Full Judgment Text & Judicial Ruling

2018 C L C 1275 [Islamabad] Before Athar Minallah, J FARRUKH NAWAZ BHATTI---Petitioner Versus FEDERAL GOVERNMENT through Prime Minister of Pakistan and 3 others---Respondents W.P. No. 3481 of 2016, decided on 29th December, 2017. (a) Words and phrases--- ----"Conflict of interest"---Defined. [Case-law referred] (b) Administration of justice--- ----What cannot be done directly can also not be done indirectly. (c) Interpretation of statutes--- ----Reading in, principle of---Scope---High Court can neither add anything to the statute nor read into it something not provided therein. (d) Capital Development Authority Ordinance (XXIII of 1960)--- ----Preamble--- Establishment of Authority---Object, purpose and scope---Authority established under Capital Development Authority Ordinance, 1960 was intended by legislature to be an independent and autonomous regulatory authority to plan, develope and regulate all matters in connection with establishing capital of Pakistan. (e) Capital Development Authority Ordinance (XXIII of 1960)--- ----Ss. 6 & 8---Ex-officio Chairman, appointment of---Scope---Criteria and conditions prescribed under S. 6 read with S. 8 of Capital Development Authority Ordinance, 1960 left no ambiguity that neither can an ex-officio member be appointed nor can a person be directed to discharge functions of Chairman of Board on part-time basis in absence of exceptional circumstances. (f) Constitution of Pakistan--- ----Art. 199(1)(b)(ii)---Quo Warranto, writ of---Preconditions---For issuance of writ of Quo Warranto, firstly, an application has to be made by 'any' person, who need not to be aggrieved, secondly, person against whom a writ is being sought must be within territorial jurisdiction of High Court before which petition has been filed, thirdly, application must be in respect of requiring such a person to show that as to under what authority of law he claims to hold that office---Writ in the nature of Quo Warranto can only be issued if such conditions are fulfilled. (g) Capital Development Authority Ordinance (XXIII of 1960)--- ----Ss. 6 & 8---Islamabad Capital Territory Local Government Act (X of 2015), Ss. 2(z), 3 & 12---Constitution of Pakistan, Art. 199---Constitutional petition---Writ of Quo Warranto---Chairman of Capital Development Authority---Additional charge---Dispute was with regard to appointing Mayor of Metropolitan Corporation of Islamabad with additional charge as Chairman Capital Development Authority---Validity---Jurisdiction vested in High Court in respect of writ of Quo Warranto was inquisitorial in nature---High Court had to consider whether person who was holding a public office fulfilled necessary qualifications prescribed under relevant law and legal provisions relating to such appointment were not violated--- Jurisdiction vested in High Court was discretionary in nature therefore, it could be exercised in an appropriate case despite being satisfied that person who had brought matter might be having personal interest or his bona fide could appear to be suspect---Technicalities or minor irregularities could not render an appointment to public office as invalid---Appointment of Mayor of the Corporation was made in violation of S. 6 read with S. 8 of Capital Development Authority Ordinance, 1960 and settled law---Positions of member and Chairman of Board of Capital Development Authority fell within ambit of expression 'public office'---High Court declared both notifications in question ultra vires, illegal, without lawful authority and jurisdiction and set aside same having been issued in violation of provisions of Capital Development Authority Ordinance, 1960--- Constitutional petition was allowed in circumstances. [Case-law referred] G.M. Chaudhry, Advocate Supreme Court, Raja Muhammad Shafaqat Khan Abbasi, Advocate Supreme Court, Husnain Ibrahim Kazmi, Advocate Supreme Court and Ch. Shafiq Ur Rehman, Advocate Supreme Court for Petitioner. Afnan Karim Kundi, Additional Attorney-General, Kh. Muhammad Imtiaz, Assistant Attorney-General, Kashif Ali Malik, Advocate Supreme Court, Tariq Mehmood Jehangiri, Advocate Supreme Court and Muhammad Nazir Jawad, Advocate Supreme Court for Respondents. Date of hearing: 22nd September, 2017. JUDGMENT ATHAR MINALLAH, J.---Through this consolidated judgment, I shall decide the instant petition and the petitions which are listed in Annexure-A attached hereto. 2. The petitioners have challenged the notifications whereby Sheikh Ansar Aziz, Mayor of the Metropolitan Corporation, Islamabad (hereinafter referred to as the 'respondent') has been given the additional charge of the office of Chairman of the Capital Development Authority on a part time basis after his ex officio appointment as a Member of the Board. The respondent was elected as the Mayor under the Islamabad Capital Territory Local Government Act, 2015 (hereinafter referred to as the 'Act of 2015'). The Federal Government, vide notification dated 06-09-2016, nominated the Mayor, Metropolitan Corporation Islamabad (hereinafter referred to as the 'Corporation') as ex-officio Member of the Board of the Capital Development Authority (hereinafter referred to as the 'Authority'). On the same date, i.e. 06-09-2016, through a separate notification, the Federal Government directed that Sheikh Ansar Aziz (i.e. the respondent), in his capacity as Member of the Board of the Authority, shall discharge additional functions of the Chairman, Capital Development Authority on a part time basis. The petitioners, therefore, have sought a writ in the nature of quo warranto requiring the respondent to legally justify and show under what authority of law he claims to hold the office of the Chairman of the Authority. 3. The gist of the arguments advanced by Mr. G.M. Chaudhry, Raja Mohammad Shafqat Abbasi, Husnain Ibrahim Kazmi and Ch. Shafiq-ur-Rehman, ASCs who appeared on behalf of the petitioners are; the doctrine of separation of power enshrined in the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the 'Constitution') requires the Executive and the Legislature to exercise powers within their respective spheres; the Act of 2015 is a distinct statute and that the respondent was elected as a Mayor thereunder; the respondent was elected as a Mayor and the said expression is defined under section 2(z) of the Act of 2015; the appointment of the respondent as Chairman of the Authority is in violation of section 3 of the Act of 2015; under section 12 of the Act of 2015, the office of Mayor has been declared as an elected office, whereas a Member of the Board of the Authority is appointed for a fixed term; the nomination of the Mayor by designation as a Member of the Board of the Authority is alien to section 6 of the Capital Development Authority Ordinance, 1960 (hereinafter referred to as the 'Ordinance of 1960'); there is no concept of nomination of ex-officio Member; the impugned notifications, dated 06-09-2016, are without lawful authority, void ab initio and illegal; the assignment of functions of the Chairman on part time basis is also alien to section 6 of the Ordinance of 1960; the respondent was Chief Executive Officer and shareholder of Messrs Anser Brothers (Pvt.) Ltd. (hereinafter referred to as the 'Company'); the respondent held 90% shares of the Company; the Company had a financial interest since it had participated in auction of commercial plots and also a contract was awarded in its favour by the Authority; the appointment, therefore, on account of conflict of interest was in violation of section 8(e) of the Ordinance of 1960. 4. The learned Additional Attorney General has argued that; the remedy under Article 199 of the Constitution can only be invoked against a person who holds or purports to hold a public office; the office of the Chairman of the Authority is not a public office; reliance has been placed on the case of 'Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Limited, Tokht Bhai and 10 others' [PLD 1975 SC 244]; the petitioners are required to establish their bona fides otherwise the extra ordinary relief by way of issuing a writ of quo warranto is not warranted; reliance has been placed on the case of 'Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others' [PLD 1969 SC 42]; a clear violation of law has to be shown and in this regard the petitioners have not been able to do so; reliance has been placed on the case of 'Muhammad Akhtar v. Syed Hassan Mujtaba Jaffri and 8 others' [2005 PLC (C.S.) 997]; under section 15 of the General Clauses Act, 1897, where a statue confers the power to appoint any person to fill any office then it would include the power to appoint ex-officio; reliance has been placed on the cases of 'Public Prosecutor (Andhra Pradesh) v. Narkidimilli Srirambhadrayya and others' [AIR 1960 AP 282], 'New India Insurance Co. Ltd. Bombay v. Smt. Molia Devi and others' [AIR 1969 MP 190]; 'Abdul Husain Tayabali and others v. The State of Gujarat and others' [AIR 1968 SC 432]; 'Farhat Abbas v. Muhammad Shah and 3 others' [1981 CLC 1855]. 5. Mr. Kashif Ali Malik, AHC, and Mr. Muhammad Nazir Jawad, ASC, appeared on behalf of the Authority. They have argued; the Federal Government is vested with power to appoint any person as a Member and then from amongst the Members a Chairman; no provision of law has been violated on account of appointing the respondent as Member and then Chairman; there is no bar under section 8 to appoint the Mayor of the Corporation as a Member and then Chairman of the Authority; the appointment of the respondent was inevitable for smooth transition of assets and employees from the Authority to the Corporation; the conduct of the petitioners does not entitle them to the relief which has been sought in the petitions; hitherto Members and Chairman have been appointed by the Federal Government from time to time; the petitioners have placed on record copies of notifications of the persons who were appointed as Members and Chairman from time to time. 6. Mr. Tariq Mehmood Jehangiri, ASC, appeared on behalf of the respondent and has vociferously argued that; the appointments of the latter is in accordance with the provision of the Ordinance of 1960; section 8 does not bar the respondent from being appointed; no financial interest of the respondent in any scheme is involved; the Company is not registered with the Authority; the respondent has transferred shares in the Company; the power to appoint a Member and from amongst them a Chairman exclusively vests in the Federal Government; the expression 'disqualification' mentioned in section 8(e) of the Ordinance of 1960 has to be construed as relating to a declaration in this regard by a competent Court; reliance has been placed on 'Arbab Imtiaz Khan v. Assim Jamil Zubedi and another' [2011 PLC (C.S.) 482], 'Makhdoom M. Niaz Inqlabi, Advocate and others v. Election Commission of Pakistan and others' [2013 CLC 714], 'Major (Retd.) Iqbal Ahmed Khan, Manager (Services), Karachi Pipe Mills v. Ghulam Akbar and others' [1984 PLC (C.S.) 347]. 7. The learned counsel for the parties and the learned Additional Attorney General have been heard and the record perused with their able assistance. 8. Admittedly, Sheikh Ansar Aziz (respondent) was elected as Mayor of the Metropolitan Corporation, Islamabad (hereinafter referred to as the "Corporation") under section 12 of the Act of 2015. The Federal Government, vide notification dated 06-09-2016, nominated the Mayor of the Corporation as ex-officio Member of the Authority. Through a separate notification issued on the same date i.e. 06-09-2016, the Federal Government directed that the respondent, in his capacity as Member of the Board of the Authority, shall discharge additional functions of the Chairman on a part time basis. Both the notifications have been issued, purportedly, in the exercise of powers conferred on the Federal Government under subsections (1) and (2) of section 6 of the Ordinance of 1960. The Authority has been established under the Ordinance of 1960 and section 6 ibid prescribes the manner, qualifications and conditions for the appointment of a Member of the Board of the Authority and subsequently from amongst the Members its Chairman. A plain reading of both the impugned notifications, dated 06-09-2016, would clearly show that neither the nomination of the Mayor as ex-officio Member of the Board nor the subsequent direction in respect of the respondent to discharge the additional functions of the Chairman are in the nature of making appointments on a permanent basis for a fixed term. It is noted that the notification issued by the Federal Government, directing that Sheikh Ansar Aziz shall 'discharge additional functions of Chairman CDA on part time basis until further order', can by no stretch of the imagination be construed as an appointment of the Chairman of the Board of the Authority as intended by the legislature in terms of section 6 of the Ordinance of 1960. As already noted, the appointments of a Member and the Chairman of the Board of the Authority are governed under the Ordinance of 1960. For adjudication of the instant petitions and examining the legality of the two impugned notifications, dated 06-09-2016, it is inevitable to survey the relevant provisions of the Ordinance of 1960. However, in order to appreciate the intent of the legislature in enacting the Ordinance of 1960, it would be beneficial to first briefly discuss the background which had led to its promulgation. 9. After the independence of Pakistan as a sovereign State, the first task was to search for the most suitable place which could be declared as the country's Capital. Initially it was proposed that the city of Karachi be declared as such. However, the master plan prepared in the year 1952 relating to the city of Karachi 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. The Commission constituted nine Sub-Committees, each consisting of experts from various fields to make recommendations. In February 1959, the President of Pakistan appointed a renowned architect and city planner of international repute, namely Dr. C. A. Doxiadis, as Advisor to the Special Commission for the location of the Capital (hereinafter referred to as the "Special Commission"). A preliminary report i.e. DOX-PA 88, was submitted by the Commission. In June 1959 the Special Commission submitted its report recommending that the city of Karachi was not a suitable site and instead two locations around Rawalpindi were proposed. In June 1959 the President of Pakistan publically announced his decision regarding the selection of one of the proposed locations for establishing the Capital of the Islamic Republic of Pakistan. 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 (hereinafter referred to as the "Federal Commission"). The renowned international firm for town planning, namely, Messrs Doxiadis Associates, was appointed as consultant to the Federal Commission. The latter constituted several sub committees of experts to carry out surveys and investigations for preparing a Master Plan for the approved area which was to be the Capital of Pakistan. 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 committees constituted by the Commission, a preliminary master programme and master plan was prepared and designed by the internationally renowned Greek architect, Dr. C. A. Doxiadis and his firm. On 24-05-1960 the first Cabinet meeting was held in Islamabad. On 01-06-1960 the Federal Commission was succeeded by the Capital Development Authority. In order to give effect to this succession and in order to establish the Authority, inter alia, for planning and development of the Capital of Pakistan i.e. Islamabad, the then President promulgated 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 promulgated and enforced. 10. After extensive surveys and studies, the sub-committees submitted their respective final reports. Dr. C. A Doxiadis, on the basis of the said surveys and final reports, submitted his 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 a detailed descriptive part of the Master Plan and programme for the development of the Capital. The report explicitly mentions the intent, object and purpose for establishing the Authority and for promulgating the Ordinance of 1960. This historic and internationally outstanding work was indeed a master piece of town planning. The vision of the founding planners of the Capital i.e. Islamabad, in the words of the report submitted by the Special Commission, is 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". 11. The object and purpose for which the Authority was established and its duties and obligations have been eloquently described by Dr. C. A Doxiadis in his final report and the relevant portions are reproduced as follows:- "1039. Capital Development Authority has now been created. The moment has come for certain thoughts on the responsibilities which Capital Development Authority will carry, to enable the realization of the development plan of the Metropolitan Area to be put on a correct basis. 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 will 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 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. 1048. Within the area of Islamabad Capital Development Authority will not only be the coordinating and planning authority, but also the executive authority. The same should be the case for the whole area of the National Park, so far as national institutions are concerned. No authority should be allowed to institute any work without referring to Capital Development Authority, which must itself have the opportunity of carrying it out should the project be considered important for the National Capital. On the other hand, Capital Development Authority may in exceptional cases authorize the interested authority to go ahead, though always within the framework of its own instructions. 1049. An exception can be made for the area of Rawalpindi. Here Capital Development Authority should prepare the Master Programme and Master Plan, as well as designing everything that has to be built by the Government, but may authorize the Municipal Authority or any special body within Rawalpindi to look after the implementation of these special plans.

1050. Similar arrangements will have to be worked out between Capital Development Authority and the authorities responsible for the Cantonment, in order to ensure that all proposed developments are agreed in principle by Capital Development Authority, although they will finally be designed and carried out by the Cantonment Authorities themselves. However, buildings of exceptional heights, for example store-houses or other military buildings, will not be permitted in places where they would spoil the landscape as conceived by Capital Development Authority for the whole Metropolitan Area. 1051. In conclusion we may say that the authority, as exercised by Capital Development Authority, will start in the broad framework of the whole region, for which a general control will exist. It will become more specific within the Metropolitan Area in order to control everything within it, and will finally turn into actual operating authority for Islamabad and the National Park areas. 1065.The ultimate responsibility for the setting up of an Ekistic Administration must of course rest with the Capital Development Authority itself, under whose aegis this new administrative organ must in due time be properly constituted and endowed with appropriate powers and overall mandate. 1075. It is imperative to create the master builder, the people who are going to be in charge of the overall city, from its conception to the implementation of every detail. There is a necessity for a conductor of the whole orchestra which is to create the symphony. He must be a strong conductor, for he will be responsible for everything within Islamabad. 1076. This leadership is provided by the Capital Development Authority. It should be made the strong Authority which is going to have full control of everything related to the conception and growth in the life of Islamabad and the Metropolitan Area. 1077. This Authority is in a position to have its own technical services and its own group of consultants who are to be in charge of all aspects of the development of Islamabad. 1078. The Capital Development Authority should also have one more task and one more authority assigned to it - to prepare the master builders who are going to take over as soon as possible the full leadership for the realization of the dream of an ideal city. These master builders can be the engineers, architects, planners, economists, social scientists and geographers who are going to acquire the knowledge of Ekistics, the science which will lead to a unified approach towards building a city and a human habitat. 12. The above is an explicit expression of the vision of the founder planners of the Capital of Pakistan and the intent, object and purpose for promulgating the Ordinance of 1960 in the words of the person who had the privilege of conceiving, planning and laying the foundations of building the new city of Islamabad. This historical background has a direct nexus with and is necessary to appreciate the intent of the legislature in enacting the Ordinance of 1960. I will, therefore, now advert to examining the relevant provisions of the Ordinance of 1960 in order to determine the legality of the impugned notifications, dated 06-09-2016. As already noted, the Ordinance of 1960 was promulgated and notified in the Official Gazette on 27-06-1960. The purpose and object mentioned in the preamble is to establish the Authority for making all arrangements for the planning and…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from Islamabad High Court
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant