The Supreme Court on Thursday set aside an earlier verdict by the Islamabad High Court (IHC), which had scrapped a federal government housing scheme in the capital.
The beneficiaries of the housing scheme in sectors F-14 and F-15 of Islamabad include judges, powerful bureaucrats, influential lawyers and journalists.
The housing project was being undertaken by the Capital Development Authority (CDA) and the Federal Government Employees Housing Authority (FGEHA) on land acquired from locals.
In 2017, Justice Athar Minallah of the IHC had decided petitions filed by locals against the acquisition of their land by FGEHA and asked the CDA to take over the development of housing schemes in the areas and to judiciously dispense the plots after developing the two sectors.
Later, a division bench of the IHC dismissed an appeal filed by FGEHA against the verdict after which the federal authority approached the apex court against the high court order.
Then chief justice of Pakistan (CJP) Mian Saqib Nisar allowed an appeal against the high court order and suspended its ruling.
However, as many as six judges of the top court recused themselves from hearing the case for different reasons. Of the six judges, at least three judges preferred not to adjudicate on the matter as they had applied for plots in the scheme.
A four-judge special bench, led by Justice Mushir Alam and also comprising Justice Umar Ata Bandial, Justice Qazi Faez Isa and Justice Ijazul Ahsan, reserved its judgment on January 14 this year.
According to the FGEHA’s list of applicants and allottees available on its website, seven of the serving judges of the apex court have applied for plots in the scheme.
Advocate Hassan Mann, who pleaded the matter on behalf of affectees of land acquisition at the IHC, had said the real issue is that the land is being acquired for the benefit of a privileged class. However, this land could fetch more than Rs500 billion to the exchequer, if auctioned on a commercial basis.
He had said: “This is a case concerning public revenue. Instead of generating revenue for public exchequer, the FGEHA is usurping the sovereign privilege of eminent domain to line the pockets of its members.”
The beneficiaries of FGEHA scheme are serving or retired officers and employees of federal ministries, divisions, attached departments and judges of the superior courts – the SC, all high courts, Azad Kashmir Supreme Court and the Chief Court and the Supreme Appellate Court of Gilgit-Baltistan and the Federal Shariat Court, Mann said earlier.
Supreme Court judge Justice Qazi Faez Isa, in his additional note, declared that laws governing civil and armed forces personnel do not entitle them to receive residential plots, commercial plots or agricultural land.
"If residential plots, commercial plots and agricultural land are given to only one category in the service of Pakistan, that is to members of the armed forces, and the civilians in the service of Pakistan are disregarded, it constitutes discrimination and offends the fundamental right of equality," said Justice Isa. He is among four judges which set aside the IHC ruling.
Justice Isa in his additional note added that a foundation, a government or an organisation controlled by a government may launch a housing scheme for the members of the Armed Forces, and when this happens they may apply for the allotment of a single plot for housing.
"But, they like every other applicant of such schemes will have to pay the requisite amount (not subsidized by the state), stand in queue and await their turn for allotment in terms of the applicable methodology. And, the plot which is allotted/granted must not be large because available land is finite and the list of beneficiaries is long, and keeps growing longer, says the judgment.
"The prevailing practice of granting State/public plots and land to members of the Armed Forces is contrary to the Constitution and the law. Laws can also not be enacted to enable such allotments/grants because if enacted these would violate the Constitution (Articles 24, 25, 205 and 227). The Constitution does not permit self-enrichment and personal aggrandizement."
"During the period of Hazrat Umar (RA) at one occasion such a situation had arisen with regard to some land and the Mujahideen demanded distribution of the said land to them but the Caliph refused to give the said land to the Mujahideen with the consideration that Islam strictly prohibits the establishment of an individual interest in State property in preference to the public interest."
The judge also said that the leaders of the freedom movement, the All-India Muslim League, who created Pakistan, amongst whom were many who had lost their own homes, did not take a single square inch of land. These proud freedom fighters of Pakistan were also not remunerated nor pensioned. They spent from their own pockets to create Pakistan. Their only motivation was a burning desire to serve the people. The constitutional goal of ‘creating an egalitarian society’ is undermined when public land furtively finds its way into private hands, he adds.
"Those in the service of Pakistan retire at the age of 60, Chief Justice and Judges of the High Courts at the age of 62 and Chief Justice and Judges of the Supreme Court at the age of 65; by which age most, if not all, already have a place to call home; if they don’t, they will receive a sizeable monthly pension which they can use to rent a place. The amount to be spent in the current financial year 2020-2021 on pensions is 470,000,000,00087 rupees (four hundred and seventy billion rupees); of which 111,000,000,000 rupees (one hundred and eleven billion rupees) is to be spent on retired civilians and 359,000,000,000 rupees (three hundred and fifty-nine billion rupees) is to be spent on retired personnel of the Armed Forces. The annual cost of pension payments is almost equal to the cost of ‘Running of Civil Government’, which is 476,589,000,00088 rupees (four hundred and seventy-six billion, five hundred and eighty-nine million rupees). The people of Pakistan pay these pensions despite having very little themselves. To serve the nation is a singular honour. When, in addition to receiving pensions, public lands are taken it is eminently unfair," said Justice Isa
"The judiciary and the armed forces of Pakistan are patterned on the British model. Land is not given away to judges and to the members of the armed forces in Britain, in the United States of America nor in any commonwealth country, with the singular exception of Pakistan. At the time when the subcontinent was captured and ruled by the East India Company, and later when it came under the direct rule of the British Crown, British officers, soldiers and judges, whether deployed in the subcontinent or serving at home, were not conferred land."