Flooding nightmare: IHC directions on illegal construction in E-11, Banigala remained unimplemented

ISLAMABAD: The lack of implementation of directions contained in a landmark judgment on illegal construction and unregulated urban sprawl in the E-11 sector and Banigala is a major factor behind the disaster that struck Islamabad on Tuesday.

Due to massive rainfall and flash floods, the residents of the E-11 sector faced a nightmare, causing the loss of human lives and a huge financial cost as several homes were damaged and vehicles swept away by the raging waters.

The verdict handed down by a full bench of the Islamabad High Court (IHC), headed by Chief Justice Athar Minallah and comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani in 2018, was later upheld by the Supreme Court. Lawyer Kashif Malik had represented the Capital Development Authority (CDA) in the case.

The IHC judgment authored by Justice Minallah had challenged the construction of various types of buildings and stated that construction had been started in Bani Gala without obtaining approval from the CDA. In the E-11 sector, the construction of buildings mostly of a commercial nature has been on the rise. It was pointed out that both the E-11 sector and Banigala had not been acquired under the CDA Ordinance. In a nutshell, the issue regarding the regulation of the construction of buildings outside the acquired lands falling within the area known as the Islamabad Capital Territory (ICT) was raised.

In its operative part, the IHC judgment said that keeping in view the imminent danger and risk, particularly in the context of environmental degradation and climatic change, the bench is compelled to direct the federal government to forthwith take steps of constituting a commission of professional experts, preferably of international repute, in the field of town planning, environmental management and finance as it has become inevitable to review the existing Master Plan of the CDA and assess its efficacy.

The commission would make recommendations to the government and its terms of reference will also be formulated by experts. The government was expected to complete the proceedings within six months from the date of receiving a certified copy of the judgment. The Chief Commissioner was ordered to aid and assist the CDA in ensuring that no building or house is illegally constructed in any area of Islamabad.

The recommendations of the commission on the environmental status of the ICT, in its report dated October 19, 2015, must be read as an integral part of this judgment having direct nexus with the controversy at hand. The implementation of the recommendations has become inevitable for controlling the damage and risks due to illegal construction, particularly in the environmentally sensitive areas.

The IHC appointed Dr Pervaiz Hassan, who had chaired the commission and had successfully brought all the stakeholders together, as [the head of the] committee for implementing the recommendations. The government was directed to immediately amend the notification of the implementation committee. The bench was guided in this appointment by a judgment rendered by the Lahore High Court (LHC) in a case.

The IHC ruled that no illegal building or construction will be regularized unless the government certifies, pursuant to recommendations made by the commission which has been directed to be constituted, that it will not in any manner adversely affect the environment or have adverse effects relating to climate change.

The government was further directed to take immediate steps to make the environmental tribunals functional, preferably within 90 days.

“Before parting we cannot hold ourselves from recording our observations regarding the alarming and abysmal state of the rule of law” in the ICT, Pakistan’s capital. “Several laws, despite being on the statute books, are not being enforced. The Master Plan which had taken care of all the essential factors, particularly preservation of the landscape and protection of the environment, has been ruthlessly damaged and destroyed by the public functionaries entrusted with the onerous task to hold it as a trust on behalf of the people of Pakistan. So much so that the CDA, which was its custodian, brazenly acknowledges that in many areas it can no longer be implemented.”

The victims of this destruction, the judgment said, have been none other than the lower income groups and, most serious of all, the landscape and environment. “It is an inexcusable failure of the state and its institutions to fulfill its fiduciary duties and obligations to ensure that all citizens are treated equally. The destruction and damage caused to the Master Plan has solely benefited the privileged classes which is exactly the opposite to the vision of the founding planners of Islamabad. The larger public interest ought to prevail.

“We have been consistently observing and reiterating that Islamabad has become a classic example of the rule of men rather than the rule of law. The looming imminent environmental crisis on account of unregulated urbanization and illegal construction can neither be taken lightly nor ignored. All those who have allowed this to happen ought to be held accountable because they have endangered lives and have not been fair to the future generations. The doctrine of necessity is alien to the rule of law.”

The judgment said saving the environment from further destruction and degradation must take precedence over the interests of a few. There must not be any hesitation in bringing down any illegal structure if there exists even the remotest possibility of damage to the environment. It is the larger public interest that must prevail. If urgent steps are not taken, then posterity will never forgive those who today are in a position to enforce and implement the spirit and essence of laws which have been flagrantly and mercilessly violated for more than seven decades. “Laws which were supposed to protect the rights of the citizens have been used as tools to abuse those very rights. Justice delayed is justice denied and it is never too late to put an end to the perpetuation of injustice. ‘Fiat justitia ruat caelum; Let justice be done though the heavens fall’.”