• Asks the authority to consult local officials while formulating projects
• Restriction on use of power over lands outside scope of ‘specified area’
ISLAMABAD: The Supreme Court has allowed DHA Quetta to develop schemes in accordance with the provisions of the Defence Housing Authority Quetta Act, 2015, but at the same time barred it from exercising any power over the lands outside the scope of a “specified area” as defined in the act.
In a four-page order issued by a three-judge bench comprising Justice Umar Ata Bandial, Justice Qazi Mohammad Amin Ahmed and Justice Sayyed Mazahar Ali Akbar Naqvi, the court also directed the DHA Quetta to adopt a cooperative approach by consulting with local authorities concerned or the provincial government while formulating its development schemes.
On March 16, the Supreme Court had put in abeyance the Dec 16, 2020 order of the Balochistan High Court (BHA) in which several provisions of the DHA Quetta Act 2015 were held to be unconstitutional.
Earlier a five-judge full-court of the BHA had also held that since the DHA Quetta was like a non-government agency therefore acquisition of property by it would violate the constitutional right to property.
The high court had also declared that the DHA Quetta could not be allowed to develop its own master plan or perform other municipal functions. Besides the power of the authority to declare a specified area in which development could be carried out was also held to be unconstitutional. As a result of the high court judgement, development work in DHA Quetta had been paralysed.
Senior counsel Makhdoom Ali Khan had represented DHA Quetta before the Supreme Court while Advocate Naeem had appeared on behalf of the respondent Quetta Residencia Housing Scheme. The Supreme Court order said the concerns expressed about the DHA Quetta Act by the BHC might not have been precisely formulated, however, they did invited caution. “How can an acquiring agency conduct acquisition proceedings for itself without indulging in conflict of interest? Also such a power is lacking in the sister organizations of the petitioner (DHA) established in other urban areas of the country,” the order said. To examine these questions and the validity of the points raised, the court was inclined to grant leave to appeal to the DHA appeal, it added.
During the hearing, the petitioner’s counsel had said that the BHC had wrongly presumed the Land Acquisition Act (LAA) 1894 to be a federal law and held that Section 6(b)(1) of the DHA Quetta Act 2015 which allowed the DHA Quetta to acquire land in accordance with the LAA violated Article 142 of the Constitution.
The counsel contended that DHA Quetta Act and the LAA were provincial laws and there was no encroachment by the Act upon the federal legislative field. He argued that the BHC judgement had also set aside Section 6(b)(14) and Section 14(b) of the DHA Act as these imposed restrictions on owning and holding land that were violative of Articles 23 and 24 of the Constitution — provisions that dealt with protection to the property rights.
The BHC finding had held that restrictions with respect to the specified area in the DHA Quetta Act applied to land that was intended to be purchased, procured, acquired or leased by the DHA. In other words, the restrictions governed such land in which the DHA had no legal interest as owner or lessee, the counsel contended.
On the other hand, Section 3(q) of the DHA Quetta Act defined specified area to mean land that was already purchased, acquired, leased or procured by the petitioner, he argued.
The constraints placed on the specified area in terms of the DHA Quetta Act related only to such land in which the petitioner had a legal interest and not to land that belonged to a third party, the lawyer said. Therefore, the BHC judgement had taken an erroneous view of law on this point.
In any event, he said that this condition was imposed on land (in a specified area) which belonged to the petitioner.
The DHA counsel also argued that the petition filed by the Quetta Residencia Housing Scheme was sought to be withdrawn but permission to do so was declined by the BHC, adding that the petition was maintainable before the high court under Article 199 of the Constitution at the instance of an aggrieved party. But after the aggrieved party sought withdrawal of its petition then any further proceedings would be in the nature of suo motu proceedings, the counsel argued while pointing out that the high court lacked jurisdiction to hold suo motu proceedings.
Published in Dawn, March 28th, 2021