV. 
Judgment of the Supreme Court: 
23.  
 
In order to consider the points of determination, as noted 
in leave granting order, regarding which of the two competing or 
comparable statutes in the field (i.e. LAA, 1894 or CDAO 1960), and 
if some of the provisions in CDAO, 1960, essentially relating to land 
acquisition, have precedence over the provisions of LAA, 1894 or 
otherwise. The principles to adjudge which of the statutes and 
provisions of which of the competing statutes are to be given 
C.As N.1476 – 1485/18 etc. 
 
15 
 
preference, are to have dominance in repealing, or overriding effect, 
over the other becomes quite challenging. 
 
I. 
The Applicability of the Land Acquisition Act, 1894 within 
ICT 
a. 
LEGISLATIVE ORIGIN OF THE LAA, 1894:  
24.    
The State of Pakistan inherited The Land Acquisition 
Act, 1894 as a colonial legacy. It was enacted with an object to acquire 
any land needed by the Government for public purpose and for the 
Companies. “It provides complete indemnity to the owner and no 
property is to be acquired without proper and adequate compensation”23. 
The present controversy is confined only to the acquisition for public 
purpose.  
 
25.  
 
The LAA, 1894 provides an elaborate procedure and 
mechanism for the acquisition and vesting of land, determination, 
payment of compensation, inquiring into measurement, value claims, 
award(s) by the collector, and hearing of objections as to adequacy and 
apportionment between the claimants. In addition, it also provides the 
complete hierarchy for adjudication of objections relating to the 
adequacy, or otherwise, of compensation24 leading up to the Supreme 
Court25.  
 
26.  
 
The LAA, 1894, remaining a colonial legacy, is still 
retained in statute books by India and Pakistan alike. It was given 
protection under the Government of India Act, 193526, which was 
succeeded by the Indian Independence Act, 194727. It was then 
adapted vide Governor General’s Order No.20 of 1947, also known 
as Pakistan Adaptation of Existing Pakistan Laws Order 194728, 
 
23 PLD 2010 SC 719 (Paragraph 5). WAPDA v Hira Begum (1972 SCMR 138). 
24 Section 18 of LAA, 1894 
25 Section 54 of LAA, 1894  
26 See Article 292 and 293 
27 See Section 18 
28 See Section 54(2) 
C.As N.1476 – 1485/18 etc. 
 
16 
 
eventually finding its way into the Constitution of Pakistan 195629. 
The Constitution of Pakistan 196230 also shielded the LAA, 1894 
and it was finally adopted by the Constitution of Pakistan, 197331. 
 
27.  
 
Pursuant to Section 1(2) of the Central Laws (Statute 
Reforms) Ordinance 1960, 32the LAA, 1894 was amended to make it 
applicable to whole of Pakistan. On 30th March 1970, by virtue of 
Section 4 of the Province of West Pakistan (Dissolution) Order 
197033, the province of West Pakistan was dissolved and four 
Provinces, 
Islamabad 
Capital 
Territory 
(ICT) 
and 
Centrally 
Administered Tribal Areas were created. As per Article 19 of the 
aforementioned Order of 1970 which stated that 
“all existing laws shall continue in force, so far as applicable 
and with necessary adaptation, until altered or repealed or 
amended by the appropriate Legislature or other competent 
authority”.  
 
28.  
 
The Legal Implication of the Presidential Order 1 of 
1970 was considered in the case of Islamabad Club v. Punjab Labour 
Court etc.34 wherein it was held that 
“Under the Interim Constitution of 1972 and the 1973 
Constitution the Federal Capital of Islamabad has continued 
to be a distinct territory under federal administration, but no 
specific provisions seem to have been made for its 
governance, with the result that the previous arrangements 
have to continue. The result of these successive legal 
instruments in that the laws, which were applicable to the 
territory of Islamabad before the dissolution of the Province 
of West Pakistan, and the designation of Islamabad as 
federally administered area would continue to operate as 
existing laws, until repealed or altered by the competent 
Legislature.”  
 
 
29 See Article 224 
30 See Article 225 
31 See Article 268  
32 PLD 1960 Central Statutes 238 “(a) The Province of East Pakistan and Province of West 
Pakistan and; (b) Such other States and territories as/or may become included in  Pakistan 
whether by accession or otherwise …”   
33 PLD 1970 Central Statute 218 
34 PLD 1981 SC 81 
C.As N.1476 – 1485/18 etc. 
 
17 
 
29.  
 
In order to remove any doubts, as to applicability of LAA, 
1894 in Islamabad Capital Territory (ICT), and in exercise of legislative 
competence 
conferred 
under 
the 
enabling 
provisions 
and 
Constitutional mandate35, as noted herein, the Federal Laws 
(Revision and Declaration) Ordinance No. XXVII of 198136 was 
enacted on 8th July 1981 which enlisted37 laws in the IVth Schedule vide 
item 938 thereof; Sections 3, 9, 14, 43, 45, 47, and 54 were 
substituted and amended to make LAA, 1894 compatible in its 
application to ICT. Only certain provisions of the LAA, 1894, and not 
the entire Act, were amended in order to clarify its application to the 
ICT. This action manifest that the LAA, 1894 was applicable to ICT at 
all times and, any doubts as to its applicability were legislatively 
removed 
by 
virtue 
of 
the 
Ordinance 
enacted. 
 
30.  
 
The reinforcement of the LAA, 1894, with necessary 
substitution and amendment, was made during currency of CDAO 
1960 is a clear manifestation of the intention of the Federal Legislature 
that LAA, 1894 applies with full force in ICT and is not eclipsed by the 
provisions of CDAO 1960 as held in para 24 of the impugned 
judgment. Thus, merely because the CDAO, 1960 was enacted later 
would not be the sole determining factor to give it dominance or 
overriding effect over the LAA, 1894. In the case reported as Abdul 
Ghani & another v Province of Baluchistan and another39, the learned 
division bench of the Balochistan High Court, while examining the 
applicability of LAA, 1894 with competing provisions of ‘land 
acquisition’ contained in the ‘Baluchistan Acquisition of Land (Housing 
and Development Schemes in Rural Areas) Act XVIII of 1974’, in held as 
follows40:- 
“12. The next question which crops up is as to whether the 
promulgation of the Baluchistan Acquisition of Land Act of 
1974 would repeal the Central Act of 1894 (or) not by its own 
force. According to the provision of sub-Article (1) of Article 
 
35 Oer Article 142 (d) 
36 PLD 1982 CS 10 
37 Under Section 5 
38 PLD 1982 CS 113 
39 PLD 1982 Q 63 
40PLD 1982 Q 63. Para 12 at Page 67. 
C.As N.1476 – 1485/18 etc. 
 
18 
 
268, the repeal should be express and unless that is done 
expressively the Central Act would continue to remain in 
force as an existing law under Article 268(1) of the 
Constitution. This argument of Advocate General further 
finds support from the fact that the Provincial Act, was an Act 
of limited application when it was introduced. It only applied 
at that time to Housing and Development Schemes in rural 
area and later to urban areas as well. With this limited 
application it could not mean to repeal the Pakistan Land 
Acquisition Act of 1894 even by implication….”  
 
b. 
THE TESTS WITHIN THE CONSTITUTION TO ADJUDGE THE 
CONSTITUTIONALITY OF LAW: 
31.  
 
To determine the repeal, overriding effect, repugnancy, 
vires, intra-vires or otherwise of any competing or comparable statutes, 
or analogous provisions contained therein, several litmus tests, tools 
of interpretations, and legal doctrines are applied. These accessories of 
interpretation are harvests of long drawn jurisprudential expositions 
and judicial interpretational wisdom culled by the superior courts. The 
tests to determine the validity of legislation are applied, inter-alia, on 
the touchstone of Constitution, legislative competency, limitation and 
distribution of legislative authority between Federal and Provincial 
legislature, doctrine of occupied field, pith and substance, special and 
general law, earlier and later law, delegated and subordinate 
legislation, directory or mandatory enactment or provisions, effect of 
obstante or non-obstante provisions in any enactment or otherwise. 
These are some of the illustrative and non-exhaustive tools of 
interpretation and doctrines applied by the superior courts to adjudge 
the legitimacy, vires, ultra-vires, repeal, overriding, or supremacy of 
one statute over the other. When the conflict between two or more 
competing or comparable statues by the same, or contemporaneous, 
legislature is to be resolved, it becomes all the more challenging to 
decipher the real intentions of the legislature and dominance of one 
statute or its provisions over the other. As noted above, the foremost 
tool of interpretation of any statute is the Constitution which sets the 
‘gold standard’ to adjudge constitutionality, repugnancy, and validity 
and, vires of any legislative instruments or, provisions contained 
therein.  
C.As N.1476 – 1485/18 etc. 
 
19 
 
32.  
 
In the succeeding paragraphs, we will apply litmus test as 
to the legitimacy, or otherwise, of the LAA, 1894 as provided for in the    
Articles 8, 24, 227 and other enabling provisions of the Constitution, 
1973. In addition to the Constitutional filter, other tools such as 
legislative history, statement of object, and the preamble of a statute 
are important tools in deciphering intention, legitimacy, repugnancy, 
validity, and overriding or dominance of competing statutes, or 
provisions contained therein, which is relevant in the instant case. In 
order to appreciate the rival contentions of the parties we have 
examined the legislative origin, history, object, purpose and preamble 
of LAA, 1894 and CDAO, 1960.   
 
c. 
THE TEST WITHIN ARTICLE 8 
33.  
 
Article 8 sets down a twofold gold test to adjudge the 
constitutionality of any pre and post 1973 Constitutional regime of 
laws. Sub-Article (1) of Article 8 of the Constitution, 1973 provides 
that any law enacted prior to the 1973 Constitution is to be filtered 
through the lens of fundamental rights to earn legitimacy. For 
convenience, it has been reproduced below: 
“any law or any custom or usage having force of law, in so far 
it is inconsistent with the fundamental rights shall, to the 
extent of such inconsistency be void.”  
Whereas, Sub-Article (2) of Article 8 attends to, post 1973 
Constitution, legislative regime. It restrains the Federal and Provincial 
Government “not to make any laws which takes away or abridges the 
(fundamental) rights so conferred”. Any breach of such constitutional 
restraint is visited by invalidation to the extent that such invalidation 
infringes fundamental rights.  
 
 
 
 
C.As N.1476 – 1485/18 etc. 
 
20 
 
d. 
THE TEST WITHIN ARTICLE 227(1)  
34.  
 
First part of Article 227(1), read with Article 268(3), 
further requires all “existing laws” [i.e. per Article 268(7) that existed 
immediately before the date the Constitution of 1973 “came into 
force”41], shall be whittled down per the injunction of Islam as laid down 
in Quran and Sunnah. A similar restraint is placed on legislative 
authority of either of the Legislatures under the second part of Article 
227(1) within the 1973 Constitutional regime, which forbids that no 
laws could be framed in breach of Islamic Injunction, however, the only 
caveat is that ‘personal laws’ applicable on non-Muslim citizens are not 
liable to be filtered through the regime of Islamic injunctions42. 
  
35.  
 
In the plethora of cases adjudicated by the Courts, the 
LAA, 1894 has been held to be in conformity with Article 24 (2) of the 
Constitution, 1973. One may refer to Muhammad Ishaq v. Government 
of Punjab43, under which the LAA, 1894 was found to be per the 
injunction of Quran and Sunnah as ordained under Article 227 of the 
Constitution 1973. One may also see the five-member Bench decision 
in the case of Hafiz Muhammad Amin v. Islamic Republic of Pakistan 
and others44 where the laws relating to compulsory Land Acquisition 
were held to be validly made, having constitutional protection, and 
cannot be held ultra-vires by the court. The Federal Shariat Court, in 
the case cited as Islamization of Laws45, not only held the CDAO, 1960, 
barring provisions freezing of compensation, to be in accordance with   
Article 24 of the Constitution, 1973 but other laws relating to Land 
Acquisition were also held to be validly made.  
 
36.  
 
It may be observed that not only the LAA, 1894 but the 
CDAO, 1960 falls within the category of “existing law” that enjoys 
constitutional protection under Article 268(1) and, irrespective 
 
41 See Article 265(2) 
42 See Article 227 (3) ibid 
43 2002 SCMR 1652 
44 PLD 1981 FSC 23, at page 41 
45 PLD 1985 FSC 221 at pages 242-243, 263 
C.As N.1476 – 1485/18 etc. 
 
21 
 
whether such (existing) laws have been adapted as required under sub-
Article (3) and (4) thereof or not, the courts, under the constitutional 
dispensation, are required to enforce such (existing) laws in accordance 
with the provisions of Constitution. The assumption of the learned 
Division Bench that the LAA, 1894 has no constitutional backing, in 
view 
of 
discussion 
herein, 
cannot 
be 
sustained. 
 
e. 
THE APPLICATION OF THE LAA, 1894 IN ICT: 
37.  
 
In the present situation the LAA, 1894 continued in full 
force and effect as a Federal legislation by virtue of Article 268(1) & 
(7) of the Constitution, 1973 as an “existing law”, meaning thereby that 
all laws in force in Pakistan, or any part thereof, or having 
extraterritorial validity immediately before commencing day i.e. 14 
August, 197346, will continue to enjoy the protection under the 
Constitution. Consequently, the LAA, 1894, which is protected as 
Federal Law, was amended from time to time by all the Provinces by 
virtue of the power devolved under the successive Constitutions of 
Pakistan, as noted above and, by the Parliament to the extent of 
Islamabad Capital Territory47. As discussed earlier in paragraph 29, the 
applicability of LAA, 1894 in Islamabad Capital Territory was due to 
the relevant amendments made to the LAA, 1894 by the enactment of 
The Federal Laws (Revision and Declaration) Ordinance No. XVII 
of 198148. Therefore, the affirmation of the  LAA, 1894 being 
applicable to ICT, after the enactment of CDAO, 1960, serves as 
conclusive evidence that the legislature was cognizant of the earlier 
enactment, yet chose to contemporaneously apply the LAA, 1894 to 
the ICT. Needless to say that ignorance cannot be attributed to the 
legislature. Hence, the conclusion arrived by the learned bench in 
paragraph 24 of the impugned judgment cannot be sustained.  
 
 
46 see Article 260 
47 See Article 142(b) of the Constitution of Pakistan, 1973  
48 PLD 1982 CS 10 
C.As N.1476 – 1485/18 etc. 
 
22 
 
f. 
IGNORANCE OF EARLIER LAW CANNOT BE ATTRIBUTED TO 
THE LEGISLATURE 
38.  
 
Needless to say, that Legislature is presumed to know the 
‘existing laws’, judicial pronouncements, and general principle of law49. 
The Legislature must be presumed to know the facts and conditions 
rendering a statute expedient and beneficial50. In a case from the 
American Jurisdiction where the Congress subjected specific 
categories of ticket sales to taxation but failed to cover another 
category, either by specific or by general language, the Court refused 
to extend the coverage. To do so, given the “particularization and detail” 
with which the Congress had set out the categories, would amount to 
“enlargement” of the statute, rather than “construction” of it51. 
Relatedly, “[w]here Congress explicitly enumerates certain exceptions to 
a general prohibition, additional exceptions are not to be implied, in the 
absence of a contrary legislative intent.”52 
 
39.  
 
In a judgment reported as State of M.P v. Kedia Leather & 
Liquor and others53, the Indian Supreme Court, while attending to 
doctrine of implied repeal, held that there is a presumption against 
repeal by implication and the reason of this rule is based on the theory 
that the legislature, while enacting a law, has the complete knowledge 
of existing laws on the same subject matter. Therefore, when the 
legislature does not provide a repealing provision, the intention is clear 
not to repeal the existing legislation. However, the presumption of 
 
49 NS Bindra’s Interpretation of Statutes Tenth Edition by Lexis Nexis, Page 235. 
50 Raval & Co. v. Ramachandran AIR 1967 Mad 57, at page 69. 
51 Iselin v. United States, 270 U.S. 245, 250 (1926). See also Lamie v. United States Trustee, 540 
U.S. 526, 537 (2004) (courts should not add an “absent word” to a statute; “there is a basic 
difference between filling a gap left by Congress’ silence and rewriting rules that Congress 
has affirmatively and specifically enacted”). Obviously, the line between the permissible 
filling in of statutory gaps and the impermissible adding of statutory content may be 
indistinct in some instances, and statutory context, congressional purpose, and overriding 
presumptions may tip the scales. For example, the Court made no mention of the “absent 
word” rule in holding that a reference to “any entity” actually meant “any private entity” 
in the context of preemption. Nixon v. Missouri Municipal League, 541 U.S. 125 (2004) 
(preemption of state laws that prohibit “any entity” from providing telecommunications 
service. Does not preempt a state law prohibiting local governments from providing such 
service). 
52 Andrus v. Glover Const. Co., 446 U.S. 608, 616-17 (1980) (citing Continental Casualty Co. 
v. United States, 314 U.S. 527, 533 (1942) 
53 (2003) 7 SCC 389 
C.As N.1476 – 1485/18 etc. 
 
23 
 
implied repeal can be rebutted. Repeal is inferred by necessary 
implication when the provisions of the later law are so inconsistent 
with, or repugnant, to the provisions of the earlier law that the two 
cannot stand together54. Although, if the two can be read together and 
some application can be made of the words in the earlier Act, repeal 
will not be inferred. The necessary questions to be asked are; (i) 
Whether there is direct conflict between the two provisions; (ii) whether 
the legislature intended to lay down an exhaustive Code in respect of 
the subject matter replacing the earlier law and (iii) whether the 
two laws occupy the same field. The doctrine of implied repeal, based 
upon the theory that the legislature, which is presumed to know the 
existing law, did not intend to create any confusion by retaining 
conflicting provisions and, therefore, when the court applies the 
doctrine, it does no more than give effect to the intention of 
the legislature by examining the scope and the object of the two 
enactments 
and 
by 
a 
comparison 
of 
their 
provisions. 
 
40.  
 
From what has been discussed above, the ignorance of 
existing laws, judicial pronouncement, and judicial interpretation of 
law by the highest judicature of the State cannot be attributed to the 
legislature. Thus, it could be said that the legislature was fully 
cognizant that LAA, 1894, being existing law, deals exhaustively and 
elaborately with acquisition of land for ‘Public Purpose’ and Companies, 
against consideration and under law, yet the legislature still chose to 
enact CDAO, 1960, and in its wisdom provided Chapter VI of the 
CDAO, 1960 for acquisition of land, but only for object and purpose of 
planning and development of Islamabad Capital Territory55. The 
legislature felt it necessary for the CDAO, 1960 to be bestowed with 
the power to acquire land for the effective implementation of planning 
and development of Islamabad Capital Territory so the authority may 
not necessarily have to fall back to the LAA, 1894 for the acquisition 
land for the purpose of the Ordinance.   
 
54 Ibid. Paragraph 14.  
55Preamble, CDAO, 1960.   
C.As N.1476 – 1485/18 etc. 
 
24 
 
41.  
 
It may be observed that in Pakistan both the Federal and 
Provincial legislatures, in its wisdom, have promulgated numerous 
legislative instruments for the purpose of ‘planning and development’ 
of various cities falling in their respective legislative territory. We have 
noted that these statutes have either wholly or partially adopted the 
land acquisition mechanism provided for in the LAA, 1894 either by 
reference, adaptation or explicitly excluded the applicability of LAA, 
1894 in the legislature’s sole wisdom and prerogative. The intention of 
the legislature, as to adoption by reference or otherwise, exclusion or 
giving the special enactment overriding effect over other comparable 
statute can be ascertained by a cursory reading of such special statute 
(Various special statutes providing for ‘planning and development’ of 
cities and region for illustrative purposes are discussed in succeeding 
paragraph 65). Therefore, the CDAO, 1960 does not override the 
provisions of the LAA, 1894 for Islamabad Capital Territory but each 
legislation dwells within the extent of its own unique purpose. 
42.  
 
In the light of discussion made herein, the CDAO, 1960 
was examined, which revealed that the legislature did not completely 
exclude the application of LAA, 1894 in Islamabad Capital Territory, 
for Public Purpose and for Acquisition by Companies. The conspicuous 
absence of a ‘non-obstante’ or overriding clause in CDAO, 1960 
manifests the intention of the legislature that each of these 
contemporaneous statutes to exist side by side and operate in their 
respective domain. It is not the case of any of the party that there is a 
competing claim of acquisition of land, under respective statute either 
for public purpose, under LAA, 1894, or for the Development and 
Planning of ICT, under the CDAO, 1960. Therefore, it was not 
considered appropriate in present proceedings to dilate as to which set 
of proceedings for competing acquisition of land may have preference 
over the other. 
 
 
  
C.As N.1476 – 1485/18 etc. 
 
25 
 
43.  
 
In order to determine the amount of compensation to be 
awarded for the land acquired, the criteria to consider matters with 
respect to the same is provided for under S.23 of the LAA, 1894. 
Whereas, the matters to be neglected in determining the amount of 
compensation are provided for under S.24 of the LAA, 1894.  
 
44.  
 
After 
the 
18th 
Constitutional 
amendment56, 
land 
acquisition has become a provincial subject which has led to the 
creation of diverging legislative regimes57. Each legislation provides for 
different parameters for compensation which creates disparity. In 
order to alleviate such disparity, other jurisdictions, such as India, 
have enacted the Right to Fair Compensation and Transparency in 
Land Acquisition, Rehabilitation and Resettlement Act, 2013, 
whereby, a uniform compensation mechanism exists for the entire 
State and the compensation afforded to the land owners, whose land 
is acquired under the exercise of Eminent Domain for public purpose, 
is significantly greater. It is desirable that one uniform compensation 
mechanism should also be adopted by the parliament of Pakistan by 
conducting a similar exercise to bring forth an identical, or more 
beneficial, legal regime to recompense land owners for the compulsory 
acquisition of their land. We also observe that the scheme of 
compensation provided under the Land Acquisition Act, 1894 
remains a remnant of colonial times that should have been timely 
amended to cater to our evolving socio-economic circumstances. 
Therefore, such overhaul becomes necessary in light of the 
shortcomings of the current scheme of land acquisition with respect to 
compensation and matters incidental thereto.  
 
 
 
 
 
 
56 See Paragraph 44 of this Judgment for more detail 
57 Some of which are detailed in paragraph 65 of this judgment 
C.As N.1476 – 1485/18 etc. 
 
26 
 
g. 
APPLICATION OF DOCTRINE OF OCCUPIED FIELD, PITH AND 
SUBSTANCE, AND INCIDENTAL ECNROACHMENT ON THE 
FACTS 
45.  
 
When two or more competing laws or provisions contained 
therein, are seemingly similar or overlapping, then legislative intent of 
the parliament may be discernible from examining the Preamble, 
legislative history, doctrine of pith and substance, incidental 
encroachment, and occupied field to adjudge their co-existence in their 
respective domain or for one to nudge out and claim dominance over 
the other. The superior courts have expounded such doctrines, 
amongst others, as interpretive techniques, which are used to adjudge 
the predominance and constitutionality of a statute or of any provision 
contained therein. This court has examined the circumstances 
warranting applicability of such doctrines to outcast LAA, 1894 and 
CDAO, 1960 or provisions in competition. In the case of Shama Textile 
v. Province of Punjab58 this court has set down the rule to apply the 
doctrine of occupied field, pith and substance, and incidental 
encroachment. The relevant portion is reproduced below: 
“The doctrine of occupied field is a concomitant of the larger 
doctrine of pith and substance, incidental encroachment. 
Under the doctrine of pith and substance, with all its 
concomitants, postulates for its applicability on a competition 
between Federal legislation and Provincial legislation and it 
would be erroneous to invoke the doctrine where there is no 
such competition, merely because a Provincial law conflicts 
with another law which has not been passed by the Federal 
Legislature but deals with a matter in the Federal List. Similar 
is the case where a Federal Statute provides that the 
provincial Government may extend the operation of a law to 
any part of the Province and the legislation is brought into 
operation by the Provincial Government, the law does not lose 
its Federal Character and does not become invalid when it 
comes into conflict with another Federal law.” (Underlined to 
add emphasis)  
 
46.  
 
Thus, it could be seen that doctrine of occupied field, which 
is auxiliary to the larger doctrine of pith and substance, and incidental 
encroachment, may be invoked by the courts to determine the extent of 
 
58 1999 SCMR 1477 at page 1495 
C.As N.1476 – 1485/18 etc. 
 
27 
 
legitimacy only in cases where the competing statutes or any of the 
provisions contained therein are by different tiers of legislature. In the 
case at hand, both the LAA, 1894 and the CDAO, 1960 are the Federal 
Statutes and it is not a case of competition between the federal or 
provincial tier of the legislature. Therefore, it would be an exercise in 
futility to invoke the doctrine of pith and substance, incidental 
encroachment, or occupied field where there is no legislative 
competition between the federal and provincial tier of statutes.    
 
II. 
The Legislative Intent of the Parliament in CDAO, 1960 
a. 
LEGISLATIVE COMPETENCE  
47. 
 
Where legislative instruments in competition, one 
promulgated by the Federal and the other by the Provincial legislature, 
or any provisions contained therein, are pitched against each other, 
the test to determine the legislative supremacy or dominance is 
comparatively simple and provided by Article 141 and Article 142 of 
the Constitution, 1973 which clearly demarcates the legislative edges, 
competency and supremacy test. In case of conflict between Federal 
and Provincial enactments, privilege of overriding supremacy is 
conceded to the Parliament/Federal legislature under Article 143. 
Where one or more Provincial Assemblies, through resolution, 
authorizes the Parliament to pass law in respect of a residuary subject, 
in such event, power to repeal and amend such law is exclusively 
retained by such Provincial legislature(s)59.  
 
b. 
THE EXCLUSIVE DOMAIN OF THE FEDERATION FOR THE 
SUBJECT OF ‘LAND ACQUISITION’ OVER ISLAMABAD CAPITAL 
TERRITORY 
48. 
 
The Federal Legislature exercises such jurisdiction in 
respect of matters enumerated in the Federal Legislative List (FLL). All 
other left over matters/subjects are secured by the Provincial 
Legislature in constitutional parlance referred to as residuary subjects. 
 
59 Government of Sindh v Dr. Nadeem Rizvi 2020 SCMR 1 (para 16 ( v), para 20) 
C.As N.1476 – 1485/18 etc. 
 
28 
 
The Parliament (by 2/3rd majority of both the houses)60, through the 
Constitution (Eighteenth Amendment) Act X of 2010, negotiated 
and redefined the legislative territory of the Federal and Provincial 
Legislature. Pakistan has migrated from two lists to one in the Federal 
Legislative List (FLL), which reserves subjects/entries exclusively for 
the Parliament to legislate. Although the Concurrent List, which gave 
the Parliament and the Provincial legislature contemporaneous or 
overlapping jurisdiction, has been done away with, the current scheme 
envisages a minuscule overlapping concurrent legislative domain 
confined to three subjects/entries i.e. criminal law, criminal procedure 
and evidence61.  
 
49.  
 
It could be seen that by virtue of successive constitutional 
instruments, as succeeded by Constitution 1973, the ‘legislative 
subject or entry’ of “land acquisition” was neither covered by the Federal 
Legislative List nor the Concurrent Legislative List. Even when the 
concurrent list was done away with under the Constitution 
(Eighteenth Amendment) Act X of 2010, it did not alter the status of 
the subject of ‘Land Acquisition’, which remained as a ‘residuary’ or 
‘leftover subject,’ as it remained uncovered under the ‘Federal 
Legislative List’. Therefore, by the operation of Article 142(c), read 
with Article 268 of the Constitution of 1973, the Provincial Assembly 
alone is endowed with the legislative competence to pass new 
legislation, or alter, repeal, and amend the ‘existing laws’ that had 
fallen within its legislative domain or competence of the respective 
provincial legislature by virtue of such laws being a ‘residuary subject’.   
 
 
 
 
 
 
60 See Article 238 & 239 
61 Article 142(b) 
C.As N.1476 – 1485/18 etc. 
 
29 
 
50.  
 
The status of Islamabad Capital Territory (ICT), under 
Article 1(2) of the 1973 Constitution, is classified as a territory that is 
clearly distinguishable from the territory of the Provinces. The relevant 
extract of Article 1 (2) is been reproduced below for perusal.  
“1. The Republic and its territories.-  
(1) Pakistan shall be Federal Republic to be known as the 
Islamic Republic of Pakistan, hereinafter referred to as 
Pakistan. 
(2) The territories of Pakistan shall comprise:- 
a) the Provinces of Baluchistan, the Khyber 
Pakhtunkhwa, Punjab and Sindh; 
b) the Islamabad Capital Territory, hereinafter 
referred to as the Federal Capital; 
c) (c) the Federally Administered Tribal Areas; and 
d) such States and territories as are or may be 
included in Pakistan, whether by accession or 
otherwise.” 
 
 
51.  
 
The Constitution of Pakistan, 1973 not only makes 
specific provision for the exclusive legislative domain in respect of 
“residuary subjects” (i.e. subjects/entries left out of Federal Legislative 
List) over the respective provincial territories of the provincial assembly 
by virtue of Article 142(c), but it also recognizes the exclusive domain 
of the Federal legislature over “residuary subjects” in respect of 
territories or areas ‘not included in any province’ by the operation of 
Article 142(d) which includes Islamabad Capital Territory. Given the 
nature of Islamabad Capital Territory under Article 1(2), only the 
Federal Legislature is empowered with the exclusive domain to legislate 
in areas not forming part of a territory of any province as enumerated 
in Article 142(d). It becomes evident that only the Federation itself 
has the exclusive domain to legislate on all matters that are, in their 
nature, ‘residuary subjects’, including ‘land acquisition’, with respect 
to ICT.  
 
 
 
 
C.As N.1476 – 1485/18 etc. 
 
30 
 
III. 
The Conflict between Special Law and General Law 
52.  
 
The learned bench of the Islamabad High Court, in 
paragraph 21 to 24, of the impugned judgment, stressed on the 
principle of general and special law, earlier law and later law, doctrine 
of implied repeal, and the nature of LAA 1894, a general law and 
CDAO, 1960, a special law, held  
‘that there is conflict between the two enactments 
and could not stand together; therefore special law 
which was enacted later would not only have 
precedence but abrogate the earlier contrary law62.  
 
As will be discussed in the succeeding paragraphs, the conclusion 
drawn that provisions of ‘land acquisition’ contained in the CDAO, 
1960 abrogates provisions of land acquisition in the LAA, 1894 cannot 
be sustained.  
 
a. 
PROPERTY 
RIGHTS 
WITHIN 
THE 
CONSTITUTION 
OF 
PAKISTAN, 1973  
53.  
 
Articles 4, 23, 24, 152, 172, 173 and 253 of the 
Constitution of Pakistan, 1973 deals with various aspects of property 
rights, interests and concomitant limitations.  
Article 4 guarantees that: 
‘no action detrimental to life, liberty, body, reputation or 
‘property’ of any person shall be taken except in accordance 
with law.’  
Article 23 provided that:  
'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.‘  
Sub Article (1) of Article 24 ibid further hold the out assurance: 
‘that no person shall be deprived of his property save in 
accordance with law’  
 
 
62 Paragraph 24 of Impugned judgment 
C.As N.1476 – 1485/18 etc. 
 
31 
 
Sub Article (2) further reassures that: 
No property shall be compulsorily acquired or taken 
possession of with a caveat 
(a) save for a public purpose, and  
(b) save by the authority of law, which provides  
(c) 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. 
   
The expression “save by authority of law” in this Article provides for 
acquisition in accordance with law, which in the present case is the 
Land Acquisition Act, 1894 as it is in conformity with all the 
attendant limitations. 
 
54.  
 
Article 253(1) endows the Majlis-e-Shora (Parliament) to 
prescribe a maximum limit as to property, or any class thereof, which 
may be owned, held, or possessed by any person. Any law, which 
allows a person to own or possess beneficially an area of land greater 
than which, immediately before the commencing day63, he could have 
lawfully owned or possessed beneficially, was held to be void64. Clause 
(b) of sub-Article (1) of Article 253, gives legislative competence to the 
Parliament to legislate, empowering the Federal or Provincial 
Government, directly or through corporations controlled by any of such 
Government, to carry on any trade, business, industry, or service as 
may be specified in such laws either wholly, partially or to the exclusion 
complete or partial of other person or by corporation controlled by any 
such Government. 
 
 
 
 
6314 August, 1973 per Article 265 (2) of the Constitution 
64 Land Reform, Act 1972, and Hydrogenated Vegetable Oil Industries (Control and 
Development) Ordinance 1973 owes its legitimacy under Article 253 (1) of the Constitution 
C.As N.1476 – 1485/18 etc. 
 
32 
 
b. 
THE ABSENCE OF A ‘NON-OBSTANTE’ OR OVERRIDING 
CLAUSE IN CDAO, 1960 
55.  
 
The observation of the learned bench in para 24 of the 
impugned judgment is that:   
“It is settled that in case of conflict, preference is to be given 
to the new law, and the implied repeal of earlier law could be 
inferred only when there was enactment of later law, which 
had the power to override the earlier law, and was totally in 
consonance with the earlier law and when there are two laws,  
the earlier and later law, could not stand together, therefore, 
later laws abrogate the earlier laws.”  
 
i. 
Distinguishing the Cases relied upon by the learned bench 
56.  
 
The propositions of law appears to have been drawn from 
precedent law cited as The Lahore (Inland Revenue)65, Tanveer Husain,66 
which though is correct, however, applying the same on the facts and 
circumstances of the present case to infer that the LAA, 1894 stands 
superseded by CDAO, 1960 is not a correct deduction.  
 
57.  
 
In the case of Lahore (Inland Revenue) supra, rival 
provisions contained in the Income Tax Ordinance 1979 and the 
Income Tax Ordinance, 2001 were under consideration. In the case 
of Tanveer Husain (supra), the period of limitations to file the appeal 
contained in the rival statutes i.e Civil Servant Act, 1973 and similar 
provisions in Removal from Service (Special Powers) Ordinance 
2000 were under question. The cases are quite distinguishable. 
 
58.  
 
Learned Counsel for the Respondents has relied upon 
Syed Murshad Shah etc v. FIA67, Muhammad Mohsin Ghuman v. 
Government of Punjab68, and LG HQ Frontier Corp etc. v. Ghulam 
 
65 2013 PTD 2125 
66 PLD 2006 SC 249 
67 2017 SCMR 1218 
68 2013 SCMR 85 
C.As N.1476 – 1485/18 etc. 
 
33 
 
Hussain69, to urge that when two competing laws are in field, then the 
later law prevails. Said cases were relied upon in paragraph 21 of the 
impugned judgment with approval. We have examined and note that 
the under lying principles in cited cases were missed by the learned 
bench. 
 
59.  
 
In the first mentioned case of Syed Murshad Shah etc, the 
matter concerned a customer of a bank involved in financial 
impropriety. This Court resolved the conflict as to the primacy of law, 
stuck between Banking Companies Ordinance, 1962 read with 
Federal Investigation Agency Act, 1972, Banking Companies 
(Recovery of Finance) Ordinance 2001, Financial Institution 
(Recovery of Finance) Ordinance 2001 (FIO, 2001), and Offences 
in Respect of Banks (Special Courts) Ordinance, 1984. It was held 
that where there is conflict between competing laws, ultimately 
question of relativity between two or more of the statute on common 
subject matters and where the two conflicting law contain overriding 
clause, generally the legislation later in time will prevail. Such 
presumption was, however, held not to be automatic. A host of other 
factors including object, purpose and policy of both statutes and the 
legislature’s intention as expressed by the language employed therein 
to determine which of the two was to prevail.  
 
60.  
 
In the second case of Mohsin Ghuman Surpra, the Police 
Order 2002 was pitched against the Punjab Civil Servant 
Recruitment (Relaxation of Upper Age Limit) Rules 1976. The 
general law as well as the special law contained a ‘non-obstante' clause. 
The Court opined that the special statute overtakes the general law 
even if the general law contained a non-obstante clause. The case is 
quite distinguishable as the CDAO, 1960, while special law, does not 
contain a non-obstante clause to override the provisions of LAA, 1894 
for land acquisition.  
 
69 2004 SCMR 1397 
C.As N.1476 – 1485/18 etc. 
 
34 
 
61.  
 
It was noted in the case of LG HQ Frontier Corp etc. v. 
Ghulam Hussain, both the competing laws i.e. Frontier Corp 
Ordinance 1959 and Removal from Services (Special Power) 
Ordinance, 2000 were couched in negative terms or in such 
affirmative terms, which unequivocally involve negative ramifications, 
that proved fatal to the earlier enactment. In all the three cases noted 
above, ‘overriding’ and ‘non-obstante' clauses gave supremacy over 
both general as well as special law, which were earlier in time. None of 
the cases supports the case of the private Respondents. 
 
62.  
 
Hence, the conclusion of the learned bench in para 23 of 
the impugned judgment cannot be sustained, as the CDAO, 1960 
neither contains an ‘overriding’ nor a ‘non-obstante' clause that may 
nudge out LAA, 1894 from its applicability in ICT. Having examined 
both the enactments, we are also of the view that CDAO, 1960 is 
purpose specific law that caters to the requirement of ‘planning and 
development’ of the new capital of Pakistan and such kind of 
enactment provides a complete mechanism in itself, which is a self-
contained enactment, having no dependency for the acquisition of land 
on the LAA, 1894, unlike similar statutes catering for planning and 
development of major and developing cities as discussed in succeeding 
paragraph 66.  
 
63.  
 
No arguments strong enough have been put forth to show 
that the CDAO, 1960 could override the provisions of the LAA, 1894. 
In absence of overriding or superseding or ‘non-obstante' provision 
within the      CDAO, 1960, we see no reason strong enough as to why 
the CDAO, 1960 should override the provisions of the LAA, 1894 as 
held by the learned Bench in the impugned judgment. In conclusion, 
as stated above, the legislations are merely overlapping and there 
appears to be no conflict between both the statutes. There is no 
apparent reason as to why these statutes cannot exist coextensively as 
each of them caters to a different object and purpose. 
 
C.As N.1476 – 1485/18 etc. 
 
35 
 
ii. 
Construing the words of the CDAO, 1960 in their natural, 
ordinary, or popular meaning 
64.  
 
The provisions of CDAO, 1960, are to be considered in 
their natural, ordinary or popular meaning, not containing a non-
obstante clause. The CDAO, 1960 also does not explicitly exclude the 
application of LAA, 1894 over ICT, as compared to other legislations 
of similar nature (as noted in succeeding paragraph 66). The literal 
rule further lends support that the CDAO, 1960 is not the only 
legislation to be used in ICT for acquisition of land, which can be 
invoked in furtherance of the main purpose of the legislation i.e for 
planning and development’ as held in the case of Murree Brewery Co 
Ltd. v. Pakistan through Secretary to Govt. of Pakistan, Works Division70.    
 
iii. 
The Legislature adds a ‘non-obstante’ clause where the 
intention is for the legislation to have an overriding effect: 
65.  
 
One may instructively refer to the Punjab Development 
of Cities Act, 1976, which, by virtue of its Section 24, makes the Act, 
applicable notwithstanding provisions of LAA, 1894. In addition, the 
Punjab Acquisition of Land (Housing) Act, 1973, per Section 3, 
enables it’s provisions to apply notwithstanding anything contained to 
the contrary in LAA,1894 or any other law for the time being in force. 
Furthermore, Section 25 of the Lahore Development Authority Act, 
1975 also contained a notwithstanding clause. Baluchistan 
Acquisition of Land (Housing and Development Scheme) Rural 
Areas Act, 1974,  Hyderabad Development Authority Act, 1976 
contained no provision overriding LAA, 1894 in either enactment. As 
per Section 49 of the NWFP Urban Planning Ordinance, 1978, 
provisions of the same would apply notwithstanding anything 
contained to the contrary in the LAA,1894 or any other law for the 
time being in force. Section 15 of the Baluchistan Costal 
Development Authority Act, 1998 states that where the Authority is 
of the opinion that any land needed for any scheme or other public 
purpose cannot be acquired under Section 14, such land may be 
 
70 PLD 1972 SC 279 
C.As N.1476 – 1485/18 etc. 
 
36 
 
acquired in accordance with LAA, 1894. Gwadar Development 
Authority Act, 2003, through Section 39, makes provisions of LAA, 
1894 
by 
explicit 
reference 
applicable. 
Lastly, 
New 
Murree 
Development Authority Act, 2004, through Section 7(c), has the 
power to acquire property, both moveable and immoveable, and 
Section 25 of the same confers an overriding effect over provisions of 
any other law, but surprisingly, unlike other statutes on the subject, 
the Act of 2004 does not give manner and procedure of acquisition of 
land. Cited statutes are amongst many on the subject, relatable to ‘city 
or region specific development’, some of the statute import, some adopt 
by reference, and some override applicability of not only the LAA, 
1894, but any other laws too. During the pendency of the case, the 
Foundation has been transformed into the Authority the under 
Federal Government Employees Housing Act, 2020 which contains 
a non-obstante clause essentially overriding the CDAO, 1960, 
implication of such change and up gradation of legal status of 
foundation to that of the Authority will be dealt with separately.   
 
66.  
 
As noted earlier, CDAO, 1960 is a purpose specific 
legislation “providing for making all arrangements for the planning and 
development of Islamabad within the frame work of a regional plan”. 
The CDAO, 1960, as already noted above, does not contain any 
exclusionary or overriding clause barring the applicability of LAA, 
1894, meaning thereby that, while enacting any statue, some of the 
matters covered by the purpose specific statute of CDAO, 1960 may 
touch upon some of the aspects, which, in fact, are elaborately covered 
by other statutes and both the statute can coextensively exist and 
operate in their respective domain. The Respondents were not able to 
convincingly demonstrate that CDAO, 1960, under given set of 
circumstances, overrides the LAA, 1894 for ICT. However, the 
planning and development is still the domain of the CDA and it still 
maintains the authority to conduct such planning and development of 
any land that is acquired under the LAA, 1894 for public purpose.  
C.As N.1476 – 1485/18 etc. 
 
37 
 
IV. 
Enactment of Law to Qualify as an Exception within Article 
24 of Constitution: 
67.  
 
Indeed, it was rightly concluded by the learned Division 
Bench, (in para 29 of the Impugned Judgment) that for the purpose of 
acquisition of any property or depriving any person of a property, such 
exercise of authority need to be backed by law. The learned bench, in 
a truncated manner, relied upon exceptions carved out in terms of sub-
article (3) of Article 24, where a Constitutional shield is provided to 
laws framed for the acquisition of different category of property i.e  
a) for preventing danger to life, property or public health 
b) 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  
c) enemy property or evacuee property  
d) for limited period, either in the public interest or in order 
to secure the proper management of property or for the 
benefit of its owner  
e) (i) providing education and medical aid to all or any 
specified class of citizen  
(ii)  housing and public facilities  
(iii) providing maintenance to those who, on account of 
unemployment, sickness, infirmity or old age, are 
unable to maintain 
themselves, 
f) any existing law or any law made in pursuance of 
Article 253. 
 
 
68.  
 
The learned Division Bench of the Islamabad High Court, 
relying on sub-article (3) of Article 24, (wrongly quoted as Clause 3 of 
Article 4), concluded that no persons could be deprived of his property 
without any authority or backing of law, is indeed correct. To draw 
support, the learned bench relied upon a judgment in the case of Nazim 
F Haji, Chief Citizen Police Liaison Committee Karachi v. Commissioner 
Karachi etc.71 In the cited case, the action of the Government of Sindh, 
whereby private vehicles were being requisitioned without any 
compensation in favor of law enforcement agencies, such as the police, 
was eventually challenged in the court of law. When it was challenged, 
the Government of Sindh defended the action relying on Section 42 of 
 
71 PLD 1993 Kar. 79 
C.As N.1476 – 1485/18 etc. 
 
38 
 
the Code of Criminal Procedure 1898 which inter-alia obligates the 
public to assist the Magistrate and the Police for prevention or 
suppression of breach of law. The learned bench of the Sindh High 
Court rightly deprecated such practice of the Police and held that 
Section 42 Cr.P.C does not authorize the requisition of private vehicles 
and there is no law on the subject that complies with Article 24 of the 
Constitution, 1973 for the requisition of private Vehicle in public 
interest against compensation. Although, such law is enacted in the 
Indian part of Punjab72. We fail to understand how the learned bench 
has relied on the aforementioned case in the current circumstances, 
let alone how it advances the case of the Respondents.   
 
69.  
 
The legislative history, Constitutional, as well as legislative 
protection, of the LAA, 1894, including its applicability on ICT have 
been thrashed out in detail in the above mentioned paragraphs. The 
legitimacy of the LAA, 1894 in the current legislative scheme has 
already been discussed and established. Hence, the LAA, 1894 is 
covered under the exception contained in Article 24 (2), which need 
no further elaboration. To assume that the land acquisition in the case 
at hand is without any legal backing is too naive an opinion, which 
cannot be sustained.  
 
70.  
 
The learned bench concluded that the LAA, 1894 has no 
constitutional blessing within Art. 24 and assumed that is, in fact, the 
CDAO, 1960 that fits within the scheme of Article 24. As discussed 
in the preceding paragraphs, the CDAO, 1960 and the LAA, 1894 had 
each qualified under the tests provided in Article 8 and Article 227 
of the Constitution. We have noted that all statutes, some of which are 
referred herein above in paragraph 65, that provide for the acquisition 
of any class of property, have provisions to discharge municipal 
function. Such discharge of municipal functions, along with executing 
a scheme for ‘planning and development’ in area of respective 
 
72 Punjab Requisitioning and Acquisition of Movable Property, Act, 1978 
 
C.As N.1476 – 1485/18 etc. 
 
39 
 
jurisdiction, can enable these statutes to qualify under the exceptions 
contained in sub-clause (ii) of clause (e) to Sub-Article (3) of Article 
24 of the Constitution for the purposes of land acquisition. The same 
has been reproduced below: 
“(3)Nothing in this Article shall affect the validity of 
(e) any law providing for the acquisition of any class of 
property for the purpose of-  
(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” 
 
71.  
 
While previously the CDAO, 1960, under S.15A, catered 
for municipal functions, they have since been sliced away pursuant to 
the mandate of Article 140A of the 1973 Constitution and such 
municipal functions are now conferred on the Authority established 
under Islamabad Local Government Act, 2015. Therefore, the 
possibility has now arisen where the CDAO, 1960 may no longer even 
qualify under the exception contained in sub-clause of (ii) of Clause 
(e) to Sub-Article (3) of Article 24 of the Constitution for the purposes 
of land acquisition. Since this was not an issue before us, we have 
refrained from attending to it. 
 
a. 
THE EXCEPTION UNDER ARTICLE 24(2) 
72.  
 
Perhaps it would have been appropriate if the learned 
bench, prior to venturing into the exceptions contained in sub-article 
(3) of Article 24, had examined the exception contained in sub-article 
(2) of Article 24. The same has been reproduced below for convenience 
sake. 
  
“(2) --- Protection of Property Rights 
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.” 
C.As N.1476 – 1485/18 etc. 
 
40 
 
73.  
 
The exception contained in sub-article (2) of Article 24 is 
relevant to determine the validity of actions taken the LAA, 1894. Once 
a declaration is issued under S.6 (3) of the LAA, 1894, it is conclusive 
evidence that the land is needed for either public purpose or for a 
company, unless it is shown to be in colorable exercise of jurisdiction 
as was in the case of Murree Brewery73. In fact, the validity of law under 
clause (e) (ii) of sub-Article (3) of Article 24 is now conferred on the 
FGEH Authority Act 2020 due to the municipal functions entrusted 
to it under S.3(4) of the Act.   
 
74.  
 
Article 172 deals with the vesting of ownerless and other 
properties like mineral, oil and natural gas in the Provincial and 
Federal Government respectively, or jointly, as the case may be. 
Article 173(1), defines the limit of executive authority of the 
Federation and a Province, subject to any Act of appropriate legislation 
with regard to the grant, sale, disposition, or mortgage of any property; 
This Article also governs the purchase or acquisition of property either 
on behalf of the Federal Government or the Provincial Government, as 
the case may be, and the making of a contract. In terms of Sub-Article 
(2) of Article 173, ‘all property acquired for the purposes of the 
Federation or of a Province, as the case may be’ shall vest in the Federal 
Government or in the Provincial Government as the case may be. The 
learned bench erred in holding (see paragraph 34 and 35 of the 
impugned judgment) that the acquisition for public purpose, could 
only be undertaken in exercise of authority under Art. 173, read with 
CDAO, 1960, and not LAA, 1894 mandated under     Art. 24. As 
noted, herein, objectives and purpose of the two articles are entirely 
different. 
75.  
 
The objectives and purpose of the two articles are entirely 
different. Article 24(2) provides for the acquisition of privately owned 
property, for a public purpose, against compensation. Whereas, 
Article 173(2), as noted above, concerns where the acquisition of the 
property is “for the purposes of the Federation or of a Province”. The 
 
73 PLD 1972 SC 249 
C.As N.1476 – 1485/18 etc. 
 
41 
 
learned bench did not consider the correlation of sub-article (2) of 
Article 24 with S.6 of the LAA, 1894 that led to an erroneous 
conclusion. Resultantly, it becomes imperative to delve into the 
legislative origin of Article 24 and the principle it embodies to form a 
better understanding regarding the power of the State to acquire land 
under the umbrella of ‘public purpose’. 
 
V. 
Eminent Domain: 
76.  
 
The power of ‘Eminent Domain‘ is a proprietary aspect of 
sovereignty and is inseparable from it.74 It is an inherent attribute of a 
sovereign State and the manifestation of the sovereign authority of 
‘Eminent Domain’ can be traced to Article 24 of the Constitution of 
Pakistan, 1973. It vests within the State, or its delegated 
instrumentality, to expropriate private property for public use, and or 
for company against adequate, or reasonable, compensation payable 
to the owner of property75.  
77.  
 
The doctrine of ‘Eminent domain’ is founded on two 
maxims which can be traced back to the work of Roman orator, writer, 
and statesman, Marcus Tullius Cicero's76 and ‘De Legibus’77. The first of 
these maxims is “salus populi est supreme Lex (i.e regard for the public 
welfare is the highest law) and the second is “necessitas publica major 
est quam private” (i.e public necessity is greater than private 
necessity)”.’ The term "eminent domain" was then coined from the legal 
treatise “De jure belli ac pacis” (On the Law of War and Peace), 
authored by the Dutch jurist Hugo Grotius in 1625, which used the 
term ‘Dominium Eminens’ (Latin for supreme ownership)78. 
 
 
74 Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 
75 For an elaborate discussion, see American Jurisprudence, 2d Vol 26, pp 638-39 para1, and  
Sooraram Pratap Reddy & Ors. v. Deputy Collector, Ranga Reddy & Ors. (2008 (9) SCC 
552), Para 47 
76 Period of work ranging from 106 BCE- 43 BCE 
77 Period of work is estimated between February 45 and November 44 - Encyclopedia Britannica 
78 Nowak, John E.; Rotunda, Ronald D. (2004). Constitutional Law (Seventh ed.). St. Paul, 
MN: Thomson West. p. 263. ISBN 0-314-14452-8 
C.As N.1476 – 1485/18 etc. 
 
42 
 
a. 
EMINENT DOMAIN ORIGIN IN THE US CONSTITUTION. 
78.  
 
Tracing the constitutional history, the concept of Eminent 
Domain received first recognition and manifestation in the 5th 
Constitutional Amendment (1791) in the Constitution of United 
States, 1789, whereby it incorporated that ‘No person can be deprived 
of life liberty or property without due process of law’ and limits of the 
authority of the State from taking private property for public use 
without "just compensation". The Fifth US Constitutional amendment 
provided the basis of Eminent Domain in the United States. While 
originally Eminent Domain vested only within the Federal Government, 
the US Supreme Court, in the case of United States v. Jones79, 
approved that such powers could be legislatively delegated by the State 
to municipalities, government subdivisions, or even to private persons 
or corporations, when they are authorized to exercise the functions of 
public character80. The Power of Eminent Domain of a State and its 
delegated authority is now considered as one of the pivotal attribute of 
all modern Constitutions of the nation States.  
 
b. 
THE PRINCIPLE OF EMINENT DOMAIN IN SUBCONTINENT   
79.  
 
The said principles have also been accepted and applied 
in India in the cases reported as Charanjit Lal Chowhury v Union of 
India and others (1950)81, and State of Bihar v. Kameshwar Singh82. The 
Indian Supreme Court examined the constitutionality of the provisions 
of LAA, 1894 pitched against the rights to property and applied the 
doctrine of Eminent Domain to rule in favor of the LAA, 1894.  
 
 
 
 
 
79 109 U.S. 513 (1883) 
80 See Chicago, B & Q Railroad Co v. Chicago 166 U.S 226 (1897) 
81 1 SCR 869 
82 AIR 1952 SC 252 = (1952)1 SCR 899 
C.As N.1476 – 1485/18 etc. 
 
43 
 
80.  
 
The Constitution of Pakistan, 1973 is no exception to 
applying the principles of Eminent Domain. The concept of Eminent 
Domain can be attributed to Article 983 read with Article 24(1)84 of the 
Constitution of Pakistan, which are in pari matretia to Vth American 
Constitutional Amendment. As noted above, sub-Article (2) of 
Article 24 regulates exercise of sovereign authority or Eminent Domain 
of State over private property is subjected to three concomitant 
limitations. Firstly, that no person can be deprived of his property 
except in accordance with law, meaning thereby that, no property 
could be acquired through executive orders and actions. Secondly, a 
person could only be deprived of his property for public purpose. 
Thirdly, that acquisition of property of a person must be against 
compensation. Sub-Article (3) of Article 24 gives constitutional 
protection to various laws dealing with acquisition of different types of 
property for variety of purposes and objectives. 
 
81.  
 
Several Land Acquisition legislations were considered in a 
large number of cases from the perspective of legislative domain and 
the right to property, as guaranteed under the constitution and 
Eminent Domain enjoyed by a State authority as discussed herein. 
Such legislation was also viewed through lens of Islamic Injunction85. 
In case reported as Hafiz Muhammad Ameen v. Islamic Republic of 
Pakistan and others86, a five member bench held:  
“Since Article 24 in its clause (2) provides that any law of 
compulsory acquisition will have to provide for compensation, 
clause (4) was added to provide protection to laws covered by 
clause (3)”   
They further held that the: 
“power of Court was taken away to declare invalid law for 
acquisition of any class of property for certain purposes….”  
 
 
83 No person shall be deprived of his life or liberty save in accordance with law 
84 No person shall be deprived of his property save in accordance with law 
85 Article 227 of The Constitution of Pakistan, 1973 
86 PLD 1981 FSC 23 at page 41 
C.As N.1476 – 1485/18 etc. 
 
44 
 
82.  
 
Another manifestation of Eminent Domain, in addition to 
Art. 24, over a Province find its place in Article 152, which sanctions 
acquisition of land situated in a Province, at the direction, on behalf 
of, and at the expense of the Federal Government, for any purpose with 
respect to which the Parliament (Majlis-e-Shoora) has power to make 
law. Article 152 also provides for the transfer of land owned by a 
Provincial Government to the Federal Government by agreement. In 
case of disagreement between the two Governments, the dispute is to 
be resolved by the Arbitrator to be appointed by the Chief Justice of 
Pakistan87. 
 
83.  
 
In essence, the principle of Eminent Domain provides for 
the acquisition of land by the State for a Public Purpose or for company 
in exchange for compensation. The State, exercising their authority 
under Eminent Domain, has rightfully acquired such property by 
issuing notification S.6 of the LAA, 1894,  which is treated as 
“conclusive evidence that the land is needed for public purpose or for the 
company as the case may be “ 88 
 
84.  
 
In order to ascertain the inherent powers of a State to 
exercise 
Eminent 
Domain, 
either 
itself 
or 
through 
its 
instrumentality/agent, the deduction of the nature of the Federal 
Government Employees Housing Foundation becomes necessary. The 
learned bench did not look into the nature of FGEHF, and assumed it 
to be entity under Section 2(e) of the LAA, 1894. The true nature of 
the FGEHF as either a corporate entity in common parlance or an 
instrumentality/agency of government would further clarify if the 
Foundation 
could 
exercise 
Eminent 
Domain 
as 
an 
instrumentality/agency of the government.  
 
 
 
87 for further discussion one may see Iftikhar Hussain Shah v. Pakistan through Secretary, 
Ministry of Defence, Rawalpindi 1991 SCMR 2193 
88 Section 6 (3) LAA, 1894 
C.As N.1476 – 1485/18 etc. 
 
45 
 
VI. 
NATURE OF FGHEF: 
85.  
 
On 2.10.2019, Mr. Faisal Hussain Naqvi, learned counsel 
for the private Respondents, in C.A 1476 to 1480 of 2018, brought to 
the notice of the Court that Federal Government Employees Housing 
Foundation has been established through an Act of Parliament, which 
has superseded the FGEHF. Such fact was taken note of to examine 
its implication. Later FGEHA Act, 2020 was brought to our notice. 
While the Foundation is now an ‘authority’ due to the Act, 2020, we 
will nonetheless examine the legal implications of the ‘Foundation’ in 
the given set of circumstances. 
 
a. 
DISTINGUISHING THE CASES RELIED UPON BY THE 
ISLAMABAD HIGH COURT 
86.  
 
In the case Ghulshan Hussain etc. v Commissioner 
(Revenue), Islamabad, etc.89, the learned division bench treated Federal 
Government Employees Housing Foundation as an agency of the 
Government and relied on the cited case of Fauji Foundation v. 
Shamimur Rehman90 and cited a passage, which is relevant for the 
purpose of present controversy and, in fact, supports the Petitioner 
Foundation’s case  
“Once the public purpose is evident, the means for executing the 
project is for the law giver alone to determine as to how purpose 
may better be served as through an agency of private enterprise 
or through department of government, it is not open to court to give 
its own opinion on matter of which lawgiver is the judge.” 
 
87.  
 
We fail to understand how case of Muhammad Ishaq etc. 
v. Govt. of Punjab etc.91, (para 29 of Impugned judgment) is helpful to 
the Respondents. In the referred cases, this court held that the Co-
operative Society fall within the definition of Company as defined under 
Section 2 (e) of the LAA, 1894, and acquisition of land for the need of 
 
89 2000 YLR 1711 
90 PLD 1983 SC 456 
91 2002 SCMR 1652 
C.As N.1476 – 1485/18 etc. 
 
46 
 
company need not be for public purpose. The referred case is of no 
help to the Respondents, as the learned bench presumed that the 
Petitioner having been registered as Foundation under Section 42 of 
the Companies Ordinance, 1984 in the attire of a “company” is a 
company within the meaning of Section 3(e) of the LAA, 1894. While, 
in fact, the Foundation was indeed registered under S.42 of the 
Companies Ordinance, 1984, but not as a commercial or trading 
entity. Instead, it was registered as a service provider, a non-trading 
not for profit entity, and as an instrumentality of the State and, 
therefore, it’s comparison with a trading company for profit, is not 
justified.  
 
b. 
THE TEST FOR INSTRUMENTALITY/AGENCY LAID DOWN BY 
THE APEX  
88.  
 
In order to determine the exact nature of the FGEHF, we 
will be relying on the jurisprudence of this Court where it has 
previously examined instrumentalities/agencies performing functions 
in connection with the affairs of the Federation or a province. It may 
be observed much before the status of FGEHF was examined by this 
court, the test to determine whether functions entrusted to an 
organization are the functions of a state, or otherwise, was laid down 
in the case of Salahuddin and 2 others v. Frontier Sugar Mills and 
Distillery Ltd,92 The same has been reproduced below: 
‘What is meant by the phrase "performing functions in 
connection with the affairs of the Federation or a Province" It 
is clear that the reference is to governmental or state 
functions, involving, in one form or another, an element of 
exercise of public power. The functions may be the traditional 
police functions of the State, involving the maintenance of law 
and order and other regulatory activities; or they may 
comprise functions pertaining to economic development, social 
welfare, education, public utility services and other State 
enterprises of an industrial or commercial nature. Ordinarily, 
these functions would be performed by persons or agencies 
directly appointed, controlled and financed by the State, i.e., 
by the Federal Government or a Provincial Government. 
However, in recent years, there has been manifest a growing 
 
92 PLD 1975  
C.As N.1476 – 1485/18 etc. 
 
47 
 
tendency on the part of Government to create statutory 
corporations 
for 
undertaking 
many 
such 
functions, 
particularly in the industrial and commercial spheres, in the 
belief that free from the inhibiting effect of red tapism, these 
semi-autonomous bodies may prove snore effective, flexible 
and also profitable. Inevitably, Government retains effective 
control over their functioning by appointing the heads and 
other senior officers of these corporations, by regulating their 
composition and procedures by appropriate statutes, and by 
finding funds for financing their activities.’ 
‘The primary test must always be whether the functions 
entrusted to the organization or person concerned are indeed 
functions of the State involving some exercise of sovereign or 
public power; whether the control of the organization vests in 
a substantial manner in the hands of the government; and 
whether the bulk of the funds is provided by the State. If these 
conditions are fulfilled, then the person, including a body 
politic or body corporate, may indeed be regarded as a person 
performing functions in connection with the affairs of the 
Federation or a Province; otherwise not.’ 
 
i.   
Exercise of Sovereign or Public Power by the Organization: 
89.  
 
Given the aforementioned test, the Rules of Business 
1973, elaborately lay down the rules and manner how a Federal and 
Provincial Government functions and regulates their business through 
the Federal or Provincial Secretariat. The occupational work of each 
secretariat is distributed amongst several Divisions. As Per Rule 4 
under the Rules of Business, 1973 each of the Divisions of the Federal 
Government are further branched into several sub-divisions, flanked 
by ‘Attached Departments’, which is then further devolved into 
‘working units’, or sections, and any such agencies or offices as the 
Prime Minister or chief Minister may determine. Each Secretariat 
carries on assigned business and activities, through various 
instrumentalities, agency of juridical, and administrative embodiment.  
 
90.  
 
The List of Ministries and Divisions that the Federal 
Secretariat shall comprise of is provided in Schedule I93 of the Rules 
of Business, 1973. Entry #11 in Schedule I pertains to the ‘Ministry 
of Housing and Works’ with the attached division of ‘Housing and 
 
93 Rule 3(1) of the Rules of Business, 1973 
C.As N.1476 – 1485/18 etc. 
 
48 
 
Works’. The business of ‘Ministry of Housing and Works’ is as 
distributed is mentioned in Schedule II94 in the Rules of Business, 
1973. Upon perusal, Serial #14, Entry No. 2 elaborates one of the 
businesses it transact is reproduced below 
‘2. Provision of Government owned office accommodation and 
residential accommodation, policy for acquisition, 
requisitioning 
and 
hiring 
of 
office 
and 
residential 
accommodation for officers and staff of Federal 
Government.’   
 
91.  
 
The learned bench also relied on the Memorandum of 
Association of the FGEHF, in paragraph 13 of the impugned judgment, 
to illustrate the complete objective concept, wherein the primary object 
was provided in Clause III(a) reproduced hereunder: 
“III(a).To eradicate shelterlessness in the Federal Government 
employees and to make and assess as far as possible each 
of them have a house at the time of his retirement or earlier 
and his dependents in case of death before retirement, on 
such terms and the Board of Governors may determine. 
(b).To initiate, launch, sponsor and implement housing 
schemes for Federal Government employees on ownership 
basis in Islamabad, the provincial capital and other major 
cities of Pakistan.” 
 
92.  
 
The purpose that was being carried out by the Federal 
Government Employees Housing Foundation was one that fell 
within the powers of the Division of the Ministry of Housing and Works 
as noted above. The fact that the Chairman of the Board of Governors 
for the Foundation was the Minister of Housing and Works also further 
lends to the fact that the Foundation exercised functions allocated to 
the Ministry of Housing and Works under the Rules of Business, 
1973.  
 
 
 
94 Rule 3(3) of the Rules of Business, 1973 
C.As N.1476 – 1485/18 etc. 
 
49 
 
ii. 
The control of the organization vests in a substantial 
manner in the hands of the government: 
93.  
 
The 
learned 
bench 
themselves 
acknowledged, 
in 
paragraph 12 of the impugned judgment, that the members of the 
Former Foundation were members of the executive belonging to 
various ministries, including the Ministry for Housing and Works. The 
relevant paragraph has been reproduced below: 
‘The Federal Government Employees Housing Foundation 
while incorporating its Articles of Association referred the 
concept of membership which is only opened to the Federal 
Government employees, approved by the executive committee 
The management system referred in the said Articles is based 
upon the Executive Committee, comprising of Secretary 
(Housing and Works) as Chairman and Joint Secretary 
(Housing and Works) as a Vice Chairman, along with five 
members who are Financial Advisor (Ministry of Finance), 
Joint Secretary (Cabinet Division), D.G. Public Works 
Department, Deputy Secretary Admin (Works Division), and 
CSD (P&EC). The FGEHF has its Board of Governors 
comprising of Chairman, who is Minister for Housing and 
Works with four members including Secretary Interior, 
Secretary Establishment Division, Secretary Finance and 
Secretary Housing and Works. The Board and its Executive 
Committee are the decision maker in the FGEHF.’ 
 
94.  
 
The aforementioned reproduction conclusively establishes 
that the control of the former foundation vested solely in the hands of 
the government as the Board and its Executive Committee were the 
decision makers in the FGEHF. Therefore, the control of the 
organization, in its entirety, vested within the hands of the 
government.  
iii. 
The bulk of the funds is provided by the State 
95.  
 
Given that the foundation is conducting the affairs of the 
government, it is the State itself that allocates funds for financing the 
operation, salary of all its Board members, who are Civil Servants and 
for the staff and activities of the Foundation.   
 
C.As N.1476 – 1485/18 etc. 
 
50 
 
c. 
AFFIRMATION BY THE SUPREME COURT OF THE TEST LAID 
DOWN IN SALAHUDDIN V. FRONTIER SUGAR MILLS AND 
DISTILLERY LTD. 
96.  
 
The exact nature of the FGEHF was examined by this 
Court in detail in the case reported as FGEHF v. Muhammad Akram95, 
wherein leave was granted inter alia to consider whether the allotment 
of plot claimed by a Civil Servant in the housing scheme of the FGHF 
fell within the terms and condition of service so as to attract the 
jurisdiction of Federal Service Tribunal. This court, in order to resolve 
the right of a civil servant to invoke appropriate jurisdiction, examined 
true character and status of the FGHF This Court examined the 
manner, intent and purpose of establishing FGEF in detail at page 
1088 observed  
“This is correct that Housing Foundation was neither a 
statutory body nor is performing sovereign function rather by 
its character, it is functioning as an agency of ministry of 
Housing and Works, Government of Pakistan and is enjoying 
the status of an official body of the said ministry. Housing 
Foundation as per its declared objects and purpose, has 
undertaken the function of establishing the project for 
providing residential houses to the Federal Government 
Employees as a welfare institution without any financial gain. 
The Housing Foundation is not as such being financed from 
public exchequer but its affairs are being fully managed and 
controlled by machinery of the State and its functionaries are 
being paid from public exchequer. The Housing Foundation is 
operating the capital area and after acquiring land in the 
capital territory of Islamabad through land Acquisition 
Collector under the Land Acquisition Act, 1894, has prepared 
the housing Scheme for allotment of residential plots to 
Federal Government Employees.” 
 
In succeeding paragraph at page 1090 it was further reiterated   
The Housing Foundation thus by virtue of object and purpose 
has acquired the status of an official organization in the form 
of a company incorporated under the Companies Ordinance 
1984 which is functioning under the direct control of Ministry 
of Housing and Works, Government of Pakistan, as its official 
wing and is recognized as an agency of the Federal 
Government”. 
 
952002 PLC (CS) 1655= 2002 PLD SC 1079  
C.As N.1476 – 1485/18 etc. 
 
51 
 
In the following paragraph at page 1091 it was further 
reaffirmed, 
“FGHF having acquired the role of agency of Federal 
Government was working for the benefit of employees of 
Federal Government including the employees of Institutions, 
Corporations, and Organizations controlled by the Federal 
Government and would stand on different footing to that of a 
private companies incorporated under the Companies 
Ordinance, 1984”   
 
97.  
 
Even otherwise during pendency of instant appeals and 
Petitions FGEHF, has been transformed into a Statutory Authority 
through Federal Government Employees Housing Act, 2020, which Act 
has received the assent of the President on 14 January 2020 and the 
Act was published in the official Gazette on 15 January 2020. The 
2020 Act has unequivocally cleared the ambiguities elaborated upon 
in this judgment. The relevant provisions have been analyzed in 
paragraphs 115 to 122. 
 
X. 
Public Purpose Justified for a particular segment of society 
98.  
 
The Indian Supreme Court in the case of Ratilal 
Shankarabhai and others v. State of Gujrat and others96 held that 
ordinarily, the Government is the best authority to determine whether 
the purpose in question is a public purpose or not. Furthermore, the 
declaration made by it under Section 6 is conclusive evidence of the 
fact that the land in question is needed for a public purpose as in       
Smt. Somavanti v. State of Punjab97. The decision lays down that 
conclusiveness in S.6(3) of the LAA, 1894 must necessarily attach not 
merely to a 'need' but also to the question whether the purpose was a 
public purpose. 
 
 
 
 
96 AIR 1970 SC 984 in Paragraph 7. 
97 see Smt. Somavanti v. State of Punjab 1963 AIR SC 151 = 1963 SCR (3) 774   
C.As N.1476 – 1485/18 etc. 
 
52 
 
99.  
 
Invariably, in all the cases so relied on by the learned 
bench, ‘public purpose’ for a segment of society was held to be a public 
purpose. The foundational case on the subject is Ministry of Works 
Government of Pakistan v Muhammad Ali98 wherein Cornelius, J., 
speaking for the majority of the bench, held that the acquisition of land 
for residence of Government servant is a public purpose. None of the 
case cited by the learned bench supports the case of the Respondents.  
The appropriate portion has been reproduced below: 
‘The provision of residences is not by itself a matter falling 
outside the concept of a "public purpose" provided that it is 
part of a scheme for making general provision of that 
character. Secondly, the provision of residences for a 
particular class of persons, even though it may operate so as 
to provide a particular residence for a particular member of 
that class is also not excluded from the meaning of the 
expression "public purpose", nor does it make any difference 
whether the residences are for completely unprivileged 
persons like coolies, or for those enjoying the patronage of 
Government in the capacity of officers And the further 
conclusion which emerges from these decisions is that the 
provision of such residences may be included within the 
meaning of the expression, "public purpose" in the case of 
coolies because of the benefit to a whole class, and in the case 
of public servants for the reasons stated by their Lordships of 
the Judicial Committee, because of the public benefit which 
accrues from the fact of Government being assisted in 
maintaining the efficiency of its servants.’ 
 
100.   
The dicta laid down by Cornelius, J. was recently upheld 
by a three-member bench of this court in the case of Younus Habib v. 
Imranur Rashid and others99 wherein it was held that the acquisition 
of land for a housing society is recognized as a public purpose.  
101.   
The scope of ‘public purpose’ was further extended in the 
case titled Pakistan through the Secretary, Ministry of Defence v. 
Province of Punjab and Others100, wherein it was held that even the 
construction of shops in a market would be considered to be a public 
purpose even if profit is earned. The judgment serves as substantive 
evidence that ‘public purpose’ is justified even when specific classes of 
 
98 PLD 1960 SC 60 
992018 SCMR 705  
100 PLD 1975 SC 37 
C.As N.1476 – 1485/18 etc. 
 
53 
 
people, such as the shopkeepers in the cited case, are benefitted 
notwithstanding the fact that the Cantonment Board was earning a 
profit on such allocation. The relevant extract has been reproduced for 
convenience sake  
“Thus if in a market so constructed shops are let out on rent, 
or some fee is levied as a toll in the market place would not 
render the purpose merely the earning of profit; but it would 
still be a public purpose being discharged by the Cantonment 
Board in performance of the duties imposed upon it by Section 
116 of the Cantonments Act. The levy of the fee or rent would 
merely be incidental and would neither deprive the property 
of its true character nor alter the user of the property from a 
public purpose to merely profit-making. 
I have no cavil with this enunciation and if a property is really 
used for a public purpose then the fact that a fee is levied for 
the user of such property would not render the user a non-
public purpose, Thus, for instance, the provision of slaughter 
houses at which a fee is charged for slaughtering cattle will 
not render the slaughter-house a merely profit-making 
concern. It would still remain a premises used for a public 
purpose” 
 
102.   
The concept of ‘public purpose’ was further enlarged to 
include welfare funds to serving personnel, ex-servicemen, and their 
families who also represented a specified class of people in the five-
member judgment of this court titled Fauji Foundation and another v. 
Shamimur Rehman101 
“The next question whether the retrieving of G.H.Q welfare 
funds and the charitable purposes such as those in which the 
appellant is engaged fall within the concept of "public 
purpose" or "public welfare". Just as the recovery of 
government dues cannot but be for public purpose as those 
not only belong to government but also to the entire people of 
the country, similarly retrieving of G. H. Q Welfare Funds 
which are also public funds and committed to the welfare of 
the serving personnel and ex-servicemen and their families, 
would also be for a public purpose on account of their purport 
and beneficial use by a large segment of population as 
against the private interest of an individual. 
All the enumerated items are without doubt purposes 
involving benefit to a large community of the population and 
in that view of the matter relatable to public purpose or public 
welfare. This view seems to gain support further from the use 
 
101 PLD 1983 SC 457 
C.As N.1476 – 1485/18 etc. 
 
54 
 
of expression "any advancement of any other object of general 
public utility" which necessarily connotes some beneficial 
advantage and service to the public” 
 
103.   
The judgments used by the learned bench are authorities 
that essentially contradict their own argument. We will venture to show 
how a select few of these authorities are essentially contradictory of 
their own stance on how public purpose is not justified in this case. 
The case of Ghulshan Hussain and another v. Commissioner (Revenue) 
Islamabad102 provided a set of circumstances, which if fulfilled, would 
satisfy the threshold for ‘public purpose’ with respect to the functions 
discharged 
by 
the 
Federal 
Government 
Employees 
Housing 
Foundation (FGHEF). The learned bench has considered the cited case 
in isolation and has been unsuccessful in applying the principle 
enumerated. The relevant portions of the cited case are reproduced 
below: 
“18. The Foundation, in the light of the definition of "public 
interest", unless includes all the employees of the Federal 
Government inside or outside Islamabad and all those persons 
who are discharging functions in connection with the affairs of 
the Federation such as employees of the National Assembly, 
Election Commission of Pakistan, Supreme Court of Pakistan, 
the employees of High Court discharging function at 
Rawalpindi Bench of Lahore High Court, Federal Sharait Court 
and the autonomous Bodies, Corporations, Institutions, 
Government or semi-Government Organizations which are 
directly or indirectly discharging the functions under the 
control of the Federal Government, Doctors, Engineers, 
Lawyers and Educationist, who in any manner are connected 
with the Federal Government and Federation in public or 
private sectors are bonafidely running their affairs in 
Islamabad, such-like Journalists, the acquisition of land for a 
Housing Scheme exclusively for the benefit of a limited class of 
civil servants will not be the "public interest”. Similarly, the 
senior members of the Armed Forces who having completed 
their service are at the verge of their retirement or being in the 
retirement tenure or retired are discharging their function at 
their Headquarters in Islamabad and Rawalpindi are also 
entitled to be given representation in the Housing Scheme of 
Housing Foundation like the members of the superior judiciary. 
Thus, the Housing Foundation without extending the benefit of 
the scheme to the public and private sectors on the basis of a 
reasonable classification and ratio by including people from 
every walk of life in official or semi-official position cannot 
 
102 2000 YLR 1711 
C.As N.1476 – 1485/18 etc. 
 
55 
 
justifiably acquire land for the benefit of only the employees of 
Federal Government as such employees are not definable as a 
Community for "public purpose". 
 
104.  
The learned bench then concluded that the ‘public 
purpose’ would be justified as long as the entire classes of employees 
in connection with the federation are benefitted by the housing 
scheme. It is further evident upon perusal of paragraph 24 of the cited 
case 
“24. The acquisition of land for a Housing Scheme introduced 
by the Housing Foundation for public utility in the form of an 
Agency like Capital Development Authority under the control 
of Federal Government and if such scheme is executed in the 
benefit of public-at-large and is not confined to a limited class, 
it will definitely advance the spirit of Constitution. Therefore, 
the acquisition of the land by the Housing Foundation for the 
benefit of all the above referred categories of persons can be 
for the "public purpose" and the same will not be in violation 
of Article 24 of the Constitution, which does not prevent 
establishment of Housing Colonies in the public interest.” 
 
105.   
The learned bench then relies on the case of Muhammad 
Ishaq and Others v. Government of Punjab and others103 in Paragraph 
29 of the impugned judgment to hold that 
‘… any scheme prepared by the FGEHF for providing housing 
facility to its members has to be seen as a private interest for 
those members only and their status is of a society for the 
purposes of housing scheme… However, when they use the 
state machinery with their limited objective under the 
Companies law, their entire working has to be seen in the light 
of their objective only and the purpose for which the land was 
acquired was too limited to hold that the same would be used 
for public purpose” 
106.   
The principle that land used for housing societies qualifies 
as a ‘public purpose’ was also affirmed by this Court in Younus Habib 
and others v. Imranur Rashid and others104. The dicta laid down by the 
cited judgment, read with Ghulshan Hussain and another v. 
Commissioner (Revenue) Islamabad (supra), denotes that the 
acquisition of land by the FGEHF was no longer for a specified class of 
 
103 2002 SCMR 1652 
104 2018 SCMR 705 
C.As N.1476 – 1485/18 etc. 
 
56 
 
Federal Government employees but now included every employee in 
connection with the affairs of the Federation. Therefore, the opinion of 
the learned bench of the High Court cannot be maintained regarding 
‘public purpose’ not being justified.  
 
107.   
In Sooram Pratap Reddy and others v. District Collector, 
Ranga Reddy Dist and others105, the Indian Supreme Court stated that 
“public purpose” includes any purpose wherein even a fraction of the 
community may be interested or by which it may be benefited. As such 
Special Economic Zones (SEZs), mines, shopping malls, factories, 
dams, and other large-scale projects have been facilitated by 
expropriation of land under the Land Acquisition Act. 
 
XI. 
You cannot rob Paul to pay Peter: 
108.   
The learned division bench of the Islamabad High Court 
equated the land acquisition exercise with taking property of one and 
giving it to other and drew strength from English saying ‘to rob Paul to 
pay Peter and relied upon some cases to mentioned in para 25 of the 
impugned judgment. We have gone through all the cases so cited. In 
fact all the cases so cited support the case of the Petitioner foundation, 
the case of Muhammad Akbar (supra), cited with approval in Dr. Nasim 
Javaid case (supra), does not approve of the concept relied on by the 
Islamabad High Court. The appropriate portion has been reproduced 
below 
‘… taking land of one to be given to other. One cannot rob Peter 
to pay Paul, it may be Robin Hood Philosophy not part of law and 
is barred by Fundamental Law i.e Constitution of Pakistan, 
which only permits acquisition of land for Public Purpose’106 
 
 
 
 
105 (2008)9 SCC 552 
106 PLD 1976 Lah. 747 at Para 13 
C.As N.1476 – 1485/18 etc. 
 
57 
 
XII. 
Regulatory Capture: 
109.   
The learned Bench of the Islamabad High Court invoked 
the “Economic Theory of Regulation” propounded by Nobel Laureate of 
1982, George J. Stigler107. The doctrine is recognized as “regulatory 
capture”, which proclaims that interest groups and other political 
participants use the regulatory and coercive powers of government to 
shape laws and regulations in a way that is beneficial to them.  
110.   
In a case where the Punjab Local Government was 
rendered non-functional, by delaying elections of local bodies, and one 
of the mega projects was undertaken by Lahore Development 
Authority, the matter, when taken to Lahore High Court, the non-
holding of election of local bodies was viewed critically and considered 
by three member Bench of the Lahore High Court to be regulatory 
capture of municipal functions in Imrana Tiwana v Province of 
Punjab108.  
111.   
When the matter came for consideration up before this 
court in Lahore Development Authority v. Imrana Tiwana, it was held 
that  
“The doctrine applies where a statutory body setup to 
regulate a group is then manned by the persons from that 
group to defeat the regulations. It would not apply where the 
Regulated includes the government because inevitably 
appointments to such regulatory bodies have to be made by 
the Government. Government can defeat the legislative intent 
by not appointing persons to such bodies or by making 
appointment of such persons who will act only under its 
dictation, the power to appoint has to be exercised in a fair 
manner and the exercise of authority by appointee has to be 
transparent in public interest and non-arbitrary”109  
The result is that an agency, charged with acting in the public interest, 
instead acts in ways that benefit the industry it is supposed to be 
regulating. 
 
 
 
107 The Theory of Economic Regulation. The Bell Journal of Economics and Management 
Sciences, Vol. 2 No. 1 (Spring 1971), pp. 3 – 21. George J. Stigler. 
108 PLD 2015 Lah. 522. 
109 2015 SCMR 1735. Paragraph 85. 
C.As N.1476 – 1485/18 etc. 
 
58 
 
112.   
On the current facts of the case, the learned bench, in 
paragraph 31 of the impugned judgment, has definitively concluded 
that the CDA made a regulatory capture. The relevant extract has been 
reproduced below 
 “In 
our 
humble 
view 
the 
entire 
working 
of 
the 
appellant/FGEHF and the CDA authorities in combination of 
other public officials made a regulatory capture which 
occurred when a regulatory agency, created to act in the 
public interest instead advance the commercial or special 
concern of interest group that dominated the industry or sector 
it was charged with regulating. Regulatory capture was a 
form of Government failure and it occurred when special 
interest, typically an industrial group, persuaded Government 
actors to exercise the coercive powers of the state in ways that 
were not in the public interest i.e. the interest of the industry 
group diverged from the public interest, the Government 
choose the former over the later.” 
 
113.   
The CDA was established as a public service provider and 
not as a regulatory Authority. CDA is essentially responsible for 
making all arrangement for the planning and development of 
Islamabad, within the framework of regional development plan110. In 
addition, the municipal services earlier entrusted to the CDA in 1966 
under Act 22 of 1966111 were withdrawn and entrusted to Islamabad 
Local Government112. The FGEHF is registered under Section 42 of the 
Companies Ordinance 1984; It is merely a non-trading, not for profit 
entity that is created for the betterment or service to the society 
generally or any segment of society particularly. It is under the Ministry 
of Housing and Works and performs one of its functions assigned to 
Housing and Works Division. It may be observed neither, the CDA nor, 
the FGEHF are the regulatory authority, none regulate any sector of 
business or, commercial activities of commercial bodies rather both 
are service providers.  
 
 
 
110 Preamble, Section 11 to 21 of the CDAO, 1960. 
111 S.15-A of the CDAO, 1960. 
112 Islamabad Local Government Act, 2015. 
C.As N.1476 – 1485/18 etc. 
 
59 
 
114.   
The learned bench has also concluded, in paragraph 34 of 
the impugned judgment that the State functionaries have failed to 
perform their lawful duties on a required standard after due care and 
caution which amounts to regulatory capture. We cannot endorse the 
conclusion drawn by the learned bench. The present set of 
circumstances do not warrant the application of the doctrine of 
‘regulatory capture’ as a state functionary, the CDA,  is executing its 
statutory function, which does not include regulating any group of 
trade or business, let alone, being manned by a person from any  of 
such commercial group or entity it is regulating. CDA and or FGEHF 
fail the test of regulatory capture laid down in the case of Imrana 
Tiwana. 
 
XIII  The Federal Government Employees Housing Authority Act, 
2020 
a. 
EEFFECT OF ENACTMENT OF FEDERAL GOVERNMENT 
EMPLOYEES HOUSING AUTHORITY ACT, 2020, DURING 
PENDENCY OF INSTANT APPEALS AND PETITIONS 
115.   
During hearing and pendency of instant appeals, the 
FGEHF, has been translated into an Authority through Federal 
Government Employees Housing Authority Ordinance on 12th July, 
2019 which later graduated into FGEHA Act, 2020 as published in 
the official Gazette on 15 January 2020. In the case of Karan Singh 
and others v Bhagwan Singh113, Indian Supreme Court held that the 
subsequent act came into force during pendency of appeal, rights and 
remedies by operation of law to be governed under new law. In another 
case reported as Ramjilal & Ors. Etc. Vs. Ghisa Ram114, Indian Supreme 
Court, under Section 57 of the Indian Evidence Act115, took judicial 
notice of all the laws in force in the territory of India.  
 
 
113 [1996] 7 SCC 559 
114 1996 SCALE (2) 401 
115 Corresponding Provision in Pakistan is Article 112 of Qanoon-e- Shahadat Order, 1984 
C.As N.1476 – 1485/18 etc. 
 
60 
 
116.   
Thus in case in hand, this Court has taken judicial notice 
of the Federal Government Employees Housing Society Act, 2020 
passed by the Parliament on 15th January, 2020 as brought to the 
notice of the court. None of the parties took any exception to the new 
legislative regime leading to land acquisition by the Authority for the 
purpose and object set out in the preamble of the Act, 2020. 
Accordingly, we took notice of the change in law as regard acquisition 
of land subject matter of present controversy. Examining the Act, 
2020, it is noted that, it contains an elaborate procedure for enquiry, 
acquisition of land, payment and determination of compensation, 
vesting of property on issuance of notification and, right of appeal and 
all other incidental and ancillary matter relating to acquisition of land.  
 
117.   
Under Section 3 thereof, the former Federal Government 
Employees Housing Foundation is now a body corporate having 
perpetual succession and is also a local authority in the “specified 
area”116. 
 
118.   
In terms of Section 5(2)(e), the Board of the Authority is 
empowered   
“to impose and vary development charges, transfer fee, 
services charges, toll, tax or other charges in respect of any 
land or building within any scheme in the specified area”.  
 
119. 
 
By virtue of Section 24(a): 
“all assets, rights, powers, authorities, and privileges, and all 
property, moveable and immoveable, bank balances, bank 
accounts, reserve funds, investments and all other interest 
and rights in or arising out of such property and all liabilities 
and obligations of whatever kind of the Foundation 
established before commencement of this Act, shall stand 
transferred to and vested in the Authority”    
 
 
 
 
116 Defined under Section 2(n) to “means all lands owned, purchased, acquired or procured 
by or vested in or leased to the Foundation under any law before the commencement of 
this Act and such other land as may be purchased or procured or acquired or vested in or 
leased to the Authority in Islamabad Capital Territory or other parts of Pakistan;” 
C.As N.1476 – 1485/18 etc. 
 
61 
 
120.   
All acts and action of the FGEHF award of the contracts 
etc. are now also protected by virtue of deeming clause contained in 
Section 24(a) and further by virtue of Section 29 which reads as 
follows;- 
“All acts done or taken by the Foundation, before the 
Commencement of this Act, shall be deemed to have been 
validly done or have been taken under this Act to the extent 
they are consistent with the provisions of this Act”  
 
121.  
 The Act, 2020 contains ‘non-obstante’ clause117 which has 
an overriding effect. The same is reproduced below: 
“32. Relation of this Act with other laws– 
(1)  The provisions of this Act shall have effect not in 
derogation of the Pakistan Penal Code 1860, Code of Criminal 
Procedure 1898 (Act V of 1898), Code of Civil Procedure 1908 
(Act V of 1908), Qanun-e-Shahadat 1984 (P.O. 10 of 1984) 
and Land Acquisition Act, 1894 (1 of 1894)  
(2) Subject to subsection (1), the provisions of this Act shall 
have effect notwithstanding anything contained in any other 
law 
for 
the 
time 
being 
in 
force. 
 
122.   
The recent enactment of the Act, 2020 substantiates the 
fact that where the Parliament intend for the law to have overriding 
effect, the words of the statute, in their natural, ordinary, or popular 
sense, will clearly declare so. It is not the duty of the Court to either 
enlarge or curtail the scope of the legislation or the intention of the 
legislators, the latter of which was done so by the learned bench by 
concluding that the CDAO, 1960 had an overriding effect over the LAA, 
1894 when no such intention of the legislature could be deciphered, 
either on the basis of legislative history of both the enactments as made 
applicable in ICT, and in absence of ‘non obstante’ clause in either of 
the statutes discussed elaborately. The Act, 2020 leaves no ambiguity 
regarding the status of the Authority under the current constitutional 
regime and simultaneously grants immunity to any prior actions 
undertaken by the now Authority, previous Foundation, due to the 
inclusion of the deeming clause as mentioned herein above.  
 
117 S.32(2) of Federal Government Employees Housing Act, 2020 
C.As N.1476 – 1485/18 etc. 
 
62 
 
XIII. 
Conclusion: 
123.   
For the foregoing reasons, the first and second question 
regarding the jurisdiction of the CDA to acquire land to the exclusion 
of the Land Acquisition Act, 1894 has been answered in the negative 
in paragraph 62-63. The third question regarding the acquisition for a 
housing scheme constituting a valid public purpose has been 
answered in the affirmative in paragraph 98-107. The fourth question 
regarding the Acquisition under the LAA, 1894 becoming a State 
Largesse under Art. 173 of the Constitution have been answered in 
the negative as in paragraph 75. The fifth question regarding the 
constitutional petitions not being maintainable, was not argued by any 
of the parties, very fact that contentious matters has been argued and 
dilated by the High court as well attended to by this Court, we do not 
deem appropriate to delve into such controversy and leave it to be 
addressed in some appropriate proceedings. 
 
124.  
In view of the forgoing discussion and determination of 
points noted in the leave granting order dated 6.12.2018, Civil Appeals 
No. 1476 to 1485 of 2018 stand allowed. Impugned consolidated 
judgments 
dated 
04.7.2018 
in 
Intra 
Court 
Appeals 
No. 
I.C.A.365/2017, I.C.A.366/2017, I.C.A.367/2017, I.C.A.368/2017 
I.C.A.365/2017, I.C.A.365/2017, I.C.A.22/2018, I.C.A.23/2018 and 
I.C.A.24/2018 are set aside, consequently, consolidated judgments 
dated 23.10.2017 rendered in W.P. No. 2128/2015,  W.P No. 
3496/2015, and W.P No’s 308 to 310/2016 are also set aside, 
resultantly all the Writ Petitions noted herein stand dismissed.  
 
 
XIV. 
Crl.O.P 166 of 2018 
125.   
Crl.O.P. P 166 of 2018 has been filed by the SCBAP. It 
arises out of Order dated 23.09.2014 passed in C.P. No. 38 of 2013, 
(SCBAP vs. Amer Ali Ahmed Commissioner Islamabad and other) 
whereby the SCBA sought implementation of the Directive No. 3059 
and No. 3060 issued by the Prime Minister Secretariat, dated 
13.11.2012, making a commitment for the allotment of land to the 
C.As N.1476 – 1485/18 etc. 
 
63 
 
members of the legal fraternity. The Petition proceeded and, ultimately, 
pursuant to issuance of Notification under Section 4 of the LAA, 1894 
on 23.09.2014, it was disposed of as not pressed. From the record, it 
appears that the notification was later withdrawn, which led to the 
filing of Crl.O.P No. 12 of 2015. It appears that a fresh notification for 
the land acquisition was again issued on 29.04.2015. Consequently, 
the Crl.O.P No. 12 of 2015 was withdrawn on 30.04.2015. For inaction 
on the part of Petitioner Foundation and concerned authorities, several 
Criminal Miscellaneous Petitions were filed from time to time and it 
seems that Crl.O.P. No. 41 of 2017 came up before the Bench for non-
compliance of orders made from time to time in various proceedings 
arising out of C.P. No. 38 of 2013. It is matter of record that during 
pendency of Cr.O.P 41 of 2017 a settlement was arrived at between the 
SCBAP, Collector Land Acquisition, and Director-General of the 
Foundation, wherein it was stipulated that the requisite notification 
under the LAA, 1894, having been issued, and objection, if any, were 
to be decided within the stipulated period followed by the award. The 
amount lying with the Appellant Foundation, submitted by the SCBAP, 
was to be credited to the Land Acquisition Collector, ICT. In view of 
such agreement reached between the parties, the Crl.O.P. 41 of 2017 
stood dismissed on 10.08.2018.  
 
126.  
Presently, we are confronted with Crl.O.P. 166 of 2018, 
which is a sequel of successive proceedings arising out of C.P. No. 38 
of 2013, made by the SCBAP from time to time seeking implementation 
of various directives, assurances by the authorities concerned and 
lastly commitment made through agreement reached between the 
parties and recorded in the order dated 10.8.2018, and to draw 
contempt proceedings against all those responsible to make 
compliance of assurance held out in agreement as reproduced in order 
dated 10.8.2018. 
 
 
 
C.As N.1476 – 1485/18 etc. 
 
64 
 
127.   
Since a statement has been made by Mr Rizvi, learned 
ASC, for the SCBA, that the amount, as claimed by the FGEHF and 
the Collector Land Acquisition, has been deposited by the SCBAP, the 
learned Counsel for the Appellant and learned DAG assures that the 
agreement by and between the parties shall be honored. Mr. Rizvi, 
learned ASC, is satisfied with the assurance made on behalf of the 
authorities concerned. In this view of the matter Crl.O.P No. 166 of 
2018 does not call for any further action, and is accordingly disposed 
of.  
 
XV. 
CMA No. 2083 of 2018 
128.   
Nazar Hussain Chohan and Seven (7) others have filed 
CMA No. 2083 of 2018 whereby they seek to be added as a party to the 
proceedings and be allowed to assist this Court, further direction to 
the Islamabad to decide W.P No. 4270/16 and W.P 3594/18 in 
accordance with law and lastly, alternatively prayed that order dated 
10.8.2018 passed in Cr.O.P 41/2017 be withdrawn and settlement 
dated 10.8.2018 be set-aside. Mr. Naeem Bukhari learned Sr. Counsel 
for the Petitioners in the noted application has assailed the 
proceedings and orders noted herein on the ground, inter-alia, that the 
land owners were not heard while disposing off C.P. No. 38 of 2013 and 
series of Cr.O.P’s arising there from and while taking on record 
settlement dated 10.8.2018 and treating the same as an order of the 
Court. He contends that the land owners are prejudiced by such 
directions of this Court under which their land has been acquired.  
 
129.  
Mr. Rasheed Rizvi, learned ASC for the Petitioner/SCBAP, 
and so also Mr. Mansoor Ahmed, learned Sr. ASC, for the Foundation, 
contends that originally C.P. No. 38 of 2013 was disposed off on 
assurance of the authority concerned that the directives of the Prime 
Minister noted above would be complied with and later on a settlement 
was arrived at between the parties, which, do not speak of any 
particular land. According both the learned counsels, remedy against 
any acquisition of land, if any of the Petitioners lies elsewhere and not 
C.As N.1476 – 1485/18 etc. 
 
65 
 
in collateral proceedings. It was further argued that in the garb of listed 
application Petitioners cannot be allowed to seek review of the order 
dated 10.8.2018 as no fee for seeking review has been filed as required 
under the Supreme Court Rules, 1980, even otherwise, review is 
barred by time. On such grounds the application is liable to be 
dismissed. 
 
130.   
Having heard the argument of all the contesting parties 
and perused the record. Contention of Mr. Rashid Rizvi, and Mr. 
Mansoor Ahmed learned Sr.ASC, is correct that there is no order of 
this Court whereby any direction to acquire any particular land was 
issued. The SCBAP has sought compliance and implementation of the 
directive of the then Prime Minister of Pakistan, which was complied 
with, and it was up to the authority concerned to make compliance 
with the directive of the Prime Minister in the manner it may deem 
expedient. It may further be observed that whenever any property is 
acquired, in exercise of authority conferred, and Notifications under 
S.4, S.6, and S.17 of the LAA, 1894 are issued, the parties interested 
and aggrieved have a right to object to such acquisition and/or 
challenge the award and determination and apportionment of 
compensation. We are informed that numerous land owners have 
already invoked the remedy against such acquisition. In this view of 
matter we are not persuaded by the contention of Mr. Naeem Bokhari, 
learned ASC that any directions were issued for acquisition of any 
particular land. It is the sole prerogative of the authorities to acquire 
land and the person so interested and aggrieved by such acquisition 
may avail of the remedy as provided under the relevant acquisition 
proceedings/laws. As regard his challenge to the applicability of CDAO, 
1960 and inapplicability of LAA, 1894 in Islamabad, have been 
attended elaborately in preceding paragraphs need no further 
elaboration.  Therefore, CMA No. 2083 of 2018 does not merit any 
consideration and is accordingly dismissed. 
 
 
C.As N.1476 – 1485/18 etc. 
 
66 
 
131.   
Since a statement has been made by Mr. Rizvi learned ASC 
for the SCBA, that amount as claimed by the FGEHF and the Collector 
Land Acquisition, has already been deposited by the SCBAP, and the 
learned Counsel for the appellant and the DAG, assures that the 
agreement by and between the parties shall be honored Mr. Rizvi, 
learned ASC, is satisfied. In this view of the matter Crl.O.P No. 166 of 
2018 does not call for any further action, stands disposed of.  
 
XVI. 
Writs Called: 
132.   
While hearing the subject Civil Appeals, as requested by 
Mr. Naeem Bukhari, learned Sr.ASC vide Order dated 27.12.2018, W.P 
No. 4270/2015, 4723/2016 and 3594/2018 pending in Islamabad 
High Court were called for consideration and disposal. We have noted 
that under Article 186A of the Constitution, 1973, this Court “may, if 
it considers it expedient to do, in the interest of justice, to transfer any 
case, appeal or other proceedings pending before any High Court to any 
other High Court”.  
 
133.   
We have noted that unlike Indian Constitution118, Article 
186A of the Constitution, 1973 does not confer any jurisdiction in this 
Court to, call any case, appeal or other proceedings pending before any 
High Court for the purposes of hearing and deciding the same itself, 
though such record and proceedings may be call for perusal and 
examination. Though, Mr. Naeem Bukhari, learned senior ASC, prayed 
for and consented to such course. It is a settled position in law that 
jurisdiction on court cannot be conferred even by consent; unless it is 
 
118 Article 139A Constitution of India Transfer of certain cases 
“Where cases involving the same or substantially the same questions of law are pending 
before the Supreme Court and one or more High Courts or before two or more High Courts 
and the Supreme Court is satisfied on its own motion or an application made by the 
Attorney General of India or by a party to any such case that such questions are substantial 
questions of general importance, the Supreme Court may withdraw the case or cases 
pending before the High Court or the High Courts and dispose of all the cases itself. 
Provided that the Supreme Court may, after determining the said questions of law return 
any case so withdrawn together with a copy of its judgment on such questions to the High 
Court from which the case has been withdrawn, and the High Court shall on receipt 
thereof, proceed to dispose of the case in conformity with such judgment” 
C.As N.1476 – 1485/18 etc. 
 
67 
 
so conferred by or under Constitution and or law119. We, therefore, 
deem it proper to return all the three Writ Petitions to the Islamabad 
High Court, which shall be deemed to be pending. 
 
134.   
Lastly, we also appreciate the research carried out by     
Mr. Ahmad Hassan, Law Clerk and acknowledge his assistance 
rendered in the completion of this case.  
 
Judge 
 
 
Judge 
 
 
Judge 
 
 
Judge 
Islamabad 
Announced in Open Court on 8th October, 2020 
 
Judge 
Approved for Reporting 
 
119 Article 175 (2) of the Constitution 1973 
 
 
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
Qazi Faez Isa, J. This case is about the compulsory acquisition of 
thousands of kanals1 of land (‘the Land’) in the area of the Islamabad 
Capital Territory (‘Islamabad’). The Land was acquired by the Federal 
Government Employees Housing Foundation (‘the Foundation’)2 in terms 
of the Land Acquisition Act, 18943 (‘the Land Acquisition Act’). After the 
acquisition of the Land, the Foundation submitted its layout plans to the 
Capital Development Authority4 (‘CDA’) which were approved by the CDA 
Board5. The Land (less the area consumed in roads, utilities, etcetera) was 
delineated and earmarked into residential plots for allotment to government 
servants and advocates of the Supreme Court (‘the allottees’). The 
acquisition cost of the Land and its development cost is borne by the 
allottees; no amount is spent from the public exchequer by the Foundation 
or CDA. 
 
2. 
Land Acquisition Act: The Land Collector within whose jurisdiction the 
Land is situated directed the Foundation to deposit the tentative cost of the 
Land and it was so deposited. Thereafter, the Collector issued the requisite 
notices which were published in the official gazette; the ‘Preliminary 
Notification’ dated 20 May 2015 followed by the ‘Declaration that land is 
required for a public purpose’ notification dated 4 December 2015, 
respectively under sections 4 and 6 of the Land Acquisition Act. The 
Collector made and issued awards under section 12 of the Land Acquisition 
Act, respectively Award dated 15 November 2016 and Award dated 15 June 
2017. The said Awards determined the amount payable to the owners of the 
Land, that is, the market price of the Land, the additional compensation of 
fifteen per cent6 on account of the compulsory acquisition and six per cent 
 
1 One kanal of land is equal to 605 yards or 505 meters. 
2 Incorporated as an ‘association not for profit’ under section 42 of the Companies Ordinance, 
1984 and in the Companies Ordinance, 2016, which used to be section 26 of the earlier 
Companies Act, 1913 and now is section of 42 the Companies Act, 2017. The Foundation was 
converted into a statutory organization by the Federal Government Employees Housing Authority 
Act, 2020, Act No. IV of 2020, enacted on 15 January 2020, published in Gazette of Pakistan, 
Extraordinary, Part I, on 15 January 2020.  
3 Land Acquisition Act, 1894, Act No. I of 1894. 
4 Set up under section 4 of the Capital Development Authority Ordinance, 1960, Ordinance No. 
XXIII of 1960, published in Gazette of Pakistan, Extraordinary, 27 June 1960 (PLD 1960 
Central Statutes 375). 
5 On 6 July 2017.  
6 Section 23(2) of the Land Acquisition Act, 1894. 
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
2 
annual interest7. An award made by the Collector is subject to challenge 
before a referee judge8 and then on appeal before the High Court9.  
 
3. 
Impugned Judgments: Some of the land owners challenged the acquisition 
proceedings by invoking the Islamabad High Court’s constitutional 
jurisdiction under Article 199 of the Constitution of the Islamic Republic of 
Pakistan (‘the Constitution’). The challenge was made on a number of 
grounds10. It was alleged that the acquisition of the Land was not for a 
‘public purpose’ and since the Land was situated in Islamabad its 
acquisition could only take place under the Capital Development Authority 
Ordinance, 196011 (‘the CDA Ordinance’). The learned Chief Justice of the 
Islamabad High Court vide judgment dated 23 October 2017 allowed the 
petitions because, in his opinion, the said acquisition was not for a public 
purpose and because CDA, under the CDA Ordinance, had exclusive 
jurisdiction to acquire the Land as it was situated in Islamabad. The 
Foundation and some of the allottees challenged the judgement of the 
learned Single Judge by filing Intra Court Appeals12 (‘ICAs’) before a 
Division Bench of the Islamabad High Court but their appeals were 
dismissed by judgment dated 25 September 2018. In the ICAs, the findings 
of the learned Single Judge regarding public purpose and CDA’s exclusive 
jurisdiction were upheld and it was further held that the Land Acquisition 
Act was not applicable. 
 
4. 
The Foundation and some of the allottees filed petitions for leave to appeal13 
before this Court and leave was granted on 6 December 201814. The learned 
Mushir Alam, J, has mentioned the facts, laws and precedents in 
considerable detail. I am in respectful agreement with his lordship’s 
conclusions. However, I have dilated upon certain relevant and necessary 
matters in this additional note. 
 
5. 
Mr. Mansoor Ahmed, the learned counsel representing the Foundation, 
submitted that Article 24(2) permits compulsory acquisition of private 
 
7 Section 34 of the Land Acquisition Act, 1894. 
8 Section 18 of the Land Acquisition Act, 1894. 
9 Section 54 of the Land Acquisition Act, 1894. 
10 Writ Petition Nos. 308, 309 and 310 of 2016 and 2128 and 3496 of 2015.  
11 Ordinance No. XXIII of 1960, published in Gazette of Pakistan, Extraordinary, 27 June 1960 
(PLD 1960 Central Statutes 375). 
12 ICA Nos. 364 to 368 of 2017 and 22 to 24 of 2018. 
13 Civil Petition for Leave to Appeal Nos. 4449 to 4453, 4468, 4469 and 4482 to 4484 of 2018. 
14 The leave granting order is reproduced in paragraph 22 of Mushir Alam, J’s judgment.  
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
3 
property provided it is for a public purpose, done under the authority of law 
and a mechanism for determining compensation is provided, and that these 
three conditions were met; the acquisition was for a public purpose; was 
made under the Land Acquisition Act and, therefore, was made pursuant 
to the authority of law; and, the compensation payable to the landowners 
was determined by the Collector by applying the stipulated mechanism in 
terms of the Land Acquisition Act. The learned counsel submitted that the 
CDA Ordinance was applicable only in respect of land situated in Islamabad 
and was required for the use or purpose of the CDA. And, in this case the 
Land was not acquired by CDA, nor could it have been, since it was not 
required by CDA and/or for the use or purpose of CDA. The learned Deputy 
Attorney General representing the Federation and Senior Counsel Sardar 
Muhammad Aslam representing CDA, who sadly passed away after the 
judgement was reserved, had supported the appellants and adopted the 
submissions of the learned Mr. Mansoor Ahmed. On the other hand, Messrs 
Naeem Bukhari and Feisal Hussain Naqvi relied on the impugned 
judgments and reiterated the submissions made before the High Court and 
the reasons which prevailed with the learned Judges of the High Court. 
 
6. 
Acquisition of Private Property for ‘Public Purpose’: Article 24(2) of the 
Constitution permits the compulsory acquisition of land provided it is for 
‘public purpose’15 and that the acquisition is pursuant to, ‘the authority of 
law which provides for compensation therefor and either fixes the amount of 
compensation or specifies the principles on and the manner in which 
compensation is to be determined and given’16. I am in respectful agreement 
with the learned Mushir Alam, J17 that the Constitution permits 
compulsory acquisition if three conditions are met; firstly, the acquisition 
must be for public purpose; secondly, the land must be acquired pursuant 
to some law; and, thirdly, such law must provide for the determination of 
compensation and its disbursement. The Land in these cases was acquired 
pursuant to the Land Acquisition Act, a law which provides a detailed 
mechanism for the determination and payment of compensation, hence, the 
stipulated second and third conditions are met. The first condition - 
whether the Land was acquired for public purpose – remains to be 
considered. Public purpose is not specifically defined in the Constitution 
 
15 Article 24 (2) of the Constitution of the Islamic Republic of Pakistan. 
16 Article 24 (2) of the Constitution of the Islamic Republic of Pakistan. 
17 Paragraph 80 of his lordship’s judgment. 
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
4 
but it may be gathered from Article 24(3)(e). Article 24(3) commences by 
stating that, ‘Nothing in this Article shall affect the validity of’ compulsory 
acquisition and then lists six categories from (a) to (f). Clause (ii) of the fifth 
category (e), reproduced hereinbelow, is relevant and applicable:  
 
(3) 
Nothing in this Article shall affect the validity of- 
 
(e) 
any law providing for the acquisition of any class of 
property for the purpose of- 
   
 
(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; 
(emphasis added) 
 
Providing housing is specifically mentioned in Article 24(3)(e)(ii).  Therefore, 
land which is compulsorily acquired for providing housing is for a public 
purpose and government/civil servants and lawyers, are a specified class 
of citizens. 
  
7. 
Housing is a Public Purpose: The learned Judges of the High Court did not 
consider the scope of Article 24(2) of the Constitution.  They also overlooked 
Article 24(3)(e)(ii) of the Constitution which stipulates that providing 
housing is a public purpose. The following precedents have categorically 
determined that housing is a public purpose. The term public purpose in the 
context of land acquisition has been interpreted in a number of decisions. 
The impugned judgments mention that these precedents were cited, but 
they were not considered.  In the case of Pakistan v Muhammad Ali18, this 
Court held that: 
It will be sufficient for me to refer firstly to the Land Acquisition 
Act, 1894, which employs the expression “public purpose” in a 
very wide sense, and restrains the powers of the Government to 
acquire private property compulsorily. The Act does not define 
the expression “public purpose” exhaustively… It is obvious 
that the omission to define “public purpose” exhaustively is 
intentional, for it is impossible to place any limit upon the 
purposes which, in the light of the exercise of governmental 
power over large territories and populations, in respect of the 
multifarious activities which go into the establishment and 
operation of a thorough system of administration, would fall 
within the meaning.19 
 
 
18 PLD 1960 Supreme Court 60.  
19 Ibid, Cornelius, J, page 67H. 
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
5 
 
This Court went on to hold that providing housing was a public 
 
purpose:    
 
[P]rovision of residences is not by itself a matter falling outside 
the concept of a “public purpose” provided that it is part of a 
scheme for making general provision of that character. 
Secondly, the provision of residences for a particular class of 
persons, even though it may operate so as to provide a 
particular residence for a particular member of that class is also 
not excluded from the meaning of the expression “public 
purpose”, nor does it make any difference whether the 
residences are for completely unprivileged persons like coolies, 
or for those enjoying patronage of Government in capacity of 
officers.20 
 
Recently in the case of Yunus Habib v Imranur Rashid21 it was held that, 
‘[T]he acquisition of land for a housing society is recognized as a public 
purpose’22. In Zafeer Gul v NWFP Province23 a Division Bench24 of the 
Peshawar High Court determined that, ‘land acquired by WAPDA 
Coopreative Housing Society for construction of residential colony would fall 
under the definition of “public purpose”’25 by relying on the decisions in 
Pakistan v Muhammad Ali (mentioned above) and on a number of Indian 
authorities26. In the case of Ch. Nazir Ahmad v Province of Punjab27, it was 
held, that, Article 24(3)(e)(ii) ‘of the Constitution makes it clear and obvious 
that the individual can be deprived of his property for the purposes of 
providing housing to a specified class of citizens and any law or act in this 
behalf will not offend against the fundamental right granted under Article 
24’28. In Suo Motu Case No. 13 of 2019,29 this Court held that the 
Fundamental Right to life30 includes shelter31. Therefore, the Land, which 
was acquired to provide housing was acquisition for a public purpose. 
Reference may also be made to the Principles of Policy and the Objectives 
Resolution.  
 
 
20 Ibid, Cornelius, J, page 69. 
21 2018 SCMR 705. 
22 Ibid, Saqib Nisar, J, page 724F. 
23 2001 CLC 1853. 
24 Comprising of Mian Shakirullah Jan (as he then was) and Talat Qayyum Qureshi, JJ.  
25 Ibid, 1858C. 
26 Including, R. L. Arora v State of Uttar Pradesh (AIR 1962 SC 764), Anand Kumar v State of 
Madhya Pradesh (AIR 1963 Madhya Pradesh 256), Veeraraghavachariar v Secretary of State for 
India (AIR 1925 Madras 837).  
27 2007 CLC 107. 
28 Ibid, Shaikh Azmat Saeed, J, page 120. 
29 PLD 2011 Supreme Court 619 
30 Article 9 of the Constitution of the Islamic Republic of Pakistan. 
31 PLD 2011 Supreme Court 619, 646. 
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
6 
8. 
Principles of Policy: The Principles of Policy32 enumerate the aspirations 
of the nation33. Securing the well-being of the people, raising their standard 
of living and providing housing are amongst the nation’s declared 
objectives. Article 38(a) and (d) of the Principles of Policy respectively 
stipulate:  
 
38. The State shall- 
 
(a) 
secure the well-being of the people, irrespective of sex, 
caste, creed or race, by raising their standard of living, 
by preventing the concentration of wealth and means of 
production and distribution in the hands of a few to the 
detriment of general interest and by ensuring equitable 
adjustment of rights between employers and employees, 
and landlords and tenants; (emphasis added) 
 
(d) 
provide basic necessities of life, such as food, clothing, 
housing, education and medical relief, for all such 
citizens, irrespective of sex, caste, creed or race, as are 
permanently or temporarily unable to earn their livelihood 
on account of infirmity, sickness or unemployment; 
(emphasis added) 
 
To provide housing is a basic necessity of life, it also ‘secure[s] the well-
being of the people’ and raises ‘their standard of living’; these principles 
reiterate that providing housing is a public purpose. ‘It is the responsibility 
of each organ and authority of the State, and of each person performing 
functions on behalf of an organ or an authority of the State, to act in 
accordance with those Principles’.34 The President and Governors are 
required to prepare and lay respectively before Parliament and the 
Provincial Assemblies reports on ‘the observance and implementation of the 
Principle of Policy’35. And, discussion on these reports has to take place in 
Parliament and the Provincial Assemblies. The requirement of preparing 
such reports and submitting them for discussion amongst the elected 
representatives of the people suggests that these reports constitute a 
performance audit of the Federal and Provincial Governments.     
 
9. 
Objectives Resolution: Reference may also be made to the preamble of 
the Constitution which reproduces the Objectives Resolution36 and which 
 
32 Chapter 2, Constitution of the Islamic Republic of Pakistan. 
33 Ibid, Article 31 to 40. 
34 Ibid, Article 29(3). 
35 Ibid. 
36 With slight changes.  
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
7 
is a ‘substantive part of the Constitution and shall have effect accordingly’37. 
The Objectives Resolution calls for the provision of ‘social justice, as 
enunciated by Islam’ and guarantees ‘social, economic and political justice’. 
To acquire land in order to provide it to those in need of housing, after 
compensating the owners, does not detract from the objective of social 
justice as enunciated in Islam, and it constitutes social justice as 
understood in common parlance. 
 
10. 
Significance of Principles of Policy and the Objectives Resolution: The 
Principles of Policy and the Objectives Resolution reflect the aspirations of 
the people and are guiding lights for the nation. In Benazir Bhutto v 
Federation of Pakistan38, which was decided by an eleven-member Bench, 
the Principles of Policy were said to, ‘occupy a place of pride in the scheme 
of the Constitution’ and categorized as ‘the conscience of the Constitution, as 
they constitute the main thrust of the commitments to socio-economic 
justice.’39  A similar sentiment was expressed in Employees of the Pakistan 
Law Commission v Ministry of Works40, describing them and the Objectives 
Resolution as inspirational provisions which ‘invigorate the entire 
Constitution’41 and achieve ‘democracy, tolerance, equality and social 
justice’42. More recently in Lahore Development Authority v Imrana Tiwana43 
it was said that the Objectives Resolution and the Principles of Policy, ‘can 
be used to understand and interpret the chapter on Fundamental Rights in 
its proper context’44.  
 
11. 
Incorrect Premise: The learned Single Judge had premised his findings 
on a number of misconceptions which were: ‘the land is being acquired for 
the distribution of State largess’45 [sic], the Land ‘vests in the Government’46, 
‘loss’ would be ‘suffered by the people of Pakistan’47 and it constitutes 
‘plunder’48. The Land, which was acquired and which was to be distributed 
 
37 Article 2A of the Constitution of the Islamic Republic of Pakistan, which instead of mentioning 
the ‘Preamble’ of the Constitution referred to ‘the Objectives Resolution reproduced in the Annex’.  
38 PLD 1988 Supreme Court 416. 
39 Ibid, p. 489 per Muhammad Haleem, CJ.  
40 1994 SCMR 1548. 
41 Ibid, p. 1552. 
42 Ibid. 
43 2015 SCMR 1739. 
44 Ibid, paragraph 32D. 
45 Judgment dated 23 October 2017, paragraph 29.  
46 Ibid, paragraph 49. 
47 Ibid, paragraph 47.  
48 Ibid, paragraph 49. 
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
8 
amongst the allottees was not State or public land, therefore, the people of 
Pakistan did not suffer a loss as a consequence of the acquisition. The Land 
was privately owned and was acquired from its owners who were to be 
compensated in accordance with the law; to categorize such acquisition as 
plunder was unjustified. The two learned Judges of the High Court hearing 
the ICAs did not correct these misconceptions.  
 
12. 
CDA Ordinance or the Land Acquisition Act: The impugned judgement 
of the learned Single Judge alludes to, and the learned Judges of the 
Division Bench held that, the applicable law in respect of the acquisition of 
the Land was the CDA Ordinance because the Land was situated in 
Islamabad. They also reasoned that since the CDA Ordinance is a special 
law applicable to Islamabad, therefore, the CDA Ordinance, and not the 
Land Acquisition Act, applies. The learned Mr. Mansoor Ahmed referred to 
a number of earlier land acquisitions49 undertaken by the Foundation in 
Islamabad all of which were under the Land Acquisition Act. He also 
referred to section 5 read with the Fourth Schedule of the Federal Laws 
(Revision and Declaration) Ordinance, 198150 which had amended the 
Land Acquisition Act in its ‘application to the Islamabad Capital Territory’ 
and contended that, despite the promulgation of the CDA Ordinance in 
1960, the Legislature had specifically accepted, in 1981, that the Land 
Acquisition Act was still applicable to the Islamabad Capital Territory. The 
learned Judges of the High Court also did not consider this. Significantly, 
the CDA Ordinance does not contain an overriding or non-obstante clause 
nor vests exclusive jurisdiction in CDA with regard to land acquisition in 
Islamabad. 
 
13. 
Compulsory Acquisition by CDA: Section 25 of the CDA Ordinance 
enables CDA to compulsorily acquire land, but this power is, ‘Subject to the 
other provisions of this Ordinance, the rules made thereunder’ and land by 
CDA can only be acquired ‘for the purposes of this Ordinance’. Sections 11 
to 15 of the CDA Ordinance mention the activities that CDA may undertake 
in the Specified Areas51. Land can be compulsorily acquired by CDA when 
 
49 (1) 6,330 kanals in 1999 in Sector G-13; (2) 831 kanals in 2005 in Sector G-14/1, 2, 3 and (3) 
831 kanals in 2009 in Sector G-15/3.  
50 Ordinance XXVII of 1981, Gazette of Pakistan, Extraordinary, Part I, 8 July 1981 (PLD 1982 
Central Statutes 10, 11 and 113). 
51 Defined in section 2(p) of the Capital Development Authority Ordinance, 1960, which is such 
areas as may from time to time be, ‘included therein by the Federal government notification in the 
official gazette’.  
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
9 
it is required by CDA for its own use and/or purposes.  In the case of Murree 
Brewery Co. Ltd. v Pakistan52 (‘the Murree Brewery case’) ‘buildings 
standing on about 16 acres of land’ were sought to be compulsorily acquired 
by CDA under the CDA Ordinance for the, ‘Provision of Office 
Accommodation for the President’s Secretariat’. This Court, after examining 
in detail the provisions of the CDA Ordinance and the power of CDA to 
compulsorily acquire land thereunder, held, that CDA did not have, 
‘unlimited and undefined power to acquire all land within the Specified 
Areas. Any acquisition within these areas must have a reasonable reference 
to the purpose of the Ordinance, and must be carried out strictly in 
accordance with its provisions’53. The Murree Brewery case which involved 
compulsory acquisition under the CDA Ordinance rather than under the 
Land Acquisition Act, held that the land situated in Islamabad which CDA 
sought to acquire it could not do so. The learned Single Judge noted that 
the learned counsel representing the Foundation relied on the Murree 
Brewery case54 but his lordship neither applied nor distinguished it. The 
learned Judges hearing the ICAs also referred to the Murree Brewery case 
and quoted therefrom55 without realizing that it had held that when land 
was required for the use and/or purpose of CDA it could be compulsorily 
acquired under the CDA Ordinance. Since the Land in question was not 
required for the use and/or purpose of the CDA it could not have been 
acquired under the CDA Ordinance, but only under the Land Acquisition 
Act. 
 
14. 
Compensation Amount: The landowners (the contesting respondents) 
were not satisfied with the amount of compensation determined by the 
Collector and/or wanted a percentage of plots from the Land56. Therefore, 
these cases were adjourned a number of times on the parties’ request to 
enable them to explore the possibility of a compromise, but a compromise 
did not materialize. The Land Acquisition Act stipulates that compensation 
is determined by the concerned Collector. If either party is not satisfied 
with the Collector’s determination, the referee court and thereafter the High 
Court in its appellate jurisdiction may be approached. Since the High Court 
 
52 PLD 1972 Supreme Court 279.  
53 Ibid, 290-291.  
54 Ibid, paragraph 6, page 17 of the Judgment.  
55 Ibid, paragraph 32, pages 35-6 of the Judgement.  
56 Capital Development Authority Land Acquisition and Rehabilitation Regulation, 2007, S.R.O. 
304(1)/2008 published in the Gazette of Pakistan, Extraordinary, Part II, on 20 March 2008. 
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
10 
did not determine the matter of compensation it would be inappropriate to 
comment thereon, as it may affect the rights of either side.  
 
15. 
Allotment of Plots to Different Categories of Persons: The learned 
Messrs Naeem Bukhari and Feisal Naqvi, representing the landowners, had 
raised concerns about the grant of plots at below market price to judges. 
Reference was also made to the judgement of Muhammad Nawaz Abbasi, 
J in the cases of Ghulshan Hussain v Commissioner (Revenue), Islamabad57 
(‘Ghulshan Hussain case’) and Federal Government Employees’ Housing 
Foundation 
v 
Muhammad 
Akram 
Alizai58 
(‘Federal 
Government 
Employees’ Housing Foundation case’). In the Ghulshan Hussain case 
land was acquired by the Foundation in Sector G-13 of Islamabad and the 
section 4 notification issued under the Land Acquisition Act was 
challenged. The Rawalpindi Bench of the Lahore High Court59 held that the 
acquisition was valid and if the compensation determined by the Collector 
was unacceptable then the remedies provided under the Land Acquisition 
Act are to be availed; no exception can be taken to this. However, the 
learned Muhammad Nawaz Abbasi, J went on to unnecessarily observe 
that Judges of the Supreme Court, of the Lahore High Court working at 
Rawalpindi, of the Federal Shariat Court and ‘senior members of the Armed 
Forces’ were entitled to receive plots from the Foundation. The Federal 
Government Employees’ Housing Foundation case was an appeal against 
the decision of a Service Tribunal60 and it was decided that, ‘the allotment 
of residential plot in the housing scheme of Housing foundation cannot be 
claimed as terms and conditions of service by a civil servant’; which to such 
extent cannot be faulted. And, once again the learned Muhammad Nawaz 
Abbasi, J repeated his earlier obiter observations made in the Ghulshan 
Hussain case with regard to judges’ and senior members of the Armed 
Forces’ entitlement to plots. These observations were without any basis, 
without considering the ‘terms and conditions of service’ of judges (Article 
205 of the Constitution) and the oath of judges. One threads a thorny path 
when it comes to self-interest. Decisions must accord with the Constitution 
and the law. Neither the Constitution nor any law entitles judges and senior 
members of the Armed Forces to receive land. It is trite, but needs restating 
 
57 2000 YLR 1711. 
58 PLD 2002 Supreme Court 1079. 
59 Before the establishment of the Islamabad High Court.  
60 Under Article 212(2) of the Constitution of the Islamic Republic of Pakistan.  
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
11 
that judges are not empowered to make law; they simply interpret it and if 
a law offends the Constitution they must strike it down or the offending 
part thereof.  
 
16. 
Judge’s Remuneration and Terms and Conditions of Service: Judges’ 
entitlement to plots of land has been questioned, therefore, it needs to be 
addressed. Article 205 of the Constitution stipulates that, ‘The 
Remuneration and other terms and conditions of service of a Judge of the 
Supreme Court or of a High Court shall be as provided in the Fifth Schedule’ 
of the Constitution. The Fifth Schedule comprises of two parts; the first 
attends to ‘The Supreme Court’ and the second to ‘The High Court’. Both 
parts comprise of 6 clauses. Clause 1 mentions the monthly salary ‘or such 
higher salary as the President may, from time to time, determine’; clause 2 
sets out the ‘privileges and allowances … as may be determined by the 
President’; clause 3 deals with the ‘pension payable’ to retired judges; 
clause 4, 5 and 6 respectively deal with the pension payable to the ‘widow 
of a Judge’, when its payment to her stops and if the judge’s children are 
entitled to the pension. None of these clauses state that judges are entitled 
to land. The last order issued by the President of Pakistan with regard to 
Judges was President’s Order No. 03 of 201861, which did not entitle judges 
to plots.  
 
17. 
Are Judges Entitled to Receive Plots?: The Constitution and the law 
(presidential orders) do not entitle chief justices and judges of the superior 
courts to plots of land. The ‘Supreme Court of Pakistan: Judicial 
Estacode’62 (‘the Judicial Estacode’) also does not contain anything 
therein entitling chief justices and judges to plots of land. Likewise, the 
Manual of ‘Pay, Pension and other Privileges’63 (‘the Manual’), compiles the 
presidential orders, rules, and notifications regarding the pay, pension and 
privileges of judges, but the manual also does not contain anything entitling 
chief justices and judges of the superior courts to plots of land.  
 
 
61 Salary of Judges of the Supreme Court Order, 2018, No.F.2(2)/2018-Pub., which raised the 
monthly salary of the Chief Justice of Pakistan to Rs. 931,204 and of every other Judge of the 
Supreme Court to Rs. 879,669. 
62 Published by Supreme Court of Pakistan, 2019. 
63 Compiled by the Librarian and Assistant Librarian of the Supreme Court, published by the 
Supreme Court of Pakistan, 2018, amended up to 22 April 2019.  
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
12 
18. 
The Oath of Judges: ‘In all circumstances, I will do right to all manner of 
people, according to law, without fear or favour, affection or ill-will’ says the 
oath taken by chief justices and judges. Judges adjudicate disputes and 
ensure that the people are not deprived of their Fundamental Rights, which 
more often than not are enforced against the executive. The Federal and 
provincial governments, and organizations controlled or under them, are 
often arrayed as parties in cases. The aphorism that, justice must not only 
be done but be seen to be done, is undermined if people perceive that cases 
are not decided without fear or favour. The executive giving plots to judges 
constitutes a favour. The independence of the judiciary is a necessary 
concomitant to ensure its respect and credibility in the eyes of the people.  
 
19. 
Financial Independence of Judges: The Constitution determines the terms 
and conditions of service of superior court judges and nothing can be 
subtracted therefrom or added thereto. The Constitution permits 
compulsory acquisition, however, it also sets out the terms and conditions 
of service of judges, and since the stipulated terms and conditions do not 
entitle judges to receive plots they are not entitled to receive plots from the 
Foundation or out of any compulsorily acquired land. The learned Messrs 
Naeem Bukhari and Feisal Naqvi are correct to state that judges are not 
entitled to receive plots. However, this argument cannot be extended to 
government servants or lawyers as mentioned above.  
 
20. 
Only a Single Plot may be Received: In this case the Foundation had 
launched a scheme to allot plots to government servants and lawyers. The 
Land was acquired under the Land Acquisition Act.  Those wanting a plot 
applied for it, paid its price and stood in the queue for his/her turn to receive 
it. A person’s housing needs stand redressed on receiving a plot on which 
to build a house. Therefore, no one can be given, nor can they receive, more 
than a single plot. The Foundation, government or any organization 
controlled by the government cannot provide a second or additional plot. 
Moreover, without specific legal sanction, no one, including the Prime 
Minister, has the discretion to grant land, a house or an apartment to 
anyone.  
 
21. 
Plots for Junior Officers and Lower Income Staff: When the Foundation, 
government or an organization controlled by a government launches a 
scheme to provide housing it would be appropriate to ensure that smaller 
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
13 
and cheaper plots are also made available to cater to the need of junior 
officers and lower income staff reflecting their percentage in government 
service because the Constitution does not distinguish between senior and 
junior officers and officials with regard to service of Pakistan. With regard 
to plots/lands the Constitution also does not distinguish between civilian 
and armed forces personnel, between junior and senior officers nor creates 
a special category of senior members of the Armed Forces (as per 
Muhammad Nawaz Abbasi, J).  
 
22. 
Plots and Land Grants to Members of the Armed Forces: Different laws 
govern those employed in the Army64, Air Force65, Navy66, Rangers67, 
Frontier Constabulary68, Frontier Corps69, National Guards70, Coast 
Guards71 and Airports Security Force72; the laws governing them do not 
provide that they be given residential plots, commercial plots or agricultural 
land nor permits them to receive the same. Nevertheless, senior members 
of the Armed Forces get plots and agricultural lands and continue to be 
given additional plots and agricultural lands as they rise up the ranks. In 
his 655-page book the brother of General Asif Nawaz73 brings privileged, 
personal and scholarly insight into the Armed Forces of Pakistan74. General 
Mohammad Ayub Khan was preceded by two British officers75 as Pakistan’s 
Army Chiefs. When General Gracey was commanding Pakistan’s Army 
General Mohammad Ayub Khan approached him with a request for a plot 
but he was rebuffed by the Army Chief; ironically a British officer preserved 
Pakistan’s land from a son of the soil. The author mentions the grant of 
subsidized plots and other benefits76 and states, ‘Gradually, the mores of 
the military changed to make all such “sweetheart” deals acceptable”77. 
Shuja Nawaz in his book under the chapter - ‘United Pakistan: How to Break 
 
64 The Pakistan Army Act, 1952. 
65 The Pakistan Air Force Act, 1953. 
66 The Pakistan Navy Ordinance, 1961.  
67 The Pakistan Rangers Ordinance, 1959.  
68 The North-West Frontier Constabulary Act, 1915. 
69 The Frontier Corps Ordinance, 1959. 
70 The National Guards Act, 1973. 
71 The Pakistan Coast Guards Act, 1973. 
72 The Airports Security Force Act, 1975. 
73 The Chief of Army Staff of Pakistan, 1991-1993. 
74 Shuja Nawaz, Crossed Swords - Pakistan, its Army, and the Wars Within, Oxford University 
Press, Pakistan (2008).  
75 General Sir Frank Walter Messervy and General Sir Douglas Gracey.  
76 ‘The Report of the Hamoodur Rehman Commission of Inquiry into the 1971 War, (Lahore, Karachi, 
Islamabad: Vanguard) p. 291.’ 
77 Shuja Nawaz, Crossed Swords - Pakistan, its Army, and the Wars Within, Oxford University 
Press, Pakistan (2008), p. 253.  
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
14 
up a Country’  writes, ‘the practice of multiple plots was to become common, 
giving rise to a new “Culture of Entitlement” that permeated both the military 
and civil bureaucracies and that would become embedded in Pakistan 
society’78. This Court in a different context79 had castigated a Brigadier who 
was not satisfied with what he already had received, saying, ‘It is high time 
that we should learn from history’80 and quoted from an American classic81 
to express the Court’s displeasure – ‘The land fell into fewer hands, the 
number of the dispossessed increased and every effort of the great owners 
was directed at repression. The money was spent for arms, for gas to protect 
the great holdings, and spies were sent to catch the murmuring of revolt so 
that it may be stamped out.’   
 
23. 
Service of Pakistan: The Constitution82 defines the service of Pakistan as 
under: 
"Service of Pakistan" means any service, post or office in 
connection with the affairs of the Federation or of a 
Province, and includes an All-Pakistan Service, service in the 
Armed Forces and any other service declared to be a service of 
Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of 
a Provincial Assembly… [emphasis added] 
 
Both civil service and armed forces personnel are in the service of Pakistan; 
the Constitution creates no distinction between them. Civil servants are 
employed in different departments of government doing what their 
respective mandates stipulate while armed forces personnel defend the 
country against external aggression and act in aid of civil power when called 
upon to do so83. The people of Pakistan pay for the services provided by 
each category. Those in the service of Pakistan can receive only that which 
the law sanctions. The terms and conditions of all those in the service of 
Pakistan are set out in the laws respectively applicable to them. Article 240 
of the Constitution stipulates, that, ‘Subject to the Constitution, the 
appointments to and the conditions of service of persons in the service of 
Pakistan shall be determined’ by the Federation through an Act of 
Parliament and for those in the service of a province through an Act of the 
Provincial Assembly of the province.  
 
78 Ibid, p. 253. 
79 Brigadier Muhammad Bashir v Abdul Karim (PLD 2004 Supreme Court 271) which pertained to 
the Colonization of Government Lands (Punjab) Act, 1921. 
80 Ibid, per Javed Iqbal, J, p. 284. 
81 John Steinbeck, Grapes of Wrath, (1939). Steinbeck received the Nobel Prize for Literature.  
82 Article 260(1) of the Constitution of the Islamic Republic of Pakistan. 
83 Article 245 of the Constitution of the Islamic Republic of Pakistan. 
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
15 
 
24. 
Equal Treatment:  The laws governing civil and armed forces personnel do 
 not entitle them to receive residential plots, commercial plots or agricultural 
 land. If residential plots, commercial plots and agricultural land are given 
to only one category in the service of Pakistan, that is to members of the 
armed forces, and the civilians in the service of Pakistan are disregarded, it 
constitutes discrimination and offends the Fundamental Right of equality84. 
However, the Foundation, a government or an organization controlled by a 
government may launch a housing scheme for the members of the Armed 
Forces, and when this happens they may apply for the allotment of a single 
plot for housing. But, they like every other applicant of such schemes will 
have to pay the requisite amount (not subsidized by the State), stand in 
queue and await their turn for allotment in terms of the applicable 
methodology. And, the plot which is allotted/granted must not be large 
because available land is finite and the list of beneficiaries is long, and 
keeps growing longer. The prevailing practice of granting State/public plots 
and land to members of the Armed Forces is contrary to the Constitution 
and the law. Laws can also not be enacted to enable such allotments/grants 
because if enacted these would violate the Constitution (Articles 24, 25, 205 
and 227) and be void85. The Constitution does not permit self-enrichment 
and personal aggrandizement. ‘During the period of Hazrat Umar at one 
occasion such a situation had arisen with regard to some land and the 
Mujahideen demanded distribution of the said land to them but the Caliph 
refused to give the said land to the Mujahideen with the consideration that 
Islam strictly prohibits the establishment of an individual interest in the State 
property in preference to the public interest.’86 
 
25. 
Pensions: Those in the service of Pakistan retire at the age of 60, Chief 
Justice and Judges of the High Courts at the age of 62 and Chief Justice 
and Judges of the Supreme Court at the age of 65; by which age most, if 
not all, already have a place to call home; if they don’t, they will receive a 
sizeable monthly pension which they can use to rent a place. The amount 
to be spent in the current financial year 2020-2021 on pensions is 
 
84 Article 25 of the Constitution of the Islamic Republic of Pakistan. 
85 Article 8 of the Constitution of the Islamic Republic of Pakistan. 
86 Ghulshan Hussain v Commissioner (Revenue), Islamabad, 2000 YLR 1711, 1727 and Federal 
Government Employees Housing Foundation v Muhammad Akram Alizai, PLD 2002 Supreme 
Court 1079, 1095.   
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
16 
470,000,000,00087 rupees (four hundred and seventy billion rupees); of 
which 111,000,000,000 rupees (one hundred and eleven billion rupees) is 
to be spent on retired civilians and 359,000,000,000 rupees (three hundred 
and fifty-nine billion rupees) is to be spent on retired personnel of the 
Armed Forces. The annual cost of pension payments is almost equal to the 
cost of ‘Running of Civil Government’, which is 476,589,000,00088 rupees 
(four hundred and seventy-six billion, five hundred and eighty-nine million 
rupees). The people of Pakistan pay these pensions despite having very little 
themselves. To serve the nation is a singular honour. When, in addition to 
receiving pensions, public lands are taken it is eminently unfair. 
 
26. 
Prebendalism: A system which grants benefits to those holding official 
positions is referred to as a ‘prebendal order’89. In a prebendal order ‘the 
strong exploit and abuse the weak’90 in a ‘tenacious and self-enforcing 
mechanism’91. The philosopher Thomas Hobbes described such yearnings 
as ‘a perpetual and restless desire of power after power, that ceaseth only in 
death’92. A prebendal order enriches the powerful elite. ‘Prebendalism was 
sustained by a relatively narrow civil-military elite’.93  Dr. Richard Joseph in 
his seminal work94 noted that those who use their offices to benefit and 
enrich themselves emulate a discredited feudal practice; his research 
revealed that prebendalism made it difficult to determine the true extent of 
public corruption.  
 
27. 
Indebtedness: Pakistan is heavily indebted. The people pay astronomical 
amounts to service the accumulated debt. This financial year95 
2,946,135,000,000 rupees (two trillion, nine hundred and forty-six billion, 
one hundred and thirty-five million rupees) will be paid to service debt96; 
 
87 Government of Pakistan, Federal Budget 2020-21, (Finance Division, 12 June 2020) 
<http://www.finance.gov.pk/budget/Budget_in_Brief_2020-21_English.pdf>. 
88 Ibid. 
89 A term coined by Dr. Richard Joseph (Professor Emeritus Northwestern University) in his book 
Democracy and Prebendal Politics in Nigeria (1st edition, Cambridge University Press, 1987). 
90 Professor (University of Oxford) Wale Adebanwi and Professor (University of Kansas) Ebenezer 
Obadarte, Democracy and Prebendalism in Nigeria - Critical Interpretations (1st edition, Palgrave 
Macmillan, 2013) p. x. 
91 Ibid, p. viii. 
92 Thomas Hobbes, Leviathan (first published in 1651, Penguin 1985). 
93 P. Lewis, From Prebendalism to Predation: the Political Economy of Decline in Nigeria (1996) 34 
The Journal of Modern African Studies, p. 79-103, 100. 
94 Dr. Richard Joseph, Democracy and Prebendal Politics in Nigeria (1st edition, Cambridge 
University Press, 1987). 
95 2020-2021. 
96 Government of Pakistan, Federal Budget 2020-21, (Finance Division, 12 June 2020) 
<http://www.finance.gov.pk/budget/Budget_in_Brief_2020-21_English.pdf>.  
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
17 
this astronomical amount does not include the repayment of a single dollar, 
sterling, yen, euro or rupee. And, the government continues to take more 
loans; piling debt upon debt, and adding billions to debt servicing. Debt-
servicing is the single largest component of the Federal expenditure. 
Children, their unborn children and the unborn children of the unborn are 
born into poverty, and will remain impoverished till death. In this dire 
situation giving away the one asset that the people do have, their land, is 
inexplicable. 
 
28. 
Precedents on Land Conferrals: The judiciary and the armed forces of 
Pakistan are patterned on the British model. Land is not given away to 
judges and to the members of the armed forces in Britain, in the United 
States of America nor in any commonwealth country, with the singular 
exception of Pakistan. At the time when the subcontinent was captured and 
ruled by the East India Company, and later when it came under the direct 
rule of the British Crown, British officers, soldiers and judges, whether 
deployed in the subcontinent or serving at home, were not conferred land. 
They also did not have rights to captured territory and property. Sometimes 
a portion of captured property was distributed amongst officers and soldiers 
as prizes, but it was made clear that this was not by way of entitlement. In 
the Deccan prize-money case of Alexander v Duke of Wellington97 it was held 
that98: 
 
 All prize is clearly and distinctly the property of the Crown. This 
 is a principle not to be disputed… It is equally incontrovertible 
 that that the Crown possesses this property absolutely, and 
wholly without control; that it may deal with it entirely at its 
pleasure; may keep it for its own use; may abandon or restore 
it to the enemy; or, finally, may distribute it in whole or in part 
among the persons instrumental in its capture; making that 
distribution according to whatever scheme, and under whatever 
regulations and conditions it sees fit. It is equally clear that the 
title of a party claiming prize must in all cases be the act of the 
Crown, by which the royal pleasure to grant prize shall have 
been signified to the subject. 
 
‘The capturing force having therefore no legal right to the spoils of war’.99  
When a portion of captured property was distributed amongst officers and 
soldiers it was done pursuant to a legal enactment. The land distributed 
 
97 2 Russell and Mylne’s Reports, 54; reproduced in H. Prendergast, Law Relating to Officers in 
the Army (2nd edition, Parker, Furnivall, and Parker, Military Library, London, 1855) p. 106. 
98 Lord Chancellor Brougham. 
99 n97, p. 107.  
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
18 
amongst the officers of the armed forces of Pakistan is not captured land 
nor has Parliament authorized its distribution. Those who serve in the 
judiciary and in the armed forces of Pakistan receive a salary for their 
services and receive a pension on their retirement; they do not serve in the 
expectation of receiving land from the State. 
 
29. 
Elite Capture and Impoverishing the Poor: Elite capture creates, ‘a 
“predatory state” in which the division between private and public interests 
is totally dismantled’100. ‘Elite patronage is not always associated with 
autocratic rule; it can sometimes continue even after the formal transition to 
democracy’.101 But, ‘Following the demise of domestic rule, however, the 
distribution of benefits becomes increasingly characterized by exclusionary, 
centralized distribution modes favouring powerful groups like top military 
officers’102. Studies by preeminent researchers103 have found that 
democracy is an institutionally established mechanism for regulating 
resources and hence effective in controlling elite capture. The horizontal 
expansion of Pakistani cities104 took place when land was distributed 
amongst members of the armed forces105; these areas have come to dwarf 
the original cities. If this land was sold at market-price Pakistan may have 
escaped the indebtedness that it suffers and its people not made to suffer 
calamitous, backbreaking and perpetuating poverty. The manner in which 
land is distributed impoverishes and marginalizes the poor further. ‘When 
communities have well-established organizations where the poor are 
sufficiently empowered, the participatory approach is on safe grounds. The 
problem arises when local organizations do not exist or when they are 
dominated by strong elites driven by their peculiar interests.’106 It needs 
 
100 Arild Schou (Professor at the University of South-Eastern Norway), Demand-driven Poverty 
Programmes and Elite Capture in Malawi: Between Prebendalism and Benevolence, European 
Journal of Development Research, Vol. 19, p. 594-613, 597. 
101 Ibid. 
102 Ibid.  
103 Jean-Phillipe Platteau, Professor of Economics and Director of the Centre for Research on the 
Economics of Development at the University of Namur, Belgium and Frederic Gaspart, Associate 
Professor of Economics at the Faculty of Agricultural Sciences at the University of Louvain-La-
Neuve, Belgium. 
104 https://earth.google.com, Historical Imagery.  
105 Commenced under the unconstitutional rule of General Mohammad Ayub Khan, established 
under the dictatorship of General Zia ul Haq and perpetuated ever since.    
106 F. Gaspart and J. Platteau, Is Cheap Aid Money Good for the Poor?, Centre for Research on 
the Economics of Development, 2012 
<www.editorialexpress.com/cgibin/conference/download.cgi?db_name=CSAE2013&paper_id=4
94>.  
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
19 
restating that the people have not sanctioned the distribution of land to 
judges and to the members of the Armed Forces.  
 
30. 
Enriching the Elite and Tax Free: Most Pakistanis struggle their entire 
lives to put a roof over their heads. Judges and officers of the armed forces 
who receive land in prized urban locations invariably do not build on it a 
house for themselves to live in, and those officers who get agricultural lands 
do not cultivate it. They sell their plots and agricultural land or become 
absentee landlords. ‘This negative perception and reference to the most 
visible and talked about aspects of military rule and operations: foremost of 
which is the creation of residential Defence Housing Societies throughout the 
country for military officers, which yield huge windfall profits when individual 
officers sell their plots – reflects one of the many challenges to the army today. 
The sale of each urban plot fetches hundreds of millions of rupees.  The army 
is perceived to be in charge…everywhere.’107 These profits are also not taxed 
and the original recipients do not pay fees and duties108 which even the poor 
pay. ‘This benefits ladder has been defined by the army itself, over time, with 
officers now allowed access to subsidized housing plots at almost all their 
senior posting stations, where such valuable land is available for allocation 
at the discretion of the local army commanders and not the civilian 
government.’ Many senior officers liquidate these assets, convert the sale 
proceeds into foreign currency, send the money abroad and live luxurious 
lives in prime locations overseas, creating disillusionment in the ranks. The 
ranks may also question why, say a general’s need for housing and 
agriculture is more pressing than theirs, as it is their lives which are more 
susceptible to danger as they stand more exposed.  
 
31. 
Land Unavailable for Public Utilities and Services: A just social order, 
and an Islamic one, enjoins the well-being of the people; the provision of 
basic necessities and public welfare. Islam is a religion of community 
(ummah); the spirit of community is ordained from Above; Almighty Allah is 
 
107 Shuja Nawaz, Crossed Swords - Pakistan, its Army, and the Wars Within, Oxford University 
Press, Pakistan (2008), p. 567.  
108 This is done by surrendering the original allotment order in exchange for money (sale 
consideration) and a valuable piece of property is surrendered (transferred) and a fresh allotment 
order is issued in favour of the purchaser. Since the ‘powerful’ in the country are the beneficiaries 
of this most suspect mechanism, questions are not raised either by the Federal Board of Revenue 
(‘FBR’) or by the provincial authorities which are required to collect stamp duty under the Stamp 
Act, 1899 and registration fee on transfers under the Registration Act, 1908.  
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
20 
present in every human community109 and is ‘closer to you than your jugular 
vein’110. State or community (ummah’s) land can only be used for everyone’s 
benefit; for public hospitals, clinics, graveyards, police stations, schools, 
universities, parks, playgrounds, sport facilities, retirement homes, bus and 
train stations, water reservoirs, drains, abattoirs and other public purposes 
which serve society. It is also meritorious to establish hospitals for birds 
and animals because the earth is for all ‘the creatures’111 (lil’anami) and to 
provide a place for the community112 of injured or lame animals to live 
protected and in peace. But land is not available for utilities and public 
services and the destitute and the poor are cast aside. However, free or 
heavily subsidized State/public land is distributed amongst the elite. People 
lose faith in the system of governance, despondency sets in and society then 
comes to be held together by sheer force.  
 
32. 
Injunctions of Islam: The Constitution mandates that ‘all existing laws 
shall be brought in conformity with the Injunctions of Islam as laid down in 
the Holy Quran and Sunnah … and no law shall be enacted which is 
repugnant to such Injunctions’113. The practice of giving away the ummah’s 
land to judges and to members of the armed forces is contrary to the 
Injunctions of Islam. Islam jealously guards the properties and assets of the 
ummah (community/State). The majority of citizens are poor, they barely 
manage to eke out a subsistence. Most live out their lives without the ability 
to buy a couple of marla114 of land to build a shack on. Many encroach on 
State land and often in precarious places like alongside riverbeds and storm 
drains to put a roof over their and their children’s heads; forever exposed to 
the elements and the threat of eviction and demolition of their shanty 
homes, a threat which is oftentimes carried out. An Islamic polity is founded 
on the principle of unity and brotherhood115 which is fractured when those 
in dire poverty and abject need are ignored. Islam is a religion of balance, 
‘He imposed the balance (al-mizan)’116 and we are directed not to ‘transgress 
the balance’117; the balance is ruptured when lands are bestowed on the 
 
109 Al-Qur’an, surah Al-Mujadilah (58) verse 7.  
110 Al-Qur’an, surah Qaf (50) verse 16. 
111 Al-Qur’an, surah Ar-Rahman (55) verse 10.   
112 Al-Qur’an, surah Al-Anam (6) verse 38, surah An-Nur (24) verse 41 and surah Ar-Rahman (55) 
verse 10.   
113 Article 227 of the Constitution of the Islamic Republic of Pakistan. 
114 25 square yards. 
115 ‘Indeed believers are (one another’s) brothers’ - Al-Quran, surah Al-Mujadilah (58), verse 10. 
116 Al-Qur’an, surah Ar-Rahman (55) verse 7. 
117 Ibid, verse 8. 
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
21 
elite. The Holy Qur’an mandates that the destitute, the poor and the needy 
are entitled to charity and may be supported by the State (ummah). Almighty 
Allah says that, ‘charity (sadaqatu) is only for the poor (fuqara'), the needy 
(masakin)’118, etcetera. If a person is not poor (fuqara) or needy (masakin) it 
is not permissible to give him/her the ummah’s land. When the ummah’s 
land is bestowed upon the privileged elite, those blessed with good salaries, 
secure jobs and pensions may attract the Qur’anic rebuke, ‘Competing to 
piling up (worldly things) distracts you, until you visit your graves’119. The 
Prophet Muhammad (peace and blessings be upon him) graphically 
expanded on this insatiable desire for wealth, ‘If a man had a valley full of 
gold, he would want another valley full of gold, but in the end only dust will 
fill his mouth’120.  
 
33. 
Unconstitutional Nondisclosure and Secrecy: The affront to the people is 
confounded when information with regard to distribution of State / 
ummah’s land is kept under wraps. The people have every right to know 
what is given to those in the service of Pakistan and holding constitutional 
positions. There is no quicker way to lose public trust then to shroud 
information in secrecy. To withhold such information from the people is 
unconstitutional. The ‘right to Information’ is a Fundamental Right121. 
Almighty Allah says that ‘there is no good’122 in secrecy except when giving 
charity, extending kindness and effecting reconciliation. Keeping public 
matters secret is castigated123. The Holy Qur’an calls on believers to, ‘firmly 
establish truth’124 (liyuhiqqa l-haqqa) and not to ‘hide the truth’125. ‘The truth 
will set you free’126. ‘The Report of the Hamoodur Rehman Commission of 
Inquiry into the 1971 War’, a Commission headed by the Chief Justice of 
Pakistan, reported that, ‘responsible service officers’ had asserted before the 
Commission that ‘corruption resulting from … lands and houses’ had 
resulted in loss of will to fight and loss of professional competence. These 
 
118 Al-Qur’an, surah At-Tawbah (9) verse 60.  
119 Al-Qur’an, surah At-Takathur verses 1 and 2.  
120 Narrated on the authority of Anas bin Malik, Sahih Al-Bukhari, 6439, also in Al-Muslim. 
121 Article 19A of the Constitution of the Islamic Republic of Pakistan.  
122 Holy Qur’an, surah An-Nisa (4) verse 114. 
123 Holy Qur’an, surah At-Tawbah (9) verse 78, surah Al-Isra (17) verse 47, surah Ta Ha (20) verse 
62, surah Al-Anbiya (21) verse 3, surah Az-Zukhruf (43) verse 80 and surah Al-Mujadilah (58) verse 
10.  
124 Holy Qur’an, surah Al-Anfal (8) verse 8. 
125 Holy Qur’an, surah Al-Baqarah (2) verse 42. 
126 Attributed to the Prophet Isa (peace be upon him), John 8:32. 
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
22 
disastrous consequences127 and the aphorism, those who do not learn from 
history are condemned to repeat it must be avoided.  
 
34. 
Declaration by Quaid-i-Azam Mohammad Ali Jinnah: The Constitution 
dictates that, we must remain, ‘Faithful to the declaration made by the 
Founder of Pakistan, Quaid-i-Azam Mohammed Ali Jinnah, that Pakistan 
would be a democratic State based on Islamic principles of social justice’128. 
The Quaid addressed ‘Civil, Naval, Military & Air Officers of the Pakistan 
Government’129, and said: 
 
The establishment of Pakistan for which we have been striving 
 
for the last ten years is, by the grace of God, an established fact 
 
today, but the criterion of a State of our own was means to an 
 
end and not end in itself. The idea was that we should have a 
 
State in which we  could live and breathe as free men and which 
 
could develop according to our own lights and culture and 
 
where principles of Islamic social justice could find freeplay130. 
 
The Quaid131 wanted Pakistan to be a prosperous and happy place to live 
in; a place which ensured the well-being of the people and above all of the 
poor:   
 
Now, if we want to make this great State of Pakistan happy and 
 
prosperous we should wholly and solely concentrate on the 
 
well-being of the people, and especially of the masses and the 
 
poor.132  
 
 
The primary reason for the creation of an independent nation state by 
Mohammad Ali Jinnah and his companions was to enable believers to freely 
pursue their faith, to end discrimination and the economic exploitation of 
the people. We must never forget that Pakistan was, ‘achieved by the 
 
127 ‘His [General Mohammad Ayub Khan] economic policies mostly resulted in the unequal 
distribution of wealth between certain privileged classes and the common person. With the growth 
of the economy, a vacuum of income between the inter-regional, inter-personal, rich and poor classes 
grew. A gap between the majority people of East Pakistan and West Pakistan was clearly visible.’ 
This inequality is stated to have contributed towards the country fragmenting into two separate 
States. Pakistan’s First Military Coup: Why Did the First Pakistani Coup Occur and Why Does it 
Matter? Naghman Chaudhry, Captain Pakistan Navy, 2004-5, thesis submitted for the degree of 
Master of Arts in Security Studies; referenced S. J. Burki, Ayub’s Fall, A Socio-Economic 
Explanation, Asian Survey, Vol. 12, No. 3, March 1972. 
128 The Preamble to the Constitution of the Islamic Republic of Pakistan, quite unlike the 
preambles to the constitutions of other countries, is not a mere introduction or adornment but a 
‘substantive part of the Constitution and shall have effect accordingly’ (Article 2A of the 
Constitution).  
129 At Khaliqdina Hall, Karachi on 11 October 1947. 
130 Z. H. Zaidi, Editor-in-Chief, Jinnah Papers - Pakistan at Last, Volume IV, published by Quaid-
i-Azam Papers Project, Cabinet Division, Government of Pakistan (1999) p. 75.  
131 Presidential Address to the Constituent Assembly of Pakistan, 11 August 1947 at Karachi. 
132 Z. H. Zaidi, Editor-in-Chief, Jinnah Papers - Pakistan at Last, Volume IV, published by Quaid-
i-Azam Papers Project, Cabinet Division, Government of Pakistan (1999).  
C.A. Nos. 1476 to 1485 of 2018, etc. 
 
23 
unremitting struggle of the people against oppression and tyranny’133. 
Bestowing wealth, which is unearned, obliterates the cherished goals of 
Pakistan.  
 
35. 
Serving Humanity Without Reward: The leaders of the Freedom 
Movement, of the All-India Muslim League, who got us Pakistan, amongst 
whom were many who had lost their own homes, did not take a single square 
inch of land. These proud Freedom Fighters of Pakistan were also not 
remunerated nor pensioned. They spent from their own pockets to create 
Pakistan. Their only motivation was a burning desire to serve the people. 
The constitutional goal of ‘creating an egalitarian society’134 is undermined 
when public land furtively finds its way into private hands.   
 
36. 
For the reasons mentioned above, I concur with the conclusions arrived at 
by the learned Mushir Alam, J: that the applicable law for the compulsory 
acquisition of the Land was the Land Acquisition Act, that the Land was 
legally acquired by the Foundation and that its distribution amongst the 
allottees did not violate the Land Acquisition Act nor the Constitution.  
 
37. 
It would be appropriate to translate this judgment into Urdu135 for its wider 
dissemination as it contains matters of public importance. Since the 
Pakistan Electronic Media Regulatory Authority Ordinance, 2002136 was 
enacted to also, ‘ensure accountability, transparency and good governance 
by optimizing the free flow of information’137, therefore, a copy of this 
judgment be sent to the Pakistan Electronic Media Regulatory Authority138 
(‘PEMRA’) which is directed to send copies onwards to its licencees, who 
may want to broadcast it. And, PEMRA should ensure that such broadcasts 
are unimpeded.    
 
 
Islamabad,  
 
 
 
 
 
 
 
   JUDGE 
Dated: 8 October 2020.       
 
 
133 Preamble - Objectives Resolution – of the Constitution of the Islamic Republic of Pakistan.  
134 Ibid. 
135 Article 251 of the Constitution of the Islamic Republic of Pakistan.  
136 Gazette of Pakistan, Extraordinary, Part I, published on 1 March 2002 (PLD 2002 Federal 
Statutes 63). 
137 Preamble (iv) of the Pakistan Electronic Media Regulatory Ordinance, 2002. 
138 Constituted under section 3 of the Pakistan Electronic Media Regulatory Ordinance, 2002. 
