Form No: HCJD/C-121

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD (JUDICIAL DEPARTMENT)

W.P. No. 3877 of 2019

Farhan Mustafa

Vs.

The State and others

ATHAR MINALLAH, C.J.-

What would it be like to live in a society that is not

governed by the rule of law? A society where elite capture becomes an

essential characteristic of governance and where public functionaries

appear to be more eager to serve the privileged classes at the expense

of state resources and its assets rather than treating every citizen

Petitioners by : M/s Javed Iqbal Khan, Syed Wusatul Hassan Shah and Raja M. Shafait Abbasi Advocates.

Respondents by : M/s Afnan Karim Kundi and Intaizar Hussain Panjutha

Advocates, for respondent/CDA.

M/s Ali Raza, Syed Ali Zafar,Naseem Ahmed Shah, Khawaja Ahmed Tariq Tahim, Khawaja Azhar Siddique,

Hassan Ahmed, Maryam Ali Abbasi and Ch. HafeezUllahYaqub Advocates, for respondents.

Syed Muhammad Tayyab, DAG.

Mr Rabi bin Tariq, State Counsel.

Dr Shahid, Member Planning CDA. Mr GoharZaman, Assistant Commissioner (Saddar). Mian Imran, SHO Bani Gala and KhurramAslam, Sub

Inspector.

Date of Hearing : 02-09-2020.

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W.P. No. 3877 of 2019.

equal and protecting their rights, particularly those who need to be

guarded the most. In such an eventuality it becomes a classic case of

breach of the constitutional obligation under Article 5 of the

Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter

referred to as the "Constitution"). Consequently, rule of law is

relegated to the status of mere political rhetoric. The petitions in hand

and the ensuing proceedings are probably a tip of the iceberg,

indicating the non existence of rule of law with the weaker segments

of society being treated differently as 'ordinary citizens' and thus the

protection of their rights guaranteed under the Constitution is no more

a priority. The deplorable status of governance, demonstrably

observed during these proceedings, has raised paramount questions of

public importance in the context of grave violations of fundamental

rights. The facts and circumstances of the case in hand indicate a

virtual collapse of the governance system for those who need the

protection of the state and its institutions the most. It is an example

of how regulators and public functionaries are eager to bend the laws,

mislead the courts, abuse and misconstrue orders passed during

judicial proceedings merely to enrich and benefit the privileged and

resourceful segments of society at the expense of assets belonging to

the people at large and their fundamental rights. These proceedings

have demonstrated the disturbing fact that 'ordinary citizens' are not

being served while the privileged and resourceful appear to be treated

as if they are above the law. It also shows how summaries are

manipulated in order to mislead the Federal Cabinet so as to get

favorable decisions. The grievances raised in the petitions in hand

(listed in “Annexure A” attached hereto) and the ensuing proceedings

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have brought to the fore the abysmally disturbing role of the State and

its appointed agents i.e. public functionaries, within the 1400 square

mile area of the Islamabad Capital Territory. The 'ordinary citizens' are

exposed to harm because of arbitrary decisions of public functionaries

while they are not treated as equal citizens with respect and dignity.

The proceedings before this court and the admitted facts have made it

obvious that either the writ of the statutory regulatory authorities and

public functionaries has eroded or they have become willingly

complacent in bending and ignoring the laws so as to facilitate the

enrichment of the privileged and powerful at the cost of transgression

of fundamental rights of the weaker citizens. The conduct of public

functionaries and the system of governance observed during the

proceedings has highlighted the gravity of the violations of

constitutionally guaranteed fundamental rights and the apathy of those

who have been entrusted with the onerous task of protecting the weak

and vulnerable. While the ordinary citizens and general public are

definitely the victims of what appears to be a deep malaise in the

context of governance, the interests and rights of future generations

are equally threatened and the loss already caused may have become

irretrievable. The area declared in the master plan as a 'national park'

has been mercilessly destroyed by those very institutions and public

functionaries who were responsible under the law to protect it. The

damage to natural habitats, ecosystems and biodiversity has profound

consequences for the future which inevitably leads to ravishing the

right to life, not only of every citizen but the future generations as well.

All this had become obvious during these proceedings as would be

highlighted in the discussion that follows. It is undoubtedly a case that

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highlights unimaginable injustice and inequitable treatment extended

by the State to its citizens who are being treated as “ordinary’’.

Facts and the ensuing proceedings relating to the petitions in

hand:

2. The constitutional jurisdiction of this Court was initially

invoked by the filing of W.P. No. 3877/2019, titled “Farhan Mustafa v.

the State and others”. The petitioner, a native local resident, was

aggrieved because the Incharge of Police Station Bani Gala, Islamabad

had refused to discharge his obligations of setting in motion the wheels

of law despite the gravity of alleged criminal acts relating to property

rights. The petition filed by the petitioner under sections 22-A & 22-B

of the Code of Criminal Procedure, 1898 [hereinafter referred to as the

“Cr.P.C.”] was dismissed, inter alia, on the ground that the Capital

Development Authority [hereinafter referred to as the “Authority”]

had issued a ‘No Objection Certificate’ in favor of a private profit

making entity and that medical report regarding injuries had not been

placed on record. The petition was dismissed by the learned Additional

Sessions Judge vide order dated 28.09.2019 and the reasoning given

therein amounted to adjudicating the alleged complaint on merits and,

that too, based on irrelevant considerations. The said order was

assailed before this Court by invoking its constitutional jurisdiction

under Article 199 of the Constitution. When the petition was taken up

on 21.11.2019, this Court was informed that the alleged activities were

being illegally carried out by the private armed guards and officials of

Messrs Park View Enclave (Pvt.) Limited [hereinafter referred to as the

“Company”]. It was alleged that the Company was involved in

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massive land grabbing and other illegal activities with direct and

indirect support of the police, revenue officials and the regulator. It

was alleged that private armed people were dispossessing citizens of

their properties and that too of land which had been acquired but

compensation relating to built up properties was yet to be paid to the

affected owners. The competent authorities had not completed the

acquisition proceedings under the law and that the private armed

persons had no authority to take the law in their own hands on behalf

of the Company by depriving citizens of their rights. It was asserted

that the public functionaries and officials of the Authority were

facilitating the Company in violating the rights of the citizens who were

in possession of their ancestral properties. The assertions involving

transgression of rights guaranteed under Articles 9, 14, 23 and 24 of

the Constitution were indeed alarming and so grave that they could not

be ignored. The reasons recorded in the impugned order for dismissing

the petition by the learned Justice of Peace i.e. the 'No Objection

Certificate' having been issued under the law appeared to have given

legal cover to any illegal activities that may have been or could be

committed against the rights of citizens. The magnitude of the

allegations and its consequences in the context of rights of every

citizen were of such nature that could neither be imagined in a society

governed under the Constitution nor ignored by a court entrusted with

extraordinary constitutional jurisdiction. Keeping in view the serious

nature of the alleged violations of the constitutionally guaranteed

fundamental rights, notice was issued to the Authority. A senior official

of the Authority attended the Court on 25.11.2019, but regrettably she

did not appear to be well conversant with the status of the acquired

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land nor the 'No Objection Certificate' issued in favor of the Company.

She could also not give any satisfactory justification as to why a private

profit making entity was allowed to take the law in its own hands and

dispossess citizens of their lands or otherwise interfere with their

property rights. The matter was adjourned and on the next date of

hearing, i.e. 27.11.2019, she appeared and informed that the Board of

the Authority, in its meeting held on 09.05.2018, had authorized the

private profit earning entity i.e. the Company to use the acquired land

in order to enable it to obtain the ‘No Objection Certificate’ for

developing a private housing society in the revenue estate of Malot,

District Islamabad. It was asserted on behalf of the petitioner that the

person behind the Company and the commission of the alleged illegal

activities was an influential political figure currently holding an

important public office. The official who had appeared on behalf of the

Authority was not able to satisfy the Court under what authority of law

the Company had been authorized to carry out illegal activities and

that too on land that vested in the State. There was no explanation for

allowing the private entity to take the law in its own hands. The

complacency and inaction of the police, revenue officials and public

office holders of the regulators such as the Authority had, prima facie,

further become obvious when several other residents of the area filed

applications for being impleaded as necessary parties by raising similar

grievances. Copies of documents were placed on record to show that

several criminal cases had been registered for alleged offences relating

to forced illegal dispossession or attempts made in relation thereto.

The aggrieved citizens also placed on record copies of written

complaints addressed to various authorities regarding illegal activities

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allegedly committed by private armed persons on behalf of the

Company and which were not responded to. Likewise, this Court was

inundated with written complaints received through mail and the same

were converted into petitions by dispensing with the formalities, so

that the right of access to a constitutional court is not denied. The

conduct of the Company during the proceedings affirmed the

grievances of the petitioner when it entered into a written compromise

with the petitioner. The petitioner filed CM 5545/2019 and along

therewith an affidavit executed, amongst others, by the Chief

Executive of the Company was attached. It has been stated in the

affidavit that settlement was arrived at in a 'jirga' and that the

Company had removed the illegal obstruction to the property of the

petitioner and that an assurance was given that the access to the

property will not be interfered with. On the basis of this settlement

deed it was prayed that the petitioner may be allowed to withdraw his

petition. The conduct of the Company was an affirmation of the

grievance of the petitioner. The learned counsel for the petitioner, an

enrolled counsel, namely Javed Iqbal Khan, Advocate High Court filed

application CM 2141/2020. It was asserted in the application that the

facts and circumstances that had come to his knowledge went beyond

the grievance of the petitioner and had become a question of upholding

the rule of law. He, therefore, prayed to be impleaded as a petitioner

because the abysmal status of the rule of law made it his duty as an

enrolled counsel to pursue the matter before this Court. Proceedings

of this nature would have been alarming for any Court vested with

protecting constitutional rights. The enormity of the prevailing situation

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of governance and violation of fundamental rights would become more

obvious in the following discussion.

3. For a constitutional court it was an extraordinary and

unusually alarming state of governance, reflecting lawlessness and

absence of protection of the citizens and their rights. It appeared as

though the State and its agents, i.e. the public functionaries, had either

become indifferent towards their constitutional obligations or they were

facilitating the usurpation and unimaginable violations of fundamental

rights so as to illegally benefit and enrich a profit earning entity i.e. the

Company. The Chairman of the Authority was, therefore, summoned

to appear on 28.11.2019. The latter candidly conceded and

acknowledged that the Company had been allowed activities on land

that had been acquired but possession thereof was not yet taken on

account of compensation disputes. The Chairman was not able to

justify the alleged activities and apparent lawlessness nor the

extending of extraordinary preferential treatment to a profit earning

private entity. He sought time so as to enable the Board of the

Authority to review the matter. It is noted that the Chairman also holds

the charge of the office of the Chief Commissioner, Islamabad Capital

Territory.

4. In the meanwhile, another writ petition i.e. W.P. No.

4252/2019, titled “Ahmad Shah Bokhari and others v. Chairman, CDA,

etc.“ was filed on 06-12-2019 by native residents of the area and the

assertions and allegations made in the memorandum of the petition,

prima facie, not only lent support to the grievances raised in the earlier

petition and the written complaints but further highlighted the

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W.P. No. 3877 of 2019.

appalling status of governance and the threat to constitutionally

guaranteed rights. The assertions made in the petition further

highlighted an apparent breakdown of the governance system for

citizens other than those treated as privileged and the elite. The

petitioners had explicitly challenged the legality and issuance of the

‘No Objection Certificate’ in favor of the Company. In the meanwhile,

several other applications were received and the same were converted

into constitutional petitions in exercise of powers vested under the High

Court Rules and Orders. In a nutshell, armed private persons were

alleged to have assumed the role of the State by dispossessing native

residents of their properties on behalf of the Company, resorting to

criminal intimidation, blocking of access to private properties and,

above all, carrying out illegal activities on land vesting in the State.

Land grabbing by private persons was a common grievance and so was

the indifference or complacency of the agents of the State i.e. public

functionaries. The State and its agents i.e. public functionaries, rather

than protecting the citizens, appeared to be facilitating the Company

and those who were acting on its behalf, whether as their employees

or agents. Applications were also filed for impleading as parties by

applicants who claim to have invested in the housing scheme which

was being developed by the Company. Some claim to have purchased

plots while others assert that they had already constructed buildings.

The Authority had confirmed that the area regarding which grievances

were raised and where the Company was establishing a housing

scheme has been described as a 'national park' in the master plan. It,

therefore, raised concerns regarding environmental protection and the

enforcement of applicable laws. The abysmally grave and horrendous

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W.P. No. 3877 of 2019.

status of rule of law and the grievances raised before this Court

necessitated the issuance of directions to various authorities vide

order, dated 13.08.2020.

5. The Deputy Commissioner, Islamabad Capital Territory,

pursuant to the direction, submitted a written report. It was stated that

the Assistant Commissioner (Saddar)/Additional Collector, Islamabad

Capital Territory was appointed to inquire into the matter. The report

of the Assistant Commissioner (Saddar)/Additional Collector,

Islamabad Capital Territory, was also attached with the report. The

reports of both the highest ranking revenue officials have

unambiguously confirmed the enabling environment and conditions

which have exposed citizens to irretrievable harm. The reports speak

volumes for lack of governance during the past many decades. It

highlights the reasons which have enabled the unscrupulous elements

to exploit the situation and take advantage of the apathy and

complacency of the State and its functionaries. It has been

acknowledged that failure to demarcate the land purchased by the

Company has led to the complaints by the affected citizens. It has also

been confirmed that the Company, by taking land into possession

without its demarcation under the relevant laws i.e. the Land Revenue

Act 1967 and the rules made there under, has undermined the rights

of the citizens. It has been acknowledged that the Company was

required to have demarcated the land before taking possession in order

to avoid disputes with persons already in possession. It has been

pointed out that the major factor facilitating the menace of land

grabbing are the "shamlaat" lands i.e. such land which does not come

under habitation and cultivation and is considered as jumla

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W.P. No. 3877 of 2019.

mushtaraka. The Deputy Commissioner has suggested the remedies

as well. Undertaking the exercise of 'consolidation/istimall' or

settlement and enforcing the requirement of demarcation of land. The

Deputy Commissioner has stated that the concerned revenue officials

allegedly involved in favoring the Company were transferred. Section

144 of the Cr.P.C. has been invoked and the Company has been

restrained from taking possession of land. The Deputy Commissioner

described measures already taken to reform the system. There is a

disturbing and startling revelation in the report of the Assistant

Commissioner (Saddar)/Additional Collector, Islamabad Capital

Territory that the Federal Investigation Agency is also allegedly

involved in the business of sale and purchase of land and private

persons are held out as its representatives. In a nutshell, the report of

the highest revenue official is an endorsement of the widespread

phenomenon of land grabbing, involvement of public functionaries in

illegal activities and, above all, a complete breakdown of the obsolete

and outdated revenue system. It is a confirmation of the petitioners

main grievance that the State and its functionaries have created an

enabling environment which allows the resourceful and powerful elite

to exploit and abuse the existing governance system to benefit and

enrich themselves at the cost of constitutionally guaranteed rights of

citizens who are treated as 'ordinary' and are not a priority.

6. The Special Assistant to the Prime Minister on Climate

Change and the Secretary Ministry of Climate Change had jointly

visited the area and had submitted a written report pursuant to the

direction of this Court. Likewise, the Director General, Environmental

Protection Agency of Pakistan [hereinafter referred to as the

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W.P. No. 3877 of 2019.

“Agency”] has also submitted a separate report. They have

acknowledged, in their respective reports, the violations committed by

the Company in fulfilling the terms and conditions of a conditional

permission granted by the Director General of the Agency. However, it

is noted that, while granting permission, the mandatory provisions of

the Pakistan Environmental Act 1997 [hereinafter referred to as the

“Act of 1997”] and the rules/regulations made there under do not

appear to have been complied with. It is astonishing to note that public

land vested in the Zoological Survey Department, under the Ministry

of Climate Change, has also admittedly been encroached. The reports

highlight the fact that neither the Ministry nor the Agency seem to be

concerned that the illegal activities had led to the destruction of hills,

forest area and landscape protected under the law. The conditional

permission granted by the Director General of the Agency and the

manner in which it was granted should have raised questions, but the

Ministry of Climate Change and the Agency, for reasons known to

them, have preferred to look the other way. Neither the Special

Assistant to the Prime Minister nor the Director General of the Agency

appear to be concerned that the 'national park' area, declared and

identified in the master plan as such, has been and continues to be

mercilessly destroyed. The reports have raised questions regarding the

will, expertise and competence of the Agency and the commitment of

the Federal Government to safeguard the people and the future

generations from the devastating and life threatening consequences of

climate change and environmental degradation.

The Company and the Housing Scheme:

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7. The Company is an incorporated juridical person and,

inter-alia, engaged in the business of real estate development. It is a

privately owned profit making entity. The Company asserts that it had

purchased land measuring 1067.90 kanals in the revenue estate Malot,

situated in Zone-IV of Islamabad Capital Territory. The said land was

purchased with the intent to establish a housing scheme by the name

of Park View City Housing Scheme [hereinafter referred to as the

“Housing Scheme”]. As has been noted above, it has been confirmed

by the Deputy Commissioner and the Assistant Commissioner that the

Company did not get its land demarcated, which has given rise to

allegations of forcibly dispossessing others and blocking their right of

way. The Authority approved the layout plan for the Housing Scheme

on 04.02.2013 which was subject to the fulfillment of various

conditions. One of the conditions was to provide a 100 foot wide

access/road to the Housing Scheme. Moreover, the development work

was not to commence without obtaining a ‘No Objection Certificate’.

The Board, in its meeting held on 17.04.2014, approved the issuance

of the ‘No Objection Certificate’ despite the fact that in Zone IV

establishing a private housing scheme was not allowed at the time as

would be discussed later. The Authority, vide letter dated 07.11.2014,

cancelled/withdrew the ‘No Objection Certificate’ dated 02.05.2014.

The Company, vide letter dated 08.06.2016, requested the Authority

to restore the ‘No Objection Certificate’ and when there was no

response, a constitutional petition i.e. W.P. No. 2739/2016, titled “Park

View Enclave (Pvt.) Ltd. v. CDA and others” was filed before this Court.

The said petition was dismissed vide judgment dated 27.12.2017

(hereinafter referred to as the “Park View Judgment") and wherein

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this Court had recorded observations highlighting the conduct of the

Company, the Authority and other public office holders entrusted with

the obligation of enforcing the law. As will be noted later, the said

judgment has attained finality because the appeal filed by the

Company was dismissed as having been withdrawn. The Company thus

accepted the veracity of the observations and findings recorded in the

judgment. The judgment highlights the conduct of the Company, its

lack of respect for the law and the helplessness and apathy of the

Authority. It is a testament of how rule of law is undermined by the

influential and the elite, consequently causing irretrievable damage,

not only to the citizens at large but the future generations as well. It

is interesting to note that neither the Company nor the Authority made

any attempt to expunge the damning paragraphs from the judgment

which are no less than a charge sheet against both. The relevant

portions are reproduced as follows;

“36. Now, the first condition of the approval of the

layout plan of the petitioner’s housing scheme is that

“no development work shall be carried out in the

scheme until the NOC for development is obtained

from CDA”. It is implicit in the said condition that the

petitioner must stop the development work when the

N.O.C. is cancelled or withdrawn. By not stopping the

development work after the cancellation or withdrawal

of the N.O.C., the petitioner violated the terms and

conditions on which the layout plan was approved, and

soiled its hands.

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W.P. No. 3877 of 2019.

37. Vide letter dated 23.01.2017, issued by the

Planning Wing of C.D.A., the petitioner was warned

that the development work on the scheme had been

started without permission from the C.D.A. This, the

C.D.A. asserted, was cognizable offence under the

C.D.A. Regulations. Furthermore, the petitioner was

advised to stop the development at the site till the no

objection certificate was restored by the C.D.A. The

said warning was again issued by the Planning Wing of

the C.D.A to the petitioner, vide letter dated

17.02.2017.

38. Apparently, the petitioner continued with the

development work despite the said warnings issued by

the Planning Wing of C.D.A. Vide letter dated

02.06.2017, the Planning Wing of C.D.A., again voiced

its concern over the petitioner continuing with the

development work without restoration of its N.O.C. The

petitioner was put on notice that such development

work was in violation of the terms and conditions on

which the layout plan was approved on 14.02.2013.

The petitioner was advised in its own interest to stop

the development work until an N.O.C. was obtained

from the C.D.A. The petitioner was cautioned that in

the event of failure to stop the unauthorized

development work within seven days, the C.D.A. would

initiate legal action, including the cancellation of the

layout plan, and the imposition of penalties.

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W.P. No. 3877 of 2019.

39. The C.D.A’s said warnings fell on deaf ears. Even

during the pendency of this petition, the learned

counsel for the C.D.A. complained about the fact that

the petitioner was continuing with the development

work without an N.O.C. In the order dated 27.02.2017,

this Court observed that anything done at the site by

the petitioner during the pendency of this case, shall

be entirely at its own risk and costs. The learned

counsel for the petitioner did not deny that despite the

cancellation of the N.O.C., the petitioner continued

with the development work at its own risk. In the case

of Al-Haaj Raees Ahmad Qureshi Vs. Water and

Sanitation Agency (W.A.S.A.) (2005 YLR 326), it has

been held inter-alia construction of a building without

a sanctioned building plan was allowed by the High

Court through an interim order at the petitioner’s risk

and cost. It was held that such an order would not

create any right in the petitioner’s favour.

40. Now, if this writ petition is to be allowed, this Court

would either have to turn a blind eye or to simply

condone the development work carried out by the

petitioner despite the cancellation of the N.O.C. It

ought to be borne in mind that the Planning Wing of

the C.D.A. had time and again cautioned the petitioner

not to carry out development work until the N.O.C. was

restored. Scant regard was given by the petitioner to

such advice. The instant case is not a case where the

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W.P. No. 3877 of 2019.

terms of the N.O.C., after its issuance, were amended

so as to operate to the petitioner’s detriment. The

principle of promissory estoppels or legitimate

expectation would not apply to the case at hand

because the terms and conditions of the N.O.C. or the

layout plan were not amended so as to make them

more onerous to the petitioner during the validity of

the N.O.C. The decision of the C.D.A. Board to require

every housing scheme to have a 100 foot wide access

road (dual carriageway) from an “arterial road” was

made across the board and applied to all parties setting

up housing schemes in Zone-IV. It must be borne in

mind that when the said decision was taken by the

C.D.A. Board in its meeting dated 09.06.2017, the

petitioner’s N.O.C. stood cancelled. It would have been

a different matter had the said decision being taken

during the validity of the N.O.C. dated 02.05.2014.

True, the N.O.C. was cancelled because 79.43 Kanals

of land had not 18 W.P.No.2739/2016 been transferred

by the petitioner to the C.D.A. It is equally true that

the said land was subsequently transferred to the

C.D.A. But before a decision could be taken to restore

the N.O.C., the C.D.A. Board took a decision that all

housing schemes in Zone-IV were required to provide

a 100-foot wide access road from the main arterial

road. We must also not lose sight of the fact that

despite the cancellation of the said N.O.C., the

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W.P. No. 3877 of 2019.

petitioner continued unabashed with the development

work in the face of continued warnings by the Planning

Wing of the C.D.A. to stop the development work. The

vital question that must be asked that in the face of

such brazen defiance of warnings issued by C.D.A., can

the petitioner be granted relief in the

equitable/discretionary jurisdiction of this Court. I

would say certainly not.

41. A party establishing a housing scheme within the

Islamabad Capital Territory has to show respect to the

provisions of the C.D.A. Ordinance, 1960, as well as

the rules and regulations made thereunder. The

petitioner took a calculated risk in continuing with the

development work in the face of continued warnings

from the Planning Wing of the C.D.A. The

consequences of the risk that the petitioner took is

something that it must now face. One such

consequence is that it would not be entitled to relief in

the discretionary/equitable jurisdiction of this Court.

The Regulations made by the C.D.A. making the

issuance of the N.O.C. as an essential pre-requisite for

the development works cannot be given a go-bye

because of the magnitude of the petitioner’s housing

scheme or the financial benefit that the petitioner was

aiming to gain from the sale of plots in such housing

scheme. It is just not possible for this Court to validate

the construction carried out by the petitioner during

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the period when the N.O.C. stood cancelled. Such

construction was not permissible under the terms on

which the layout plan was approved, as well as the law.

In the case of Gouriet vs. Union of Post Office Workers

[1977] 1 All ER 696, Lord Alfred Thompson Denning

observed: “Be you ever so high, the law is above you”.

42. As mentioned above, in the writ petition, the

petitioner had challenged the notification dated

07.11.2014, whereby C.D.A. had cancelled/withdrawn

the N.O.C., dated 02.05.2014. The petitioner had filed

the writ petition on 04.07.2016 (i.e. more than one

year and seven months after the issuance of the

impugned notification dated 07.11.2014). Therefore,

in such circumstances, the indolence on the

petitioner’s part cannot be ignored, while deciding

whether or not to extend to it relief under the

extraordinary and discretionary jurisdiction of this

Court under Article 199 of the Constitution. It must

also be appreciated that in all this time (one year and

seven months), the petitioner was not sitting idle, but

was carrying on construction and development works

with no N.O.C. in its favour.

43. It is well settled that under Article 199 of the

Constitution, the power of a High Court to issue an

appropriate writ, order or direction is discretionary.

One of the grounds on which relief can be refused by a

Court exercising writ jurisdiction is when the petitioner

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W.P. No. 3877 of 2019.

is guilty of delay and laches. It is imperative, where

the petitioner invokes extraordinary remedy under

Article 199 of the Constitution, that he should come to

the Court at the earliest possible opportunity. An

inordinate delay in making the motion for a writ is

indeed an adequate ground for refusing to exercise

discretion in favour of the petitioner. Thus, when the

petitioner was guilty of laches or undue delay in

approaching the High Court, the principle of laches or

undue delay disentitled the petitioner from

discretionary relief under Article 199 of the

Constitution from the High Court, particularly, when

there is no plausible explanation on the petitioner’s

part for his blame worthy conduct of approaching the

High Court with undue delay. It is well settled that

Courts cannot come to the rescue of persons, who are

not vigilant regarding their rights. It is unjust to give

the petitioner a remedy where, by his conduct, he has

done that which might fairly be regarded as equivalent

to a waiver.”

8. It is obvious from the above quoted passages that the

Company appears to have no respect for the law. The Authority is also

in breach of the fiduciary duty under the statute to enforce the writ of

the State without fear or favour. The judgment and the above

observations are sufficient to establish that the Company has regarded

itself above the law and so did the Authority acting on behalf of the

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W.P. No. 3877 of 2019.

State. The aforementioned judgment was challenged by the Company

by preferring an intra court appeal i.e. ICA No. 05/2018, titled “Park

View Enclave (Pvt.) Limited v. CDA, etc”. The appeal was dismissed

vide order, dated 17-05-2018, by the learned Division Bench, pursuant

to an application seeking its withdrawal. The dismissal of the appeal

thus gave finality to the judgment of this Court, dated 27.12.2017,

passed in W.P. No. 2739/2016, titled “Park View Enclave (Pvt.) Ltd. v.

CDA and others”. A summary, dated 24.04.2018, was prepared and

forwarded by the Director Regional Planning for approval of the Board

of the Authority. A plain reading of the summary shows how facts were

suppressed and the proceedings before this Court were wrongly

presented to maneuver and manage a favorable decision to extend

extraordinary benefit and to facilitate the Company in getting the ‘No

Objection Certificate’. The summary contemptuously refers to orders

passed by the learned Division Bench of this Court. This Court had

neither endorsed any proposal nor had directed the Authority to give

illegal approval in favour of the Company. The official, who had

prepared and presented the summary, misrepresented the proceedings

by giving the impression that the purported proposal had the approval

of the learned Division Bench of this Court. The official, despite being

a town planner, as appears from his designation, withheld crucial

information from the Board. It was grossly misrepresented that the

'master plan' included the road, while the land had been acquired and

could only have been planned and developed in accordance with a

Scheme prepared under sections 12, 13 and 14 of the Ordinance of

1960. The proposer did not mention in the summary that the area falls

in Zone IV and it is described in the 'master plan' of the Capital as a

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W.P. No. 3877 of 2019.

'national park'. The most shocking proposal was to allow the Company

to construct a road over acquired state land in order to enable the latter

to obtain the 'No Objection Certificate' for making windfall profits. The

reference to the case of another housing scheme was also not

warranted and neither justified abuse of acquired land. It is noted that

the acquisition proceedings were not completed because compensation

for built up properties was not paid. Based on the summary, dated

24.04.2018, the Board in its meeting held on 09.05.2018, purportedly

granted approval thereto without any demur. The Board members were

presumed to know that it was not empowered under the law to grant

such approval under the Capital Development Authority Ordinance,

1960 [hereinafter referred to as the “Ordinance of 1960”] and the

regulations made there under. The summary and the approval given

by the Board were, prima facie, a classic case of misuse of authority to

benefit and enrich a private entity at the cost of state land and loss to

the exchequer.

9. The Authority has placed on record a written report and

parawise comments, wherein the grant of a ‘No Objection Certificate’

in favour of the Company has been justified. It was argued on behalf

of the Authority that the area where the Company has been granted a

‘No Objection Certificate’ for the purposes of developing a housing

scheme is not part of the 'national park'. Reference has been made to

orders passed by the learned Division Bench of this Court in ICA No.

05/2018 as if direction had been given to endorse and approve the

proposal. A plea has been taken by the Authority that allowing the

Company to construct a road over the state land was 'in the larger

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W.P. No. 3877 of 2019.

public interest'. The Authority, during the arguments and in its written

comments, did not explain how acquired land could have been used to

benefit the Company in violation of the scheme of the Ordinance of

1960.

10. The learned counsel for the Company has submitted

written arguments and he was also heard at the Bar. He referred to

the application filed by the petitioner/applicant i.e. CM. No. 5441/2019,

seeking withdrawal of his petition besides objecting to the application

filed by the learned counsel, namely Javed Iqbal Khan i.e. CM No.

2141/2020, who had sought permission to pursue the matter. The

learned counsel has argued that; the court had gone beyond the relief

sought in the petition by passing orders dated 03.08.2020 and

13.08.2020; the Company has been singled out while several other

housing schemes have already been established illegally without

obtaining the permission or approval required under the law; the

zoning regulations were amended pursuant to a judgment of the apex

Court in the case titled “Suo Motu Case No. 10 of 2007” [PLD 2008

S.C. 673]; Zone-IV has not been declared as a 'national park' and no

such notification has been issued by the competent authority; the

assertions and the allegations made by the petitioners were not specific

and general in nature;; the petitioners in W.P. No. 4252/2019, have

prayed to the extent of restraining the Authority from granting a ‘No

Objection Certificate’; the assertions and allegations in the

memorandum of W.P. No. 4252/2019 are mere frivolous and malicious

allegations to harass the Company; the 100 foot wide access road

constructed by the Company from its existing housing scheme till the

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W.P. No. 3877 of 2019.

road constructed by the Authority was built on the land purchased by

the Company privately; reliance has been placed on the cases “Raja

Muhammad Nadeem v. The State and another” [PLD 2020 SC 282],

“Dr Imran Khattak v. Ms Sofia WaqarKhattak, PSO to Chief Justice and

others” [2014 SCMR 122], “Shahnaz Begum v. The Hon’ble Justice of

the High Court of Sindh and Balochistan and another” [PLD 1971 SC

677] in support of the contention that the high court is not vested with

the power to initiate suo-motu proceedings. Reliance has also been

placed on the cases “Premier Battery Industries Private Limited v.

Karachi Water and Sewerages Board and others” [2018 SCMR 365],

“Muhammad Shafique Khan Swati v. Federation of Pakistan through

Secretary Ministry of Water and Power, Islamabad and others” [2015

SCMR 851], “Echo West International (Pvt.) Ltd. Lahore v. Government

of Punjab through its Secretary & 4 others” [2009 CLD 937], “Javed

Ibrahim Paracha v. Federation of Pakistan and others” [PLD 2004 SC

482], “Prof. Muhammad Usman and others v. Punjab University

Academic Staff Association and Others” [1991 SCMR 320], “Akhtar

Abbas and Others v. NayyarHussain” [1982 SCMR 549]. It has been

contended that the ‘No Objection Certificate’ issued in favour of the

Company was in accordance with the law and does not suffer from any

legal infirmity requiring interference.

11. Khawaja Ahmed Tariq Rahim, Senior ASC, Syed Ali Zafar,

Senior ASC, Khawaja Azhar Siddique ASC and Mr IrfanQadir ASC

appeared on behalf of the applicants who assert that they have

invested in the housing project and some have also constructed houses

on purchased plots. The learned counsels have argued that the

Company was granted permission to establish the Housing Scheme in

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W.P. No. 3877 of 2019.

accordance with the master plan and the Zoning Regulations, 1992.

The ‘No Objection Certificate’ issued in favour the Company was legal

and in consonance with the relevant laws, rules and regulations; third

party interests have been created and, therefore, at this stage they

cannot be deprived of their rights.

12. The learned counsels have been heard and the record

perused with their able assistance.

13. The facts and the events that have been brought on the

record are unimaginable in a society that is governed under a

Constitution which guarantees fundamental rights. The contumacious

conduct of the Company needs no elaboration because the

observations made by this Court in the Park View Judgment have

attained finality after the appeal was withdrawn and accordingly

dismissed. The lack of ability on part of the Authority and other public

functionaries to enforce the law and protect the citizens against harm,

whether on account of complacency or incompetence, stands

acknowledged in the reports submitted by public functionaries. The

reports submitted by the Deputy Commissioner and the Assistant

Commissioner are an admission on the part of the state that the system

of governance no more serves those citizens who need protection the

most. They have virtually conceded and given reasons for the

widespread complaints by citizens regarding the phenomenon of land

grabbing and other violations relating to property rights guaranteed

under Articles 23 and 24 of the Constitution. The reports in fact bring

to the fore the factors which have created an enabling environment for

the influential and powerful to violate the property rights of the less

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W.P. No. 3877 of 2019.

privileged while the agents of the State, i.e. public functionaries, either

look the other way or are complacent. The grievance of the petitioner

in writ petition no. 3877 of 2019 stood confirmed in the light of the

affidavit executed by the CEO of the Company which was brought on

record. The land already acquired by the Authority is in possession of

its owners because the latter are yet to be compensated. The same

land was allowed by the Authority to be used as a tool to extend an

extraordinary benefit to the Company, a private profit making entity.

The enrichment of the Company at the cost of the State land has raised

questions of paramount public importance. The 'No Objection

Certificate' has been explicitly questioned in one of the petitions in

hand. In order to adjudicate the questions that have been agitated

before this Court, it would be beneficial to examine the legal framework

and the scheme of law enforced in the 1400 square mile area of the

Islamabad Capital Territory. The legal framework and law was

elaborately discussed in the judgment titled “Shahzada Sikandar ul

Mulk and 04 others vs. Capital Development Authority and four others”

[PLD 2019 Islamabad 365]. The said judgment attained finality since

it was upheld by the august Supreme Court.

Legal Framework:

(ii) Background of the legislation:

14. In order to discover the legislative intent in promulgating

the enforced statutes and laws it would be essential to examine the

historical events which had preceded their enactment. The Islamic

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W.P. No. 3877 of 2019.

Republic of Pakistan came into existence after a long drawn struggle.

On the eve of independence the newly formed nation did not have a

capital. The first task of the Government was to search for the most

suitable place which could be declared as the country’s capital. The

Government of Pakistan appointed a consultant company namely MRVP

to prepare a master plan for the city of Karachi. The master plan was

prepared in 1952 but it could not get official approval. The then

President of Pakistan constituted a special Commission for identifying

a suitable location for the Capital. The Commission held its first

meeting in 1959. Nine Sub-Committees were constituted consisting of

experts from various fields to make recommendations. In February

1959, the President of Pakistan appointed a renowned architect and

city planner having international repute, namely Dr C. A Doxiadis, as

Advisor to the special Commission for location of the Capital. A

preliminary report was submitted by the Commission, i.e. DOX-PA 88,

to the Government. In June 1959 the special Commission for location

of the Capital submitted its report, wherein it was recommended that

the city of Karachi was not a suitable site for establishing a Capital and

that the area around the city of Rawalpindi was more appropriate. Two

sites i.e. A & B were proposed. In June 1959, the President of Pakistan

publicly announced his decision regarding the selection of the proposed

area-A as the site for the Capital. Dr. C. A Doxiadis was given the task

of preparing the next phase. In September 1959, the President of

Pakistan and the Cabinet established the Federal Capital Commission.

The renowned international firm of town planning, namely M/S

Doxiadis Associates, was appointed as consultant to the Federal Capital

Commission. The said Commission constituted fourteen sub

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W.P. No. 3877 of 2019.

committees of experts to carry out surveys and investigations for

preparing a Master Plan for the selected area-A, which was to be the

Capital of Pakistan. The said sub committees submitted several reports

after extensive research and they carried out in depth studies

regarding several important aspects which, inter alia, included

topographical survey, hydrological and surface water survey,

investigations relating to geological, sub soil and ground water,

transportation and communications, economic and financial studies

etc. On 24.02.1960, the Cabinet gave the new Capital the name of

Islamabad. In May 1960, pursuant to the surveys and studies

conducted by the fourteen committees, a preliminary master

programme and master plan was prepared and designed by the Greek

architect Dr C. A Doxodias and his firm. On 24.05.1960, the first

Cabinet meeting was held in Islamabad. On 01.06.1960, the Federal

Capital Commission was succeeded by the Capital Development

Authority. The Authority was established on 01.06.1960 for planning

and developing the Capital i.e. Islamabad, in accordance with the

Master Plan and the phased master programme. The President of

Pakistan was pleased to promulgate the Ordinance of 1960.

Simultaneously, another crucial legislative instrument i.e. the Pakistan

Capital Regulation MLR-82, 1960 (hereinafter referred to as the “MLR-

82”) was also enforced.

(ii) The Master Plan:

15. After extensive surveys and studies the sub committees

submitted their final reports. Dr. C. A Doxiadis and his consultant firm

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W.P. No. 3877 of 2019.

submitted a final report titled ‘Recapitulative Report DOX-PA 88’. This

report consists of three parts and an introduction. The three parts are

titled "Towards a new Capital", "Towards Islamabad" and "Programme

and plan for Islamabad" respectively. This report is the descriptive part

of the Master Plan and programme for the development of the Capital.

This Court has had the privilege of going through this historical

document and its detail, comprehensiveness and professional

excellence are praiseworthy. This document, in fact, explains and gives

the details of the Master Plan (hereinafter referred to as the "Master

Plan"). This historic and internationally outstanding work of town

planning was the outcome of several months of deliberations and

extensive surveys conducted and data collected by various sub

committees which had been constituted for this purpose. Constantinos

Apostolou Doxiadis was honoured with special awards for this

masterpiece of town planning i.e. the Master Plan of Islamabad. The

vision of the founding planners of the Capital of Islamabad is recorded

in page 160 of the Master Plan as follows:-

"The Capital of a country is not merely just

another city; it is a LEADER among cities. To this city

come leaders of administration and politics,

commerce and trade, literature and art, religion and

science. From this city flows the inspiration which

pulsates life into the nation. It is a symbol of our

hopes. It is a mirror of our desires. It is the heart

and soul of the nation. It is, therefore, essential that

the environment of the Capital should be such as to

ensure continued vitality of the nation".

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W.P. No. 3877 of 2019.

16. The Master Plan prescribes detailed guidelines for a five

year and a twenty year plan. The Master Plan is indeed a

comprehensive document giving the details for the planning and

development of Islamabad as the Capital of Pakistan. The Master Plan,

inter alia, caters to the needs of all the different classes i.e. from the

highest to the lowest income groups. The Master Plan has divided the

entire territory of the ‘Specified Areas’ of the Federal Capital into five

distinct Zones. The Master Plan is protected and has statutory backing

in terms of section 11 and the Zoning Regulations, which would be

discussed later. The location of the site and preparation of the Master

Plan were based on the fundamental principle of the creation of the

Capital of Pakistan as a city which would be able to develop freely and

naturally along a planned and predetermined course. As explained in

the detailed report, the descriptive form of the Master Plan, this master

piece was based on the principle of comprehensive planning which

included all social, all income groups and all types of functions. The

principle was explicitly described as planning a city "where everybody

is provided for, where privileged groups do not exist, and where the

inhabitants are considered as entitled to equal treatment". It was

further emphasized that "If we are to use our resources to serve all

citizens and not a small minority, we must also design for economy in

every respect". Based on these fundamental principles the Master Plan

was prepared in great detail and its description was recorded in written

form in several reports, particularly the final report.

17. The purpose for which the Authority was established and

its duties and obligations under the Ordinance of 1960 have been

eloquently described by Dr. C. A Doxiadis at page 426 of the final

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W.P. No. 3877 of 2019.

report, which was approved by the Government, and the relevant

portions thereof are reproduced as follows;

“1041. CDA will be responsible for coordinating

all endeavours for the development of the whole of the

Capital Region so that unity of purpose is ensured at all

times. The extent of the region to be controlled will be

defined immediately upon approval of the regional plan,

which has to be prepared as soon as possible.

1042. But even before that point is reached, in fact

from now on, CDA will be generally responsible for

coordinating all development within the Metropolitan Area.

1043. As soon as the regional plan is completed, CDA

will have to take full control of all new developments within

the region, which means that no major development till be

possible within the region without its special approval.

1044. CDA may authorize other authorities to

prepare plans or carry them out within the region without

being itself in charge of all these projects. For example, a

new resort may be created, of which CDA might in principle

approve the location, size and importance, while at the

same time leaving the designs in the hands of another

authority for organization although necessarily retaining

the right to approve these designs.

1045. Within the Metropolitan Area, however, the

responsibilities of CDA will be much larger. It is within the

Metropolitan Area that CDA should have not only full

control, but full responsibility for every development. Here

CDA will itself issue the permits for every kind of building,

even the smallest one.

1046. It will not be permitted to add houses to

existing villages, or even demolish houses within villages,

without the special permission of CDA. This is because CDA

may well think that some villages will have to be

demolished later and that no investment should be

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W.P. No. 3877 of 2019.

encouraged or allowed in them, or that some villages must

be preserved as elements of the National Park and that

thus no addition to them should be allowed.

1047. The same is true of all other types of

development within the Metropolitan Area and not only of

buildings and construction. For example, change of

cultivation, or cultivation of new areas, will also have to be

approved by CDA, as likewise will the opening of new

roads, even of minor importance, or the creation of new

Cantonments.”

(iii) Description of Zone IV in the Master Plan:

18. The expressions 'region', 'metropolitan area' and

'Islamabad' have been separately defined in Articles 400 to 405. Article

404 defines the 'metropolitan area' and it has been divided into three

distinct areas. Clause b of Article 404 describes the ‘National Park’ with

all related functions, otherwise called the ‘semi urban part of

Islamabad’, as an integral part of the 'metropolitan area'. Article 408

further describes the ‘National Park’ as follows:

“408. The National Park consists of:

a. The national Park itself.

b. The rural areas within the National Park which will gradually

be converted to other functions.

c. Special functions, such as the University town, Research stations

and National institutions, which should not be built within

Islamabad but within its Metropolitan area.”

Articles 653 to 656 describe the ‘semi urban area of

Islamabad/National park’ as follows:

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W.P. No. 3877 of 2019.

“c. Semi Urban Area of Islamabad (National Park)

653. The area East of BD and South of BC, which has been

excluded as a possible Capital site, offers many advantages

as a site for the National Park. It has great variety of

landscape features, including the lake to be formed by the

Rawal Dam, the hills and the rivers. This is the area where

it is proposed to erect the Educational Institutions, the

National University, the National Stadium, the Academy of

Medical Sciences, the Atomic Research Institute, and all

other Institutes related to culture, research or national

development.

654. In this way the whole of the Metropolitan area has

been divided into three clearly separated and defined areas

in such manner as to avoid any unfavorable intermingling

of functions in the future.

655. The Metropolitan area, from now on, includes

Islamabad, the National Park, Rawalpindi and the

Cantonments.

656. Agricultural areas will exist within the National Park,

as well as within Rawalpindi and the Cantonments, for

many years to come. These will not, therefore, be called

rural areas in the future, but rural within the Metropolitan

area.”

Likewise Article 911 gives the description of ‘National Park’

as below:

“911. a. Educational functions of national importance:

National University, etc.

b. Institutions of a National character, i.e.

National Research Centre, national Medical

Centre.

c. National Sports Centre.

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W.P. No. 3877 of 2019.

d. National Park functions (preservation of rural

life, wild life, forests).

e. Zoo, botanical gardens.

f. Exhibition grounds.”

A further elaboration of the ‘National Park’ has been

made in Articles 950 to 961 as follows:

“950. The area of the National Park is an

area which, by contrast to the previous ones of

Islamabad and Rawalpindi - described as

definitely urban areas – could be described as a

park area. The title of National Park is given for

the following two reasons:

a. Because it is intended that this area

should gradually be bought by the

Government and become national

property, and

b. Because it is considered to be an area

which could be developed into a very

big park where nature will be preserved

in all its forms, as natural landscape -

even when this consists only of stones

and rocks - or hills, small valleys and

rivers, as well as vegetation and

animal-life.

951. The fact that Rawal lake has already been created

presents an excellent opportunity for the creation of a

place allowing for the development of an aquarium, of

sports related to the water and the lake, etc.

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W.P. No. 3877 of 2019.

952. At the Southern part of the National Park it is

provided in the future to be constructed a second dam

on the Kurang river, the Lohibhir dam, and in this way

a second lake would be created in the National Park.

As a whole, the area of the National Park is already

beautiful and can be made much more so and become

an object of national pride.

953. It is thought that this area will provide the ideal

site for the creation of many institutions of national

character which are not necessarily parts of Islamabad

or Rawalpindi at all, but which should be very close to

them inside the same Metropolitan area.

954. Such for example is the National Sports

Centre, which can include an Olympic stadium and

corresponding installations for all types of sports

including rowing and sailing, race course and gold

course, etc.

955. It is suggested that the part which is along the

Murree road should be become the national sports

center thus the Olympic stadium would be in the hills,

which are at the crossing of Islamabad Highway and

the Murree Highway; the sports which require wide

open spaces, such as golf, etc., would be between the

Olympic Stadium and the lake; while water sports

would be on the lake itself.

956. Thus, we can consider that an elongated area

covering approximately the width of five normal

sectors and running along the Murree, Highway, will

become the National Sports Centre, with many

installations spread within the National Park in such a

way that the area does not lose its character.

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W.P. No. 3877 of 2019.

957. The second category of institutions to be built

within the National Park area are educational and

research institutions, such as a National University,

National Research Institution, etc. Such functions will

be created in several parts of the National Park and

especially on the sides of the hills. This is the best

location, since the tops of the hills should be preserved

as parts of the natural beauty of the National Park, and

not spoiled by any building except the small

restaurants and tea-houses provided for visitors and

tourists, while the lower parts of the valleys are better

for cultivation.

958. Another part of this area can be turned into a

zoological garden and botanical garden, while other

parts can be organized to provide facilities for picnics

for the inhabitants of the Metropolitan area, as well as

visitors who want to visit the metropolitan area and

enjoy its natural beauties.

959. The same role will be played by the Margala hills

and other places up to Murree and the surroundings,

but this is a matter for the regional plan to be studied

at the later stage.

960. Finally, national and international exhibitions

can be organized within the area of the National Park.

961. The pattern of roads in the National Park

connected with the rectangular grid of roads of the

Master Plan and follows the landscape of the area. The

right-of-way provided for those roads in the National

Park is 600 foot.”

The graphic description of the 'National Park' was in

the form of a pictorial 'map' which formed an integral part

of the ‘Master Plan’. It is noted that the area of Zone IV

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W.P. No. 3877 of 2019.

was to be maintained as a 'National Park' and was to serve

as the semi urban part of the Capital. No housing schemes

were contemplated to be established in Zone IV because it

was to be developed by preserving its green character.

Only restricted human activities were envisaged to be

permitted.

(iv) The Ordinance of 1960:

19. The above mentioned events and the background which led

to the enactment of the Ordinance of 1960 are a relevant guide in

understanding the legislative intent. Its main object was to give

statutory backing to the Master Plan. It is also important to note that

the Master Plan was prepared and approved for an area consisting of

1,400 sq miles on the Potohar Plateau, as described in paragraphs 411

and 412 of the descriptive form thereof. The above discussed

background would, therefore, facilitate in appreciating the legislative

scheme and intent of the Ordinance of 1960, which was notified in the

official gazette on 27.06.1960. The preamble describes the object and

purpose for establishing the Authority as making all arrangements for

the planning and development of Islamabad within the framework of

the Regional Development Plan. Sub-section (2) of Section 1 explicitly

provides that it extends to the 'Specified Areas'. Section 2 defines

various expressions. Agency and Authority are defined in Clauses (a)

and (b) while the Board and the Chairman are defined in Clauses (c)

and (f) respectively. Clause (i) defines 'land'. Clause (o) defines a

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W.P. No. 3877 of 2019.

'Scheme' as meaning a planning scheme or a development scheme

made under the Ordinance of 1960. The two other important definitions

are that of a ‘Capital Site’ and ‘Specified Areas’. Capital Site is defined

as meaning part or parts of the ‘Specified Areas’ declared to be the site

for the Pakistan Capital under Section 3. Likewise, ‘Specified Areas’ is

defined in Clause (2) (p) as meaning the areas specified in the schedule

and any other such area or areas which may from time to time be

included therein by notification in the official gazette. Section 3

empowers the Federal Government to declare any part or parts of the

‘Specified Areas’ to be the site for the Capital of Pakistan. The ‘Specified

Areas’ are described in the schedule of the Ordinance of 1960 and is

the same as highlighted in the Master Plan i.e covering almost 1,400

sq miles. Chapter II relates to the constitution of the Authority. Chapter

III describes the powers and duties of the Authority. Section 11

provides that the Authority shall prepare a master plan and a phased

master programme for the development of the Capital Site and a

similar plan and programme for the rest of the ‘Specified Areas’. All

such plans and programmes are required to be submitted to the

Federal Government for approval. As already noted, the Master Plan

was prepared and approved at the time of the enactment of the

Ordinance of 1960. Section 12 empowers the Authority, pursuant to

the master plan and the master programme, to call upon any local

body or agency operating in the ‘Specified Areas’ to prepare in

consultation with the Authority a Scheme or Schemes in respect of

matters dealt with by such local body or agency. The scope of a scheme

has been described in clauses (a) to (i) of sub-section (2) of Section

12. Section 13 vests the power and jurisdiction in the Authority to

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W.P. No. 3877 of 2019.

prepare on its own a Scheme pursuant to the master programme

whenever it considers it desirable to do so in the public interest. It is

obvious from a plain reading of these provisions that the Scheme

prepared has to be within the framework of the Master Plan and a

phased master programme. The language of sections 12 and 13

explicitly provide that the Scheme so prepared has to be pursuant to

the Master Plan and the master programme. Section 14 describes the

manner and form in respect of the preparation of a Scheme. Section

15 enumerates the powers vested in the Authority, which are

expansive and, inter alia, explicitly include acquiring any land in the

‘Specified Areas’ in accordance with the procedure laid down in the

Ordinance of 1960. Section 19 provides the procedure for amending a

Scheme while section 21 describes how it is to be executed. Chapter

IV of the Ordinance of 1960 explicitly relates to acquisition of land in

the "Specified Areas". Section 22 unambiguously provides that all land

within the ‘Specified Areas’ shall be liable to be acquired at any time

and in accordance with the provisions of Chapter IV of the Ordinance

of 1960. It is noted that through this statutory provision the entire land

comprising the ‘Specified Areas’ has been declared as being liable to

acquisition. It is a declaration made by the legislature and the use of

the expression "shall" instead of "may" is significant. Section 22, being

a provision of primary legislation, has a higher status than a declaration

made through the issuance of a notice under section 4 of the

Acquisition Act. Sections 23 to section 30 explicitly describe the power

vested in the Authority and the procedure for acquiring land within the

'Specified Areas". Section 32 unequivocally declares that, immediately

on making of the award under Section 28, the land shall vest in the

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W.P. No. 3877 of 2019.

Authority free from all encumbrances and, subject to reasonable

notice, it shall enter and take possession thereof. Section 33 vests the

power of acquisition of the land within the ‘Specified Area’ in cases of

urgency. Chapter V of the Ordinance of 1960 empowers the Authority

to appoint officers and servants and to determine their terms and

conditions of service. Chapter VI is in respect of matters relating to

Finance and the powers of the Authority with regard thereto. Chapter

VII is in respect of penal provisions. Section 46 explicitly provides that

whoever contravenes any provision or any rules or regulations made,

or sanctioned under the Ordinance of 1960, shall, if no other penalty

is provided for such contravention, be punishable with imprisonment.

Section 49 describes the power of the Authority in respect of the

disposal of land which vests in it. Sections 49-C and 49-D provide for

the powers of the Authority in relation to the removal of buildings etc

erected or used in contravention of the Ordinance of 1960. Sections 50

and 51 empower the competent authority, as the case may be, to make

rules and regulations respectively.

20. A plain reading of the above provisions unambiguously

shows that the Ordinance of 1960 is a self contained, comprehensive

and special statute enacted for establishing the Authority and having

the object and purpose of making all arrangements for the planning

and development of Islamabad within the framework of a regional

development plan. The Master Plan is the foundation or premise on

which the scheme of the Ordinance of 1960 is dependent. As already

noted, the Master Plan was prepared by an internationally renowned

town planner and approved by the Government. The Authority was and

continues to be under a statutory obligation to prepare Schemes and

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thereafter acquire land within the "Specified Areas", as has been held

by the august Supreme Court in the case titled “Capital Development

Authority through Chairman and others versus Dr. Abdul Qadeer Khan

and others” [1999 SCMR 2636]. The planning and development of

acquired land thus has to be made in accordance with the Scheme and

exclusively for public purpose. The Ordinance of 1960 explicitly

provides for a complete mechanism for acquisition of land within the

"Specified Areas" and describes the powers vested in the Authority in

this regard. Section 22 is an unambiguous declaration by the

legislature that the entire land shall be liable to acquisition at any time.

The legislative intent is to put a statutory charge or encumbrance on

every inch of land which falls within the "Specified Area" described in

the schedule of the Ordinance of 1960. The role of the Federal

Government has been expressly described in section 5 i.e. to guide the

Authority on questions of policy through directions and its

accountability in the manner prescribed under sections 43 and 48. The

appointment of Members, Chairman, Vice Chairman and Financial

Adviser are also made by the Federal Government. The Authority has

been established as one of the most important regulators and as an

independent professional body for achieving the onerous task of

planning and developing the Capital of Pakistan and protecting the

Master Plan and the phased master programme conceived by the

founding planners. In terms of its regulatory autonomy, it was intended

to be one of those authorities which would definitely fall within the

category of statutory bodies referred to by the august Supreme Court

in the judgment titled ‘Muhammad Yasin Vs. Federation of Pakistan

through Secretary, Establishment Division’ [PLD 2012 SC 132]. The

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W.P. No. 3877 of 2019.

autonomy of the Authority is manifest from the unambiguous language

of the Ordinance of 1960 and the entire scheme thereof. The legislative

intent is further affirmed by the enactment of MLR-82.

(v) MLR-82:

21. MLR-82 was enacted and notified on 16.06.1960. It

extends to the "Specified Areas". Regulation 3 explicitly provides that

its provisions or any rule or order made there under shall have effect,

notwithstanding anything to the contrary in any other law or in any

contract, instrument or other document. It extends to the Specified

Areas i.e. 1,400 sq miles of Islamabad Capital Territory. Regulation 4

prescribes restrictions on the building on and use of land. The

restrictions in clause (a) of section 4 are in relation to the Capital Site

and provide that no person shall construct or cause to be constructed

any building or alter or enlarge any existing building except under the

Authority or with the permission of the Commission appointed for this

purpose, nor can convert any land being used for purposes of

agriculture to any other use, cutting of standing trees is also

prohibited. Clause (b) of Regulation 4 (i) is in respect of lands outside

the Capital Site. It unambiguously provides that within the "Specified

Areas’ outside the Capital Site no person shall construct or cause to be

constructed any building except in accordance with such general or

specific directions as may from time to time be issued by the

Commission to the local authorities. Likewise, conversion of land used

for the purposes of agriculture to any other use has been prohibited,

except in accordance with such general or specific directions as may

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from time to time be issued by the Commission in this regard. Section

12 provides for offences and penalties for contravention or failure to

comply with the provisions of the regulations. MLR-82, therefore,

when read with the provisions of the Ordinance of 1960, clearly shows

the intent that the entire land comprising ‘Specified Areas’ i.e.

comprising almost 1,400 sq miles, has been exclusively identified and

reserved for planning and developing the Capital of Pakistan, having

regard to the Master Plan and in accordance with the provisions of the

Ordinance of 1960.

(vi) The Determination of the Area:

22. The Capital of the Republic (Determination of Area)

Ordinance, 1963 (hereinafter referred to as the “Determination of

Area”) declared the area specified in the Schedule thereto as the site

selected for the Capital of Pakistan.

(vii) The Islamabad Capital Territory:

23. The expression ‘Islamabad Capital Territory’ has been

defined in Regulation 2 (13) of the Islamabad Capital Territory (Zoning)

Regulation, 1992 (hereinafter referred to as the “Zoning Regulations

of 1992”) as meaning "Islamabad Capital Territory’ defined under the

Capital Territory Local Government Ordinance, 1979. Section 2 (d) of

the latter statute defines ‘Capital Territory’ as meaning ‘Islamabad

Capital Territory’ referred to in paragraph (b) clause (1) of Article 1 of

the Constitution of the Islamic Republic of Pakistan, 1973. The

‘Islamabad Capital Territory’, therefore, refers to and consists of the

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entire land described in the Schedule of the Ordinance of 1960 as the

"Specified Areas". The Ordinance of 1960 and the regulations and rules

made there under are, therefore, enforced and attracted in the entire

land consisting of

"Specified Areas", whether acquired or un-acquired.

(viii) The Regulations of 1992:

24. The Zoning Regulations of 1992 were framed and duly

notified in the exercise of powers conferred under section 51 of the

Ordinance of 1960, read with section 11 thereof. The Zoning

Regulations of 1992, in fact, are based on giving effect to the Master

Plan approved in 1960, which has been discussed above. This

delegated legislation is most crucial because it manifests the basic and

fundamental features of the Master Plan. Regulation 2 defines various

expressions. The expressions “Existing Village”, “Forest”, “Illegal

Construction”, “Layout Plan”, “Native Resident”, “Structure” and

“Zone” are defined in sub-regulations (10), (12), (14), (16), (20), (24)

and (27), respectively. It is pertinent to note that “Existing House”,

“Existing Village” and “Native Resident” are the most important

definitions for appreciating the scheme of law enforced in the

Islamabad Capital Territory. According to the Master Plan, the

Islamabad Capital Territory has been divided into five distinct Zones

and the same are described in Regulation 3. For the adjudication of the

petitions in hand, the regulations relating to Zone IV are relevant and

thus the discussion will be restricted thereto.

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25. As already noted above, the Regulations of 1992 were

framed and notified in the official gazette on 23.12.1992. They

reflected, or rather ensured, that the Master Plan and the scheme

contemplated therein is strictly implemented. The preservation of the

green character of the area was the paramount theme. Regulation 3(4)

describes the limits of Zone-IV, while Regulation 4(4) elaborately

prescribes the conditions for use of land in the area falling within its

limits. It is noted that no housing scheme was allowed to be established

in Zone-IV because it was not permissible under the scheme of the

approved Master Plan. It transpires from the material placed on the

record that the Authority, vide summary dated 08.04.2010, proposed

certain amendments in the Regulations of 1992. A plain reading of the

summary shows that a misleading impression was given as though it

was mandatory to amend the Regulations of 1992 in compliance with

the judgment of the august Supreme Court, which will be discussed

later. The judgment was rendered in the case titled Suo Motu Case No.

10/2007. It is an admitted position that the Authority had acquired

12,188 acres of land out of the total area of 70,026 acres falling within

Zone-IV. It was acknowledged in the summary itself that the green

character of the area had to converted by allowing residential and

commercial construction and, therefore, necessitating changes to be

made in the master plan and consequently amending the Regulations

of 1992. This was not only misleading but contemptuous because the

august Supreme Court had not given any direction to make changes in

derogation of the environmental laws nor to change the green

character. Based on the misleading summary, the Cabinet, without

raising questions, approved the summary in its meeting held on

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21.04.2010. However, the approval did not take effect because the

Regulations of 1992 were not amended in accordance with the

mandatory provisions of the Ordinance of 1960.

26. The Regulations of 1992 were subsequently amended in

exercise of powers conferred by section 51 and read with section 11 of

the Ordinance of 1960 vide SRO 1105(I)/2014, dated 08.12.2014.

Zone-IV was divided into four sub zones i.e. sub zone-A, sub Zone-B,

sub Zone-C and sub Zone-D, respectively. The description of sub Zone-

B incorporated in the Regulations of 1992 was as follows:

“The area of this sub zone shall be used for

planning and development of small scale residential

and commercial buildings. Existing residential and

commercial developments shall be regularized by

CDA. The owners of the existing

developments/schemes shall get approval from CDA

of their residential and commercial buildings after

payment of scrutiny fee, regularization, development

and commercialization charges and determined and

levied by the Authority from time to time. The

unutilized patches of land within this sub zone shall

be utilized for residential schemes. Minimum

contiguous area for such a scheme shall be 50 acres.

Other parameters of the schemes shall be governed

by the Modalities and Procedures framed under ICT

Zoning Regulation 1992 for housing schemes in Zone-

2 and 5.”

Further, the description of sub Zone-C was as

follows:

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“Sub Zone-C (21,279 Acres)

(1) Delineation: This sub-zone is bounded in the

north by southern limits of sub-zones B2 and A,

in the east by sub-zone ‘D’ in the south by inter

zone boundary of Zone-4 & Zone-5 and in the

west by sub-zone B-1.

(2) Pre-dominant existing uses: Illegal

commercial & residential development, brick

kilns, PINSTECH.

(3) Proposed uses: Agro farming/Country

Housing/Orchard Schemes Institutions, IT parks,

Villages Up-gradation, Regulated

villages/settlements expansion, public sector

housing schemes.

(4) Parameters:

a. Agro Farming scheme

i. Min. area 100 acres.

ii. Min. area farm 04 kanals.

iii. Max. covered area 100 Sq.yds.

(excluding basement)

iv. Number of Storeys Ground+1+basement.

b. Housing Scheme

i. Min area 100 Acres

ii. Plot size 130 to 600 sq.yd.

iii. Number of Storyes Ground+1+basement

c. Apartments and office buildings:

i.Number of Storeys Ground+3+basement.”

27. It is noted that, pursuant to the above mentioned

amendments made in the Regulations of 1992, the permission was

explicitly to the extent of a 'public housing scheme' and not a private

housing scheme and, that too, only in one sub zone. The Regulations

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W.P. No. 3877 of 2019.

of 1992 were subsequently amended vide SRO 792(i)/2019, dated

25.06.2019. The above amendment appears to have been made

pursuant to the summary, dated 16.05.2018, which was placed before

the Federal Cabinet in its meeting held on 17-05-2018. The decision of

the Federal Cabinet is as follows:

“The cabinet considered the summary

dated 16th May, 2018 submitted by Capital

Administration & Development Division for

Amendment in Master Plan of CDA in Sub-

Zone C of Zone-IV of Islamabad, and

approved the proposal to amend the Master Plan

of CDA to the extent of sub-zone C of Zone-IV in

order to allow the establishment of private sector

housing schemes, in addition to public sector

housing schemes, from the date of approval by

the cabinet.”

28. The Authority, in exercise of powers vested under section

51 of the Ordinance of 1960 vide Notification i.e. SRO 64(i)/2020,

dated 29.01.2020, made the Revised Modalities and Procedure, 2020

framed under the ICT (Zoning) Regulation, 1992 (As Amended) for

Development of Private Housing/Farm Housing Schemes in Zones 2, 4

& 5 of Islamabad Capital Territory Zoning Plan [hereinafter referred to

as the “Revised Modalities and Procedure, 2020”]. It is noted that

regulation 4(4) A titled “Acquired Area” was not amended and,

therefore, a Scheme under sections 12, 13 and 14 of the Ordinance of

1960 could only have been prepared in the light thereof.

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W.P. No. 3877 of 2019.

The Suo Moto No. 10 Judgment:

29. It appears, from the record, that the Authority had

proposed amendments in the Master Plan by giving the impression as

though it was mandatory, pursuant to directions given by the august

Supreme Court in the case titled “Suo Motu Case No. 10 of 2007” [PLD

2008 SC 673] (hereinafter referred to as the 'Sou Moto No. 10

Judgment'). The said judgment is binding on this Court, but with great

reverence, it appears that the august Supreme Court had not been

properly assisted, nor for reasons best known to the Authority was a

review filed by the latter. More importantly, the august Supreme Court

was never informed regarding the status of Zone IV in the Master Plan.

The matter before the august Supreme Court was regarding increased

prices of daily commodities and not the vires of Regulation 4 of the

Zoning Regulations of 1992. The directions given in paragraph 11 of

the aforementioned judgment were misconstrued and wrongly

presented in the summaries prepared for seeking amendment in the

Master Plan. The description of Zone IV in the Master Plan and the

importance of maintaining the green character of the area appears to

have been concealed from the august Supreme Court. Even if there

was an ambiguity it was the duty of the Authority, as custodian of the

Master Plan, to have filed a review petition or to have sought a

clarification. The Authority, in breach of its statutory duty, instead of

bringing the crucial factors to the attention of the apex Court wrongly

represented the directions given in the judgment. The amendments in

the Master Plan, particularly having the effect of changing the green

character of the area comprising Zone IV, inevitably had consequences

in the context of environmental degradation and climate change. The

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W.P. No. 3877 of 2019.

august Supreme Court had not even remotely suggested that

amendments be made in disregard or in breach of the laws enforced

for protection against environmental degradation such as the Act of

1997. The Agency also appears to have ignored the environmental

crisis in the making. The Federal Cabinet also appears to have given

its approval in a perfunctory manner. Nonetheless, this Court is of the

opinion, with utmost reverence, that the apex Court may consider

revisiting the aforementioned judgment because the manner in which

it has been interpreted by the Authority in order to maneuver

amendments in the Master Plan has already caused irretrievable

damage to the environment. This is a loss which would not be restricted

to the present only but, more so, would affect the future generations.

Environmental degradation and loss of biodiversity, natural habitats

and ecosystems is no less than writing an obituary of the future

generations. It was contemptuous to have wrongly presented the Suo

Moto No. 10 Judgment or to imagine that the implementation of the

directions exempted the Authority or the Federal Government from

strict compliance with the laws enforced to guard against

environmental degradation and catastrophic consequences relating

thereto.

Building Regulations of 1963:

30. The Islamabad Building Regulations, 1963 (hereinafter

referred to as the ‘Building Regulations of 1963’) extends to the

Capital Site. The Capital Site has been defined in section 2(e) of the

Ordinance of 1960 as meaning that part of the Specified Areas declared

to be the site for the Pakistan Capital under section 3 ibid. The Zoning

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W.P. No. 3877 of 2019.

Regulations of 1992 explicitly provides that the Buildings Regulations

of 1963 have been made applicable to construction in Zone-4.

Regulation 2 defines various expressions. Regulation 3 makes it

mandatory for every person who intends to carry out building work,

and if not otherwise barred from building on the land in his possession,

to comply with the provisions thereof and the relevant provisions of

the Zoning Regulations of 1992. The procedure and conditions for the

granting of permission have been provided under the relevant

regulations of the Building Regulations of 1963. Regulation 13

unambiguously provides for the consequences of failure to comply with

Building Regulations and, inter alia, empowers the Authority to remove

such building, work or alteration or any part thereof at the cost of the

owner or a person in possession thereof. Regulation 22 provides that

no one shall occupy or permit any other person to occupy any building

or to use or permit to be used any part thereof until permission has

been granted by the Authority.

Building Control Regulations:

31. The next relevant legislation is the Islamabad Residential

Sectors Zoning (Building Control) Regulations, 2005 (hereinafter

referred to as the ‘Building Control Regulations’) which were

framed by the Authority in exercise of powers vested under section 51

of the Ordinance of 1960. Regulation 1.1.02 provides that it shall

extend to all private and public land/plots in the Islamabad Capital

Territory, except those in the Diplomatic Enclave or specifically

excluded. Chapter 2 describes various types of buildings and their

permissible use. Regulation 2.2 makes it mandatory for every owner

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W.P. No. 3877 of 2019.

of private land to seek permission before construction of a building or

structure or any addition/alteration thereto. Any construction which

has started or is being carried out without approval of the Authority is

liable to be removed at the risk and cost of the owner/allottee,

occupant and, in addition, such person will be liable to payment of

penalty. The Building Control Regulations empower the Authority to

inspect the constructed buildings. Regulation 3.12.11 renders it a

mandatory obligation of the owner to obtain a completion certificate

from the Authority, failing which the building or part thereof can neither

be occupied nor put to use.

The Ordinance of 1966:

32. The Ordinance of 1966 has been enacted to preserve the

landscape of Islamabad and extends to the entire area falling within

the Islamabad Capital Territory. The expression “landscape” has been

defined in clause (a) of section 2. Section 3 provides that the Ordinance

of 1966 and the rules made there under shall be in addition to and not

in derogation of the provisions of the Ordinance of 1960 and the MLR-

82. Section 4 provides that no person shall remove, destroy, damage

or alter anything, or commit any other act if such removal, destruction,

damage, alteration or act affects or is likely to affect a landscape

injuriously. Sub section (2) of section 4 makes it mandatory to seek

permission from the Authority so as to avoid the consequences

mentioned in section 5. Section 5 makes it a criminal offence to

contravene the provisions of the Ordinance of 1966 and such a person

is liable to be punished with imprisonment for a term which may extend

to six months or a fine upto five thousand rupees. The power to arrest

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W.P. No. 3877 of 2019.

without warrant for contravention of the Ordinance of 1966 has been

provided under section 6 ibid. In exercise of powers vested under

section 15 of the Ordinance of 1966, the Islamabad (Preservation of

Landscape) Rules, 1967 have been made and duly notified.

Rule of Law:

33. The expression rule of law has been described by the

United Nations as ' a principle of governance in which all persons,

institutions and entities, public and private, including the State itself,

are accountable to laws that are publicly promulgated, equally enforced

and independently adjudicated ----. It also requires measures to

ensure adherence to the principles of supremacy of law, equality before

the law, accountability to the law, fairness in the application of law, --

- legal certainty, avoidance of arbitrariness and procedural and legal

transparency'. The quality of governance and protection of rights of

citizens are the paramount measure of the status of rule of law. Law is

a body of rules and conduct prescribed by competent forums and they

have binding force. They must be obeyed and followed and a breach

thereof attracts sanctions and legal consequences. Laws are

promulgated and enforced to protect the rights and liberties of the

citizens and to maintain order in society. When the people are

governed by arbitrary and whimsical decisions of public functionaries,

rather than the law, it inevitably erodes the rule of law and leads to

chaos and anarchy. The beneficiaries in such an eventuality are the

elite while the victims are the weaker and marginalized segments of

the society. Every citizen, regardless of rank or status, ought to be

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W.P. No. 3877 of 2019.

subject to law besides having equal access to the forums established

for dispute resolution, particularly the courts. It is not enough to

merely promulgate the laws. If there is no will to enforce them, rule of

law is relegated to the status of a farce and thus constitutionally

guaranteed rights are breached. Article 4 of the Constitution explicitly

commands that 'to enjoy the protection of law and to be treated in

accordance with law is the inalienable right of every citizen, wherever

he may be, and of every other person for the time being within

Pakistan'. The State has a commitment with every citizen that no action

detrimental to the life, liberty, body, reputation or property of any

person shall be taken except in accordance with law'. It is ironic that

in the petitions in hand the State has failed in its duty to protect the

fundamental rights of the citizens by not enforcing the promulgated

laws. The laws i.e. statutes and regulations discussed above are

selectively enforced while the privileged, in this case the Company, are

treated as immune. The facts have already been discussed in detail.

They establish how enforced laws have been bent, ignored, neglected

or abused merely to benefit a private profit making business entity to

enrich itself. The enforced laws have failed to protect the citizens

against the illegal acts of the Company because those who have been

entrusted with the duty to act on behalf of the State preferred to serve

the latter. The fundamental rights of the citizens guaranteed under

Articles 9, 14, 23, 24 and 25 have been demonstrably violated. In the

facts and circumstances of the matter in hand, this Court has no

hesitation in stating that within the 1400 sq mile area of the Islamabad

Capital Territory there is no rule of law. The State is in breach of its

commitments under Article 4 of the Constitution. The most important

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W.P. No. 3877 of 2019.

ingredient of or pre requisite for establishing rule of law is

accountability. Condoning illegalities and violation of enforced law is an

antithesis of the rule of law. It encourages others to follow suit and

gives an opportunity to the public functionaries to become complacent.

This Court has consistently observed, particularly in the case of the

Authority that worst forms of violation of the Master Plan and enforced

laws are allowed to be perpetuated and, when the damage is done, the

perpetrators are rewarded by condoning their acts and omissions. This

has become so frequent that the phenomenon has assumed the status

of an unabated continued practice and an acceptable norm. No

violation of the Master Plan or the enforced laws is conceivable without

complacency and connivance of the State functionaries and the

regulators. The most disturbing aspect observed by this Court is that

the phenomenon of condoning violation of laws is confined to the elite

and privileged. Those who are less privileged or do not have the

appropriate means or connections are not immune from the wrath of

the State. This has become an undeniable reality of the status of rule

of law within 1400 sq mile area of the Islamabad Capital Territory. The

conduct of the State functionaries and the difference in treatment of

the elite and 'ordinary citizen' has eroded and demeaned the rule of

law in the area of the capital of Pakistan. This has led to violations of

the fundamental rights of citizens who cannot even afford to have

meaningful access to a court of law because of the exorbitant cost and

inability to have proper legal representation. The District Courts have

never been a priority of the State and its executive branch in the past

four decades. The District Courts serve those who are treated as

'ordinary citizens' by the State and its functionaries. The existing

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W.P. No. 3877 of 2019.

governance system does not manifest the fulfillment of the

unambiguous command of the Constitution under Article 4 since the

citizens are not enjoying the protection of law nor are they treated in

accordance therewith. There is no rule of law and consequently the

constitutionally guaranteed fundamental rights of the citizens are being

flagrantly violated.

Conclusion:

34. As already noted above, the facts and circumstances that

have been highlighted during the proceedings would have been

shocking and alarming for any Court vested with constitutional

jurisdiction and duty to protect the fundamental rights of the citizens

and uphold rule of law. The enforced laws and regulations have been

discussed in detail. The august Supreme Court, in the case titled

“Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G

of 2020” [PLD 2010 SC 759], has declared and held that the provisions

of the Ordinance of 1960 and the rules/regulations made there under

are mandatory in nature and binding, so much so that a liberal

construction thereof is not permissible. Reference may also be made

to the judgments reported as “Capital Development Authority through

Chairman and others v. Dr. Abdul Qadeer Khan and others” [1999

SCMR 2636], “Saad Mazhar v. Capital Development Authority” [2005

SCMR 1973] and “Moulvi Iqbal Haider v. Capital Development

Authority” [PLD 2006 SC 394]. The Master Plan, which was prepared

after extensive deliberations by internationally renowned town

planners and experts, was approved by the Central Government and

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was given statutory backing under the Ordinance of 1960. Its sanctity

made it a statutory duty of the Authority as well as the Federal

Government to protect it. In order to fulfill this onerous obligation, the

Regulations of 1992 were enacted and enforced. The Regulations of

1992 was an important sub legislation to protect the Master Plan. Zone

IV described in the Regulations of 1992 covered the area titled the

'National Park' or the 'Semi Urban Area of Islamabad' and the relevant

portions from the Master Plan have been reproduced above. Its

preservation had paramount importance in the context of safeguarding

against environmental degradation. The green character of the area

was to be preserved and thus the ecosystems, biodiversity and habitats

were to be protected. The vision and object of establishing the

Authority has been described in detail in the Master Plan and the

foundational principle thereof was to protect the Master Plan and to

establish the Capital of Pakistan on the basis of sound principles of

development and town planning. The statutory obligation of the

Federal Government has been described under section 5 of the

Ordinance of 1960. The sanctity of the statutory functions entrusted to

the Authority have been highlighted by the apex Court in various

judgments. In the case titled “Muhammad Ikhlaq Memon v. Capital

Development Authority” [2015 SCMR 294] it has been held that the

Authority, as a statutory entity, has to act in the public interest. In the

case titled “Suo Motu Case No. 13 of 2009” [PLD 2011 SC 619], the

august Supreme Court has held, in the context of the duties and

obligations of the Authority, that Islamabad, being the Capital of the

country, every inch of its land has to be protected because it belongs

to the entire nation. In case at hand the Authority breached this pivotal

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obligation. The Ordinance of 1960 empowers the Authority to acquire

land pursuant to preparing a 'Scheme' and such land then vests in the

State. Reliance is placed on “Capital Development Authority through

Chairman and others versus Dr. Abdul Qadeer Khan and others” [1999

SCMR 2636]. As a corollary, land acquired under the Ordinance of 1960

can only be used, in accordance with the 'Scheme' prepared under

sections 12, 13 and 14 of the Ordinance of 1960, exclusively for the

benefit of the general public and not to facilitate or enable a private

profit earning entity to enrich itself by advancing its commercial

pursuit. Such exercise of authority vested under the Ordinance of 1960

would amount of abuse and may expose the public functionaries and

the beneficiaries to be proceeded against for the offence of corruption

and corrupt practices defined under the Accountability Ordinance 1999

(hereinafter referred to as the 'Ordinance of 1999’). The Authority,

therefore, has been entrusted with the statutory status of a 'Trustee'.

It holds every inch of the land in trust on behalf of the people of

Pakistan and thus it gives rise to the relationship which is fiduciary in

nature. Regrettably, the matter in hand is a classic case of failure in

execution of the fiduciary duty that the Authority owes to the people

of Pakistan. It is an obvious case of lack of respect for the enforced

statutes and regulations, having the consequence of undermining and

demeaning the rule of law. It is a case of serving the powerful and

resourceful elite at the cost of fundamental rights of the 'ordinary

citizens' and causing irretrievable loss and damage to the future

generations. It is an example of elite capture and reflects the

brazenness of maneuvering the system, concealing material facts from

the courts and bending laws merely to favor a few privileged elite. It

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demonstrably shows how some are treated above the law while those

who need the protection of the State the most are denied their

constitutionally guaranteed rights.

35. The Regulations of 1992 were framed and enacted to give

effect to the Master Plan and to ensure that the scheme contemplated

therein is not breached. Zone IV, because of its topographic

characteristics, was to be protected as a green environmentally friendly

area. It was to maintain its green character and the permissible

activities were confined to the description given in the Master Plan. The

Regulations of 1992, therefore, did not permit establishing housing

schemes and the scope of construction was also restricted. The

Regulations of 1992 were amended vide notification, dated 08-12-2014

and for the first time development of small scale residential and

commercial buildings was allowed in sub Zone B. However, in the case

of sub Zone C, establishing housing schemes was explicitly restricted

to the 'public sector'. Even this amendment was pursuant to a

summary placed before the Federal Cabinet, which was based on the

contemptuously misleading impression of the directions given by the

august Supreme Court in the case of Suo Moto 10 of 2010. As already

noted, the apex Court was not properly assisted and, rather, the nature

of Zone IV described in the Master Plan appears to have been

concealed. The Authority, for reasons best known to it, preferred not

to file a review even if it had doubts because of its statutory duty to

protect the Master Plan. The august Supreme Court could by no stretch

of the imagination have directed the Authority to change the green

character of Zone IV or to amend the Regulations of 1992 in derogation

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and disregard to the enforced laws for protection against

environmental degradation, such as the Act of 1997 and the

rules/regulations made there under. The Housing Scheme falls within

sub Zone B of Zone IV. According to the amended regulations the sub

zone was confined to planning and development of “small scale

residential and commercial buildings'' and that 'the unutilized patches

of land within this sub zone shall be utilized for residential schemes'.

The language of the amended clause was vague and, unlike sub Zone

C, the expression of public or private housing scheme was not used.

Moreover, it has been reported that the topography of the land where

the Company intended to establish the Housing Scheme consisted of

landscape that included hillocks and forest area. It has been further

alleged that the Company, in violation of the Ordinance of 1966 and

the rules made there under, illegally bulldozed the hillocks and forest

area and thus committed the criminal offences prescribed therein

because the activities had injuriously affected the landscape. It is

surprising that the Authority had approved the lay out plan in 2013

when no private housing scheme could be planned and developed in

Zone IV. The Authority approved the lay out plan of a purported private

housing scheme and not a residential scheme. There is obviously a

distinction between these two expressions.

36. It is further astonishing to note that the Board of the

Authority had approved the summary proposing issuance of the No

Objection Certificate in its meeting held on 17-04-2014 and, pursuant

thereto, it was issued on 02-05-2014. At the time of approval and grant

of the No Objection Certificate no housing scheme could be planned or

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developed in Zone IV. The Regulations of 1992 were amended vide

notification 08-12-2014 and that too allowed planning and

development of a restricted residential scheme in sub Zone B but not

a 'private or public housing scheme'. The terms and conditions were

explicitly mentioned in the No Objection Certificate. Clause xix

explicitly provided that 'the area of the Housing Scheme shall be

demarcated on ground within one month'. The Deputy Commissioner,

in his report submitted during these proceedings, has unambiguously

mentioned that the allegations of land grabbing against the Company

were due to the reason that it had failed to get its land demarcated.

Clause xxiii provided that possession of plots in the scheme shall not

be handed over by the Company till the entire scheme is fully

developed and a completion certificate has been obtained from the

Authority. Clause xxv made it mandatory for the Company to submit

building plans along with structural plans to the Authority for approval.

Clause xxviii explicitly provided that violation of the terms and

conditions will make the No Objection Certificate liable to cancellation.

It appears that the Authority and its officials either did not visit the

location or were complacent. The State and its functionaries appear to

have remained dormant while the landscape in an environmentally

sensitive area, described in the Master Plan, was being mercilessly and

injuriously damaged. The No Objection Certificate was also illegal and

void because when it was issued the Regulations of 1992 did not permit

planning or developing of a private housing scheme in Zone IV and

consequently the Authority and the Board had no power or jurisdiction

to allow destruction of the Master Plan. The Authority, however, on a

different ground cancelled the No Objection Certificate in 2016. As

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noted above, the cancellation was challenged before this Court and the

petition was dismissed vide the Park View Judgment.

37. The observations recorded by this Court in the Park View

Judgment have been reproduced above. They are an obvious

manifestation of the abysmal status of rule law within the 1400 sq mile

area of the Capital and the failure of the State and its functionaries to

fulfill constitutional and statutory obligations and duties. The

contumacious conduct of the Company and its lack of respect for the

enforced laws and disrespect of the authority of the State and its

institutions need no further elaboration. It is a testament to the fact

that some are treated above the law while the Authority and public

functionaries look the other way even in case of the most horrendous

forms of violations of law, having consequences for the citizens and the

rights and interests of future generations. The Company preferred not

to pursue its appeal and, therefore, it was dismissed by a learned

Division Bench of this Court. The learned Division Bench had neither

adjudicated the appeal nor were any directions given to the Authority

regarding the purported proposal. As already noted, a summary, dated

24-04-2018 was placed before the Board for approval of grant of a No

Objection Certificate. Regrettably, a wrong impression was given as if

the Division Bench of this Court had endorsed the proposal and its

legality. The summary, in fact, was maneuvered in such a manner that

it proposed overcoming a crucial impediment in the grant of a No

Objection Certificate by allowing acquired land to be used as a tool so

that a private profit making entity could benefit and enrich itself

commercially. Land that vested in the State and belonged to its people

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W.P. No. 3877 of 2019.

was being offered to be used for private gains. The summary did not

point out the gross violations by the Company of the terms and

conditions described in the earlier No Objection Certificate. The

summary, prepared by an official stated to be a town planner,

concealed the fact that the access road was through land which was

already acquired by the Authority and thus vested in the State. The

acquired land was to be developed and planned in accordance with the

Scheme prepared under the Ordinance of 1960. By offering acquired

land the Authority was frustrating any planning and development in

the future and thus compromising or rather violating the interests of

the public at large. Reference to another approval given in the past in

favour of another private developer was also misleading because an

illegality committed earlier could not have justified another violation of

the law. The summary was not only misleading but an abuse of

authority. It was ironically a treacherous display of bending over

backwards to benefit a private profit earning entity at the cost of public

interest. The summary also concealed the nature of the landscape of

the location and its illegal injurious damage. The Board, also in

demonstrably condemnable breach of its statutory duty, gave its

approval in its meeting held on 09-05-2018. The official who had

prepared the summary and members of the Board who had given

approval in a perfunctory manner had demonstrably acted as though

they were entrusted with the duty of protecting private commercial

interests rather than guarding public land and interests and rights of

the public at large. It was a classic case of abuse of authority for

commercial profitable interests of private persons. The acquired land

could solely be used in accordance with a Scheme prepared under

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sections 12, 13 and 14 of the Ordinance of 1960. It could not have

been used, directly or indirectly, as a tool to benefit a private profit

making entity to enrich itself. The Authority and the Board had

breached its fiduciary duty by failing to protect land that belonged to

the people at large and could only have been used to their advantage.

It was confirmed during these proceedings that the illegally

constructed road on acquired land had led to massive violations of

fundamental rights of citizens. Their right of way were illegally blocked

and there were grievances of forcible evictions. All public functionaries

remained silent spectators. The land has been acquired but owners

continue to be in possession because the Authority has failed to

complete the process of acquisition of built up properties. The

grievances of the petitioners in WP No. 4252/2019 and their challenge

to the issuance of the No Objection Certificate stem from allowing the

Company to benefit commercially on the basis of its activities on

acquired land. The acquired land was a trust of the people at large in

the hands of the Authority and its Board. They owed a fiduciary duty

towards the people to solely use it in accordance with the scheme of

the Ordinance of 1960 and the regulations made there under. By

allowing it to be used as a tool to extend an extraordinary benefit to

an already contumacious profit earning entity, the Authority and the

Board had not only breached its fiduciary duty but had abused the

authority vested in it, which could only have been exercised to protect

the rights and interests of the public at large. The summary dated 24-

04-2018 and the approval of the Board, dated 09-05-2018, were in

violation of the scheme and provisions of the Ordinance of 1960 and

the regulations made there under. By offering and using the acquired

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land vesting in the State as a tool to commercially benefit a private

profit making entity, the Authority and its Board had violated the

constitutionally guaranteed rights of the public at large. Public

property, in this case the acquired land, could not have formed the

means for extending commercial benefits. The No Objection Certificate

purportedly issued in favour of the Company was an outcome of abuse

of authority and was illegal and void, having been granted without

lawful authority and jurisdiction.

38. As if the above inconceivable travesty of enforced laws and

public interest was not enough, there were allegations against the

Company of massive land grabbing, dispossessing citizens, blocking

rights of way etc. The reports submitted by the Deputy Commissioner

and the Assistant Commissioner are indeed an eye opener. They speak

volumes for the state of governance within the 1400 sq mile area of

the Capital. The Company attempted to silence the aggrieved and

affected persons during these proceedings and the petitioner, in WP

No. 3877/2019, placed on record an affidavit executed amongst others

by the CEO of the Company. The said affidavit is an admission of the

illegalities committed by the Company and confirmed the complaint of

the petitioner who had failed in drawing the attention of the public

functionaries till he invoked the constitutional jurisdiction of this Court.

The Deputy Commissioner, in his report, has acknowledged the failure

of the State and deplorable status of governance by highlighting the

reasons that had created an enabling environment for the powerful and

resourceful elite to usurp and violate the constitutionally guaranteed

rights of those who are termed as 'ordinary citizens'. The Deputy

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Commissioner, in his report, attributed the land grabbing acts to failure

on the part of the Company to demarcate its land. Demarcation of land

was a mandatory condition of the No Objection Certificates issued in

2014 and then in 2018. Failure to fulfill the condition made the NOCs

liable to cancellation. The affected citizens appeared to be helpless

because the public functionaries were not responsive. It appears that

the public functionaries, through inaction or otherwise, were facilitating

the Company rather than protecting the 'ordinary citizens'. The police

and revenue officials preferred to let the citizens suffer. There was

another startling revelation in the report submitted by the Assistant

Commissioner that allegedly there were private persons acting as

facilitators for the Federal Investigation Agency in pursuit of its real

estate business. It is an undeniable fact that most of the public bodies,

departments and even Ministries are, directly and indirectly, involved

in real estate business. Most of the criminal complaints in the un

acquired areas are in relation to property rights. The widespread

phenomenon of land grabbing and illegal usurpation of property rights

in the revenue estates of the 1400 sq mile area of the Capital is a

reality. The victims are innocent citizens, many living outside the

Capital, including overseas Pakistanis. Those who have been entrusted

with the duty by the State to serve and protect the rights of the people

have themselves become usurpers of their rights. It is a prime example

of conflict of interest. In case of the Company, the Authority, by

refusing to ignore the condition of demarcation of land by the Company

and the revenue officials, through inaction or complacency, facilitated

the violation of property rights of those who are referred to as 'common

or ordinary citizens'. Neither the Deputy Commissioner nor the

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Assistant Commissioner can take the plea that necessary action was

not taken in the past and thus enabling conditions have been created

for gross violations of property rights and the widespread phenomenon

of land grabbing and breach of property rights. Revenue officials are

present in every revenue estate and it is their duty to ensure that

property rights are not violated. Nonetheless, the phenomenon of land

grabbing and breach of property rights in the un acquired land of the

Islamabad Capital Territory is inconceivable without the complacency

of the revenue and police officials. It is heartening to note that the

Deputy Commissioner in his written report has described the measures

which are proposed to be taken as part of reforming the system. This,

however, does not absolve the State and its functionaries of the

fiduciary duty they owe to every citizen i.e to protect their

constitutionally guaranteed rights.

39. The other crucial factor involved in these proceedings is

the merciless destruction of the Master Plan to facilitate and

commercially benefit the elite and real estate developers. Zone IV was

to maintain its green character and the Master Plan described it as a

'National Park' and semi rural areas. Its description in the Master Plan

has been reproduced above. The unregulated illegal construction could

not have taken place if the Authority had fulfilled its statutory

obligations under the Ordinance of 1960 and the regulations made

there under. The summaries and decisions of the various forms brought

on record also shows disregard for the enforced laws promulgated to

protect the environment and to guard against its degradation. The Act

of 1997 appears to have been kept confined to the statute books. The

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W.P. No. 3877 of 2019.

Agency also does not appear to have performed its functions as an

independent professional body established to scrupulously guard

against any attempt likely to cause environmental degradation and

harm. The august Supreme Court, in the case of Suo Moto 10/2010,

had not directed either the Authority or the Federal Government to

change the Master Plan by derogation from the strict compliance of the

Act of 1997. The Agency also seemed to have looked the other way.

The impact of ignoring or violating environmental concerns is profound.

It is an undeniable fact that unregulated human activities in violation

of the Master Plan have irretrievable consequences. Pakistan is ranked

amongst the ten countries of the world to be most vulnerable to the

life threatening consequences of climate change. Experts have

classified Pakistan as a prime target of global warming. The manner in

which the Master Plan has been dealt with, particularly the irretrievable

damage caused to the green character of Zone IV described in the

Master Plan, is unforgivable. This Court, reposing trust and confidence

in the Special Assistant to the Prime Minister on Climate Change, had

asked him to visit the location along with the Secretary, Ministry of

Climate Change to assess the damage. This Court had high

expectations but the report appears to be a formality. The Agency also

submitted a report and it was no more than a bureaucratic attempt to

comply with the direction of this Court. The enormity of the

environmental catastrophe ought to have caught their attention but it

did not. Both the reports acknowledge that the Company had

encroached land belonging to the Zoological Survey Department under

the Ministry of Climate Change but it appears that it was not of much

concern because an expected response was not visible. It appears that

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accountability of those who cause irretrievable damage to landscape

and environmental degradation is not a priority. This Court had

expectations because of the commitment of the Prime Minister and his

cabinet members to protect the environment. It was a classic case to

thoroughly investigate the matter and identify the persons responsible

and then to put the law into motion by making them an example of

accountability. The fundamental right of every citizen under Article 9

i.e. right to life has been violated, including the rights and interests of

the future generations. The impunity enjoyed by those who cause

damage to the environment and thus expose the citizens and future

generations to harm is intolerable in a society governed under the

Constitution.

40. It has been consistently observed and the same is the case

in the petitions in hand that the Authority and public functionaries allow

glaring violations of the law by looking the other way and once the

damage has been done then resort is made to the policy of

regularization of the illegalities and blatant abuses of the law. This

phenomenon has become so common that it seems to have assumed

the status of a norm. 'Regularization' means condoning serious

illegalities and abuse of enforced statutes and that too for a negligible

fine. This phenomenon without doubt has been the pivotal factor for

erosion of the rule of law in the Capital of the country. It is virtually a

reward for causing irretrievable damage to the Master Plan, the

constitutionally guaranteed rights of other citizens and destruction of

the environment. 'Regularization' or condoning gross violations of and

disregard for the law is akin to invoking the doctrine of the law of

necessity. It encourages the unscrupulous and condemns the law

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abiding citizens. When it is no more a rare exception but becomes a

norm then it leads to chaos and anarchy and thus the rule of law is

eroded. The foundational principle for upholding the rule of law is

accountability. Accountability is not merely restricted to the public

functionaries alone. The citizen who takes the risk of violating the law

is not immune because every person is presumed and ought to know

the law. For reasons best known to the authorities, the phenomenon

of condoning the illegalities has mostly been for the benefit of the

privileged and the elite. It becomes an ironic dilemma for a court

vested with constitutional jurisdiction when an 'ordinary citizen'

invokes its powers complaining that he or she, as the case may be, has

been treated differently. Condoning illegalities is an antithesis of the

rule of law. The phenomenon of rewarding illegalities in the garb of

'regularization' must end if rule of law has to be restored. It is noted

that the creation of interests of bonafide purchasers is used as a ground

for the condoning of gross illegalities. In the case in hand several

applications were filed by persons claiming to be innocent bonafide

purchasers and thus supporting the case of the Company. Can they be

treated as bonafide purchasers and thus made a reason for condoning

the gross illegalities and abuse of authority and law by the Company

and the Board of the Authority? The answer is an emphatic NO. As

already pointed out, the purported No Objection Certificate explicitly

barred the Company from giving possession of plots till the scheme

was completed and the completion certificate had been issued. No

construction could have commenced without obtaining permission and

approval under the Ordinance of 1960 and the regulations. No legal

right had accrued in favour of the purchasers to claim condoning of the

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gross illegalities by the Company and the Authority as has already been

discussed at great length. Who would pay for the incalculable loss to

other law abiding citizens and the future generations? Should the

Company and the Authority enjoy immunity from being made

accountable merely because a few citizens, without exercising due

diligence, had taken a risk? The obvious consequence of the continued

practice and the phenomenon of condoning gross illegalities is evident

from the contumacious conduct of the Company and its lack of respect

for the law. This mindset is manifest from the observations of this Court

recorded in the Park View Judgment and relevant portions have been

reproduced above. The said judgment attained finality after the appeal

was dismissed. The confidence of the Company of being immune from

accountability is evident from the fact that it did not pursue any remedy

to expunge the damning observations regarding its conduct in a judicial

verdict. This is the obvious effect of the phenomenon of condoning

illegalities in the garb of the oft applied policy of regularization. If rule

of law is to be restored and constitutionally guaranteed rights of the

citizens are to be protected then the practice of condoning gross

violations of the law have to end. There must be a policy of zero

tolerance for violations of the law and strict accountability of those who

opt to jeopardize the constitutionally guaranteed rights of the law

abiding citizens. The applicants who claim to be bonafide purchasers

have no legal right to claim immunity for the gross violations and abuse

of law committed by the Company and the Authority. The Authority

and the Federal Government ought to demonstrably show a will to

make the case in hand an example of restoring rule of law and making

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W.P. No. 3877 of 2019.

all those accountable who were responsible for abuse and violation of

law.

41. Lastly, the learned counsel for the Company has laid great

stress on the fact that this Court is not vested with suo moto powers.

There is no cavil to the proposition that suo moto powers cannot be

exercised by a High Court under Article 199 of the Constitution. The

facts and description of the grievances raised by petitioners and

brought before this Court through various applications have been

discussed above. The adjudication through this petition has been in the

context of the grievances raised in the petitions. In one petition the

petitioners had explicitly questioned the issuance of the No Objection

Certificate. It is settled law that even the prayer can be molded by a

Court while exercising constitutional jurisdiction. This Court is vested

with extra ordinary jurisdiction under Article 199 of the Constitution to

prevent arbitrariness, enforcement of fundamental rights and to

exercise powers in the larger public interest. The adjudication of the

petitions was on the basis of the material and pleadings placed on

record by the parties. The Company, in its written comments, had itself

attempted to justify the legality of its Housing Scheme and had also

attached copies of documents referred to in this judgment. The

grievances of the petitioners were regarding gross violations of

constitutionally guaranteed rights, failure of the State and its

institutions to protect them. The grievances were affirmed during the

proceedings. Moreover, the most disturbing grievance was absence of

rule of law and treating the Company as being above the law. Was this

Court bereft of jurisdiction to exercise its constitutional jurisdiction of

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W.P. No. 3877 of 2019.

judicial review in such extraordinary facts and circumstances as have

been discussed above? The answer is definitely in the negative. The

argument that this Court has exercised suo moto powers is obviously

misconceived. There is also no force in the argument of the learned

counsel for the Company that it was mandatory for this Court to have

dismissed WP No. 3877/2019 because the petitioner had filed an

application seeking withdrawal. It was not an application for withdrawal

simpliciter. The affidavit attached therewith was an affirmation of the

grievances and redressal thereof by the Company. It had confirmed

the serious violations of fundamental rights by the Company and abuse

of the law. It lent support to the grievances raised by other petitioners.

42. The facts and circumstances highlighted in this case are a

manifestation of a deep rooted corrupted governance system that fails

to protect the constitutionally guaranteed rights of the citizens and

treats some as being above the law. This has obviously not happened

overnight but is a consequence of bad governance and absence of rule

of law during the past many decades. But nothing can justify the

unimaginable plight of those who are treated as 'ordinary citizens'

because the 1400 square mile area of the Capital of Pakistan is

controlled by the Federal Government. Lawlessness or violation of

fundamental rights ought to be intolerable in the Capital of Pakistan.

The Federal Government has a crucial statutory role, which has been

expressly described under section 5 of the Ordinance of 1960. The case

in hand is a challenge for the Federal Government to restore the

confidence of the people by demonstrably showing its political will to

reestablish the rule of law. It should be taken as an opportunity to

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W.P. No. 3877 of 2019.

assure the citizens that everyone is entitled to equal treatment and

that it is the obligation of the State to protect their constitutionally

guaranteed rights regardless of rank or social status. Irretrievable

damage has already been done but it must now come to an end.

Anyone who violates or disregards the law should not only be held

accountable but made an example, so that rule of law is restored. The

perception of elite capture and the culture of treating the less privileged

as 'ordinary citizens' is definitely alien to a society that is governed

under a Constitution. This Court reposes its confidence in the Federal

Government i.e. the Prime Minster and the members of his cabinet.

This Court has no reason to doubt that they lack the will or commitment

in making this case an example for bringing a demonstrable change in

the paradigm of a deeply corrupted governance system prevalent in

the 1400 square mile area of the Capital of Pakistan.

43. In the light of the above discussion, it is declared and

directed as follows:

(a) Land acquired under the Ordinance of 1960 vests

in the State and it cannot be used, directly or indirectly,

in violation of the scheme and provisions thereof. The

planning and development of acquired land is subject

to and confined to the Scheme prepared under sections

12, 13 and 14 ibid. Its use, directly or indirectly, for the

benefit of a private profit making entity or person is

contrary to public interest and policy, violation of

constitutionally guaranteed rights of the public at large

and thus without lawful authority and jurisdiction. Such

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use of acquired land is misuse of authority and is in

breach of the fiduciary duty of the Authority as a trustee

on behalf of the people of Pakistan.

(b) The use of acquired land by the Board of the

Authority to facilitate and benefit the Company, in

pursuit of its commercial interests, was an illegal

misuse of authority in violation of the scheme and

provisions of the Ordinance of 1960 and the Regulations

of 1992. The acquired land could not have been used

as a tool to overcome the condition precedent for

obtaining the No Objection Certificate. The No Objection

Certificate was thus illegal, void and issued without

lawful authority and jurisdiction.

(c) The acts of the Company regarding the acquired

land were and continue to be illegal, void and in

violation of fundamental rights of public at large and in

breach of public interest.

(d) The Authority and the Chief Commissioner,

Islamabad Capital Territory are directed to forthwith

remove all the obstructions or any other construction

attributed to the Company on the acquired land.

(e) The Authority shall forthwith resume the land so

far developed by the Company under regulation 22 of

the Revised Modalities and Procedure, 2020. The

Company is not capable of completing the Housing

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Scheme till it has fulfilled all the conditions required for

becoming eligible to obtain a No Objection Certificate.

(f) The Board of the Authority shall take appropriate

decisions regarding the Housing Scheme in accordance

with the provisions of the Ordinance of 1960 and the

regulations made there under, inter alia, having regard

to the enforced laws which guard against environmental

degradation.

(g) The Chief Commissioner shall, forthwith, ensure

that the land of the Housing Scheme is demarcated and

all the complaints regarding land grabbing, obstructing

rights of way and other property rights of the citizens

are attended to and resolved in accordance with the

law.

(h) The Deputy Commissioner shall put in place an

effective mechanism to redress the complaints of

citizens affected by the illegal activities and actions of

the Company or those acting on its behalf.

(i) The Deputy Commissioner shall ensure that

urgent measures are taken to prevent the phenomenon

of land grabbing and other violations of property rights

in the un acquired land, inter alia, in the light of the

report submitted before this Court.

(j) The Authority and the Deputy Commissioner will

initiate a process of demarcating the acquired land that

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W.P. No. 3877 of 2019.

vests in the State. They shall retrieve any such land

which may be either in the illegal possession of the

Company or any other private person.

(k) The Secretary, Ministry of Interior, Chief

Commissioner and the Inspector General will be

responsible, jointly and severally, if the phenomenon of

land grabbing and illegal dispossession continues within

the 1400 square mile area of the Islamabad Capital

Territory.

(l) The Secretary, Ministry of Interior shall place

copies of this judgment before the Federal Cabinet i.e.

the worthy Prime Minster of Pakistan and the members

of the Cabinet. It is expected that the Federal

Government would take appropriate decisions

regarding initiating a probe relating to the gross

illegalities committed in the case in hand and make it

an example for restoring rule of law within 1400 square

mile area of the Capital of Pakistan. It is expected that

exemplary accountability will be ensured of those who

have caused irretrievable damage and violated the

constitutionally guaranteed rights of the citizens.

(m) The Federal Cabinet is expected to take

appropriate decisions for making the Environmental

Protection Agency an effective and independent

statutory regulator for environmental protection under

the Act of 1997. Accountability is a foundational

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W.P. No. 3877 of 2019.

principle of rule of law and good governance, including

governance of natural resources, to prevent adverse

environmental impact and abuse of power. The Federal

Cabinet is, therefore, expected to set the wheel of law

in motion to fulfill the crucial requirements for the

actors to accept responsibility and be accountable for

their actions.

(n) The Federal Cabinet is expected to direct the

Authority to strictly abide by the laws enforced for

guarding against environmental degradation and to

prevent further harm to the environment, which

violates the right to life of the citizens.

(o) The Secretary, Ministry of Interior, Chief

Commissioner and Deputy Commissioner are directed

to submit a joint report within one month before the

Registrar of this Court regarding compliance with the

above directions.

44. The petitions are allowed and disposed of in the above

terms.

(CHIEF JUSTICE)

Announced in open Court on 07.12.2020.

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(CHIEF JUSTICE)

Approved for reporting.

Tanveer Ahmed/*

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W.P. No. 3877 of 2019.

ANNESURE-A

1. W.P.No.3877/2019 Farhan Mustafa v. The State and others.

2. W.P.No.4252/2019 Ahmed Shah Bukhari and others v. The Chairman, CDA and others.

3. W.P.No.2187/2020 Ahmed Mukhtar and others v. SHO, P.S. Banni Gala, etc.

4. W.P.No.2188/2020 Mehmood Ahmed and another v. SHO, P.S.

Bani Gala, etc.

5. W.P.No.2189/2020 AamirAftab v. SHO, P.S. Bani Gala, etc.

6. W.P.No.2190/2020 Farhan Tahir v. SHO, P.S. Bani Gala, etc.

7. W.P.No.2191/2020 Muhammad Shamim v. SHO, P.S. Bani Gala, etc.

8. W.P.No.2192/2020 Zarafat Khan and others v. SHO, P.S. Bani Gala, etc.

9. W.P.No.2193/2020 IrumAhtasham v. SHO, P.S. Bani Gala, etc.

10. W.P.No.2361/2020 Muhammad Israr v. SHO, P.S. Bani Gala, etc.

11. W.P.No.2362/2020 Iftikhar Ali v. SHO, P.S. Bani Gala, etc.