SYED NAZIR ALI SHAH Versus THE CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD
TANZIL‑UR‑RAHMAN, CJ. ‑‑‑The Federal Shariat Court examined the Capital Development Authority Ordinance, XXII of 1960, on its own motion (S.S.M.No.142/82) and by its judgment, dated 7th July, 1983, came to the conclusion that sections 2(K) and 30(1) of the said Ordinance arc repugnant to the Injunctions of Islam. On Appeal (Shariat Appeal No.4 of 1983), preferred by the Federation of Pakistan against the said judgment, the Shariat Appellate Bench of the Supreme Court by its judgment, dated 22nd May, 1985 (copy received in the office of this Court on 8th March, 1986), remanded the case to the Federal Shariat Court, on account of the omission by the Federal Shariat Court to give reasons by making references to the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h)
2. It appears that Federation of Pakistan being aggrieved with the said judgment of the Shariat Appellate Bench of the Supreme Court, filed a review petition (Shariat Review Petition No.l‑R of 1986) against the said judgment which was disposed of by an order dated 10‑1‑1988, passed by the said Appellate Bench (Copy received in this Court on 28‑1‑1988).
3. As per office note placed on record by the Assistant Registrar (Judicial) it appears that the above matter, on remand, was reheard by the Full Court comprising Han'ble MrJustice Gul Muhammad Khan, the then Chief Justice and the Hon'ble Judge Mr. Justice Mufti Syed Shujaat Ali Qadri, Mr.Justice Muflakhiruddin, Mr.Justice Kamal Mustafa Bokhary and Mr. Justice Abdur Rehman Khan, on 24‑4‑1988, 25‑4‑1988, 26‑4‑1988, 27‑4‑1988 and then on 8‑5‑1988. The said matter was again taken up for hearing by the Full Court comprising hon'ble Mr.Justice Gul Muhammad Khan, the then Chief Justice and Hon'ble Judges Mr.Justice Mufti Syed Shujaat Ali Qadri, Mr.Justice Muftakhiruddin, Mr. Justice Kamal Mustafa Bokhary and Mr. Justice Allama Dr. Fida Muhammad Khan on 13th and 15th November, 1988 and was reserved for judgment. The judgment was, however, not written and the tenure of the then hon'ble Chief Justice and the Hon'ble Judges except one of us, Mr. Justice Dr. Fida Muhammad Khan, expired during 1989 and 1990. On 15‑12‑1991 Shariat Petition No.38/I of 1991, challenging the market value as d&6ed in the said Ordinance came up for preliminary hearing. It was, then, brought to the notice of the Court that S.S.M.No.142/I of 1982, on the same subject, was still pending. Thus, S.S.M.No.142/I of 1982 alongwith Shariat Petition No. 38/1 of 1991, on the same subject, was then heard by us on 4‑2‑1992. By this judgment we intend to dispose of S.S.M.No.142/I of 1982 and Shariat Petition No.38/1 of 1991 together.
4. The said two sections read as under:‑‑
"Section 2(K)
Market value means:
In relation to land acquired before the first day of January, 1968, the average market value thereof prevailing during the period commencing the first day of January, 1954, and ending on the thirty- first day of December, 1958; and in relation to land acquired on or after the first day of' January, 1968, the aggregate of the average market value as aforesaid determined with reference to its classification recorded in the Register of Haqdaran Zamin as in force on that day and twenty per cent. of such value".
Section 30(1)
"In determining the amount of compensation to be awarded for land acquired under this Ordinance the Deputy Commissioner shall take into consideration, firstly, the market value of the land; secondly, the damage sustained by the person interested, by reason of dispossession of any standing crops or trees which may be on the land; thirdly , the damage, if any, sustained by the persons interested at the time of taking possession of the land by reason of severing such land from his other land; fourthly, the damage, if any, sustained by the person interested at the time of taking possession of the land by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; and fifthly , if, in consequence of the acquisition of the land the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change."
5. Now we proceed to examine the two abovesaid provisions of law in detail and give our reasons as to why they are repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (S.A.W.W).
6. First and foremost, the following verges of the Holy Qur'an will serve the guiding principles in this regard:‑‑
(And to (the people of) Madian (We did send) their brother Shu'aib; he said: "O' my people! worship God (alone), you have no God other than Him; Indeed has conic to you from your Lord a clear proof, so give full measure and weight, and diminish not to men their things, and make no mischief in the earth, after its reform; This is better for you, if you be believers). (S.VII:V.85).
(Whosoever desires the life of this world and pomp, We shall pay them (the recompense for) their deeds therein, they shall suffer not any loss. (S.XI:V.15).
(And O' my people! give full measure and (correct) weight in justice, and defraud not people of their things, and act not corruplty in the earth, making mischief. (S.XI:V.85).
(And they sold him for a paltry price, for a few dirhams (silver pieces) counted out; and in him they had no interest. (S.XII:V.20).
(And defraud not people in their (due) goods, and work not evil in the earth making mischief. (S.XXVI:V.183).
(And thus have We made you a group of just/balanced stand that you may be witnesses over mankind and the Prophet be (a) witness over you; And we did not fix the `Qiblah' towards which you were at, but that We might distinguish him who follows the Prophet, from him that turns back upon his heels; and this was surely a hard thing for any except for those whom God has guided; and God would not make futile your faith (in Him); verily God to mankind is Affectionate (and) Merciful). (S.II: V.143).
(God (Himself) witnesses that there is no god but He, and (so do) the angels and those possessed of knowledge, standing firm for justice; there is no God but He the Almighty, the All‑Wise. (S.III:V.18).
(Verily to those who deny the Signs of God, and unjustly slay those among men who enjoin justice, give tidings to them of a painful chastisement. (S.I11:V.21).
(They ask you for a decision about women Say! (O' Our Prophet Mohmmad) "God does give decision for you about them: and that which is recited to you in the Book (Qur'an) concerning orphan girls, whom you give not what is assigned to them, while (yet) you desire to wed them, and also (concerning) the weak among the children, that you stand firm for the orphans, with justice; and whatever of good you do, then verily God knows it). (S.IV:V.127).
(O' you who believe! do stand firmly with justice, witnesses for God's sake though it be against your own selves or your parents or your kindred, be he rich or poor, for God is closer (than you) to them both; therefore, follow not your inclination, lest you deviate, (from the truth) and if you swerve (from the truth) or turn aside, then Verily God is All‑Aware of what you do). (S.IV:V.135).
(O' you who believe! be always upright for God, bearing witness with justice, and let not hatred of a people incite you not to act equitably; Act equitably that is nearer to piety, fear God Verily God is (fully) Aware of what (all) you do). (S.V:V 9),
(They are) listeners to (any) lie, devourtrs of the illicit gain, therefore, if they come to you (O' Our Messenger Mohammad!) (You are at liberty to) judge between them or turn aside from them; and if you turn aside from them, then never shall they harm you in any way, but if you judge, then judge between them with equity; verily God loves those who deal equitably). (S.V:V.42).
(Say, (O' Our Prophet Mohammad) "Come! I will recite (to) you what your Lord has forbidden to you that you associate not with Him anything and be good to (your) parents and slay not your children for (fear of) poverty; We provide for you and for them; and draw not near to shameful deeds, that which be apparent and that which be concealed, and kill not the soul which God has forbidden save for justice; This He enjoined you with, so that you may understand). (S.VI:V.182).
(Say: "My Lord has enjoined Justice; and set upright your faces at (each time and place) of prostration, and call upon Him, sincerely, exclusively to Him in religion; even as He brought you forth (in the beginning) so to Him shall you also return). (S.VII:V.29)
(To Him shall return you all; (this is) the promise of God in truth; verily, (it is only) He (Who) begins the creation then causes it to return that He may with equity recompense those who believe and do good; and those who disbelieve, for them shall be the drink from the boiling fluids and a chastisement painful for they disbeliever). (S.X:V.A).
(And for every people (was sent) a Messenger; and when came their Messenger, the mater between them was decided with equity and they shall not (in the least) be done (any) injustice. (SXV.47).
`(And if every soul that has done injustice had all that is in the earth, it would assuredly ransom itself therewith; and they will proclaim their repentance when they behold the doom and it shall be decided between them with justice and they shall not be done (any) injustice. (SX V.54).
(And to (the people of) Midian (We sent) their brother Shu'aib. Said he: "O my people! Worship God (alone); You have no God other than He; and give not short measure and weight, verily I see you in prosperity and verily I fear for you the torment of an All Encompassing day). (S.XI:V.84).
(And We shall set up the balances of justice on the Day of Judgement, so no soul shall be dealt with unjustly in the least; and even if there be the weight of a grain of mustard seed, (Even that) We will bring it (into account); and sufficient are We (as) reckoners). (S.XXI:V.47).
(God is He who sent down the Book with Truth and the Balance, and what do you know? haply the Hour (of Reckoning) be nigh). (SALI I: V.17).
(And if two parties of the believers fall into a quarrel (among themselves), you restore peace between them two; but if one of the two transgresses against the other, (then) you (all) fight (against) that which transgresses until it complies with the Command of God; and if it complies then you restore peace between the two with justice, and you act justly; Verily, God loves the Just Ones). (S.XLIX:V.9).
(And the heaven, He did raise it high, and placed the scale (within reach). (S.LV:V.7).
(So that you may not transgress in scales). (S.LV:V.8).
(And you maintain the measure with justice and not cut short in the scale). (S.LV:V.9).
(Indeed we sent Our Messengers with clear proofs, and We sent down with them the Book and the Scale that people may establish themselves in justice; and We sent down iron wherein is latent (in its use) mighty power and also benefits for mankind and that God may prove who helps Him and His Messengers in secret; Verily God is All -Strong the Ever‑Prevalent). (S.LVII:V.25).
(God does not forbid you regarding those who have not made war upon you in the matter of (your) religion, and drove you not out of your homes, that you show them kindness and be just to them; Verily God loves the Just Ones). (S.LX:V.8).
(And that, of us some are Muslims and of us are the others who are the deviators (from the Right Path), and whoever submit these pursue the Right Guidance). (S.LXXII:V.14).
(And as for deviators, they shall be for the Hell, a fuel). (S.LXXII:V.15).
(Who, when they take by measure from the people, demand it full. (S.LXXXIII: V.2).
(But when they measure to them or (when they weigh to them, minish they (i.e. deceive). (S.LXXXIII:V.3).
7. A glance through the above verses will show that the Muslim Ummah is (S.II:V.143), which means moderate i.e., the Muslim Ummah is upright on the straight path which is free from extremes. The Holy Our'an ordains us to judge things in a balanced way and decide mutual rights with justness. It has been enjoined on us that if the disputants come to the Court for adjudication of their dispute, it is the Courts' bounden duty to judge between them with justice, (S.V:V.42) because we have been commanded justice (S.VII:V.29). We have been ordained to fill up the measure and the balance and not to undergive the people their things (S.VII:V.85) i.e. the rights of the people should not be injured in the least, otherwise it will create corruption in the land whereas all kinds of corruption should be obliterated from the surface of the earth.
8. The Holy Qur'an, narrating the incident of the sale of Yusuf (the Prophet) by his brothers for paltry price, dirhams numbered, in fact expressed His denouncement on the said mischievous act (S.XII:V.20).
9. The Holy Qur'an ordains us in express terms
(S.XII:V.35) and fill up the measure when you give measuring and weight with the straight balance. It is better and fairer in its end. (S.XVII:V.35). The Holy Qur'an thus prohibits to weigh dishonestly. In fact, transactions are ruined by dishonest measuring or weighing and the whole system of mutual dealings is destroyed. The Qur'an has described at several places, the story of annihilation of the people of Hazrat Shu'aib who were wrong in measuring and weighing. The people have been ordered to weigh with straight balance (S.XXVI: V.182) and have been ordained to diminish not the things of the people (S.XXVI:V.183) which results in causing mischief on the earth.
10. It is stated that Allah Almighty has sent down the Book upon the True Religion and also the Balance. The word `Mizan' having been translated as Balance as revealed in the verse
(S.XLII:V.17). Allah has sent down the material Balance, scientific Balance (i.e. wisdom) and moral Balance which is known as equity and justice and the greatest Balance is the True Religion of Islam that judges rightly the Human Obligations, neither more nor less. We have been commanded to judge our acts and stipulations testing them on the touchstone of the Book of Allah and weighing them in the Balance of the True Religion of Islam.
11. To obviate the risk of mischief we have been ordained to set right between disputants and do justice between them (S.XLIX: V.9). We have been commanded not to transgress in the Balance (S.LV:V.8). Allah the Almighty ordains us to keep the Balance upright with justice and skimp not in the balance, by putting upright of many things and protecting rights of the people (S.LV:V.9).
12. In fact, the Prophets were sent down with clear Signs and the Book and the Balance so that the people should keep upright with justice
(S.LVII:V.25) and those who are unjust, they become fuel of the Hell. S.LXXII:V.15).
Ls. It is narrated that some people brought under cultivation a piece of land, which was not their property, and grown up there some date trees. The land owners put their claim before Hazrat Umar. Hazrat Umar asked the owners of the land to pay the price of the date trees and have their land alongwith the date trees or the owners of the date trees would pay the price of land and pay the price of empty tract of land.
A mir clarified the price as under:‑
(The price means here the price of the day when he draws away the date trees). (Yahya bin Adam: Kitab al Khiraj p.115, Edition, Lahore).
14. The concept of equitable price which is actually synonymous to that of market value occurred in Ahadith relating to Diyat (blood money).
Amr Bin Shoaib narrated:
(The Holy Prophet fixed the blood price of (murder) by mistake‑400 dinars for townsmen or their equivalent in silver, and fixed it according to the prices of camels when they became dear, he raised their price, and when they were cheap, he decreased their price. (Abu Dawood, Vol. 11, p.254).
15. It is reported the Hazrat Umar also fixed blood money in his time:‑‑
(That the price of blood‑wit at the time of the messenger of Allah was 800 dinars and 8000 dirhams, and of blood‑wit of the people of the Book at that time was half of the blood price of the Muslims. He said that it continued thus until Omar became Caliph. He delivered a sermon and said: Verily the camels have become dear. Then Omar made it binding up the owners of gold 1000 dinars. (Musnad al Imam Ahmad Bin Hambal, Vol.5, p.327) Mishkat al‑Masahib, English Translation, Vo1.2 p.504).
16. The State is not supposed to determine arbitrarily by a monopolistic or administrative power the value of property of another while acquiring it without his consent. It should be guided by the price of the commodity, goods or land prevailing in the market, which is set by the natural market forces. The following tradition of the Holy Prophet (p.b.u.h.) relied upon in support of the above proposition which reads as under:‑‑
(On the authority of Hadrat Anas (b.Malik) it is reported that he said: During the prophetic period once the prices (of different goods) went high. His companions (may Allah be pleased with them) requested him to fix prices for them. He (peace be upon him) said, "Allah alone is Holder, Provision supplier, Extender of provision and Determiner of prices. I have the intention to meet Allah and none has any claim of wrong doing concerning possession or blood against me).
17. The above tradition bears the testimony to the fact that the Islamic Republic of Pakistan is not entitled to fix the price of the land in question without taking into account natural law of demand and supply. The compensation of the land, in question, should be based on market value which can, in the circumstance, be only just and equitable.
18. Ibn‑e‑Abideen has elaborated the following rule:‑
(The time period of the contract would be considered as the place of contract is kept into consideration (Radd‑al‑Muhtar, Vol.4, p.29).
19. For fixation of the price of a property acquired by the State, an analogy may be sought from the law of usurption and payment of the compensation of the article usurped. If some one snatched some amount of rupees out of pocket of some one and usurped his money the usurper will be liable to pay back the actual currency or its value.
20. Allama Ibn‑e‑Abideen has stated as under:‑‑
(The value of the thing usurped will be considered of the date of litigation before a Court of Law which means of the time of judgment while according to Abu Yousaf the value will be considered of the day of usurpation and this opinion is more reasonable. Allama Ibn‑e- Abideen further said that if the thing usurped destroyed and ceased to be existed the value of the time of usurpation will be considered and consensus has been held on this point. (Allama Ibne Abideen Radd al Muhtar, Vol.5, pp. 128‑129).
21. Explaining Article 891 Khalid al‑Atasi said on the authority of Jame al‑Fusaliain as follows:‑‑
(If some one usurped a goat of some one and then slaughtered it, he will be responsible for the price of the day of usurpation and not of the day of its slaughter while Abu Yousaf and Muhammad are of the opinion that the usurper will be responsible for the price of its slaughter. And if the animal destroyed he will be responsible for the price of time of usurpation. (Khalid Atasi Sharh al‑Majaala, page 415 under Article 891) (Salim Rustamibaz Sharh al‑Majaala under same Article).
22. We may also refer the following tradition of the Holy Prophet (p.b.u.h.) on the issue before us:‑‑
It is narrated from Abu Hurairah that the Holy Prophet said:‑‑
(Allah pleases with generosity in sale, generosity in purchase, generosity in payment) (Tuhfatul Ahwazi, Vol.4, p.549).
23. It is a general principle of Islamic jurisprudence that no one is allowed to cause harm to anyone. This principle has been derived from the following Hadith of the Holy Prophet (S.A.W.W).
(No damage should be borne nor any should be caused). (Sunan Ibn e‑Maja Vol.2, p.784 Egypt. AL‑Muatta Imam Malik, Vo1.2, p.745 Beirut Musnand al Imam Ahmad Bin Hambal, Vol.5, p.327 Beirut).
24. In Sura Tatfif the state of affairs prevailing among people has been condemned, as to the act of the people when they measure against people they take full measure and when they measure for themselves or weigh for themselves they give short. It really expresses woe, stinter.
(S.LXXXIII:V.1,2,3). These verses may be relied on in the context of the dispute before us that when the Authority under the Capital Development Authority Ordinance, acquires land without consent of the owner, by operation of law, it acquires at a cheaper price at the rate much before the date of acquisition, but when it sells the same to the people for building houses etc., it sells them at a much higher rate and, perhaps, earns profits by those transactions by raising its price at intervals e.g. from rupees fourteen to hundreds of rupees per square yard, of course, after developing the land.
25. We, therefore, hold that section 2(K) of the Capital Development Authority Ordinance, 1960, is extremely arbitrary for the reason that the `market value' should have relation to the value prevailing at the time of acquisition and not any notional value fixed in relation to the time when even question of acquisition did not arise. The Federal Shariat Court, therefore, declares section 2(K) of the said Ordinance as repugnant to the Holy Qur'an and Sunnah.
26. For the aforesaid discussion, it is directed that the provision of section 2(K) of the said Ordinance be amended for the reason that the market value should have relation to the value, prevailing at the time of acquisition, with generosity in purchase price, keeping in view the tradition of the Holy Prophet stated in para. 22 supra.
27. As a natural consequence of the above finding with regard to section 2(K) of the said Ordinance, section 30(1) of the said Ordinance will also undergo an amendment and after the words `market value' of the land the words as on the date of order under section 25 will be added.
28. The above direction is to be complied with within a period of six months from today, failing which the said provisions of law shall cease to be effective, after six months from today.
29. The above S.S.M.No.142/82 and Shariat Petition No‑38/I of 1991 are disposed of accordingly. Application moved on behalf of Anjuman-e - Mutasreen‑e‑Islamabad is also disposed of.
Order accordingly.