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Petitioner: Farhan Mustafa VS Respondent: The State and others
Court Name: Islamabad High Court Judge(s): Athar Minallah Title: Farhan Mustafa vs The State and others Case No.: W.P. No. 3877 of 2019 Date of Judgment:2020-12-07 Reported As: 2020 IHC 174, 2022 YLR 1 Result: Petition allowed
JUDGMENT
JUDGMENT 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 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 have brought to the fore the abysmally disturbing role of the State and its appointed agents i.e. public
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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 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 irrele vant 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 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 violatin g 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 committe d 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 land nor the 'No
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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 place d on record copies of written complaints addressed to various authorities regarding illegal activities 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 dispensin g 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 remo ved 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 of governan ce 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 unim aginable violations of fundamental rights so as to illegally benefit and enrich a profit earning entity i.e. the Comp any. 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 accoun t 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 reside nts 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 appalling status of governance and the threat to
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constitutionally guaranteed rights. The assertions made in the petition further highli ghted 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 propert ies 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 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 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 conce rned 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 Commissione r (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 petition ers 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 Secre tary Ministry of Climate Change had jointly visited the area and had submitted a written report pursuant to the direction of this Court. Likewise, the
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Director General, Environmental Protectio n Agency of Pakistan [hereinafter referred to as the "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 mandato ry 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: 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 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 irretrie vable 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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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 objec tion certificate was restored by the C.D.A. The said warning was again issued by the Planning W ing 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…
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