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Petitioner: Prof. Zahid Baig Mirza VS Respondent: Capital Development Authority through Chairman JUDGMENT
Court Name: Islamabad High Court Judge(s): Athar Minallah (C.J) Title:Prof. Zahid Baig Mirza vs Capital Development Authority through Chairman
JUDGMENT
Reported As: 2023 [M] CLR 8, PLD 2022 Islamabad 398 Result: Petition allowed Judgment JUDGMENT ATHAR MINALLAH, CJ. Imagine the planet without ecosystem services and the habitats created by nature; it would inevitably lead to the extinction of fauna and flora and thus the destruction of biodiversity. The erosion of biodiversity and ecosystem services undoubtedly have profound consequences for the survival of the human species on the planet. The extinction of the human species from the planet is no more a myth nor, a fiction. With superior intellect and the ability to change the balance created by nature, the human species has, through its reckless activities, already caused irretrievable harm to the flora and fauna which ensures its own existence on this planet. The questions raised in the petitions in hand manifest the willful and brazen disregard and abuse of the enforced laws by the very authorities and institutions created to protect the rights of the citizens through the implementation of enforced enactments promulgated by the legislature. Even otherwise the State has an inherent duty to have a proactive role in protecting living species because the right to life guaranteed under Article 9 is dependent on it. The beneficiaries are a few while victims of environmental degradation and destruction of natural habitats and ecosystems are the people, rather the human species. The violators are not the ordinary citizens but institutions and public functionaries who exist solely to serve the actual stakeholders i.e. the people and to safeguard their rights. The complacency of State institutions in environmental degradation and their willful disregard for the enforced laws has been obvious during these proceedings, while accountability seems to be alien in the system of governance practiced within the 1400 square miles of the Islamabad Capital Territory, the capital of the country. The petitions in hand and the proceedings relating thereto are symbolic and manifest the role of State institutions in
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undermining the rule of law and refusing to protect the assets which belong to the people. The fundamental question raised in these petitions is regarding the failure to implement the laws which have been promulgated to protect, preserve and manage the Margalla Hills National Park (hereinafter referred to as the "National Park"), more particularly the Margalla Hills Reserve Forest (hereinafter referred to as the "Margalla Hills"). The proceedings before the Court were indeed disturbing because they have established a lack of political will to protect the rights of the citizens by allowing the destruction of Margalla Hills and thus irretrievably harming the native flora and fauna. The neglect or willful disregard of institutions and public functionaries to perform their fundamental duty to implement the enforced laws and prevent their violation and abuse has already caused irretrievable damage to the natural habitats, ecosystem services and the biodiversity. This definitely has grave consequences in the context of environmental degradation and the challenges faced by humanity on account of the threatening consequences of climate change. The right to life guaranteed under Article 9 of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the "Constitution") flagrantly stands violated. The victims are the citizens but, more importantly, the future generations as well. 2. Professor Zahid Baig Mirza, has enviable and distinguished antecedents in the field of protecting biodiversity, habitats and ecosystem services. His monumental research work in the realm of the native flora and fauna of the Margalla Hils has been acknowledged not only at the national level but internationally as well. His passion and commitment to ensure preservation, protection and conservation of the native flora, fauna and the environment had led him to invoke the jurisdiction of this Court under Article 199 of the Constitution, seeking a direction to the State organs/institutions to fulfill their obligations/duties to enforce the promulgated laws intended to preserve, protect and conserve the flora and fauna of the Margalla Hills and to refrain from causing environmental degradation in the National Park in general and the Margalla Hills in particular. In the connected petitions the petitioners have raised similar questions. The Court, vide order dated 20-02-2015, passed in the connected petition, W.P. No.1276/2011, had constituted a Commission to inquire into the status of the implementation of the enforced laws and to recommend measures to save the environment from further degradation. The order, whereby the Commission had been constituted, was assailed by the Capital Development Authority (hereinafter referred to as the "CDA") before the august Supreme Court in Civil Petition No.820/2015. However, the apex Court upheld the direction of this Court as is evident from the order, dated 25-09-2017. Likewise, Civil Petition No.821/2015 was dismissed vide order, dated 09-06-2015, by the august Supreme Court. The constitution of the Commission was, therefore, not interfered with by the august Supreme Court. The commendable work of the Commission and its monumental report will be discussed in more detail later. The Commission had, inter alia, identified the status of the enforced laws and the illegal violations and encroachments made in the Margalla Hills, which included food outlets such as Monal restaurant (hereinafter referred to as "Monal") and other commercial ventures. The Environmental Protection Agency (hereinafter referred to as the "EPA") had also informed the Court that the constructions were made, and they continue to cause environmental degradation in violation of the Pakistan Environmental Protection Agency Act, 1997 (hereinafter referred to as the "EPA Act"). The Director General EPA had appeared and informed that proceedings were initiated against Monal and other food outlets. She had further informed that Monal had been sealed for causing serious damage to the environment and the Margalla Hills but the owner and management, by taking the law into their own hands, had illegally removed the seals. She has further informed that proceedings against all other food outlets have been initiated. While these proceedings were pending, the Monal Group of Companies (hereinafter referred to as the "Monal Companies") filed F.A.O. No.111/2021 and C.R. No.13/2021. It is noted that the latter is not a juridical person but a sole proprietorship engaged in operating and managing the Monal, which is situated
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in the protected forest area of the Margalla Hills. The case of Monal was, therefore, clubbed and heard with the titled petition and its case will be discussed in more detail later. In a nutshell, the case in hand is regarding the systematic destruction of the Margalla Hills solely on account of refusal on the part of the public functionaries and the institutions/authorities to respect and implement the enforced laws promulgated by the legislature. It is a case which manifests complacency or willful violations committed by powerful and influential institutions and public functionaries resulting in the undermining of the rule of law and abuse of the enforced laws. The dereliction of statutory duties, abuse of power and breach of fiduciary duty that public functionaries owe to the people is obvious and established. The questions, therefore, to be answered by, the Court are: the status of the Margalla Hills; the enforced laws promulgated for its management, conservation, protection and preservation and, lastly, their abuse thereof and the accountability of those involved in causing harm to the citizens and their guaranteed rights. 3. In order to appreciate the paramount questions of public importance, it would be beneficial to survey the background to and the scheme of laws promulgated and enforced within the Islamabad Capital Territory with the object to preserve, conserve, protect and manage the Margalla Hills. A larger Bench of this Court, in the judgment reported as "Shahzada Sikandar Ul Mulk and 4 others v. Capital Development Authority and 4 others" [PLD 2019 Islamabad 365], has elaborately discussed the scheme of legislation enforced in the Islamabad Capital Territory. The said judgment was later upheld by the august Supreme Court. However, for the purposes of adjudication of the petitions in hand, the scheme of legislation promulgated and enforced within the Islamabad Capital Territory is discussed as follows:- Legal Framework: (i) Background of the legislation: 4. 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 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-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
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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: 5. After extensive surveys and studies the sub-committees submitted their final reports. Dr. C. A Doxiadis and his consultant firm 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 honored 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". 6. 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.
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7. 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 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 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 National Park in the Master Plan: 8. 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:- "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
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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. 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 Rawallake 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. 952. At the Southern part of the National Park it is provided in the future to be constructed a second dam on the Kurangriver, 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 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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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 Ill was to be maintained as protected forest area to preserve, protect and manage the Margalla Hills and it will be discussed in more detail later. (iv) The Capital Development Authority Ordinance, 1960: 9.…
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