• Detailed order says institutions’ urge to act as a ‘state within the state’ is obvious
• CDA directed to ensure demarcation of allotted land

ISLAMABAD: In a deta­iled order in the Margalla Hills National Park case, the Islamabad High Court (IHC) on Wednesday declared that neither the Remount, Veterinary and Farms (RVF) directorate of the army nor the General Headquarters (GHQ) have legal status under the Constitution or the law to own state land.

Land is allocated for the use of the branches of the armed forces and it is managed and retained in accordance with the scheme of the governing law and, that too, by the entities and public functionaries designated thereunder, explained the strongly worded judgement by IHC Chief Justice Athar Minallah.

“The RVF Directorate nor the GHQ can own or acquire nor manage land given for its use otherwise than as provided under the Constitution and the aforementioned laws. The land is allocated by the federal government for a particular and declared use of the branches of the armed forces. The land remains the ownership of the federal government or the provincial government, as the case may be. It has been explicitly declared in the aforementioned laws that the nature or character of the land allocated for the use of the armed forces cannot be changed without the express permission of the federal government. More­over, after the land is no more used for the purpose for which it had been allocated then it would revert to the federal government or the provincial government, as the case may be.

“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. Likewise, it cannot claim any compensation in the eventuality of reversion of the allocated land when it is no more used for the allotted purpose. In any case the GHQ nor RVF Directorate has a locus standi to bypass the designated civilian authorities who are responsible to deal with and manage lands.”

The detailed order came over six months after the IHC had issued a short order on the petitions moved by Prof Zahid Baig Mirza, an expert in the field of biodiversity, habitats and ecosystem, and area residents who had invited court’s attention towards the ‘lack of will’ to protect the natural assets.

The IHC, in its Jan 11 short order, had directed the CDA to seal the Monal Restaurant; take control of the Margalla Greens Golf Club built on the encroached land; and declared the military’s claim to 8,602 acres of Margalla Hills National Park ‘illegal’. However, the Supreme Court on March 8 suspended the IHC judgement regarding the sealing and taking over possession of the Monal Restaurant.

The entire E-10 sector was allotted for the use of Pakistan Army and according to the petitioners living in a village situated outside the allotted sector that the army had encroached upon the notified area of the Margalla Hills, the IHC noted in its detailed order.

While construction work in the allotted sector has recently been undertaken, the CDA chairman apprised the court that possession of the entire allotted sector had not been taken over due to some outstanding land acquisition disputes, which was being resolved, and thereafter the allotted land would be demarcated.

On the other hand, the defence secretary also undertook on behalf of the Surveyor General of Pakistan that the notified area outside the land allotted for the use of the Pakistan Army would be demarcated so that there was no encroachment in the protected area.

The IHC asserted that no activity whatsoever could be undertaken outside the demarcated area of E-10 sector and any such activity would be illegal and unauthorised encroachment on state land, exposing the officials to disciplinary and criminal proceedings, inter alia, under the Environmental Protection Agency (EPA) Act and the CDA Ordinance 1960.

Referring to the Remount, Veterinary and Farms (RVF) Directorate, an internal office of the General Headquarters (GHQ) of the Pakistan Army that had claimed ownership of 8,602 acres of the integral land inside the Margalla Hills, which according to them was allocated by the Punjab government through a notification of April 23, 1910 for the use of production of ‘hay’ for the animals of the army, the IHC observed that neither RVF directorate nor GHQ was vested with any authority to claim the ownership, because the status of the 8,602 acres had ceased as an area allocated for the use of growing hay for the animals of the army after the promulgation of the CDA Ordinance 1960 and, more particularly the Wildlife Ordinance of 1979.

Thus, the court declared, the claim of ownership of the 8,602 acres of land in the notified area of the Margalla Hills by the GHQ or RVF directorate was illegal, without lawful authority and in violation of the scheme of the concerned laws.

The IHC noted that the laws were being flagrantly violated by institutions in disregard to the scheme contemplated under the Constitution, and the “urge of state institutions to act as a state within the state was obvious” from this development. Yet the authorities entrusted with statutory powers to guard against violations seemed to be ‘helpless or complacent’, the judgement regretted, adding the acts and stance of the RVF directorate and GHQ 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 court order stated, adding the sanctity of the protected and preserved notified area of the Margalla Hills had been desecrated.

According to the judgment, the IHC expected that the federal government would fulfill its obligation to inquire into the matter and hold those accountable who chose to take the law into their hands by desecrating the sanctity of the protected and preserved notified area of the Margalla Hills and thus violating the guaranteed rights of not only the present but future generations as well.

Published in Dawn, July 14th, 2022