SC orders IHC to de-seal Monal Restaurant

Apex court suspends IHC's short order; questions how wildlife board can take possession without written order

ISLAMABAD:

The Supreme Court (SC) has suspended the Islamabad High Court's (IHC) order of sealing the Monal Restaurant.

A three-judge bench led by Justice Ijazul Ahsan suspended the operation of paras 16 to 21 of the January 11 order pertaining to sealing of Monal Restaurant in the federal capital.

The bench, however, declined Additional Attorney General for Pakistan Qasim Wadood’s request to suspend Para 16 of the January 11 order wherein it was held that "the claim of Remount, Veterinary and Farms Directorate of Pakistan Army, regarding 8,068 acres of land in the notified National Park area is in violation of the Ordinance of 1979 read with the Ordinance of 1960 and the Master Plan”.

“The claim is also not in conformity with the enforced laws applicable to the management of lands for the use of the armed forces. The federal government was bereft of jurisdiction to allow the directorate to use 8,068 acres of land in the notified National Park area. The directorate has no jurisdiction nor the authority to own, use or keep in possession any land within the notified National Park area."

AAG Wadood on behalf of the defence ministry filed a petition against Para 16 of the January 11 order. However, the SC has yet to entertain the ministry's petition.

Regarding Monal Restaurant, the IHC in its January 11 order said that the Remount, Veterinary and Farms Directorate had no jurisdiction or authority to execute the purported agreement, dated September 30, 2019 with Monal Restaurant.

The rent recovered by the directorate from Monal Restaurant was also without lawful authority and jurisdiction.

The Ministry of Defence secretary shall ensure that the rent received by the directorate is recovered and deposited with the exchequer within 60 days from the date of the order, the IHC order said.

It is also said that the lease agreement of Monal Restaurant with the Capital Development Authority (CDA) had expired and its agreement, dated September 30, 2019 with the Remount, Veterinary and Farms Directorate was void and without any legal effect.

The order dated October 4, 2021 impugned in FAO No 111 of 2021 did not suffer from any illegality.

"The CDA and the Islamabad Wildlife Management Board shall forthwith take over possession of Monal Restaurant and thereafter seal its premises subject to allowing its owner/management to take out its property," according to Para 21 of the IHC order, which was suspended on Tuesday.

The apex court gave relief to Monal Restaurant after conducting three hearings.

On February 24, the restaurant’s counsel, Makhdoom Ali Khan, said that despite repeated requests, certified copy of the January 11 order was not received. Likewise, the high court had yet to issue reasoning of the January 11 order.

He said that the intra-court appeal was fixed twice but the case was dismissed before the hearing.

“The wildlife board was not a party to the case,” the counsel argued. “How can it take possession without a written order being issued?”

Justice Ahsan wondered how the restaurant was sealed before the written court order was issued.

"If the wildlife board was not a party then why was it sealed so quickly?" the judge asked. "How many restaurants have been sealed on Margalla Hills to date? In principle, there is no order of the Islamabad High Court."

The board’s counsel told the bench that the authority had issued notices to Gloria Jean's and La Montana Restaurant.

The top court also reprimanded Islamabad Wildlife Management Board Chairperson Rina Saeed Khan and asked her to leave.

"Don't you understand that a verbal decree has no constitutional or legal status?" the judge asked the chairperson.

"When the rest of the restaurants were given [written] notices then why not Monal? It seems that this restaurant has been targeted separately. If the restaurants want they can challenge the notices on the relevant forums, which would have not been a problem in the Monal Restaurant case as well, if the law had been followed in the same way," he added.

The CDA's lawyer also informed the court that the restaurant's lease had expired six months ago. Justice Ahsan remarked that the dispute between CDA and Monal Restaurant will be decided by the concerned civil court.

Subsequently, the SC adjourned the hearing indefinitely.