The Pakistan Army is not authorised or empowered to undertake commercial activities outside its domain for welfare purposes unless expressly permitted by the federal government, said the Islamabad High Court’s (IHC) detailed judgement issued on Wednesday in a case pertaining to encroachments in Margalla Hills National Park.
In January, the IHC had ordered capital authorities to seal off Monal Restaurant and take control of the Margalla Greens Golf Club built on encroached land. It had also declared illegal the military’s claim to 8,000 acres of Margalla Hills National Park.
The decision to seal Monal Restaurant was later suspended by the Supreme Court in March.
In the case’s 108-page detailed judgement issued today, IHC Chief Justice Athar Minallah noted that the Pakistan Army Act, 1952, the Air Force Act, 1953 and the Pakistan Navy Ordinance, 1961, were promulgated to regulate the respective branches of the armed forces and their discipline.
“The Pakistan Army has no power nor jurisdiction to, directly or indirectly, engage in business ventures of any nature outside its composition nor to claim the ownership of state land,” the judgement said, adding that the military’s constitutionally defined roles were to defend Pakistan and act in aid of civil power if called upon to do so.
“[Neither] the Pakistan Army nor its officers are authorised or mandated to undertake, directly or indirectly, any activity such as leasing government land for commercial purpose,” the judgement said.
Regarding the military’s claim to 8,000 acres, the detailed judgement said that it could not own or acquire land given for its use other than as provided under the Constitution and the relevant laws.
“[Neither] the Pakistan Army nor any other branch of the armed forces can claim the ownership of the land allocated by the federal government for its use.”
The judgement said the military’s stance regarding the claimed acres of land was “atrocious and in violation of the scheme of the Constitution and the applicable laws”.
“It is disturbing to note that the enforced laws are being flagrantly violated by institutions in disregard to the scheme contemplated under the Constitution.
“The urge of state institutions to act as a state within the state is obvious from the above discussed facts,” the judgement noted.
It said the acts and stances of the army had “profound consequences” for the rule of law. “They acted on their own and while doing so they have seriously undermined the rule of law in derogation to their declared functions under the Constitution.
“The sanctity of the protected and preserved notified area of the Margalla Hills has been desecrated,” the judgement said.
The chief justice criticised state institutions for their “willful and brazen disregard and abuse of the enforced laws”.
“The complacency of state institutions in environmental degradation and their willful disregard for the enforced laws have been obvious during these proceedings, while accountability seems to be alien in the system of governance practiced within the 1400 square miles of the Islamabad Capital Territory,” he observed.
Justice Minallah added that the cases on which the judgement was based and their proceedings symbolised the role of state institutions in undermining the rule of law and refusing to protect the assets which belong to the people.
Regarding the Margalla Hills, the judgement said the Capital Development Authority (CDA) did not have the power or jurisdiction to interfere in matters pertaining to them and thus, commercial activities such as construction of buildings and food outlets were in violation of the relevant laws.
“Regrettably, most illegal encroachments in the notified area of the Margalla Hills have been made by state institutions/entities such as Pakistan Navy, Pakistan Air Force, etc. The CDA was either complacent or seemed to be helpless,” the judgement pointed out.
Naval golf club
Regarding the navy’s golf course, known as Margalla Greens Golf Club, the judgement said the navy had been allotted a sector in the foothills of the Margalla mountain range to establish “residential and official accommodations”.
“Without seeking approvals from the competent authorities … Pakistan Navy took the law into its own hands by illegally encroaching the area notified under the Margalla Hills for establishing the unlawful Navy Golf Course.
“It is evident from the material brought on record that the CDA had repeatedly sent notices directing the management of the Pakistan Navy to hand over the illegally encroached area but to no avail,” the judgement said as it excoriated the navy’s actions.
It said it was undisputed that the navy had established the golf club on land outside the area allotted for its use and its status as an “illegal encroachment was admitted”.
Regarding the argument that the land was taken over for security reasons, the judgement said: “This argument is fallacious because no one can claim to be above the law nor can anyone be given the license to violate the enforced laws. Providing security is the function of the state and establishing a golf course in violation of law on the pretext of security cannot be justified by any stretch of the imagination.”
It said navy officials involved in the matter had exposed themselves to disciplinary proceedings and attracted criminal liability.
With no lawful explanation provided for the encroachment and golf club construction, the judgement declared it illegal and ordered its repossession.
Matter of Monal Restaurant
Regarding the matter of Monal Restaurant’s lease, the judgement criticised the Remount, Veterinary and Farms (RFV) Directorate’s conduct, saying that there was no evidence to show that it or the General Headquarters (GHQ) had taken the federal government’s express consent.
“The RFV Directorate had no locus standi nor was it competent to execute a lease agreement of a commercial nature in respect of a property situated in the notified protected and preserved area of the Margalla Hills.”
The IHC judgement said the wanton disregard of the enforced laws by the RFV Directorate and the GHQ was “disturbing as well as shocking”.
“The officials of the RFV Directorate have definitely abused their influence and power and have exposed themselves to being proceeded against for misconduct.
“They had recklessly and willfully taken the law into their own hands while those who had the statutory duty to protect, preserve and manage the notified area of the Margalla Hills did nothing more than hesitantly sending notices as a mere formality,” the judgement remarked.
Thus, it said, the purported lease was illegal, void and devoid of any legal effect and the restaurant’s proprietor had no legal basis to remain in possession of the property.
“The latter’s status after expiry of the lease with the CDA is that of a trespasser in the notified protected and preserved area of the Margalla Hills. It is the duty of the board constituted under the Wildlife Ordinance of 1979 to forthwith take over possession of the property and the CDA shall extend its assistance in this regard.”