Order Sheet in the Islamabad High Court, Islamabad
Total Page：16
File Type：pdf, Size：1020Kb
Form No: HCJD/C-121 ORDER SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD (JUDICIAL DEPARTMENT) W. P. No.676/2017 Shahzada Sikandar ul Mulk & 4 others Versus The Capital Development Authority & 4 others Petitioners by : Dr. Muhammad Aslam Khakhi, Advocate. Syed Asghar Hussain Sabwari, Advocate. Dr Babar Awan, Advocate. Mr Sajjar Abbas Hamdani, Advocate. Mr Qausain Faisal Mufti, Advocate. Mr Tajammal Hussain Lathi, Advocate. Malik Zafar Husain, Advocate. Mr Ishtiaq Ahmed Raja, Advocate. Ms Kalsoom Rafique, Advocate. Ms Yasmin Haider, Advocate. Respondents by : Mr Fiaz Ahmed Anjum Jandran, Advocate. Mr Babar Sattar, Advocate. Mr Sultan Mazhar Sher, Advocate. Mr Waqar Hassan Janjua, Advocate. Malik Qamar Afzal, Advocate. Mr Khurram Mehmood Qureshi, Advocate. Mr Muhammad Anwar Mughal, Advocate. Ch. Hafeez Ullah Yaqoob, Advocate. Mr Muhammad Waqas Malik, Advocate. Mr Amjad Zaman, Advocate. Mr Muhammad Khalid Zaman, Advocate. Mr Mujeeb ur Rehman Kiani, Advocate. Barrister Jehangir Khan Jadoon, Advocate. Malik Mazhar Javed, Advocate. Raja Inam Amin Minhas, Advocate. Ch. Waqas Zamir, Advocate. Fazal ur Rehman, Advocate. Ms Zaitoon Hafeez, Advocate. -2- W.P No.676/2017 Ms Zainab Janjua, Advocate. Barrister Amna Abbas, Advocate. Ms Ayesha Ahmed, Advocate. Mr Kashif Ali Malik, Advocate. Mr Amir Latif Gill, Advocate. Mr Tariq Mehmood Jehangiri, Advocate General, Islamabad Capital Territory. Mr Awais Haider Malik, State Counsel. Mr Asad Mehboob Kiyani, Member (P&D), Mr Zafar Iqbal, Director (Master Plan), Mr Faraz Malik, Director (HS), Sh. Ijaz, Director (Urban Planning), Mr Arshad Chohan, Director (Rural Planning), for Capital Development Authority. Mr Mehrban Ali, & Arbab Ali, Zoologists on behalf of Secretary, M/o Climate Change. Date of Hearing : 19-04-2018. ATHAR MINALLAH, J.- Through this consolidated judgment we shall decide the petitions listed in Annexure-A attached hereto. The petitions have been divided into two categories i.e. Category-A and Category-B. The petitions in Category-A relate to the area known as "Bani Gala" while Category-B petitions are in respect of Sector E-11. 2. The facts, in brief, are that in all the petitions the petitioners have challenged the construction of various types of buildings. In the petition listed in Category-A, the petitioner has asserted that the respondent has initiated the construction of a high rise building without obtaining approval from the Capital Development Authority (hereinafter referred to as the ‘Authority’). The area where this construction is intended to be carried out is -3- W.P No.676/2017 near Kurang Road, Bani Gala, Islamabad. In the petitions listed in Category-B, the respondents have either constructed or are in the process of starting the construction of various types of buildings in Sector E-11. The proposed buildings are mostly of a commercial nature. In one of these petitions the petitioner has challenged the refusal on the part of the Authority to enforce the regulations made under the Capital Development Authority Ordinance, 1960 (hereinafter referred to as the ‘Ordinance of 1960’) relating to a housing scheme established and managed by a juridical person registered under the Cooperative Societies Act 1925. Both these areas i.e. Bani Gala and Sector E-11 have not been acquired under the Ordinance of 1960. The records relating to the land where the impugned construction has been made or intended to be initiated are maintained by the Revenue officials of the Islamabad Capital Territory and not by the Authority. In some cases the documents relating to the sale and purchase of land have been registered. For Sector E-11 the Authority had approved a policy regarding regulating the construction of buildings in the year 2007 (hereinafter referred to as the ‘Policy of 2007’). It is the case of the petitioners that high rise buildings and other buildings of a commercial nature cannot be constructed within the area known as "Bani Gala" or in the unacquired areas of Sector E-11. Moreover, the Authority, pursuant to a decision taken by the Federal Cabinet in the year 2004, has restrained the Islamabad Electric Supply Company (hereinafter referred to as the ‘IESCO’) and Sui Northern -4- W.P No.676/2017 Gas Pipelines Limited (hereinafter referred to as the ‘SNGPL’) from extending the facility of giving utility connections to owners and occupiers of such buildings which have been constructed in violation of the Ordinance of 1960 and the regulations/rules made there under. In a nutshell, the petitioners have raised the issue regarding the regulation of the construction of buildings outside the acquired lands falling within the area known as the "Islamabad Capital Territory". 3. The learned counsels for the petitioners have been heard at length. Their arguments may be summarized as: the provisions of the Ordinance of 1960 are explicit and they extend to the un acquired areas; the Ordinance of 1960 and the regulations made there under are applicable and enforced not only in areas which have been acquired but extend to the un acquired land falling within the "Islamabad Capital Territory" i.e. the "Specified Area"; through section 22 of the Ordinance of 1960 the legislature has declared that the entire land falling within the "Specified Area” is liable to be acquired at any time; the consequence of section 22 of the Ordinance of 1960, if not more, then at least is the same as that of the issuance of a notice under section 4 of the Land Acquisition Act 1984; the Ordinance of 1960 and the regulations made there under have in fact given statutory backing to the "Master Plan" which was prepared and approved in 1960; the provisions of the Ordinance of 1960 and the regulations made there under are -5- W.P No.676/2017 mandatory in nature and thus binding; not only the petitioners but every citizen of Pakistan has a stake in the Capital of Pakistan and, therefore, enforcement of the statutory provisions and the regulations made there under is a matter of great public importance; various laws enforced in and extended to the Islamabad Capital Territory have been flagrantly violated; refusal on the part of the Authority to fulfill its statutory obligations has exposed the general public to irreparable loss; the environmentally sensitive areas such as Rawal Lake and Kurang river are being used for construction; most of those who have constructed villas and palatial houses are privileged persons; the unregulated construction, besides being a serious violation of the laws enforced within the Islamabad Capital Territory, is also inevitably causing several environmental degradation; the learned counsels have placed reliance on case law which will be discussed later. 4. The learned counsels for the respondents on the other hand have argued that; Sector E-11 was declared as exempt from being acquired, pursuant to a decision of the Federal Cabinet taken in its meeting held on 17-06-1968; the un acquired lands are owned by private persons and, therefore, the provisions of the Ordinance of 1960 are not applicable or extended thereto; the petitioners have no locus standi to raise any objection regarding the construction of buildings on private land owned by the respondents; restricting construction on private land is in violation of fundamental rights -6- W.P No.676/2017 guaranteed under the Constitution, particularly Articles 9, 23 and 24. The jurisdiction and power to regulate the construction of buildings in rural areas vests in the officials under the jurisdiction of the Chief Commissioner, Islamabad Capital Territory or the local bodies established under the Islamabad Capital Territory Local Government Act 2015 (hereinafter referred to as the ‘Local Government Act, 2015’); the petitioners, without availing remedies under the relevant law, inter alia, under section 133 of the Code of Criminal Procedure, 1898 have directly approached this Court; the ban on giving utility connections is illegal and without lawful authority; under the Martial Law Regulation No.82 (hereinafter referred to as the ‘MLR-82’) a distinction has been made between areas falling within and outside the Capital Site; in case of areas which are outside the Capital Site, the Commission established under MLR-82 has exclusive jurisdiction and power to regulate construction and no such mandate has been given to the Authority; MLR-82 was not repealed nor was it in any manner amended through the promulgation of the Ordinance of 1960; there is no reference to building control under section 15 of the Ordinance of 1960; by virtue of the insertion of section 15-A under the Ordinance of 1960 some of the municipal functions were entrusted to the Authority; the lands owned by private persons in the rural areas, particularly lands which have not been acquired by the Authority, were regulated under the Capital Territory Local Government Ordinance, 1979 (hereinafter referred to as the ‘Local -7- W.P No.676/2017 Government Ordinance of 1979’); section 47, read with entries 32 and 33 of the First Schedule of the Local Government Ordinance of 1979, explicitly entrusted the power and jurisdiction to regulate the erection and re-erection of buildings in the respective Union Councils; section 15-A of the Ordinance of 1960 and the Ordinance of 1979 were repealed vide section 132 of the Local Government Act 2015; after the repeal of section 15-A and the Local Government Ordinance of 1979, power to regulate the construction of buildings is no more vested in the Authority; even if it is admitted that the Authority is empowered to regulate buildings within the Islamabad Capital Territory still the latter does not have the statutory mandate to regulate land use in Sector E-11; the land upon which the respondents intend to undertake construction work are privately owned and, therefore, outside the scope of jurisdiction of the Authority; reliance has been placed on the case of ‘Suo Motu Case No.