Regularisation of Illegalities

A three-member bench of the Supreme Court (SC) headed by Chief Justice of Pakistan (CJP) Saqib Nisar hearing a suo motu case has ordered the removal of encroachments along Korang Nullah and the regularisation of illegally constructed properties in Banigala. The court was informed by the Additional Attorney General (AAG) that a Survey of Pakistan report, which was similar to the reports of the Capital Development Authority (CDA) and the Federal Ombudsman, says over 600 kanals of government land in the area declared a botanical garden was occupied by encroachers. He pleaded for a court order to have these encroachments removed. The CJP said all the illegal constructions in Banigala must be regularised through the payment of fines and penalties by the owners, starting with Prime Minister (PM) Imran Khan himself to set an example. The PM's counsel Babar Awan informed the court that a proposal for such regularisation was with the federal cabinet, whose decision was awaited. The SC's taking up the issue of encroachments and illegal construction in Banigala and surrounding areas comes many years after such activity became a scandal. The example of Banigala is by no means exceptional. Such encroachments and illegal construction has blighted not just the environs of Islamabad, it is rife throughout the country. Examples of this are the CDA's current demolition drive along the Kashmir Highway of illegally constructed marriage halls and hotels that had been in business for many years. Similar reports surrounding the activities of real estate moguls and constructors in Sindh and other parts of the country have been the fare of headlines in recent months. Bending of the law, rules and regulations of urban building activity is so entrenched that it will take nothing less than a concerted countrywide drive to either remove such usurpations through demolition where possible, and regularisation through fines and penalties where this remedy is not available. The names of the beneficiaries of encroachments and illegal construction in Banigala and elsewhere reads like a who's who of the country's rich and powerful. But this would not be possible no matter how highly placed in society or the corridors of power such worthies are without the collaboration through corrupt practices of government officials charged with overseeing such development. Sadly, once an encroachment or illegal construction has taken place in broad daylight under the noses of the powers that be, it takes on the character of an irreversible and permanent 'sin'. It is only in the present climate of accountability and audit of corrupt practices that the ability of the beneficiaries to ward off scrutiny of their illegal practices has been weakened (although not entirely eliminated yet). With the SC now weighing in against this scandalous situation, hope has arisen that past such transgressions will be dealt with and measures put in place to prevent the recurrence of such activities in future.
Facts on the ground produced by the authorities turning a blind eye, whether because of inertia, inefficiency or plain collaboration through corrupt practices, cause major headaches when the judiciary takes up such issues. In the case of Banigala, the scandal has been an open secret since years but no one was able to do anything about it till now. The courts, and the SC in this case, are faced with the dilemma of what to do about such long-standing facts on the ground. Demolition and taking back the properties in question is not an option in all cases, particularly when bona fide third party interest has been created. This places the court in the embarrassing conundrum of how to deal with these transgressions while keeping the balance of convenience doctrine in mind. Hence the court has to fall back in many instances (including Banigala) on recognising the difficulty of reversing the facts on the ground and therefore being compelled to seek regularisation through fines and penalties for violating the law, rules and regulations. A quibble could also be that since the PM's residence in Banigala is part of the problem, if the federal cabinet takes a decision to regularise the illegal construction, would this not constitute a conflict of interest? Even more importantly, while the courts attempt to deal with such anomalies in as fair a manner as possible, should not the officials involved in the 'original sin' be hauled up for suspected corrupt practices or at least dereliction of duty?