ISLAMABAD: The Supreme Court set aside the Islamabad High Court (IHC) judgment regarding the Federal Government Employees Housing Foundation, Islamabad, power to acquire the land. A four-member bench, headed by Justice Mushir Alam and comprising Justice Umar Ata Bandial, Justice Qazi Faez Isa, and Justice Ijazul Ahsan, announced the consensus judgment on Thursday.
However, Justice Qazi Faez Isa wrote a separate note. Some of the land owners challenged the acquisition proceedings by invoking the Islamabad High Court's constitutional jurisdiction under Article 199 of the Constitution. The challenge was made on a number of grounds.
It was alleged that the acquisition of the land was not for a "public purpose", and since the land was situated in Islamabad, its acquisition could only take place under the Capital Development Authority Ordinance, 1960.
Chief Justice of the Islamabad High Court (IHC) vide judgment dated 23 October 2017 allowed the petitions because, in his opinion, the said acquisition was not for a public purpose and because the CDA, under the CDA Ordinance, had exclusive jurisdiction to acquire the land as it was situated in Islamabad.
The foundation and some of the allottees challenged the judgement of the Single Judge by filing Intra-Court Appeals (ICA) before a division bench of the IHC but their appeals were dismissed by judgment dated 25 September 2018.
In the ICAs, the findings of the Single Judge regarding public purpose and the CDA's exclusive jurisdiction were upheld, and it was further held that the Land Acquisition Act was not applicable.
The Foundation and some of the allottees filed appeal in the Supreme Court and leave was granted on 6th December 2018.
Justice Qazi Faez Isa in his note said that "the Constitution and the law (presidential orders) do not entitle chief justices and judges of the superior courts to plots of land".
The 'Supreme Court of Pakistan: Judicial Estacode also does not contain anything therein entitling chief justices and judges to plots of land.
Likewise, the Manual of 'Pay, Pension and other Privileges', compiles the presidential orders, rules, and notifications regarding the pay, pension and privileges of judges, but the manual also does not contain anything entitling chief justices and judges of the superior courts to plots of land.
He wrote that the judges adjudicate disputes and ensure that the people are not deprived of their Fundamental Rights, which more often than not are enforced against the executive.
The federal and provincial governments and organisations controlled or under them, are often arrayed as parties in cases.
He stated that the aphorism that justice must not only be done but be seen to be done, is undermined, if people perceive that cases are not decided without fear or favour.
The executive giving plots to judges constitutes a favour.
The terms and conditions of service of judges do not entitle judges to receive plots from the Foundation or out of any compulsorily acquired land.
Justice Qazi Faez stated different laws govern those employed in the Army, Air Force, Navy, Rangers, Frontier Constabulary, Frontier Corps, National Guards, Coast Guards and Airports Security Force; the laws governing them do not provide that they be given residential plots, commercial plots or agricultural land nor permits them to receive the same.
Nevertheless, senior members of the Armed Forces get plots and agricultural lands and continue to be given additional plots and agricultural lands as they rise up the ranks.
He stated that brother of General Asif Nawaz in his 655-page book brings privileged, personal and scholarly insight into the Armed Forces of Pakistan.
"General Mohammad Ayub Khan was preceded by two British officers as Pakistan's army chiefs. When General Gracey was commanding Pakistan's Army General Mohammad Ayub Khan approached him with a request for a plot but he was rebuffed by the army chief; ironically a British officer preserved Pakistan's land from a son of the soil."
Justice Qazi Faez wrote that both civil service and armed forces personnel were in the service of Pakistan; the Constitution created no distinction between them.
Civil servants are employed in different departments of government doing what their respective mandates stipulate while armed forces personnel defend the country against external aggression, and act in aid of civil power, when called upon to do so.
The people of Pakistan pay for the services provided by each category.
Those in the service of Pakistan can receive only that which the law sanctions.
The terms and conditions of all those in the service of Pakistan are set out in the laws respectively applicable to them.
The 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 the 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.
However, the 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 subsidised by the State), stand in queue and wait 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.
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) and be void.
The Constitution does not permit self-enrichment and personal aggrandisement.
The judges receive a sizable 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.
Copyright Business Recorder, 2020
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