ISLAMABAD: The Islamabad High Court (IHC) on Wednesday held that the Capital Development Authority’s (CDA) decision allowing construction of buildings and food outlets at the Margalla Hills in violation of the Margalla Hills National Park Management Plan as well as Wild Life Ordinance 1979.

“Regrettably, most illegal encroachments on the Margalla Hills have been made by the state institutions/entities like the Pakistan Navy, Pakistan Air Force, etc., and the CDA was either complacent or seemed to be helpless,” observed Chief Justice IHC Athar Minallah in a detailed judgment he wrote on a petition moved by Prof Zahid Baig Mirza – an expert in the field of biodiversity, habitats and ecosystem.

The petitioner had invited the attention of the court towards lack of will to protect the natural assets that belonged to the people of the country.

Earlier in Jan 11, 2022, IHC in a short order had ordered CDA to seal off the Monal Restaurant, situated at the picturesque Margalla Hills, and ordered taking control of the Margalla Greens Golf Club built on encroached land also declaring illegal the military’s claim to 8,602 acres of Margalla Hills National Park.

Holds CDA, other state institutions responsible for encroachments

However on March 8, the Supreme Court suspended the Jan 11high court judgment of sealing and taking over possession of the Monal Restaurant.

In its judgement, IHC chief justice also mentioned the Stockholm Declaration on the Human Environment, adopted by the United Nations Conference in 1972, the World Charter for Nature 1982, Rio Declaration on Environment and Development 1992, IUCN Draft Covenant 1995, Global Pact for Environment 2017 and declared that it was the duty of the state and its public functionaries to protect the Margalla Hills, its flora and fauna and to restore the damage caused by removing the illegal encroachments.

It is also the duty of the state to proceed against all those who were responsible for violating the rights of the people, the judgment said, but regretted that the State and its public functionaries had failed in protecting, preserving and managing the notified area of the Margalla Hills for the benefit of the present and future generations.

It was a classic case of undermining the rule of law.

He added that the enforced laws had not been violated by private citizens, rather, by the institutions and by doing so they have exposed themselves to the consequences.

The CJ, in his judgment, regretted that the proceedings before the court were indeed disturbing because they have established a lack of political will to protect the rights of the citizens by allowing the destruction of Margalla Hills and thus irretrievably harming the native flora and fauna.

The neglect or wilful disregard of institutions and public functionaries to perform their fundamental duty to implement the enforced laws and prevent their violation and abuse has already caused irretrievable damage to the natural habitats, ecosystem services and the biodiversity and thus has grave consequences in the context of environmental degradation and the challenges faced by humanity on account of the threatening consequences of climate change, the judgment said.

The Wildlife Ordinance 1979 was brazenly violated and disregarded by public functionaries who were under oath to uphold the law and protect the rights of the citizens.

Referring to the Naval Golf Course, which the judgment said was established on lands that falls outside the area allotted for its use and thus willingly undermined the sanctity of the Margalla Hills and violated the enforced laws.

The court ordered CDA and the Wildlife Board established under the wildlife ordinance 1979 to take over the possession.

About the Monal Restaurant and other food outlets, the high court ordered that the property will be taken over by the wildlife board besides its fate and future use will be subject to exercising the duty of due diligence by the federal government, the wildlife board and the Environmental Protection Agency (EPA) 1979.

Assisted by CDA, the wildlife board will also examine the legal status of other food outlets and take action and proceed in accordance with the law and it will be ensured that all were treated equally.

The judgment held that the Monal restaurant was the first concrete building constructed by the CDA in the protected and preserved notified area of the Margalla Hills followed by other constructions.

Published in Dawn, July 14th, 2022

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