SC suspends BHC judgment declaring certain DHA Act clauses unconstitutional

Apex court observed case for grant of leave had been made out as important questions of law required consideration


Hasnaat Malik March 16, 2021
PHOTO: AFP/FILE

ISLAMABAD:

The Supreme Court (SC) suspended on Tuesday the Balochistan High Court's (BHC) judgment wherein several provisions of the Defence Housing Authority (DHA) Act, 2015 were declared unconstitutional.

In a petition filed by DHA Quetta, a three-member bench of the apex court comprising Justices Umar Ata Bandial, Qazi Amin Ahmed and Mazahir Hussain Naqvi granted leave to appeal against the BHC judgment.

A full court of the BHC comprising all its five judges had declared several provisions of the DHA Act, 2015 unconstitutional.

The high court had declared that the DHA was like a non-government agency and therefore, acquisition of property by it would violate the constitutional right to property.

It had also held that the DHA could not be allowed to develop its own master plans or perform other municipal functions.

The power of the authority to declare a specified area in which development could be carried out was also held unconstitutional.

The BHC judgment had resulted in all development work ongoing in DHA Quetta at the time being halted.

Makhdoom Ali Khan, senior advocate appearing for the petitioner DHA Quetta, submitted that Article 24 of the Constitution permitted the acquisition of property for a public purpose.

The DHA was acting in the public interest. All allotments were made to members of the public and by ballot, he maintained.

The advocated submitted that the BHC had itself acknowledged that the society was working in the interest of the people and many other societies were doing poor quality work.

Read Balochistan top court declares certain clauses of DHA Act unconstitutional

He maintained that the statute merely authorised the DHA to exercise municipal functions and develop master plans in areas that had been procured, purchased, leased or acquired by it. The BHC had not appreciated this aspect of the case.

Developing master plans for or performing municipal functions in lands that were those of the DHA was only proper and there was nothing unconstitutional about it, he argued.

The counsel submitted that the major premise of the full-court judgment was that the DHA Act 2015 was in conflict with the Land Acquisition Act.

The high court had incorrectly concluded that the Land Acquisition Act, 1894 was a federal law and that it being in conflict with the DHA Act, 2015 was unconstitutional as per Articles 141 to 143 of the Constitution.

He submitted that since the Government of India Act, 1935 the Land Acquisition Act has been a provincial, not a federal statute. Therefore, there was no conflict between a federal and a provincial statute. No article of the Constitution was, thus, violated.

He further submitted that the DHA Act, in any event, provided that the authority will act in accordance with the provisions of the Land Acquisition Act so the question of any conflict did not arise.

The Supreme Court noted these submissions and observed that a case for grant of leave had been made out as these were important questions of law that required consideration.

As the counsel urged that the entire operation of the DHA had been paralysed and its work stopped, causing the authority and its allottees tremendous hardship, the court suspended the full-court judgment of the BHC.

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