The land in Golra. Revenue Estate was exempted from acquisition as far back as the year 1968-69 by the then President of Pakistan as a mark of respect for the Great Pir of Golra Sharif. The provision allowing operation of private societies in Sector E-11 is to be seen in the context of adverse possession and the consolidation in the said sector of land of Golra Revenue Estate spread over in different sectors. MPCHS had acted in pursuance of the advertisement duly published in the press dated 14.03.2008 wherein other parties also participated and the bid offered by his clients was accepted after duly verifying its credentials. The JVA was concluded with MPCHS as a result of open bidding in the transparent manner at the benefits most suitable to CDA.
11. On the other hand, Mr. Muhammad Akram Sheikh, Sr. ASC who appeared as an Amicus Curiae on Court’s notice, submitted that the Regulation framed by the CDA was ultra vires of the provisions of the CDA Ordinance, 1960. The word “agency” defined in section 2 of the Ordinance does not include a private company. The powers and duties of the CDA are provided in Chapter III of the Ordinance. Section 11 provides for the preparation of master plan and master programme. Section 12 provides that all schemes will be prepared by a local body or an agency of the Federal or Provincial Government. The manner and form of a scheme to be prepared by the Authority are provided in sections 13 and 14 while the enabling powers of the Authority are laid down in section 15. The power of the CDA to enter into and perform contracts under clause (v) of subsection 2 of section 15, as also its power under section 49 of the Ordinance to retain, lease, sell, exchange, rent or otherwise dispose of any land vested in it are not attracted in the instant case.
12. The learned Amicus Curiae has stated that sections 22 to 32 of the Ordinance empower the CDA to acquire land as per procedure laid down therein, while section 49B read with section 49D provides for summary ejectment of unauthorized occupants with police assistance. But, in the present case, the CDA functionaries never tried to exercise such powers. Chapter VII of the CDA Ordinance, 1960 provides “Penalty and Procedure” for contravention of any provisions of the Ordinance or Rules or Regulations made or schemes sanctioned thereunder. The CDA has tried to justify its action under regulation 4(1)A(iv) of the Regulation, but the said Regulation does not apply to the facts and circumstances of the present case as the same applies to unacquired sectoral areas whereas the land in question is an acquired land and the CDA has its own mechanism of its development under the relevant provisions of the Ordinance and Rules or Regulations made thereunder. As regards authority to enter into the JVA with any private and public sector agency by the CDA Board It is provided in section 4 of the Islamabad Land Disposal Regulation, 2005, however, the same is not applicable to the Instant case in view of regulation 2B of the said Regulation and section 2(a) of the Ordinance, which defines the word “agency” and private & public sector agencies are not included therein. Moreover, the first proviso to regulation 4 of the Regulation, 2005 is inconsistent with section 51 of the Ordinance and thus has no legal sanction and binding force.
13. On the issue of transparency in the JVA, the learned Amicus Curiae submitted that the aforesaid clause (iv) of Regulation 4(1)A seems to have been added to benefit Mr. K. U. Faruqui, the President of MPCHS who was then Cabinet Secretary to the Government of Pakistan and had prepared summary for the Prime Minister of Pakistan and the first proviso to regulation 4 of the Regulation also seems to have been added just to swindle a public property valuing billions of rupees for the benefit of Mr. K.U. Faruqui, which raises many questions on the transparency in the JVA and smacks of mala fides on their part. In the concise statement, the CDA functionaries have not provided exact khasra numbers of the 54 acres land in question and have also not provided names of the occupants at the time of acquisition of the land in the years 1968-69 and have also not provided the names of the occupants of the land at the time of entering into the JVA. Nothing has been said about the agreement entered into between one Rashid Mehmood Khan and MPCHS whereby said Rashid Mehmood Khan had agreed to get the land vacated on payment of commission/service charges @ 3% of the purchase price though the CDA had its own Enforcement Directorate, which was authorized to eject unauthorized occupants summarily with the assistance of local police.
14. Mr. Akram Sheikh next submitted that regulation being delegated legislation have to be consistent with the statute under which they were framed. Delegated legislation could be described as orders, rules, regulations, schemes, licences and instruments, the nomenclature used would be the one laid out by the enabling Act. A delegated legislation, in this case the Regulation, could be struck down as ultra vires on five main grounds, namely, If statutory procedure prescribed for making them had not been followed; if they were repugnant to provisions of some other statute; if they conflicted with the parent Act Itself; If they were uncertain; and if they were unreasonable. The regulation in question is not within the parameters envisaged by the parent Act, therefore, the same is ultra vires. He has referred to the definition of “regulation” from Advanced Law Lexicon, 3rd Edition 2005, Black’s Law Dictionary, Seventh Edition. He also referred to Khawaja Ahmad Hassan v. Government of Punjab (2005 SCMR 186), Mian Ziauddin v. Punjab Local Government (1985 SCMR 365), Province of East Pakistan v. Nur Ahmed (PLD 1964 SC 451), Ummatullah v. Province of Sindh (PLD 2010 Karachi 236) and Kerala Samsthana Chethu v. State of Kerala [(2006) 4 SCC 327).
15. We have heard the learned counsel and have gone through the relevant provisions of the CDA Ordinance, 1960 and the record produced by the CDA.
16. The first question, which requires to be determined by this Court in the instant case is whether it was permissible for the CDA to have framed a Regulation, which was inconsistent with the parent statute, i.e. the Ordinance. It may be seen that subsection (1) of Section 12 of the Ordinance provides that the CDA may, pursuant to the master, plan and the master programme, call upon any local body or agency operating in the Specified Areas to prepare, in consultation with It, a scheme or schemes in respect of matters ordinarily dealt with by such local body or agency, and thereupon the local body or agency shall be responsible for the preparation of the schente or schemes, whereas, subsection (5) provides that no planning or development scheme shall be prepared by any person or by any local body or agency except with the concurrence of the Authority.
To be Continued…