Acquisition of land for sectors F-14, F-15 in Islamabad illegal

IHC rules the purpose for which land was acquired does not meet threshold of ‘public purpose’

ISLAMABAD: In a surprising move, the Islamabad High Court on Monday declared that proceedings relating to the acquisition of land for the Federal Government Employees Housing Foundation (FGEHF) in sectors F-14 and F-15 were illegal, observing that the capital has become “a classic example of the rule of men rather than rule of law.”

Justice Athar Minallah of the IHC ruled that the state has no obligation to provide land in the shape of largess, but if it does, then it must be available to every citizen on the same terms.

In the judgement, over petitions filed by natives of the area against the land acquisition process, he noted that a person may own multiple properties in Islamabad or could be earning a seven-digit salary, and yet they would be entitled to the pecuniary benefits at the expense of land but the “scheme does not include the homeless and needy citizens.”

In addition, he ruled that the prime minister, as the chief executive of the country, was not empowered to approve a summary which had the effect of the sale or disposition of property vested in and owned by the government in a non-transparent manner.

Moreover, he said, once this summary has been turned down, accepting it for the second time after a gap of two years and without providing reasons can best be termed as “colourable exercise of the executive authority which was not even vested in the latter.”

Justice Minallah stated that land within the Islamabad Capital Territory (ICT) can only be acquired under the Capital Development Authority’s Ordinance of 1960. The FGEHF — its role in matters relating to development, town planning or housing in areas where the ordinance is enforced — is illegal, void and without lawful authority.

“Federal government, directly or indirectly, is not empowered to deal with or engage in matters relating to development, town planning or housing otherwise than as expressly provided under section V of the Ordinance of 1960,” Justice Minallah wrote in the verdict.

He subsequently declared that “all actions and orders relating to acquiring land for the Foundation in sectors F-14 and F-15 are declared as illegal, void and without jurisdiction and legal effect besides being ultra vires the Constitution and the law.”

However, Justice Minallah stated that the CDA can initiate proceedings to acquire land in the sectors under the ordinance for planning and developing sectors F-14 and F-15.

Justice Minallah also struck down the argument that land acquired for the distribution of state largess amongst people belonging to a certain service, institution or profession has been extended as “grace” to the beneficiaries for more than 70 years and has never been objected to.

“I am afraid that illegality in the past, having the effect of causing colossal loss to the people of Pakistan and depriving them of their guaranteed fundamental rights, can neither be condoned nor allowed to be perpetuated,” he stated.

The judge noted that “there is nothing on record to justify the selection of the beneficiaries.”

In addition, he said, the selection is made arbitrarily on the basis of subjective assessment and it could not be explained why only those who work for the government or constitutional bodies are offered the land.

“There is also no explanation why teachers employed in private schools, drivers who are privately employed, engineers and doctors in private sector, carpenters, sweated labour or others engaged in many other professions have been left out while journalists and lawyers have been included,” he said.

He added that there is no explanation why largess was available to people who are privileged and wield influence in society while the less privileged, downtrodden, and shelterless have no access to such lucrative financial benefit, including those who were evicted from Sector I-11 and their mud houses were bulldozed.

Justice Minallah stated that it is difficult to understand that why allotment of plots in Sector G-13 to selected judges, two senior lawyers apart from those for a former Chief of Naval Staff were approved while shelterless struggling young lawyers were ignored.

Journalists and media workers, who are supposed to hold the state organs accountable by exposing their misdeeds to the people of Pakistan, have also been made stakeholders, he noted, adding that lawyers who should defend the affectees and highlight their grievances relating to violations of their fundamental rights are also a part of the state largess.

“The state has no commitment to give a plot in a non-transparent manner to the judges, journalists, lawyers or any other beneficiary of the foundation,” he stated.

The only criteria for a federal government servant is seniority in relation to his or her age and there is no bar to extend this “Grace” to those who may have entered into plea bargain or voluntary return looted money acquired through corruption and corrupt practices, the incompetent ones or against whom disciplinary proceedings were pending or penalties may have been imposed for misconduct.

Also, there is no bar on violators of the constitution, tax evaders and those who may be accused in criminal cases and facing trials before courts of law and “possibility exists that such persons may have benefited in the past from this ‘Grace’.”

Justice Minallah has ruled that private financial gain is an antithesis of public service.

“Rather than an advantage or benefit to the public, it is a loss to them because the property over which they have a right of ownership is robbed from them and given to few individuals as a private financial benefit,” he stated. “Every inch of land which vests in the government belongs exclusively to the people of Pakistan.”

He subsequently declared that the object and purpose for which land was acquired does not meet the threshold of “public purpose”.

While giving his observations regarding the conduct of the federal government and the CDA, Justice Minallah stated the “comments filed by the authority in the instant petitions can either be termed as a deliberate attempt to mislead the court ... or ignorance regarding the laws and regulations.”

“The capital of the Islamic Republic of Pakistan has become a classic example of the rule of men rather than rule of law,” he expressed.

The CDA Chairman and every Member of the Board were jointly and severally liable for breach of their fiduciary duties, he stated, adding that regulatory failure and negligence on the part of CDA was too obvious to be ignored.

He noted that it has also become a classic example of regulatory capture, adding that there was a looming environmental crisis on account of unregulated urbanisation and construction, which is in flagrant violation of the Ordinance of 1960 and the regulations made thereunder.

“Indeed justice delayed is justice denied, but its never too late to put an end to the perpetuation of injustice,” he concluded.

Native villagers from the said sectors had filed petitions against the land acquisition process for FGEHF. A land acquisition collector had issued a notification on May 20, 2015, and then Commissioner Islamabad issued another notification on December 4, 2015, for the acquisition of land for the purpose of FGEHF housing schemes describing it 'public purpose'. Petitioners said that due to the notifications their fundamental rights under articles 9, 23, 24 and 25 are violated depriving them of their ancestral land.

Petitioners had been seeking from the court to declare that the land of the petitioners could only be acquired under CDA ordinance and land acquisition procedure for the purpose of the master plan only. Petitioner had been seeking to declare that self-financing house schemes on ownership basis for federal government employees are without lawful justification and hence the notification issued for acquisition of land should be declared illegal, unlawful, arbitrary, mala fide, discriminatory and without jurisdiction.

FGEHF lawyer had argued that allotment of plots to different employees or professions was neither reward nor compensation but 'Grace'.

Justice Minallah while commenting on the “Grace” of giving plots to the selected ones since decades has aptly answered it by quoting the renowned French economist Fredric Bastiat: “When plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it.”

The prime minister had approved schemes in sectors F-14 and F-15 on May 1, 2015. Its award was finalised on November 15, 2016, covering an area measuring 7,003 kanals which had to be acquired from 650 affectees. Of these, 280 filed references in the court.

Published in The Express Tribune, October 24^th, 2017.