PHC judge terms commercialisation of University Town illegal

Court by majority dismisses petitions against KP govt’s legislation

PESHAWAR: A senior judge of the Peshawar High Court (PHC) Justice Waqar Ahmad Seth in his dissenting note has said the executive and legislative authority joined hands by giving advantage to the ‘mafia’ to allow commercialisation of University Town, Peshawar, for five years. He termed the move as malafide, illegal and against the fundamental rights of citizens/residents of the University Town.

In the three-member larger bench, Justice Waqar Ahmad Seth was a senior judge, but the two other judges Justice Roohul Amin Khan and Justice Lal Jan Khattak didn’t agree with him and thus the writ petitions filed against the provincial government legislation were dismissed and the decision of majority prevailed.

In the detailed judgment, Justice Roohul Amin Khan and Justice Lal Jan Khattak validated the provincial government’s legislation. They were of the view that the impugned amended Act enacted by the provincial government to allow commercial activities in the University Town is in its competence being conferred upon it by Article 140-A of the Constitution of Pakistan and is not open to judicial review.

Resultantly, both the petitions filed against the act being meritless were dismissed. “In the instant case, while giving the dissenting view I feel that the Executive and Legislative Authority have joined hands by giving advantage to the ‘mafia’ and the judiciary being the custodian of Chapter-I of the Constitution has the authority to look into as to whether other organs have transgressed their jurisdiction or not,” Justice Waqar Ahmad Seth recorded in the dissenting note.

However, the senior judge said indeed trichotomy of power was one of the fundamental values of constitution where under all three organs of State, namely the Legislature, the Executive and the Judiciary were required to perform their functions and exercised their powers within their allotted spheres.

He stated that on the face of record nothing was produced that what legal or fundamental rights of violators/mafia were having and were infringed, and in order to protect those rights the impugned legislation was made.

Justice Waqar Ahmad Seth noted that in the year 1999, the Administrator University Town Committee issued notices to educational institutions for shifting of the said institutions out of University Town, because running the commercial activity was not permitted under the Khyber Pakhtunkhwa Building Regulations, 1985.

“The violators of law challenged those notices in different writ petitions, which were clubbed together. The notices which were challenged by the violators were of two types. The first category of these notices were in reference to the decision of the Provincial Government, dated 2.12.1998, to remove all educational institutions, local or Afghan, operating in residential area of University Town,” it was stated.

It added that the second kind of notice was issued under Khyber Pakhtunkhwa Local Government Ordinance, 1979, read with Khyber Pakhtunkhwa Building Regulations, 1985. The said writ petitions were clubbed together and it was held that under section-81 (1) of the Local Government Ordinance 1979, “No building shall be put to use other than the use as shown in the sanctioned building plan according to which it was erected or re-erected.”

In the said section, it said, the proviso was also there which provided that “Municipal Committee shall not sanction any change in the use of a building which may be in violation of contravention of the Master Plan or Side Development Scheme,” if any. “Thus in view of this section of law all the writ petitions were dismissed on 30.10.2003, and it was held that the impugned notices issued to the violators /the then petitioners were in accordance with the law and thus cannot be struck down,” it said.

Justice Waqar Seth stated that the record suggests the above judgment with the connivance of official respondents /Town Administration and the violators / mafia was put under the carpet.

He stated that since the earlier judgment was not implemented under malafide intention, there was a mushroom growth of commercial activity within the residential area of the said township and when genuine residents of the locality objected and there were reported mishaps in the guesthouses, etc, the authorities, once again issued notices.

“It is important to mention here that in 80% cases violators were running their commercial activities within the residential bungalow / premises, whereas in 20% cases they converted the residential premises by constructing a huge multi-storey structure, but the town administration kept mum under malafide intention,” the senior judge noted in his dissenting note.

The judge stated that “as the violators/mafia was strong enough and large in number, therefore, the judgment of this court passed in 2015 about ban of commercial activities in the University Town was again put under the carpet.