ISLAMABAD - The Federal Constitutional Court (FCC) Monday overturned the Supreme Court’s decision ordering the demolition of Monal Restaurant at Pir Sohawa allowing appeals filed by the Capital Development Authority (CDA) and the Metropolitan Corporation Islamabad (MCI).
A three-member bench, headed by Justice Syed Hasan Azhar Rizvi, conducted hearing of the review petitions of the Capital Development Authority (CDA) and the Metropolitan Corporation Islamabad (MCI) and accepted the same.
The Constitutional Court ruled that the ownership dispute must be decided by the trial courts independently and without being influenced by judicial observations, while administrative matters will be determined by the relevant regulatory authorities. During the hearing, Justice Hassan Azhar Rizvi observed that several important aspects had not been taken into account in the Supreme Court’s judgment. He remarked that the court had also expressed displeasure over the filing of the case and the review petition, adding that the judgment included matters that were not part of the case. He stressed that the Constitutional Court would decide the matter strictly in accordance with the law rather than on emotions.
Counsel Ahsan Bhoon told the bench that the court had thoroughly examined the case. In response, Justice Hassan Azhar Rizvi asked counsel not to praise the bench, stating that the court would issue its ruling only on the basis of the proceedings and would not include irrelevant narratives in its judgment.
Justice Hassan Azhar Rizvi further observed that after reading the Supreme Court’s judgment, it appeared that several observations had been recorded which were beyond the scope of the court proceedings.
A three-judge bench, headed by then Chief Justice Qazi Faez Isa, and comprising Justice Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan in September, 2024 ordered the Islamabad Wildlife Management Board to take over the possession of the restaurants (Monal Restaurant, La Montana, Gloria Jeans and Sunshine Heights (Pvt.) Limited) established at the National Margallah Hills Park. It stated; “On September 11, 2024 the Wildlife Board will take over the possession of the said restaurants, that is, Monal, La Montana and Gloria Jeans, with the full assistance of CDA and the Islamabad Capital Territory Police, and the entrances to said area shall be barricaded.”
The SC judgment on review petitions said that running a restaurant (Monal) in the protected National Park, like those being run by the owner of La Montana and Gloria Jeans, was in total disregard of the provisions of the Islamabad Wildlife (Protection, Preservation and Management) Ordinance, 1979. The operators of these restaurants, and those who permitted them to operate disregarded the integrity of the National Park; ravaged its trees and flora and displaced and disturbed the endemic bird and animal life.
It noted that the utter disdain and contempt for the laws of Pakistan and the degradation/destruction of the National Park was made possible by the complicity of those who were required to protect, preserve and conserve it; they were in the service of Pakistan, but were unmindful of their duty to serve the people, instead they served moneyed interests.
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The Court also noted that the undertakings to vacate the premises were given in the presence of their respective counsel but they want now to resile therefrom. Making a mockery of solemn undertakings and to render them meaningless cannot be permitted, and those doing so must suffer the consequences. “Therefore, we have been persuaded by their contemptuous behaviour and misconceived contentions to review our said short order and detailed judgment and to withdraw/delete the following therefrom:
“Learned counsel further submits that CDA may give them preference in the leasing/allotting/licensing of premises/land for the running of restaurants where it is permissible, as their businesses will be affected. The Chairman CDA present in Court states that he will designate an officer to consider the request and if there are premises/land available for this purpose, and if the law permits, preference will be given to those who are voluntarily vacating restaurants from within the National Park.’”
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The judgment said that the documents filed by the Capital View Point Restaurant (a partnership firm) and its partners in the Review Petition and the listed applications confirm that the Firm and/or its partners are in illegal possession of the land situated in the National Park and illegally running restaurants (La Montana and Gloria Jeans).
The Court held that once a case is decided by the Supreme Court its decision is binding on all courts subordinate to it in terms of Article 189 of the Constitution. Therefore, if there are any intra court appeals pending adjudication or any other case before the High Court or any other court with regard to the matters attended to in this Court’s judgment the same will be binding thereon, and resultantly the said intra court appeals will be rendered infructuous.
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The judgment again said that Luqman Ali Afzal has no legal right to continue to be in possession of the land and to run Monal Restaurant in the National Park, and his status is no better than that of a trespasser. The Lease Agreement dated 10 March 2006 executed in favour of Afzal by CDA had also expired after fifteen years on 10 March 2021. Though there was a clause in the Lease Agreement which permitted the extension of the lease neither party sought its extension, nor was it extended, therefore, the lease had come to an end.
Regarding land allotment to Sunshine Heights Ltd, the judgment said that the purported allotment to the Company made twenty-eight years ago was not in accordance with the law. Requisite payment was also not made by the Company. The allotment letter stated that the allotment was for a period of thirty-three years and construction had to be raised within three years, but no construction has been raised even after twenty-eight years. The Company’s claim on the basis of said allotment letter is not sustainable.