IHC detailed verdict: Construction of houses, buildings in Banigala, E-11 declared illegal

A larger bench of Islamabad High Court Monday declared construction of houses or buildings of any type whether in Golra Revenue Estate or in the area comprising Bani Gala as illegal. The three-member bench of IHC comprising Justice Athar Minallah, Justice Aamer Farooq and Justice Mohsin Akthar Kayani issued a detailed judgment in this regard and directed the federal government to constitute a commission for the purpose.
In its 103-page verdict, the larger bench noted, "As it has become inevitable to review the existing master plan and assess its efficacy, we direct the federal government to forthwith take steps of constituting a commission, inter alia, of professional experts, preferably of international repute, in the field of town planning, environmental management and finance. The commission will make recommendations to the federal government. The terms of reference shall also be formulated by experts. The federal government is expected to complete the proceedings within six months from the date of receiving a certified copy of this judgment."
The petitions in this case were divided into two categories: Category-A were related to the area known as 'Bani Gala' while category-B petitions were in respect of Sector E-11.
In all the petitions, the petitioners challenged the construction of various types of buildings. In the petition listed in category-A, the petitioner asserted that the respondent initiated the construction of a high-rise building without obtaining approval from the Capital Development Authority (CDA). The area where this construction is intended to be carried out is near Korang Road, Bani Gala, Islamabad.
In the petitions listed in category-B, the respondents have either constructed or are in the process of starting the construction of various types of buildings in Sector E-11. The proposed buildings are mostly of a commercial nature. In one of these petitions, the petitioner has challenged the refusal on the part of the authority to enforce the regulations made under the Capital Development Authority Ordinance, 1960.
It is the case of the petitioners that high-rise buildings and other buildings of a commercial nature cannot be constructed within the area known as 'Bani Gala' or in the un-acquired areas of Sector E-11. Moreover, the authority, pursuant to a decision taken by the federal cabinet in the year 2004, has restrained the Islamabad Electric Supply Company and Sui Northern Gas Pipelines Limited from extending the facility of giving utility connections to owners and occupiers of such buildings which have been constructed in violation of the Ordinance of 1960 and the regulations/rules made there under.
In a nutshell, the petitioners have raised the issue regarding the regulation of the construction of buildings outside the acquired lands falling within the area known as the Islamabad Capital Territory.
The court stated in the verdict, "For what has been discussed above, we allow these petitions and declare that construction of houses or buildings of any nature, whether in the 'Golra Revenue Estate' or the area comprising 'Bani Gala' which have been or are intended to be constructed in violation of the master plan, the Ordinance of 1960, the Zoning Regulations of 1992, the Ordinance of 1966 and the Wildlife Ordinance of 1979, as the case may be, are illegal, without lawful authority and jurisdiction and thus liable to be demolished as mandated under the Ordinance of 1960 and the regulations made there under."
It added that none of the respondents have been able to place on record any document which would establish the legality of their buildings. The authority is the sole and exclusive regulator and the union councils are not vested with authority to grant any approval contrary to or in violation of the Ordinance of 1960 and the regulations made there under.
"We also declare that in case of any violation, the chairman and each member of the authority shall be jointly and severally liable for breach of duties and obligations imposed under the Ordinance of 1960. The chief commissioner Islamabad Capital Territory will be equally responsible if the legal framework in the un-acquired areas is violated. We also declare that the Authority is the exclusive and sole regulator and the provisions of the Ordinance of 1960 and the regulations made there under are attracted in the case of a private housing authority established in any part of the Islamabad Capital Territory," maintained the IHC larger bench.
It continued that the destruction and damage caused to the master plan has solely benefited the privileged classes which is exactly the opposite to the vision of the founding planners of Islamabad. The larger public interest ought to prevail. "We have been consistently observing and reiterating that Islamabad, the capital of Pakistan, has become a classic example of the rule of men rather than the rule of law," said the order.
"The looming imminent environmental crisis on account of unregulated urbanization and illegal construction can neither be taken lightly nor ignored. All those who have allowed this to happen ought to be held accountable because they have endangered lives and have not been fair to the future generations. The doctrine of necessity is alien to the rule of law. Saving the environment from further destruction and degradation must take precedence over the interests of a few. There must not be any hesitation in bringing down any illegal structure if there exists even the remotest possibility of damage to the environment. It is the larger public interest that must prevail. If urgent steps are not taken then posterity will never forgive those who today are in a position to enforce and implement the spirit and essence of laws which have been flagrantly and mercilessly violated for more than seven decades. Laws which were supposed to protect the rights of the citizens have been used as tools to abuse those very rights. Justice delayed is justice denied and it is never too late to put an end to the perpetuation of injustice. Fiat justitia ruat caelum (let justice be done though the heavens fall)," said the verdict.