ISLAMABAD: The Islamabad High Court (IHC) asked the federal ombudsperson to initiate proceedings against the chairman of the Capital Development Authority (CDA) and the Pakistan Environmental Protection Agency (Pak-EPA) for violating provisions of environment law during the construction of Bhara Kahu bypass project.

IHC Justice Miangul Hassan Aurangzeb found the CDA and Pak-EPA guilty of gross maladministration in the said project. He, however, allowed the project to continue on the varsity land, observing the Bhara Kahu bypass does not affect educational activities at Quaid-i-Azam University (QAU).

“I am of the view that the right to education of the students at QAU is not being restricted or curtailed by the construction of the said road. Bearing all this in mind, this court will not exercise its discretionary jurisdiction in stopping the construction activity,” Justice Aurangzeb said, while dismissing the petitions filed by the teaching faculty of the QAU.

He noted that “QAU was inclined on a quid pro quo with CDA rather than opposing the construction of the said road on its land as a matter of principle”.

Court says QAU inclined on ‘quid pro quo’ with civic body rather than opposing bypass construction

During the case, Kashif Ali Malik, counsel for the petitioners, argued that the public interest in the construction of the said road cannot be given priority over the right of access to education. He also said the decision taken by the CDA Board, in its 7th meeting held on June 17, 2022, to exchange QAU’s land with CDA’s land adjacent to the university was not based on any summary and amounted to change in Islamabad’s Master Plan which could only be made by the federal government.

He argued that the syndicate of QAU could not take a decision, which was to the detriment of the fundamental rights of the students. The lawyer added that the civic agency committed grave illegality by starting construction work without having obtained the Environmental Impact Assessment (EIA) from Pak-EPA.

Mohammad Munir Paracha, counsel for QAU, submitted that Article 25-A of the Constitution obligated the state to provide free and compulsory education to all children and expressed apprehension that the construction of the bypass on university’s land would adversely affect this fundamental right of the students.

The CDA’s counsel, Hafiz Arafat Ahmed, accused the faculty members of the QAU of trying to get undue benefits for giving a nod to the said project.

In its judgement, the court observed that the project had been commenced even before the formal inauguration by Prime Minister Shehbaz Sharif and “all this was being done prior to the approval of the EIA”.

It may well have been the desire of the prime minister for the construction of the road to have been completed at the earliest but it was the obligation of the officials serving in CDA and National Logistic Cell (NLC), all of whom are public functionaries or in the service of Pakistan, to have made it known to him that obtaining the approval of the EIA was a mandatory requirement.

The court also noted that the PEPA imposed a fine of merely Rs1 million on CDA, which was far less for such an offence for this mega project.

Justice Aurangzeb observed that section 9 of the 1983 Presidential Order empowered the ombudsperson to undertake any investigation into any allegation of maladministration on the part of any agency, including CDA or any of its officers or employees on a motion of the high court made during the course of any proceedings before it.

“Given the fact that from the date of the issuance of show cause notice dated October 20, 2022 until the approval of the EIA by Pak-EPA, CDA continued with the construction activity and thereby contravened the mandatory requirements of Section 12 of the 1997 Act, this court is referring the maladministration committed by the officials of CDA to the ‘Wafaqi Mohtasib’ for investigation and proceedings in accordance with the law,” the court order stated.

Published in Dawn, january 1st, 2023