Monal case: 'IHC exceeded jurisdiction'

FCC holds HC findings prejudged pending civil suits

ISLAMABAD:

The Federal Constitutional Court (FCC) has set aside the Islamabad High Court (IHC) judgment that declared the allotment of 8,068 acres of land to the Pakistan Army in Islamabad's National Park area unlawful. It held that the high court exceeded its jurisdiction by deciding issues pending before a civil court.

The eight-page short order, authored by Justice Syed Hasan Azhar Rizvi in the Monal Restaurant case, also nullified the Supreme Court judgment that upheld the IHC verdict, as well as the subsequent review judgment.

The FCC observed that the IHC, while hearing interlocutory proceedings, had ventured beyond the limits of its constitutional jurisdiction.

"The high court, while transgressing the limits of its jurisdiction, proceeded to adjudicate the entire controversy pending before the civil court.

"[It] rendered a final determination by holding that the Remount, Veterinary and Farms Directorate, General Headquarters, QMG Branch, Rawalpindi (RV&FD), lacked the jurisdiction and authority to execute the 2019 agreement with the respondent (Monal Group) and by declaring the said agreement to be void and of no legal effect," the court held.

In its earlier judgment authored by then IHC chief justice Athar Minallah, the high court had ruled that the RV&FD's claim over 8,068 acres of land within the notified Margalla Hills National Park violated the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979, read together with the Capital Development Authority Ordinance, 1960, and the Islamabad Master Plan.

The IHC had also held that the RV&FD had no legal authority to execute the September 30, 2019 agreement with Monal Restaurant.

In the same judgment, the IHC had observed that the Pakistan Navy had illegally encroached upon state land, including notified National Park land, by establishing a golf course outside the allocated Sector E-8.

The detailed IHC judgment had further held that the Pakistan Army had neither the authority nor the jurisdiction to directly or indirectly engage in business ventures outside its statutory mandate or claim ownership of state land, observing that any such activity required explicit approval from government.

The Supreme Court upheld the IHC judgment, and a review petition against that decision was dismissed. Subsequently, the Capital Development Authority (CDA) filed a review petition against the Supreme Court judgment endorsing the IHC ruling.

The FCC said where a court is satisfied that an error identified in a review petition arose from a mistaken assumption of fact or law, and the earlier judgment would not have been rendered but for that error, the court is fully empowered to rectify it if allowing it to stand would result in a miscarriage of justice.

"It is, therefore, concluded that the errors are glaring and self-evident, found floating on the surface of the record, and have a material bearing on the final result of the case," the short order stated.

The court further observed that "justice is a virtue which transcends all barriers, and that rules of procedure, technicalities, or procedural formalities cannot be permitted to obstruct the administration of justice. Law must bend in aid of justice."