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Petitioner: Dr. Aziz-Ur-Rehman and others VS Respondent: Federation of Pakistan through JUDGMENT
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:Dr. Aziz-Ur-Rehman and others vs Federation of Pakistan through
JUDGMENT
Reported As: PLJ 2023 Islamabad 179, PLD 2024 Islamabad 53, 2024 CLD 230 Result: Petition dismissed Judgment JUDGMENT Through this judgment, I propose to decide Writ Petitions No. 3916/2022, 4077/2022, 4371/2022, and 4543/2022 since they entail certain common features. 2. Through Writ Petition No. 3916/2022 the petitioners, Dr. Aziz-ur-Rehman and others, who are members of the teaching faculty of the Quaid-e-Azam University, Islamabad ("Q.A.U."), seek a declaration that the decision taken by the Capital Development Authority ("C.D.A.") regarding the construction of the Bhara Kahu Bypass Road ("B.K.B. Road"), only to the extent of the same passing through the land allotted to Q.A.U., is unlawful. The petitioners have also voiced their grievances against the steps being taken by C.D.A. pursuant to the decision taken in the 7th meeting of C.D.A. Board held on 17.06.2022 to allot to Q.A.U. alternate land measuring 225 kanals adjacent to the boundary of Q.A.U. in exchange for the land that is to be used for the construction of the B.K.B. Road. 3. Dr. Anwar Shah, the petitioner in Writ Petition No. 4077/2022, is an Associate Professor (Economics) at Q.A.U. and seeks a declaration to the effect that the land allotted to Q.A.U. for educational purposes could not be used for any other purpose including the construction of the 13.K.B. Road. He is also assailing the notification dated 14.10.2022 issued by the Ministry of Federal Education and Professional Training constituting the Joint Working Group mandated to conduct negotiations with C.D.A. on the Construction of the B.K.B. Road. 4. The petitioners in Writ Petition No. 4371/2022 are two members of the teaching faculty in Q.A.U. and have called in question the hearing conducted by the Pakistan Environmental Protection Agency ("P.E.P.A.") on 18.11.2022 and notice dated 18.10.2022 issued by P.E.PA. for the said hearing. FACTUAL BACKGROUND:-
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5. Doxiadis Associates-Consulting Engineers had prepared a Programme and Plan for Islamabad. As per the judgment in the case of Prof Zahid Baig Mirza vs. The C.D.A. (PLD 2022 Islamabad 398), the Programme and Plan sets out the Master Plan for Islamabad. It provides for educational and research institutions such as National University, National Research Institution, etc. to be built in the area designated as the National Park. It is not disputed that sometime in the 1960s the site of the National University was shifted from the area in the National Park south of Murree Road to its north where Q.A.U. is presently situated. 6. The University of Islamabad was established pursuant to the provisions of the University of Islamabad Act, 1973 enacted on 09.02.1973. This Act was amended by the University of Islamabad (Amendment) Act, 1976 enacted on 02.09.1976 by virtue of which the "University of Islamabad Act, 1973'-' was renamed as "Quaid-e-Azam University Act, 1973" ("Q.A.U. Act") and the "University of Islamabad" was renamed as the "Quaid-e-Azam University." 7. Section 3(3) provides that. Q.A.U. shall he a body corporate and shall have perpetual succession and a common seal, and shall by the said name sue and be sued, whereas Section 3(4) provides that the University shall be competent to acquire and hold property, both movable and immovable, and to lease, sell or otherwise transfer any movable or immovable property which may have become vested in or been acquired by it. 8. The letter dated 04.02.1976 from C.D.A. shows that possession of 1709 acres, 04 kanals and 12 marlas of land in villages Malpur, Jhang Bagial, Kot Hathial, and Noorpur Shahan had been handed over to the representatives of the University of Islamabad on 09.12.1967 and 30.06.1972. C.D.A. had demanded Rs. 39,57,577/-as premium and annual ground rent at the rate of Rs. 1 per acre with effect from the date of possession. After payment of the said amount, a transfer deed was to be prepared for which the stamp duty and registration fee were to be paid by the allottee. 9. Vide letter dated 15.12.1988, C.D.A. offered land measuring 1445.10 acres to be leased to Q.A.U. for a period of thirty-three years extendable to two subsequent terms of thirty-three years each for the construction of buildings for Q.A.U. This letter shows that an amount of Rs. 33,45,319.70 had already been paid to C.D.A. as premium. This letter also shows that the date of the allotment was 04.02.1976, and that Q.A.U. had to pay annual ground rent at the rate of Rs. 1 per acre in advance with effect from the date of the allotment. As per the contents of the said letter, "proper allotment containing detailed terms and conditions" was to be issued after handing over possession of the land. 10. Vide letter dated 30.01.1991, C.D.A. demanded payment of Rs. 10,80,774.32 for the 1709 acres, 04 kanals and 12 marlas of land possession whereof had already been taken over by Q.A.U. The receipt dated 13.05.1991 issued by the Estate Management Directorate of C.D.A. shows that Q.A.U. had deposited Rs. 10,80,774.32 with C.D.A. as the cost of the land. In C.D.A.'s letter dated 15.01.2019, it has been confirmed that Q.A.U. has made full payment for the 1709 acres, 04 kanals and 12 marlas of land to C.D.A., but the annual ground rent for the said land was still outstanding. 11. In the year 2012 an attempt was made by C.D.A. to construct a road on the land allotted to Q.A.U. On 09.01.2012, Q.A.U. had filed a two-page petition (Writ Petition No. 41/2012) seeking the issuance of a writ of prohibition to C:D.A. restraining it from constructing a road on the land allotted to Q.A.U. Vide order dated 07.06.2022, the said petition was disposed of as having been rendered infructuous. This Court recorded the submission of Q.A.U.'s counsel that he was under instructions not to press the petition as it had become infructuous. 12. It is an admitted position that unchecked, unsupervised, unplanned, and unregulated construction in the Village of Bhara Kahu has led to severe traffic congestion on Murree Road passing through the said village. It is also not disputed that the need for the construction of a road bypassing the said village is a matter of public need and interest. It was with this intended purpose
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that C.D.A. decided for the Margalla Road to be extended such that it not just connects with Murree Road through a junction but also to the B.K.B. Road. 13. A presentation on the alignment of Margalla Road (Phase-I and II) was made by the representatives of the Frontier Works Organization ("FWO") to C.D.A. Board in its 7th meeting held on 17.06.2022. Apparently, no summary had been presented before the Board on this matter. The minutes of the said meeting show that Margalla Road is 33 KM long from GT Road to Bhara Kahu. Its first Phase is from GT Road to Sector D-12 on which 70% of the work has been completed. In the said meeting, it was decided that 8 KM long B.K.B. Road will be constructed from Murree Road near QA.U. to Satra Meel. A stretch of 1.32 KM of this road was to pass through land c allotted to Q.A.U. The C.D.A. Board inter alia approved the exchange of land owned by C.D.A. with Q.A.U.'s land falling in the alignment of the B.K.B. Road. 14. Vide letter dated 22.09.2022, C.D.A. accepted the bid submitted by the National Logistics Cell ("N.L.C.") for the award of the contract for the design and construction of the B.K.B. Road for the contract price of Rs. 6,515,078,155/-. The letter of commencement was issued by C.D.A. on 05.10.2022. The 5.33 KM Bhara Kahu Bypass Project entails the construction of 4 KM Bhara Kahu Bypass Road signage/drainage; an underpass on Shah Dara Road; an underpass on Kayani Road; and 1.33 KM elevated highway with ramps. 15. Apparently, on 08.10.2022, a meeting between the officials of C.D.A. and Q.A.U. took place to resolve the issues arising from and relating to the construction of the B.K.B. Road including the issue of exchange of land between C.D.A. and Q.A.U. In its letter dated 08.10.2022, C.D.A. expressed its intention to allot 225 kanals of land in Mouza Malpur free from all encumbrances to Q.A.U. in exchange of Q.A.U.'s land falling under the B.K.B. Road. Q.A.U. was asked by C.D.A. to complete the necessary formalities for the exchange of land. 16. Vide letter dated 11.10.2022, C.D.A. offered to Q.A.U. 225 kanals of land adjacent to Q.A.U.'s eastern boundary. It was also offered that this land would be levelled through C.D.A.'s indigenous resources so that the same could be utilized by Q.A.U. as and when considered necessary. 17. An emergency meeting of Q.A.U.'s Syndicate was called on 12.10.2022. In this meeting, the matter regarding C.D.A's proposal to allot 225 kanals of C.D.A. owned land along the eastern boundary of Q.A.U. to be exchanged with Q.A.U' s land to be used for the B.K.B. Road was discussed. Most of the members of the Syndicate endorsed the proposal for the exchange whereas others opposed it. In this meeting, it was inter alia resolved as follows: "The Syndicate further resolved that for now it conditionally approves the construction of Barakahu Bypass on QAU's land and would hold a subsequent meeting on the next Thursday October 20th, 2022 to give final approval considering the recommendations of the joint working group." 18. The instant writ petition was filed on 17.10.2022 by some of the faculty members of Q.A.U. and was taken up for hearing on 18.10.2022. After this Court was informed that the construction work on Q.A.U.'s land had been commenced by the contractor engaged by C.D.A. and in this process, several trees had been felled without having obtained an approval of the Environmental Impact Assessm ent ("E.I.A.") in terms of Section 12(1) of the Pakistan Environmental Protection Act, 1997 ("the 1997 Act"), an ad interim injunction dated 18.10.2022 was issued restraining further construction activity to be undertaken within the boundary of Q.A.U. This Court also directed the Director General, P.E.P.A. to depute a team of inspectors to visit the project site and submit a report as to the status of the construction work and whether construction had been initiated by State controlled organizations without obtaining approval of the E.I.A. from the P.E.P.A. Furthermore, this Court directed the Vice Chancellor of Q.A.U. to depute a representative to tender appearance before this Court and take a position on whether the decision for the exchange of land had been taken by the management of Q.A.U. empowered by the Q.A.U. Act to do so.
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19. At this stage, it may be mentioned that Section 22 of the Q.A.U. Act sets out the powers and duties of the Syndicate, which is the Executive Body of Q.A.U. and is mandated to exercise general supervision over the affairs and management of the property of the University. Section 22(2)(a) provides that the Syndicate shall have the power to hold, control and administer the property and funds of Q.A.U. Section 22(2)(d) empowers the Syndicate to transfer and accept transfer of movable and immovable property on behalf of Q.A.U. The composition of the Syndicate is provided for in Section 21 which shows that the Vice-Chancellor of Q.A.U. is the Chairman of the Syndicate. 20. On 24.10.2022, the Director General, P.E.P.A. filed a report according to which, on 05.09.2022, C.D.A. had submitted a report on the E.I.A. pertaining to the construction of the B.K.B. Road to P.E.P.A. After a preliminary scrutiny of the said report under Regulation 9 of the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000 ("the 2000 Regulations"), P.E.P.A., vide letter dated 11.10.2022, directed C.D.A. to give a detailed presentation on the project. A presentation was given by C.D.A. on 12.10.2022. Thereafter, C.D.A. was directed to submit a revised report on the E.LA. by incorporating therein the observations of P.E.P.A.'s review committee and the Director General, P.E.P.A. These observations are enumerated in the minutes of the meeting dated 12.10.2022 between C.D.A. and P.E.P.A. 21. C.D.A. submitted a revised report on the E.I.A. to P.E.P.A. on 18.10.2022. While the said report was under consideration, P.E.P.A. on 18.10.2022 published an advertisement for holding a public hearing on the E.I.A. report. The public hearing was scheduled to be held on 18.11.2022 in accordance with the requirements of Regulation 10 of the 2000 Regulations. 22. After the order dated 18.10.2022 was passed by this Court, an inspection committee constituted by P.E.P.A. visited the project site on 22.10.2022 and prepared a site inspection report according to which the construction' activity already carried out by C.D.A. was in violation of Section 12 of the 1997 Act. For this violation, P.E.P.A. had initiated the process of imposing an administrative penalty under Section 17(7) of the said Act and Rules 6 to 8 of the Compounding of Offences and Administrative Penalty Rules, 2015 ("the 2015 Rules") by issuing a show-cause notice dated 20.10.2022 to the Deputy Director (Roads-II), C.D.A. C.D.A.'s reply dated 21.10.2022 to the said show- cause notice shows that the contractor had mobilized at the site and works had commenced in order to meet the deadlines under the construction contract (which is not on the record). Admittedly, works had commenced prior to obtaining approval of the E.I.A. in terms of Section 12 of the 1997 Act. The proceedings pursuant to the said show-cause notice culminated in the issuance of notice dated 15.11.2022 from the P.E.P.A. to C.D.A. requiring the latter to deposit an administrative penalty to the tune of Rs. 1 million within a period of ten days. I am told by the learned counsel for C.D.A. that the said amount has been deposited under protest and that C.D.A. intends to assail the said notice. 23. The Joint Working Group that had been constituted pursuant to Q.A.U.'s Syndicate's decision taken in the emergency meeting dated 12.10.2022 had prepared a report which came to be considered by the Syndicate in its emergency meeting held on 21.10.2022. The minutes of the said meeting show that the Syndicate, by majority, accorded an in-principle approval to the construction of the B.K.B. Road on Q.A.U.'s land if Q.A.U.'s demands listed in "Schedule-A" hereto were accepted by C.D.A. 24. On 04.11.2022, this Court was informed that the demands made by the Syndicate of the Q.A.U. to C.D.A. had not been accepted. Until then, an approval to the E.I.A. report submitted by C.D.A. had not been granted by P.E.P.A. Given the urgency in the matter, this Court expressed the view that the Federal Government ought to play the role of a mediator between Q.A.U. and C.D.A. For this purpose, the matter was adjourned for a week. 25. On 11.11.2022, the learned Additional Attorney-General brought on record a letter dated 10.11.2022 issued by the Prime Minister's office according to which a Cabinet Sub-Committee had been
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constituted to resolve the dispute regarding the construction of the B.K.B. Road on Q.A.U.'s land. The said Committee comprised of the Federal Minister for Law and Justice and the Federal Minister for Information and Broadcasting. This Court ordered for the outcome of the deliberations of the said Committee to be intimated to the Court on 21.11.2022. 26. The said Committee had meetings with the representatives of C.DA. and Q.A.U. on 15.11.2022 but the disputes could not be resolved. On 21.11.2022, an adjournment was sought by the learned Additional Attorney-General for a week so that further opportunity could be given to the said Committee to resolve the disputes between Q.A.U. and C.D.A. 27. On 21.11.2022 the Assistant Director, P.E.P.A. tendered appearance and brought on record a report, paragraph 7 whereof is reproduced herein below: "7. CDA has submitted the reply on 20.11.2022 against comments! reviews submitted by expert committee and public during hearing on 18.11.2022, same found acceptable, due to firm commitment of CDA to follow the directions and final decisions' for EIA with conditional approval will be issued which is conditional to the submission of Administrative Penalty already imposed, under the Rules, 2015." 28. On 25.11.2022, the Assistant Director, P.E.P.A brought on record P.E.P.A's approval dated 24.11.2022 to the E.I.A. report submitted by C.D.A. for the "construction of the Bhara Kahu Bypass at Bhura Kahu Islamabad." The learned Additional Attorney-General after informing the Court that the Cabinet Sub-Committee had afforded an opportunity of a hearing to the petitioners sought an adjournment for a period of one week so that the recommendations/findings of the Cabinet Sub- Committee could be submitted to the Federal Government for a decision. 29. The report of the Cabinet Sub-Committee was brought on record through an application (C.M.No. 4450/2022). The said report shows that 199 kanals of the land allotted to Q.A.U. would be used for the construction of the B.K.B. Road. After being satisfied that access to QA.U. would in no manner be impeded by the construction of the B.K.B. Road, the said Committee recommended that the project is one of public importance and its execution would reduce the suffering of commuters on Murree Road. It was also recommended that the C.D.A. be directed to fulfill obligations and commitments to Q.A.U. mentioned in the Syndicate's meeting dated 21.10.2022 as subsequently modified by the said Committee. The said report was placed before the Cabinet, in its meeting dated 30.11.2022, which approved the recommendations made therein. 30. On 05.12.2022, Q.A.U. filed Writ Petition No. 4543/2022 challenging the decisions taken by C.D.A. Board in its meeting dated 17.06.2022 as well as the Cabinet's decision dated 30.11.2022. CONTENTIONS OF THE LEARNED COUNSEL FOR THE CONTESTING PARTIES: 31. Mr. Kashif Ali Malik, learned counsel for the petitioners in Writ Petition No. 3916/2022, after narrating the facts leading to the filing of the instant petition, submitted that the fundamental right of access to education would be impeded with the construction of the B.K.B. Road through land owned by Q.A.U.; that the public interest in the construction of the B.K.B. Road cannot be given priority over the right of access to education; that the decision taken by the C.D.A. Board, in its 7th meeting held on 17.06.2022, to exchange Q.A.U.'s land which was to come under the B.K.B. Road with C.D.A.'s land adjacent to Q.A.U. was not based on any summary and amounted to change in Islamabad's Master Plan which could only be made by the Federal Government; that the construction of the B.K.B. Road project is a violation of the Master Plan; that Q.A.U. intends to establish China-Pakistan Joint Research Centre at the location where the B.K.B. Road is to be constructed; that the Syndicate of Q.A.U. cannot take a decision which is to the detriment of the fundamental rights of the students in Q.A.U.; that the respondents have committed a grave illegality by starting construction work without having obtained an approval of the E.I.A. from P.E.P.A.; that C.D.A. ought to have explored options other than making a road through land duly allotted to Q.A.U.; and that since Q.A.U. is located in the National Park area therefore a road cannot
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be constructed through the said area. In making his submissions, learned counsel for the petitioners placed reliance on the judgments reported as Raja Zahoor Ahmed vs. C.D.A. (2022 SCMR 1411), Murree Brewery Co. Ltd. vs. Pakistan (PLD 1971 SC 279), Federal Government Employees Housing Foundation vs. Ednan Syed (PLD 2022 Islamabad 273), Shahzada Sikandar- ul-Mulk vs. C.D.A. (PLD 2019 Islamabad 365), and Park View Enclave (Put.) Ltd. vs. C.D.A. (2018 CLC 947). 32. Mr. Aziz-ul-Haque Nishtar, learned counsel for the petitioner in Writ Petition No. 4077/2022, adopted the arguments of the learned counsel for the petitioners in Writ Petition No. 3916/2022 and further relied on Quranic verses to lay emphasis on the importance of education. 33. Mr. Muhammad Munir Paracha, learned counsel for Q.A.U., the petitioner in Writ Petition No. 4543/2022, submitted that Article 25-A of the Constitution obligates the State to provide free and compulsory education to all children of the age of 05 to 16 years in such a manner as may be determined by law; that Article 38(d) of the Constitution provides inter alia that the State shall provide basic necessities of life such as education for all citizens irrespective of sex, caste, creed, or race as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment; that C.D.A. was hindering the right to education by constructing a road through land owned by Q.A.U.; that Section 12(1) of the Capital Development Authority Ordinance, 1960 ("the 1960 Ordinance") empowers C.D.A. to call upon a local body or agency to prepare a scheme, .whereas under Section 12(2)(d) of the said Ordinance such a scheme may relate to transportation, communications, highways, roads, streets, and railways etc.; that under Section 13 of the 1960 Ordinance, C.D.A. can itself prepare a scheme for Specified Areas when it considers it desirable to do so in the public interest; that the scheme regarding the B.K.B. Road could not have been undertaken by C.D.A. without fulfilling the prerequisites in Section 13 of C.D.A. Ordinance; that Section 15(2) (ii) of C.D.A. Ordinance empowers the C.D.A. to undertake any work in the Specified Areas in pursuance of a scheme prepared under Section 13; that there is no resolution of C.D.A. to the effect that it was desirable and in the public interest for C.D.A. to undertake the construction of the B.K.B. Road; that at no material stage, was any scheme prepared by C.D.A. for the construction of the B.K.B. Road pursuant to Section 13 of the 1960 Ordinance; that at no material stage did the Syndicate of Q.A.U. grant an unconditional approval for the construction of the B.K.B. Road over land owned by Q.A.U.; that since the Syndicate's acceptance of C.D.A.'s proposals was qualified and conditional, it cannot be considered that Q.A.U. had acquiesced to the construction of the said road over its land; and that if C.D.A. accepts all the demands made by Q.A.U. then the B.K.B. Road may be constructed on the land owned by Q.A.U. Learned counsel for Q.A.U. prayed for the said writ petition to be allowed in terms of the relief sought therein. 34. Mr. Jalil Akhtar Abbasi, learned counsel for the interveners/residents of Bhara Kahu and commuters on Murree Road submitted that the B.K.B. Road project was one of public importance since the suffering of the commuters was increasing with time. 35. Messrs Hafiz Arafat Ahmad Chaudhry and Muhammad Nazir Jawad, learned counsel for C.D.A., submitted that Q.A.U.'s Syndicate in its meeting dated 21.10.2022, had accepted the proposals made by C.D.A. in its letter dated 11.10.2022; that the petitioners in Writ Petitions No. 3916/2022 and No. 4077/2022 are faculty members in QA.U. and cannot take a position different from the one taken by Q.A.U.'s Syndicate; that 1.32 KM of the B.K.B. Road would be passing through Q.A.U's land; that C.D.A. is ready to allot 225 kanals of alternate land to QA.U. adjacent to its eastern boundary; that Section 49 of the 1960 Ordinance empowers C.D.A. to exchange land; that initially QA.U. was planned to be in the National Park area but in the 1960s the Master Plan was amended to relocate Q.A.U. from the National Park area to its present location; that the construction of the B.K.B. Road entails no alteration in the Mager Plan; that paragraph 9.61 of the Master Plan document permits the construction of roads in the National Park; that Section 21(3) of the Islamabad Wildlife (Protection,
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Preservation, Conservation, and Management) Ordinance, 1979("the 1979 Ordinance") permits the construction of access roads etc. in the National Park; that C.D.A. is constructing the entire B.K.B. Road over land specifically acquired years ago for the purpose of constructing a road; that no new acquisition is being carried out by C.D.A. to construct the B.K.B. Road and not a single dwelling would be demolished in the construction process; that till date, a lease agreement has not been executed between C.D.A. and Q.A.U. with respect to 1709 acres, 04 kanals and 12 marlas of land; that C.D.A. is not vested with the statutory authority to exempt Q.A.U. from paying annual ground rent or to extend the validity of the period for which the allotment was made without payment of any consideration; that if Q.A.U. files an application for the removal of encroachments on its land, the same shall be dealt with in accordance with the law; and that now that P.E.PA. has granted an approval to the E.I.A. report submitted by C.D.A.,…
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