ISLAMABAD: The Supreme Court (SC) has hinted a way forward for the regularisation of unlawful buildings in the absence of a commission required under the regularisation procedure outlined by the Islamabad High Court (IHC), by asking the counsel of Prime Minister Imran Khan to file an application against the constitution of such a commission.

In its mechanism to regularise illegal or unauthorised construction in Banigala, the IHC had barred the federal government from clearing unlawful buildings without approval from a commission that has not yet been notified.

A larger bench of the IHC, in a July 9 order on petitions filed against encroachments in E-11 and Banigala, directed the federal government to constitute a commission of “professional experts, preferably of international repute, in the field of town planning, environmental management and finance.”

“The commission shall 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.”

In July 9 order, IHC directed constitution of commission to approve regularisation of unauthorised buildings

Chief Justice of Pakistan Mian Saqib Nisar ordered the regularisation of private property in Banigala last month, starting with the residence of Mr Khan.

While hearing a petition filed by Mr Khan against encroachment in Banigala, the chief justice said it is the government’s job to regularise all the properties in that area.

On Oct 5, the court noticed that the larger IHC bench comprising Justice Athar Minallah, Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb had made approval from the commission mandatory for the regularisation of illegal buildings.

The IHC decision gained finality after it was upheld by the SC in August.

The decision stated: “The recommendations made by the Commission on the Environmental Status of Islamabad Capital Territory, in its report dated October 19, 2015, are to be read as an integral part of this judgment having direct nexus with the controversy at hand.”

The aforementioned report highlighted environmental issues and recommended strict compliance to its rules to avoid the degradation of the environment and to preserve the city’s master plan.

The SC is taking this as a case of procedural violations, which is why Justice Nisar has directed the Capital Development Authority (CDA) to regularise buildings in Banigala and Mohra Noor after the completion of formalities.

Following the recent SC directives, the CDA has issues notices to owners of unauthorised buildings asking them to submit layout plans for approval.

However, the IHC had focused on environmental degradation; Banigala is a catchment area of Rawal Lake, which is a major water reservoir for Rawalpindi.

According to the IHC verdict: “The victims of this destruction have been none other than the lower income groups and, most serious of all, the landscape and environment.

“It is an inexcusable failure of the state and its institutions to fulfil its fiduciary duties and obligations to ensure that all citizens of the country are treated equally. 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.”

It added: “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.

“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.”

It added: “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.”

But former CDA senior legal adviser Barrister Masroor Shah said that since the high court’s decision has attained finality in appellate jurisdiction – as the SC has upheld the decision – the court may not relax the condition for the formation of the commission on the petition filed under Article 184/3 of the Constitution.

He said that according to the IHC judgementin fieldit is up to the commission to decide on the regularisation of unauthorised structures.

When asked, CDA spokesperson Safdar Shah said the matter issub judiceand the authority will act in accordance with the SC’s ruling.

The authority will proceed in this matter in light of the court’s decision.

Published in Dawn, October 9th, 2018