The Islamabad High Court (IHC) declared the “Revised Policy” of the Federal Government Employees Housing Authority (FGEHA) regarding allotment of plots to judges, bureaucrats, and government employees as unconstitutional.

A division bench comprising Chief Justice Athar Minallah and Justice Mohsin Akhtar Kayani, on Thursday, announced the verdict on the FGEHA’s Intra-Court Appeal (ICA) and various identical petitions challenging the policy adopted by the FGEHF and the federal government for the allotment of plots in Sectors F-14 and F-15.

The IHC bench stated that participation of a Court or its judges in any scheme of the FGEHA or accepting its benefits are contrary to the public interest and not in conformity with the impartiality and independence of the judiciary as an institution.

It added, “The inclusion of the courts and its judges by the FGEHA, and that too in the absence of a full court decision, was inappropriate and not in conformity with the constitutional status of these exalted courts. It was definitely not permissible under the Constitution for a judge or a court to be seen as usurping the fundamental rights of the people at large and become complacent to a policy formulated in breach of public interest.”

The court noted that the policies, particularly the Revised Policy and the nature of the scheme launched by the FGEHA, instead of serving the public interest, “is violative of the constitutionally guaranteed rights of the public at large.”

It further said that the institutions and persons who are the intended beneficiaries, whether the federal government employees or the judges, exist and hold offices solely to serve the actual stakeholders, i.e., the people of Pakistan. They owe a fiduciary duty towards the people to serve them solely in their interest.

“Public office holders cannot create any interest in their own favour in derogation to the welfare and wellbeing of the people. Regrettably, the scheme and the Revised Policy governing it are contrary to the public interest and grossly in violation of the constitutionally guaranteed rights of the people at large. The attributes of elite capture and conflict of interest are obvious. The enrichment of a few powerful elite at the cost of enormous loss to the exchequer and the people of Pakistan is unimaginable in a society governed under the Constitution,” maintained the court.

It further said, “The prime minister and his cabinet appear to have been kept in the dark regarding the profound consequences. As elected and chosen representatives they are only empowered to frame and formulate policies in the best interest of the people at large and in the public interest, rather than providing opportunities to a few powerful elite to make windfall gains in derogation to public interest.”

It continued that the scheme of the FGEHA, the Revised Policy and the consequences, if executed, are unconstitutional and bereft of jurisdiction. The executive authorities are not vested with jurisdiction to formulate or frame a policy that is contrary to public interest.

The IHC bench; therefore, held that neither the FGEHA nor the Federal Government is vested with power or jurisdiction under the FGEHA Act or the CDA Ordinance, as the case may be, to launch a scheme or frame a policy which is contrary to the public interest and violative of the constitutionally guaranteed rights of the people at large.

It added that a scheme launched by the FGEHA, pursuant to a policy framed by the Federal Government, will withstand Constitutional scrutiny if it benefits the people at large rather than benefiting and enriching a few powerful classes.

According to the court judgment, the assets of the State acquired through the inherent intrusive power of eminent domain can only be used for the benefit of the people at large and in the public interest.

It added, “The Revised Policy and the scheme pursuant thereto, intended to be launched in sectors F-12, G-12, F-14 and F-15, are in derogation of public interest and violative of the constitutionally guaranteed rights of the people at large. Thus they are illegal, unconstitutional, void and without jurisdiction.”

The IHC bench directed the secretary Ministry of Housing and Works to place the judgment before the Federal Cabinet, i.e., the worthy prime minister and its members within two weeks. They are expected to formulate and frame policies in future in the context of schemes launched under the FGEHA Act or the CDA Ordinance, as the case may be, having regard to the observations made herein.

“The Federal Government is expected to formulate and frame policies for development of sectors F-12, G-12, F-14 and F-15 solely for the benefit of the general public and in public interest, rather than enriching a few elites at the expense of the exchequer,” declared the court.

The verdict stated that this judgment shall not in any manner prejudice, interfere with or disturb the rights accrued in favour of property owners who were affected on account of the acquisition proceedings relating to sectors G-12, F-12, F-14, and F-15. The court dismissed the ICA and the petitions.

This report was first published in Business Recorder on February 4, 2022.