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Official Citation: 2024 YLR 2685
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Dr. Salman Akbar Malik vs Federal Government Employees Housing JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-12-31, officially reported as 2024 YLR 2685. In this matter between Dr. Salman Akbar Malik and Federal Government Employees Housing JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 2685
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title:Dr. Salman Akbar Malik vs Federal Government Employees Housing
JUDGMENT
Reported As: PLJ 2024 Islamabad 47, 2024 YLR 2685 Result: Petition allowed Judgment
JUDGMENT Through the instant writ petition, the petitioner has prayed for the following relief: (i) Declare that MCI is responsible for provision of all municipal functions in the Sector as contained in Schedule III of ICT LG Act and issue a writ of continuing mandamus directing MCI to take immediate steps to discharge all such statutory obligations in the Sector on the same footing as the other developed sectors of Islamabad in Zone I; (ii) Issue a writ of continuing mandamus directing the Respondents to take immediate steps for the supply and provision of water in the Sector by connecting the water distribution network laid in the Sector to the main trunk water supply lines operated by MCI within a period of 6 months; (iii) Issue a writ of continuing mandamus directing the Respondents to undertake all necessary actions in relation to the completion of the sewerage disposal network laid in the Sector, if so required, as to connect the sewerage network of the Sector to the main trunk sewerage lines within a period of 6 months; (iv) Direct the Respondents to ensure prevention of further contamination of the water channel near G-14/1 by, inter alia, ensuring that no untreated sewerage or other environmentally hazardous materials are dumped therein; (v) Direct MCI to directly provide solid waste disposal and sanitation services to the Sector forthwith on the same footing as to the other sectors of Islamabad.
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(vi) Issue a writ of continuing mandamus to CDA and FGEHA directing them to take effective steps to ensure the expeditious completion of all works in the Sector in accordance with the approved scheme and Layout Plan within a period of 1 year; and (vii) Grant any other relief that this Honorable Court may deem fit in the facts and circumstances of the instant case. 2. Brief facts referred in the instant writ petition are that petitioner is a retired Professor of Quaid-e- Azam University, Islamabad and is resident of Sector G-14/4, Islamabad; that plot was allotted to him by the Federal Government Employees Housing Foundation (FGEHF) through allotment letter dated 26.01.2001; that as per the initial agreement between Federal Government Employees Housing Foundation (FGEHF) and Capital Development Authority (CDA), municipal services in the Sector were not provided by the CDA being Master Regulator for development works in Islamabad, which are as under:- (i) The failure of the Respondents to connect the internal water supply network laid within the Sector to the CDA/MCI trunk water supply infrastructure; (ii) The failure of the Respondents to connect the sewerage system laid in the Sector to the CDA/MCI trunk sewerage network; (iii) The dumping of raw untreated sewerage by Respondent No. 1 into a water channel flowing through the site of the proposed Sector G-14/1, Islamabad; (iv) The failure of the Respondents to provide adequate municipal services for the collection and disposal of garbage in the Sector; (v) The failure of the Respondents to develop and maintain parks, playgrounds and educational facilities as per the approved Layout Plan for the Sector; and (vi) The refusal of the Respondents to allow burial facilities/services to the residents of the Sector in the graveyard development in H-11, Islamabad. The above mentioned failures reflect that the FGEHA erstwhile FGEHF has no legal Authority to settle these issues nor CDA is capable to resolve the issues and in the meanwhile FGEHA Act, 2020 was enacted after the repeal of FGEHA Ordinance, 2019. However, during this period, Islamabad Capital Territory Local Government Act, 2015 was also enacted by the parliament and all the municipal functions were transmitted to the Local Government in the Islamabad Capital Territory, but till date the issue of utility services has not been resolved in a proper manner, which persuaded the petitioner to file instant writ petition. 3. Learned counsel for the petitioner contends that respondent/ MCI has to perform all municipal functions in the Sectors being their statutory obligations under ICT Local Government Act, 2015 including but not limited to the water supply, sewerage treatment plant, sewerage/waste disposal and completion of all roads and network, under construction areas expeditiously. 4. Conversely, learned counsel for the FGEHA contends that after the enactment of the FGEHA Act, 2020 all functions have to be performed by the Executive Board of the FGEHA, including but not limited to impose development charges, transfer fee, service charges, toll, tax or other charges in respect of any land or buildings within any scheme in the specified area, similarly all municipal functions have also been delegated to FGEHA, and Metropolitan Corporation Islamabad has no jurisdiction to interfere into their domain. 5. Learned counsel for the Metropolitan Corporation Islamabad (MCI) contends that after the enactment of ICT Local Government Act, 2015, the role of CDA in terms of CDA Ordinance, 1960 stands excluded qua the municipal functions and services within the Islamabad Capital Territory. However, any property tax in the specified area also falls within the purview of Local Government system through MCI. Moreover, the recent enactment of FGEHA Act, 2020 has been given overriding effect, where the municipal functions have been delegated to the FGEHA, but this does not mean that the Local Government system in terms of Article 140 of the Constitution of Islamic Republic of
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Pakistan, 1973 stand excluded from the specified sectors. He further contends that the MCI is also empowered to impose tax within the specified area in terms of law. 6. Learned counsel for the CDA contends that their role has been curtailed after the enactment of ICT Local Government Act, 2015 and subsequently under the FGEHA Act, 2020, as such they are only confined to the extent of Sections 11 and 12 of the CDA Ordinance, 1960 for preparation of any scheme and implementation of master phase program within the Islamabad Capital Territory. 7. Learned AAG on behalf of the Federation of Pakistan, Ministry of Interior as well as Ministry of Climate Change contends that certain functions have been transmitted to the MCI after enactment of Islamabad Capital Territory Local Government Act, 2015 as an interim measure, as such the complete Authority has been vested to the Local Government system, whereas specified functions after enactment of FGEHA Act, 2020 is within their domain to the extent of specified sectors. He further contends that FGEHA is responsible agency/Authority to provide all the necessary services to the residents of the area accordingly. 8. Arguments heard and record perused. 9. Perusal of record reveals that petitioner is resident of Sector G-14/4 and is Ex-Professor of Quaid- i-Azam University who claims the provision of utility services within the sector by the MCI under the law. In order to understand the provision, it is necessary to go through the background of the development in the Sector. Background of Development of the Sector 10. 300 acres of land of QAU were originally earmarked for the development of a housing scheme under the name of QAU SHS in the year 1995 with the approval of the Prime Minister. Subsequently, with the approval of the Prime Minister dated 28.07.1997, QAU SHS was relocated to the Sector, 754 plots were reserved in the Sector for QAU SHS and plots in excess of the requirements of QAU SHS were allowed to be utilized by the erstwhile FGEHF to accommodate the excess demand in Sector G-13, which was also being developed by FGEHF. 11. The Minutes of the 72nd Meeting of Executive Committee, FGEHF dated 20.08.2003 reveals that FGEHF approved the proposal to have the Sector developed through CDA as deposit work on the same terms and conditions on which the works for Sector G-13 were undertaken and as per Minutes of the 73rd Meeting of Executive Committee, FGEHF dated 11.11.2003, the FGEHF approved the PC-I for the development of the Sector as recommended by its Technical Committee at an overall cost of Rs. 703.64 million. Due to certain delays, in 75th Meeting of the Executive Committee, FGEHF dated 30.04.2004, it was unanimously decided that development of Sector G-14/4, Islamabad shall be undertaken by the Foundation through agency other than CDA and according to the Minutes of the aforesaid meeting, the Executive Committee, FGEHF also approved the induction of M/s NESPAK as a Consultant, whereafter the sector has been developed. 12. The primary issues in Sectors are of Water supply and sewerage disposal which has not been managed by the CDA and at present water is being supplied on subsidized rates to the residents of Sector G-13 and G-14/4 through water tankers from available resources i.e. Tube well. The residents are also complaining about non-collection of garbage, lack of transportation and non-disposal of solid waste. In this regard numerous complaints have been filed on Pakistan Citizen Portal, but MCI is not ready to take responsibility to cater to the utilities and other municipal functions in the sector. 13. In addition to above, it has been observed that development work has not been completed in accordance with the approved plans/scheme, various necessary amenities/facilities, such as parks and schools etc., which were referred in the Layout Plan for the Sector, exists only on paper. The area reserved for the park in the Layout Plan is presently used as a graveyard by the local inhabitants. 14. While considering the above background, it is necessary to discuss the legal angle and jurisdiction of the FGEHA viz-a-viz Local Government (MCI).
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FGERA Act, 2020 15. This Act has been approved by the Parliament to establish the Federal Government Employees Housing Authority for the purpose of planning and development of housing schemes for serving and retired Federal Government employees and other specified groups and matters connected therewith and ancillary thereto, whereas, Authority has been established under Section 3 of the Act, which is a body corporate having perpetual succession and common seal with power to purchase, procure through acquisition or otherwise, land as well movable and immovable properties and assets with the object to hold, possess, sell lease, transfer, exchange any property including tended property and to regulate the schemes undertaken by it in the specified, area. In terms of Sub Section 4 of Section 3, the Authority shall also be the local authority in the specified area and shall be responsible for all public services and facilities, whereas sub section (n) of Section 2 of FGEHA Act, 2020, explains the specified area means all lands owned, purchased, acquired or procured by or vested or leased to the Foundation under any law before the commencement of this Act and such other land as may be purchased or procured or acquired or vested in or leased to the Authority in Islamabad Capital Territory or other parts of Pakistan, therefore, it has clearly been established from the legislative intent that those specified areas notified earlier fall within the purview of FGEHA Act, 2020 and the Authority is to be known as Local Authority, who is responsible to provide all public services and facilities to the respective residents. The Authority has been driven and controlled by Executive Board in terms of Section 4 of the Act, which supervises and controls the affairs of Authority. The said Authority comprises of 11 members including but not limited to Minister for the Division concerned, Secretary of the Division concerned, Draftsman Law and Justice Division, Additional Secretary of the Division concerned, Managing Director, Pakistan Housing Authority Foundation, Director General, Pakistan Public Works Department, Chief Commissioner, Islamabad Capital Territory, Chairman, Capital Development Authority, Islamabad, Joint Secretary, Expenditure Wing, Ministry of Finance, Chief (Physical Planning and Housing), Planning Commission, Islamabad, Chief Engineer of the Authority, who all are ex-officio members and public servants, whereas no public representation is available in the Executive Board. The powers and functions have been explained in Section 6 of the Act, which includes the review progress, approval of budget and audit reports, grants approval to purchase or procure through acquisition or any other prevailing law, approval to enter into contract, arrangement, joint venture agreement with any person or firm for preparation, planning, development, execution, implementation and maintenance of schemes in the specified area, for carrying out the purposes of this Act, especially, sub clause (e) of sub Section 2 of Section 5, impose and vary development charges, transfer fee, service charges, toll, tax or other charges in respect of any land or buildings within any scheme in the specified area. 16. The Executive Board can pass any decision relating to its affairs and functions discussed above by simple majority of its total members by casting their votes. Director General of the Authority appointed by the Federal Government is an Officer of BS-20 or BS-21 of regularly constituted occupational Group or services, preferably a civil servant having a degree in engineering or town planning or architecture or project management; who has been notified by the Federal Government as Director General of the Authority on deputation basis to perform its function for a fixed period of three years or till attaining the age of sixty years, whichever is earlier. The powers and functions of the Director General have separately been explained in Section 7 of the Act. The Director General shall exercise all executive powers of the Authority, delegated to him or otherwise, in accordance with the directions, decisions and policies made by the Executive Board. The functions of the Director General shall be the following:- (a) prepare plans and carry out development, execution, implementation, maintenance, management and regulation of any scheme in the specified area approved by Executive Board;
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(5) accord approval for the layout plans, building plans of the schemes in conformity with the local municipal regulations; (c) accord approval for collection of revenues for maintenance of the schemes and enforcement of regulations made under this Act; (d) carry out maintenance arrangement, management and provision of all facilities, services and utilities including water, electricity, gas and sewerage for schemes in the specified area; (e) do all such acts and deeds that may be necessary for the purpose of proper preparation, planning, development, execution, implementation, management and maintenance of residential and commercial property in the schemes in the specified area; (f) recover development charges, transfer fees, services charges, toll or other charges in respect of any land or buildings within any scheme in the specified area as imposed by the Executive Board. Islamabad Capital Territory Local Government Act, 2015 17. In terms of this Act, new Local Government has been established to devolve political, administrative and financial responsibility and authority is given to the elected representatives of the local governments, to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level; and, to deal with ancillary matters. By virtue of Section 3 of the Local Government Act, working within the existing framework has been planned and a particular restriction has been imposed upon the Local Government. Section 3(3) of the ICT Local Government Act is hereby reproduced in this regard for ready reference: (3) The development, planning and overall maintenance of the Master plan within the specified area of Islamabad Capital Territory will continue to vest with Capital Development Authority and thus the overall Master Plan shall apply and no action by any authority, body or corporation shall be initiated in violation of the Capital Development Authority Ordinance, 1960 and the Zoning regulations duly approved by the Government. All powers to be exercised and rules to be enforced shall be subject to the planning framework already set in the aforementioned laws, rules and regulations. 18. While considering the above provision as a legal jurisdiction of ICT Local Government, it has clearly been envisaged that development, planning and overall maintenance of Master Plan within the specified area shall remain within CDA. This aspect demonstrates that the specified area referred in FGEHA Act, 2020 is different from ICT Local Government Act, 2015. 19. This Court has already observed that the Local Government Taxation in terms of Section 88 of the Local Government Act, 2015 is within the domain of the MCI and same was to be collected in terms of Section 89 of the Act by the MCI in a prescribed manner. 20. The detailed discussion has already been made by this Court in case law reported as PLD 2021 Islamabad 144 (Metropolitan Corporation, Islamabad vs. Chairman, Capital Development Authority, Islamabad), whereby the following directions were issued:- 1. The notification dated 17.12.2018 is illegal and void as no taxes proposals were issued nor even any objection were invited in terms of Section 88(4) of the ICT Local Government Act, 2015 neither public hearings were given before the imposition of levy of the property tax in Islamabad. 2. CDA has no jurisdiction or authority to impose the property tax or recover the property tax in any manner as it is the sole prerogative of the MCI under ICT Local Government Act, 2015, hence any tax demand by CDA is illegal. 3. The tax proposal be prepared by MCI and objections be invited from the public through publication of notice in newspapers, whereafter a notification in terms of Section 88 of ICT Local Government Act, 2015 be issued in accordance with law within period of six (06) months positively.
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4. All the areas of Islamabad Sectors, Societies, Rural Villages, Model Villages, the properties situated on the land of CDA be included in the notification by imposing the property tax in the Islamabad Capital Territory under the law after considering the concept of rating area, plot area, covered area and the services, which are required to be provided in those area. 5. The MCI after promulgation of the notice of the property tax shall provide the utility services within the Union Councils under the law, which includes the water, gas, electricity, roads, sanitation etc. after preparation of different schemes. 6. The Federal Government shall establish the Local Government Fund for settlement of all the issues including the financial autonomy to the MCI, which have not been dependent upon the Federal Government or the CDA. 7. The property tax which has already been imposed under the previous regime within the urban areas of Islamabad Capital Territory shall be charged from all the residents till the new notification is issued under the law after adopting due procedure and the citizens of Islamabad shall pay the property tax in a manner prescribed under the previous law within the next six (06) months, failing which, the surcharge be imposed accordingly, except those areas which were included in the impugned notification for the first time. 8. The tax/funds collected by CDA under the property tax from any of the allottee within Islamabad Capital Territory, shall stand transferred to Metropolitan Corporation, CDA has no authority to use property tax in any manner, nor they are permitted to disburse the same to any other entity or the Government in any manner. 9. The property tax collected by CDA after promulgation of ICT, Local Government Act, 2015 exclusively falls within the jurisdiction of MCI, therefore, special audit be conducted by the Auditor General of Pakistan for the calculation of the tax received by the CDA till date, the same would be transmitted to MCI, in case the amount has been used by the CDA, the CDA authorities shall be liable to return the amount within period of one year from the passing of this judgment. 10. The Federal Government shall provide necessary funds for the establishment of Union Councils offices within the respective union councils alongwith its infrastructure, budget and necessary material to exercise all respective municipal functions by the Union Councils within the respective area. 21. The issue relating to jurisdiction pertaining to municipal services in terms of FGEHA Act, 2020 viz- a-viz ICT Local Government Act, 2015, can be resolved by putting in juxtaposition the provisions of ICT Local Government Act, 2015 with FGEHA Act, 2020 in the following manner: ICI Local Government Act, 2015 Federal Government Employees Housing Authority Act, 2020 Preamble: Whereas it is expedient to establish an elected local government system to devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments; to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level; and, to deal with ancillary matters;Preamble: Whereas it is expedient to establish the Federal Government Employees Housing Authority for the purposes of planning and development of housing schemes for serving and retired Federal Government employees and other specified groups and matters connected therewith and ancillary thereto; 2(b): Authority means the Capital Development Authority;2(a): Authority means the Authority established under Section 3;
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2(x) local government means a Union Council or the Metropolitan Corporation established under this Act;2(n) specified area means all lands owned, purchased, acquired or procured by or vested in or leased to the Foundation under any law before the commencement of this Act and such other land as may be purchased or procured or acquired or vested in or leased to the Authority in Islamabad Capital Territory or other parts of Pakistan; and 2(aa) Mayor means the mayor of the Metropolitan Corporation notified as such under Section 12; 2(ww): tax includes any cess, rate, fee, toll or other charge levied under this Act. S3: Local governments to work within the existing framework:--(1) The local governments established under this Act shall faithfully observe all laws applicable in Islamabad Capital Territory.- (2) In the performance of their &motions, the local governments shall not impede or prejudice the exercise of the executive authority of the Government or any office performing functions of the Provincial Government in the Islamabad Capital Territory. (3) The development, planning and overall maintenance of the Master plan within the specified area of Islamabad Capital Territory will continue to vest with Capital Development Authority and thus the overall Master Plan shall apply and no action by any authority, body or corporation shall be initiated in violation of the Capital Development Authority Ordinance, 1960 and the Zoning regulations duly approved by the Government. All powers to be exercised and rules to be enforced shall be subject to the planning framework already set in the aforementioned laws, rules and regulations. (4) This legal framework shall without derogation to the existing laws and regulations of the Islamabad Capital Territory and Capital Development Authority and segments not covered by the prevalent law shall be covered by the respective local Government, asS3: Authority:--(1) The Division, concerned with the subject, through Chairman of the Authority shall, by notification in the official Gazette, establish the Federal Government Employees Housing Authority, within thirty days of the commencement of this Act. (2) The Authority shall be a body corporate having perpetual succession and common seal with power to purchase, procure through acquisition or otherwise, land as well movable and immovable properties and assets with the object to hold, possess, sell, lease, transfer, exchange any property" including landed property and to regulate the schemes undertaken by it in the specified area. (3) The head office of the Authority shall be at Islamabad. The Authority may establish regional offices in other parts of Pakistan with the approval of Executive Board. (4) The Authority shall also be the local authority in the specified area and shall be responsible for all public services and facilities. (5) while making or arranging, planning, designing and executing a scheme in specified area, adherence to local municipal regulations and master plan of the concerned district shall be…
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