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Petitioner: Shahzada Sikandar ul Mulk & 4 others VS Respondent: The Capital Development Authority & 4 others
Court Name: Islamabad High Court Judge(s): Athar Minallah, Aamer Farooq, Mohsin Akhtar Kayani Title:Shahzada Sikandar ul Mulk & 4 others vs The Capital Development
Authority & 4 others Case No.: W. P. No.676/2017 Date of Judgment:2018-07-09 Reported As: KLR 2019 Civil Cases 220, PLD 2019 Islamabad 365, 2018 IHC 80 Result: N/A Judgment ATHAR MINALLAH, J.- Through this consolidated judgment we shall decide the petitions listed in Annexure-A attached hereto. The petitions have been divided into two categories i.e. Category-A and Category-B. The petitions in Category-A relate to the area known as "Bani Gala" while Category-B petitions are in respect of Sector E-11. 2. The facts, in brief, are that in all the petitions the petitioners have challenged the construction of various types of buildings. In the petition listed in Category-A, the petitioner has asserted that the respondent has initiated the construction of a high rise building without obtaining approval from the Capital Development Authority (hereinafter referred to as the 'Authority' ). The area where this construction is intended to be carried out is near Kurang Road, Bani Gala, Islamabad. In the petitions listed in Category-B, the respondents have either constructed or are in the process of starting the construction of various types of buildings in Sector E-11. The proposed buildings are mostly of a commercial nature. In one of these petitions the petitioner has challenged the refusal on the part of the Authority to enforce the regulations made under the Capital Development Authority Ordinance, 1960 (hereinafter referred to as the 'Ordinance of 1960') relating to a housing scheme established and managed by a juridical person registered under the Cooperative Societies Act 1925. Both these areas i.e. Bani Gala and Sector E-11 have not been acquired under the Ordinance of 1960. The records relating to the land where the impugned construction has been made or intended to be initiated are maintained by the Revenue officials of the Islamabad Capital Territory and not by the Authority. In some cases the documents relating to the sale and purchase of land have been registered. For Sector E-11 the Authority had approved a policy regarding regulating the construction of buildings in the year 2007 (hereinafter referred to as the 'Policy of 2007'). It is the case of the petitioners that high rise buildings and other buildings of a commercial nature cannot be constructed within the area known as "Bani Gala" or in the unacquired areas of Sector E-11. Moreover, the Authority, pursuant to a decision taken by the
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Federal Cabinet in the year 2004, has restrained the Islamabad Electric Supply Company (hereinafter referred to as the 'IESCO') and Sui Northern Gas Pipelines Limited (hereinafter referred to as the 'SNGPL ') from extending the facility of giving utility connections to owners and occupiers of such buildings which have been constructed in violation of the Ordinance of 1960 and the regulations/rules made there under . In a nutshell, the petitioners have raised the issue regarding the regulation of the construction of buildings outside the acquired lands falling within the area known as the "Islamabad Capital Territory". 3. The learned counsels for the petitioners have been heard at length. Their arguments may be summarized as: the provisions of the Ordinance of 1960 are explicit and they extend to the un acquired areas; the Ordinance of 1960 and the regulations made there under are applicable and enforced not only in areas which have been acquired but extend to the un acquired land falling within the "Islamabad Capital Territory" i.e. the "Specified Area"; through section 22 of the Ordinance of 1960 the legislature has declared that the entire land falling within the "Specified Area" is liable to be acquired at any time; the consequence of section 22 of the Ordinance of 1960, if not more, then at least is the same as that of the issuance of a notice under section 4 of the Land Acquisition Act 1984; the Ordinance of 1960 and the regulations made there under have in fact given statutory backing to the "Master Plan" which was prepared and approved in 1960; the provisions of the Ordinance of 1960 and the regulations made there under are mandatory in nature and thus binding; not only the petitioners but every citizen of Pakistan has a stake in the Capital of Pakistan and, therefore, enforcement of the statutory provisions and the regulations made there under is a matter of great public importance; various laws enforced in and extended to the Islamabad Capital Territory have been flagrantly violated; refusal on the part of the Authority to fulfill its statutory obligations has exposed the general public to irreparable loss; the environmentally sensitive areas such as Rawal Lake and Kurang river are being used for construction; most of those who have constructed villas and palatial houses are privileged persons; the unregulated construction, besides being a serious violation of the laws enforced within the Islamabad Capital Territory, is also inevitably causing several environmental degradation; the learned counsels have placed reliance on case law which will be discussed later. 4. The learned counsels for the respondents on the other hand have argued that; Sector E-11 was declared as exempt from being acquired, pursuant to a decision of the Federal Cabinet taken in its meeting held on 17-06- 1968; the un acquired lands are owned by private persons and, therefore, the provisions of the Ordinance of 1960 are not applicable or extended thereto; the petitioners have no locus standi to raise any objection regarding the construction of buildings on private land owned by the respondents; restricting construction on private land is in violation of fundamental rights guaranteed under the Constitution, particularly Articles 9, 23 and 24. The jurisdiction and power to regulate the construction of buildings in rural areas vests in the officials under the jurisdiction of the Chief Commissioner, Islamabad Capital Territory or the local bodies established under the Islamabad Capital Territory Local Government Act 2015 (hereinafter referred to as the 'Local Government Act, 2015'); the petitioners, without availing remedies under the relevant law, inter alia, under section 133 of the Code of Criminal Procedure, 1898 have directly approached this Court; the ban on giving utility connections is illegal and without lawful authority; under the Martial Law Regulation No.82 (hereinafter referred to as the 'MLR-82') a distinction has been made between areas falling within and outside the Capital Site; in case of areas which are outside the Capital Site, the Commission established under MLR-82 has exclusive jurisdiction and power to regulate construction and no such mandate has been given to the Authority; MLR-82 was not repealed nor was it in any manner amended through the promulgation of the Ordinance of 1960; there is no reference to building control under section 15 of the Ordinance of 1960; by virtue of the insertion of section 15-A under the Ordinance of 1960 some of the municipal functions were entrusted to the Authority; the lands owned by private persons in the rural areas, particularly lands which have not been acquired by the Authority, were regulated under the Capital Territory Local Government Ordinance, 1979 (hereinafter referred to as the 'Local Government Ordinance of 1979'); section 47, read with entries 32 and 33 of the First Schedule of the Local Government Ordinance of 1979, explicitly entrusted the power and jurisdiction to regulate the erection and re-erection of buildings in the respective Union Councils; section 15-A of the Ordinance of 1960 and the Ordinance of 1979 were repealed vide section 132 of the Local Government Act 2015; after the repeal of section 15-A and the Local
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Government Ordinance of 1979, power to regulate the construction of buildings is no more vested in the Authority; even if it is admitted that the Authority is empowered to regulate buildings within the Islamabad Capital Territory still the latter does not have the statutory mandate to regulate land use in Sector E-11; the land upon which the respondents intend to undertake construction work are privately owned and, therefore, outside the scope of jurisdiction of the Authority; reliance has been placed on the case of 'Suo Motu Case No. 13 of 2009' [PLD 2011 SC 619]; no scheme has been prepared by the Authority under the Ordinance of 1960 for development in Sector E-11; reliance has been placed on 'Suo Motu Case No.10/2007' [PLD 2008 SC 673], 'Abdul Qadeer Khan and others v. Chairman, Capital Development Authority' [1999 YLR 247]; the Zoning Control Policy of 2007 explicitly authorizes the Authority to regulate construction in sector E-11; the said policy is ultra vires the Ordinance of 1960; reliance has been placed on 'Khawaja Ahmed Hassan v. Government of the Punjab and others' [2005 SCMR 186], 'Mian Zia ud Din v. Punjab Local Government and others' [1985 SCMR 365]; the issuance of a policy for regulating construction in Sector E-11 establishes that even the Authority acknowledges that it was not vested with power and jurisdiction in this regard; the regulatory negligence on the part of the Authority does not entitle the latter to hold the developers responsible; the conduct of the Authority and steps taken by the respondents pursuant thereto falls within the ambit of the expression 'officially induced error '; reliance has been placed on the judgment rendered by the Supreme Court of Canada titled 1995 ; ingredients of 'officially induced error ' are fulfilled; regularization policy is required to be introduced because a large number of dwellings and other buildings have been constructed; the competent authority to grant permission in rural areas is the respective Union Council; approvals in several cases were obtained by the respondents from the respective Union Councils; the respondent who is constructing a high rise building in Bani Gala was granted permission by the Union Council Bhara Kahu and its building plans have been duly approved; the Authority is not vested with jurisdiction or power to regulate construction or grant approvals/No Objection Certificates in areas which have not yet been acquired; the registration of a title document entitles the owner of the land to exercise his or her right to construct a building thereon; the Authority had issued No Objection Certificates to builders of high rise buildings in Sector E-11 and, therefore, the same cannot be refused in the case of other similarly placed persons; the requisite taxes and other fees were duly deposited by some of the respondents who are constructing high rise buildings in Sector E-11; the petitions are frivolous and have been filed merely to blackmail the respondents for ulterior motives; in Sector E- 11 more than 70 high rise buildings have been constructed and at no stage did the Authority restrain them from doing so and, therefore, a right has accrued in favour of the respondents; the petitioners have not approached this Court with clean hands since they have also constructed their respective buildings without obtaining permission / No Objection Certificates from the Authority . 5. The learned Advocate General, Islamabad Capital Territory has also placed on record written comments wherein the historical background of establishing the office of the Chief Commissioner , Islamabad Capital Territory has been discussed in detail. Reliance has also been placed on 'Suo Motu Case No. 13 of 2009' [PLD 2011 SC 619] in support of the contention that the Ordinance of 1960 and the regulations made there under are enforced in Sector E-11. 6. The learned counsel for the Authority has argued that; the Ordinance of 1960 and the Regulations made there under are enforced in the entire area comprising the Islamabad Capital Territory; the Authority is exclusively vested with power and jurisdiction to regulate all matters in respect of the planning and development of the Islamabad Capital Territory within the framework of a regional development plan; no construction can be made in any area within the Islamabad Capital Territory without obtaining permission from the Authority; the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance 1979 (hereinafter referred to as the 'Wildlife Ordinance of 1979' ) prescribes the protection and prohibits construction within the area notified as a National Park; the Islamabad (Preservation of Landscape) Ordinance 1966 (hereinafter referred to as the 'Ordinance of 1966' ) further prohibits and regulates activities in the Islamabad Capital Territory; the Islamabad Capital Territory (Zoning) Regulation, 1992 (hereinafter referred to as the 'Zoning Regulations of 1992' ) has been framed so as to give statutory effect to the Master Plan; Rawal Lake and its surrounding area, including most of the land of Bani Gala, has been included in the National Park vide notification dated 27-04-1980; Rawal Lake and an area of two
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kilometers from the highest water mark was declared part of the National Park; the Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005 (hereinafter referred to as the 'Building Control Regulations' ) are also applicable and enforced; the judgment rendered by the Lahore High Court in the case tilted 'Abdul Qadeer Khan and others v. Chairman, Capital Development Authority' [1999 YLR 247] has been misinterpreted; the august Supreme Court in the case titled 'Capital Development Authority through Chairman and others versus Dr.Abdul Qadeer Khan and others' [1999 SCMR 2636] affirmed the power vested in the Authority to regulate construction under the MLR-82 and the Ordinance of 1960; the Union Councils were not vested with power or jurisdiction to regulate buildings or construction even in areas falling within their respective jurisdictions; the land of Bani Gala comprises the catchment area around Rawal Lake which has been declared as environmentally sensitive. 7. The learned counsels have been heard and the record perused with their able assistance. 8. The adjudication of the instant petitions essentially involves the interpretatio n of various statutes and the regulations made there under . In a nutshell, this Court has to answer the fundamental question regarding the authority competent to regulate construction in areas which fall within the Islamabad Capital Territory , particularly in Sector E-11, also known as "Golra Revenue Estate", and the area known as "Bani Gala" which is situated on the banks of the man-made water reservoir known as Rawal Lake. Several questions have emerged out of the arguments presented before us. It is, therefore, inevitable to examine the scheme of the relevant laws which are enforced in the Islamabad Capital Territory so as to adjudicate and answer the questions, most of which are in the nature of first impression. The scope of the Ordinance of 1960, MLR-84, the Ordinance of 1966, the Wildlife Ordinance of 1979 etc, whether the power and jurisdiction of the Authority extends to lands which have not yet been acquired and if the answer is in the affirmative then whether the illegal construction ought to be regularized and at what cost; what would be the fate of those who intend to undertake constr uction on lands privately owned because they have not been acquired; what is the scope of powers and jurisdiction of the Authority , the Chief Commissioner and the Union Councils in the context of regulation of construction on un acquired land; the status of the Policy of 2007 viz-a-viz the Ordinance of 1960 and the regulations made there under; the Master Plan and its background and its present legal status; if there has been a systemic violation of the enforced statutes and the Master Plan then who is to be held accountable; are there environmental risks involved in ignoring the unregulated construction and adverse consequences ensuing therefrom, particularly in the face of the looming crisis of "Climate Change" and environmental degradation; are the rights of the respondents to enjoy their properties absolute or there is a larger public interest which needs to be protected; in case we reach a conclusion which would lead to allowing these petitions then what should be the way forward. These are some of the crucial questions which we have to answered in the light of the disputes raised through the instant petitions. 9. In order to discover the legislative intent in promulgating the Ordinance of 1960 and the other enforced statutes 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 havin g 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-P A 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
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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 deliberations. They carried in depth studies regarding several important aspects which, inter alia, included topographical survey, hydrological and surface water survey, investigations relating to geological, sub soil and ground water, transportation and communications, economic and financial studies etc. On 24.02.1960, the Cabinet gave the new Capital the name of Islamabad. In May 1960, pursuant to the surveys and studies conducted by the fourteen committees, a preliminary master programme and master plan was prepared and designed by the Greek architect Dr C. A Doxodias and his firm. On 24.05.1960, the first Cabinet meeting was held in Islamabad. On 01.06.1960, the Federal Capital Commission was succeeded by the Capital Development Authority. The Authority was established on 01.06.1960 for planning and developing the Capital i.e. Islamabad, in accordance with the Master Plan and the phased master programme. The President of Pakistan was pleased to promulgate the Ordinance of 1960. Simultaneously , another crucial legislative instrument i.e. the Pakistan Capital Regulation MLR-82, 1960 (hereinafter referred to as the "MLR -82") was also enforced. 10. 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-P A 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. We have had the privilege of going through this historical document and its detail, comprehensiveness and professional excellence has left us in awe. 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 committee s which had been constituted for this purpose. Constantinos Apostolou Doxiadis was honoured with special awards for this masterpiece of town planning i.e. the Master Plan of Islamabad. The vision of the founding planners of the Capital of Islamabad is recorded in page 160 of the Master Plan as follows:- "The Capital of a country is not merely just another city; it is a LEADER among cities. To this city come leaders of administration and politics, commerce and trade, literature and art, religion and science. From this city flows the inspiration which pulsates life into the nation. It is a symbol of our hopes. It is a mirror of our desires. It is the heart and soul of the nation. It is, therefore, essential that the environment of the Capital should be such as to ensure continued vitality of the nation". 11. 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 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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12. 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 reache d, 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…
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