PESHAWAR: The Khyber Pakhtunkhwa government has recently won an important legal battle when a three-member bench of the Supreme Court set aside a judgment of the Peshawar High Court and allowed it to go ahead with three major development projects to be executed on pieces of land to be carved out of the golf course at Kabal area in Swat.

The three multi-billion-rupee projects, to be executed in the constituency of Chief Minister Mahmood Khan, included Swat University of Engineering and Technology (UET), a paediatric hospital and a centre of Rescue 1122.

A two-member bench of PHC, Mingora Bench (Darul Qaza), had on Feb 9, 2021, accepted a writ petition jointly filed by several members of the Cedar Golf Club, including Abdul Salam and others, and had set aside three notifications of the provincial government ordering transfer of around 142 kanals from that of the golf course for the said three projects in 2020.

The provincial government had issued the impugned notifications on Aug 11, Aug 17 and Sept 30, 2020, for the transfer/allotment of the land for the projects.

The said judgment was challenged by the provincial government and others before the apex court. A bench headed by Justice Mushir Alam accepted the government plea while pronouncing a short order on May 26 and allowed it to execute the projects.

The golf course at Kabal had been established by the former ruler of Swat (Wali-e-Swat) in 1962 and was properly inaugurated in 1964. It had initially been planned as 9 holes golf course, but during process of its establishment additional land had been procured and the golf course was extended up to 18 holes with an area spreading over 973 kanals.

The petitioners before the high court had claimed that the golf course had been the largest course in the province and registered with Pakistan Golf Association as an 18-hole course.

It was stated that the golf course also included other recreational facilities, including rest house for players and visitors, a mini zoo, children park, walking track, badminton and tennis courts etc.

The provincial government had contended that only a portion of the golf course, which had not been in its use, would be utilised for the three important projects in the area.

The high court bench in its judgment had ruled: “We do not find the exercise of discretion by the government as reasonable in the given circumstances of the present case. A substantial chunk of a recreational public facility like golf course has been allotted to three separate entities who are supposed to raise construction thereupon. The new purpose to which these lands are sought to be devoted have not been a purpose ancillary or akin to the purpose to which the land has been procured and in use for almost five decades.”

“Had it been a purpose relating to sport, recreation or environmental improvements the exercise of discretion in such manner may have been reasonable,” the PHC had ruled, adding “Unbridled construction would convert this scenic valley into a concrete jungle. Making of new construction is no doubt inevitable for development of the area, which is also right of people of this area like rest of the country, but such construction activities should be planned intelligently, complying with environmental standards and regulated.”

KP Advocate General Shumail Ahmad Butt had appeared before the apex court to plead the provincial government’s case and contended that such schemes were of larger public interest and thus could not be halted at the whims of a few elitist golfers.

He had argued that the golf club had only 50 members while the government schemes were bound to serve thousands every month. He stated that this was a government piece of land and the high court could not interfere in a policy matter.

Shumail Butt contended that the PHC had applied doctrine of public trust to deny these schemes, but such doctrine was only attracted when government was transferring public assets to private use. He stated that the project of UET Swat was an approved project of the government which was very much needed for the youth of the entire region and the government had allocated funds to the tune of Rs1 billion for it.

The AG contended that in the entire Malakand division comprising nine districts there was no paediatric hospital and engineering university and the instant site was located in the heart of the division. One of the grounds for setting aside the impugned notifications by the high court was that those were issued after getting approval from the chief minister and not from the provincial cabinet.

However, a meeting of the provincial cabinet was held on Feb 24, 2021, after the high court judgment, and approval was given for these projects.

Published in Dawn, May 31st, 2021