PHC jurisdiction in BRT project challenged
Civic agency questions high court’s power to order FIA probe
ISLAMABAD:
The Peshawar Development Authority has questioned the jurisdiction of the Peshawar High Court in the Supreme Court for ordering the FIA to conduct an investigation into the BRT project, maintaining that the move is not in consonance under Article 199 of the Constitution.
The PDA and the Peshawar Sustainable Bus Rapid Transit Corridor (BRT) project director filed a petition through renowned lawyer Makhdoom Ali Khan in the apex court against last month’s PHC verdict, wherein FIA has been directed to conduct an inquiry into matters relating to the project within 45 days and submit a report with the registrar. The FIA was also directed to “take action against the delinquents, if found in the inquiry”.
Due to design adjustments (such as development of an intercity traffic flyover, three additional bus stations, construction of bridges in Hayatabad, etc) and extension in route for the project by two kilometres, the PC-1 of the Project was revised.
K-P to challenge BRT verdict before top court
The revised cost of the project was rationalised at Rs67.953 billion. Up to 85% of the cost is to be paid by the Asian Development Bank, while the remaining 15% by the K-P government.
As per the project designs, the BRT would cover a distance of 28km on the main corridor and 68km on seven of its feeder routes. A total number of 299 buses would carry an estimated 340,000 passengers per day. The main corridor is divided into three sections -- Reach-I, Reach-II and Reach-III.
The petition contends that the PHC has given findings and observations on policy matters while such matters exclusively fall within the domain of the executive. The courts do not look into policy decisions of the executive so long as these are backed by the law, it states, adding that there is no finding in the impugned judgment that the BRT project is contrary to any provision of law. The impugned judgment is, therefore, against the principle of trichotomy of powers, it adds.
It is also stated that the judgment contains findings and observations on highly technical matters relating to the BRT project. Through these adverse findings and observations, the PHC has sought to substitute its own opinion on technical matters for that of the executive. This is impermissible. It is settled law that Courts do not have technical expertise and, therefore, cannot sit in appeal on opinions of experts, says the petition.
The petition states: “The PHC judgment is beyond the pleadings of the parties. The petitioner in his petition before the PHC had only sought a direction for alteration of the proposed structure, which would allegedly interfere with access to his house. He did not challenge the BRT project. He also did not seek an inquiry by an investigation agency into the affairs of the BRT project. There was no material on the record to warrant such findings.”
BRT to enjoy a monopoly on route
The petition also states, “All matters relating to the conception, validity, economic viability and implementation of the BRT project already stand settled by the judgment of PHC on Dec 07, 2017. In that judgment the PHC declared that the action of carrying out the BRT project under the Khyber-Pakhtunkhwa Urban Mass Transit Act, 2016 (Act of 2016) is with lawful authority.
It is also stated that the PHC verdict, which consists of 14 pages, has no discussion, whatsoever, on the grounds raised in the petition. The impugned judgment, to this extent, is non-speaking and nullity in law. For this reason alone, the impugned judgment is liable to be set aside, it adds.
The Peshawar Development Authority has questioned the jurisdiction of the Peshawar High Court in the Supreme Court for ordering the FIA to conduct an investigation into the BRT project, maintaining that the move is not in consonance under Article 199 of the Constitution.
The PDA and the Peshawar Sustainable Bus Rapid Transit Corridor (BRT) project director filed a petition through renowned lawyer Makhdoom Ali Khan in the apex court against last month’s PHC verdict, wherein FIA has been directed to conduct an inquiry into matters relating to the project within 45 days and submit a report with the registrar. The FIA was also directed to “take action against the delinquents, if found in the inquiry”.
Due to design adjustments (such as development of an intercity traffic flyover, three additional bus stations, construction of bridges in Hayatabad, etc) and extension in route for the project by two kilometres, the PC-1 of the Project was revised.
K-P to challenge BRT verdict before top court
The revised cost of the project was rationalised at Rs67.953 billion. Up to 85% of the cost is to be paid by the Asian Development Bank, while the remaining 15% by the K-P government.
As per the project designs, the BRT would cover a distance of 28km on the main corridor and 68km on seven of its feeder routes. A total number of 299 buses would carry an estimated 340,000 passengers per day. The main corridor is divided into three sections -- Reach-I, Reach-II and Reach-III.
The petition contends that the PHC has given findings and observations on policy matters while such matters exclusively fall within the domain of the executive. The courts do not look into policy decisions of the executive so long as these are backed by the law, it states, adding that there is no finding in the impugned judgment that the BRT project is contrary to any provision of law. The impugned judgment is, therefore, against the principle of trichotomy of powers, it adds.
It is also stated that the judgment contains findings and observations on highly technical matters relating to the BRT project. Through these adverse findings and observations, the PHC has sought to substitute its own opinion on technical matters for that of the executive. This is impermissible. It is settled law that Courts do not have technical expertise and, therefore, cannot sit in appeal on opinions of experts, says the petition.
The petition states: “The PHC judgment is beyond the pleadings of the parties. The petitioner in his petition before the PHC had only sought a direction for alteration of the proposed structure, which would allegedly interfere with access to his house. He did not challenge the BRT project. He also did not seek an inquiry by an investigation agency into the affairs of the BRT project. There was no material on the record to warrant such findings.”
BRT to enjoy a monopoly on route
The petition also states, “All matters relating to the conception, validity, economic viability and implementation of the BRT project already stand settled by the judgment of PHC on Dec 07, 2017. In that judgment the PHC declared that the action of carrying out the BRT project under the Khyber-Pakhtunkhwa Urban Mass Transit Act, 2016 (Act of 2016) is with lawful authority.
It is also stated that the PHC verdict, which consists of 14 pages, has no discussion, whatsoever, on the grounds raised in the petition. The impugned judgment, to this extent, is non-speaking and nullity in law. For this reason alone, the impugned judgment is liable to be set aside, it adds.