ISLAMABAD: The Supreme Court on Tuesday suspended the Balochistan High Court judgment that declared several provisions of the Defence Housing Authority (DHA), Act 2015 unconstitutional.
A three-judge bench headed by Justice Umar Ata Bandial comprising Justice Qazi Muhammad Amin Ahmed and Justice Sayyed Mazahar Ali Akbar Naqvi, heard the appeal of DHA, Quetta, against the BHC verdict.
The bench after hearing the arguments of Makhdoom Ali Khan, the counsel for DHA Quetta, granted leave to appeal and suspended the judgment of Balochistan High Court.
A full court of the Balochistan High Court comprising all its 5 judges had declared several provisions of the DHA Act 2015 unconstitutional. The High Court had declared that the DHA was like a non-governmental agency and, therefore, acquisition of property by it would violate the constitutional right to property.
It had also held that 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.
During the course of proceedings, Makhdoom Ali Khan contended that Article 24 of the constitution permitted acquisition of property for a public purpose. The DHA was acting in the public interest. All allotments were made to members of public and by ballot. He submitted that the BHC had itself acknowledged that the society was working in the interests of the people and many other societies were doing poor quality work.
He contended that the statute merely authorized DHA to exercise municipal functions and develop Master Plans in areas which had been procured, purchased, leased or acquired by it.
He said the BHC had not appreciated this aspect of the case, he said. Developing master plans for or performing municipal functions in lands which were those of DHA was only proper and there was nothing unconstitutional about it, he added.
The counsel submitted that the major premise of the Full Court judgment was that the Defence Housing Authority 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 the DHA Act was unconstitutional as per Articles 141 to 143 of the constitution,” he added.
“Since the Government of India Act, 1935 the Land Acquisition Act has been a provincial and not a federal statute. There was, therefore, no conflict between a Federal and a provincial statute. No Article of the Constitution was, thus, violated,” he said.
He further argued 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 bench observed that a case for grant of leave had been made out as these were important questions of law which required consideration.
As the counsel urged that the entire operation of the DHA has been paralysed and its work stopped causing it and its allotted tremendous hardship the court also suspended the full court judgment of BHC.
Copyright Business Recorder, 2021
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