Syed Nauman Shah vs Prime Minister Of Pakistan etc.

Stereo. H C J D A 38.

IN THE LAHOR E HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

W.P.No.2371 of 2024

Syed Nauman Shah Versus Prime Minister of Pakistan and others

JUDGMENT

Dates of Hearing: 21.01.2026, 04.02.2026, 19.02.2026, 02.04.2026, 06.04.2026 Petitioner by: M/s. Asad Iqbal Siddiqui and Abdul Wasay, Advocates with Petitioner Syed Nauman Shah.

Respondents by: Barrister Zain Mansoor, Assistant Attorney General. Mr. Muhammad Irshad, Assistant Advocate-General with Umar Awais Kiani, ADCR, Murree.

Ch. Ehtisham-ul-Haq, ASC and Ch. Waqas Zamir, Advocate for the Respondent No.4.

M/s. Ali Nawaz Khan, ASC, Malik Saqib Mehmood Khalid, Barrister Liba Qayyum and Barrister Hassan Muneeb, Advocates for Respondents No.5 with Basit Khan, Director Law, FGEHA and Abdul Ghaffar Afzal, Deputy Director Law, FGEHA.

Syed Qalb-e-Hassan, Sr. ASC, Barrister Syed Saim Hassan and Faiza Iqbal, Advocates for Respondent No.6.

Raja Waqar Ilyas, Advocate for Respondent No.8/RDA.

JAWAD HASSAN, J. The Petitioner/Syed Nauman Shah has filed this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), in 2024, against the re-initiation of the housing Project i.e. M/s. Commoners Sky Garden (the “Project”) started by the Respondent No.4 and later on taken over by the Respondents No.5 and 6 (Executive Board of the Federal Government Employees Housing Authority (FGEHA), through its Chairman) and (Federal Government Employees

W.P.No.2371 of 2024

Housing Authority through its D.G.), without obtaining all the requisite permissions/NOCs. The Petitioner further seeks directions to (i) implement Suo Motu judgment of the Hon’ble Supreme Court of Pakistan reported in Suo Motu Case No.10 of 2005 (2010 SCMR 361) read with the judgment reported as MUHAMMAD ASJAD ABBASI and others Versus IQBAL MUHAMMAD CHAUHAN and others (2018 SCMR 2051); (ii) permanent restrain Respondents No.4 to 6 from setting up the housing Project in the Revenue Estate of Moza Mangal and Kathar, Tehsil Murree, District Rawalpindi; and desist from encroaching upon ownership, forest and shamlat land; (iii) declare Joint Venture Agreement as null and void; and (iv) declare NOCs issued by RDA, EPA or other authorities as illegal, unlawful and without lawful authority. For ready reference the prayer clause of the Petition is reproduced as under:

1.In view of the foregoing, it is respectfully prayed that this Hon’ble Court may kindly be pleased to exercise its constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and accordingly:

2.It is, therefore, humbly prayed that appropriate directions may be issued to Respondents to implement the Judgment passed by the Hon’ble Supreme Court 2010 SCMR 361 read with the Judgment reported at 2018 SCMR 2051 and as a consequence permanently restrain Respondent No. 4 to 6 from setting a housing society in the Revenue Estate of Moza Mangal and Kathar Tehsil Murree District Rawalpindi.

3.Respondents No.4 to 6 further to desist from encroaching upon the Ownership. forest and shamlat land for setting up any Housing project in the Revenue Estate of Moza Mengal & Kathar. Tehsil Murree District Rawalpindi, being completely unsuitable on account of being a unique and environmentally rich and sensitive area which is also likely to affect the public at

W.P.No.2371 of 2024

large with reference to fundamental rights enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan 1973.

4.And notwithstanding Respondents 6 may also be directed to vacate the land already occupied by the Respondent No.6, remove all the construction material and machinery from the site 5. Respondent No. 6 being a Federal Government Controlled department may graciously be directed to plant 20 Million purposeful Trees to replace the already cut 25000 trees with burgees/boundaries at their original spots, as they were prior to their removal by Respondents No. 4 to 6 and the aforementioned land including Smamlat Deh.

6.The Hon'ble may also declare the Joint Venture Agreement between Respondent No. 4 and 6 for the development of the Housing Project described as "Commoners Sky Garden" as null and void, against public policy and fundamental rights of the public at large.

7.To declare the NOC'S if issued by RDA and EPA or any other agency in favour of the Respondent No 4 to 6 for development of housing project on the land located in the Revenue Estate of Moza Mangel and Kathar Tehsil Murree, District Rawalpindi as illegal, unlawful, null and void and to have initiated without lawful authority.

8.Grant any other relief which this hon'ble Court may deem fit and appropriate in the facts and circumstances of the case. Cost/may also be awarded.

(I) OVERTURE OF THE CASE

2.This judgment examines the maintainability and scope of the instant writ petition, wherein the Petitioner alleges violation of the judgments of the Hon’ble Supreme Court of Pakistan i.e. (2010 SCMR 361) and (2018 SCMR 2051) on the ground that the Respondents have re-initiated and proceeded with the aforesaid housing Project without obtaining requisite

W.P.No.2371 of 2024

permissions/NOCs and seeks implementation of the said judgments along with multiple consequential reliefs. On the other hand, the Respondents assert that all requisite approvals/NOCs have duly been obtained and no violation of the Supreme Court’s directions has occurred, besides contending that a Special Bench for implementation of the aforesaid judgment has already been constituted by the Hon’ble Supreme Court. Therefore, in the light of the divergent submissions of the learned counsel for the parties and the legal position emerging from the insertion of clause (1-A) to Article 199 of the Constitution, this Court, adopting a heuristic approach to resolve the controversy and avoid any cognitive bias, is required to examine the following points:

(I). Whether the grievances raised by the Petitioner, particularly regarding the alleged re-initiation of the Housing Project during the period from 2019 to 2021 and subsequent development activities fall within the ambit of constitutional jurisdiction under Article 199 of the Constitution?

(II). Whether this Court, in exercise of jurisdiction under Article 199, can direct implementation of a judgment rendered under Article 187(2), claimed to be binding under Article 189; when a Special Bench for implementation of the aforesaid judgment has already been constituted by the Hon’ble Supreme Court?

(III). Whether such a petition with vague or multiple prayers is maintainable in view of Article 199(1-A)?

(II) PRELUDE OF THE CASE

3.The Petitioner, being owner of 75 kanals of land in Mauza Mangel, Tehsil Murree, District Rawalpindi, challenges the re-initiation and development of the aforesaid housing Project by Respondents No.4 to 6 on the basis of a joint venture. It is stated that the Project is being carried out without lawful approval, as the Respondents, in connivance with each other, have wrongly shown issuance of permission by certain authorities, while in fact no valid sanction exists. It is further alleged that the regulatory authorities failed to perform their duties, allowing illegal construction that may affect the Petitioner and the public at large.

W.P.No.2371 of 2024

The Petitioner relied on the judgment of the Supreme Court (2010 SCMR 361), where construction in environmentally sensitive areas like Murree and adjoining regions was restricted, especially on forest and shamlat land and where no EIA approval was granted. Despite this, the Respondents entered into a Joint Venture Agreement in 2019 for more than 6000 kanals, including shamlat land, even there were adverse reports and pending inquiries. It is further stated that the Project, first started by the Respondent No.4 and later handed over to the Respondent No.6, has been executed without obtaining required approvals, NOCs, and environmental clearances under the law. The Petitioner alleges that the Respondents ignored legal restrictions and Supreme Court’s directions and continued construction, causing deforestation and environmental damage, which affects water resources, wildlife, and the environment, and violates the right to life under Article 9 of the Constitution. Hence, this Petition.

(III) PETITIONERS’ SUBMISSIONS

4.Mr. Asad Iqbal Siddiqui, Advocate for the Petitioner, has submitted that the entire Project started by Respondents No.4 to 6 is manifestly illegal, unlawful and in blatant violation of the judgments of the Supreme Court of Pakistan, whereby the said Project had effectively been restrained on environmental and legal grounds. He added that no Environmental Impact Assessment approval was ever granted for the Project and the area having been declared environmentally sensitive, all construction and development activities were expressly prohibited; thus, any subsequent initiation of the Project is void ab initio. He further stated that despite clear directions of the Supreme Court restraining the Respondent No.4 from carrying out development activities, the Respondents, in connivance with each other, entered into a Joint Venture Agreement and proceeded with construction, thereby defeating the mandate of law and authority of the superior judiciary. Learned counsel emphatically contended that the pivotal legal requirement governing the controversy arises from the mandatory provisions of environmental law, particularly that no proponent of a Project can commence

W.P.No.2371 of 2024

construction or operational activity unless the prescribed environmental approval regime has been strictly complied with. He submitted that prior submission of an Initial Environmental Examination (IEE) or, where applicable, an Environmental Impact Assessment (EIA), and its approval by the competent authority is a condition precedent and a sine qua non for lawful initiation of any such Project. He urged that this requirement is not merely procedural but goes to the root of jurisdiction and any construction undertaken in violation thereof is patently illegal and without lawful authority. Learned counsel urged that even in subsequent proceedings before the Supreme Court, the stance of the Respondent No.4 seeking differential treatment was categorically rejected and the earlier judgment remained intact and binding; hence, the Respondents cannot circumvent the same under any pretext. He asserted that a substantial portion of the project land comprises of shamlat land, which cannot legally be utilized for such development and that the Respondents have deliberately misinterpreted judicial orders to justify their illegal actions. He further contended that the conduct of the Respondent No.6 demonstrates a consistent pattern of acting in disregard of lawful authority and judicial pronouncements and the present project is a continuation of such mala fide conduct aimed at achieving ulterior motives. He also urged that the Project, if allowed to continue, would result in severe environmental consequences, including deforestation, soil erosion, disruption of water channels, and contamination of water reservoirs, thereby endangering the lives of residents of the area and the general public. He emphasized that the actions of the Respondents amount to infringement of fundamental rights, particularly the right to life and that this Court is under constitutional obligation to intervene and prevent further illegalities. He finally submitted that the Respondents have failed to obtain requisite approvals, ignored binding judicial directions, and proceeded in a clandestine manner, thus rendering the entire project illegal and liable to be annulled.

W.P.No.2371 of 2024

(IV) RESPONDENTS’ SUBMISSIONS

(i)Submission of the Respondents No.1

5.Barrister Zain Mansoor, Assistant Attorney General has objected to the maintainability of this Petition on the ground of vague and multiple prayers.

(ii)Submission of the Respondents No.2, 3, 7, 12 and 13.

6.Mr. Muhammad Irshad, Assistant Advocate-General has also objected to the maintainability of this Petition, on the ground that already the Supreme Court of Pakistan has constituted a Special Bench for implementation of the aforesaid judgment. Hence, this Petition is liable to be dismissed.

(iii)Submission of the Respondents No.4

7.Ch. Ehtisham-ul-Haq, ASC for the Respondent No.4/M/s. Commoners Sky Garden Private Limited, has objected to the maintainability of this Petition on the basis of written reply and submitted that the operational work on the Project is being carried out in conformity with the judgments of the Supreme Court of Pakistan i.e. (2010 SCMR 361) and (2018 SCMR 2051). He further argued that the Petitioner has filed this Petition to blackmail the Respondents, which is based on mala fide and ulterior motive and that he has neither any cause of action nor locus standi to file this Petition rather has approached this Court with unclean hands by concealing material facts. He added that the conduct of the Petitioner amounts to abuse of the process of law and to cause prejudice and harassment to the Respondents. Added that the Petition is also not maintainable on the basis of multiple and vague prayers and is barred by law.

8.Ch. Ehtisham-ul-Haq, ASC while specifically questioned the maintainability of this petition in the context of Articles 187 and 189 of the Constitution; submitted that Article 187 vests exclusive authority in the Supreme Court to pass such directions, orders or decrees as may be necessary for doing complete justice and to ensure enforcement of its own orders; thus, the constitutional scheme does not envisage initiation of fresh constitutional proceedings before a High Court. He further submitted that although Article

W.P.No.2371 of 2024

189 makes the law declared by the Supreme Court binding but such binding effect is confined to the ratio decidendi and does not convert every operative direction into an independently enforceable cause of action through writ jurisdiction. He stated that in paragraph No.10 of the judgment ((2018 SCMR 2051), a specific Implementation Bench was constituted to oversee compliance and the matter remains sub judice before the Supreme Court, which has retained seisin. He argued that filing of the present writ petition amounts to invoking parallel jurisdiction, which is not permissible under Article 199 and would amount to stepping into the shoes of the Supreme Court’s implementation Bench, and that entertaining such petitions would unsettle the constitutional scheme, lead to multiplicity of proceedings and undermine the authority of the Supreme Court’s implementation mechanism.

9.Learned counsel further submitted that the Respondent No.4 has implemented the judgment supra in its letter and spirit, as the land was duly converted from Shamilat-e-Deh into ownership through lawful settlement in accordance with sharait wajib-ul-arz, after obtaining approvals from RDA and EPA, clearance by NAB and was thereafter transferred in favour of FGEHA; hence, no violation subsists. He further submitted that the Petitioner has failed to demonstrate any independent cause of action or violation of fundamental rights, and this petition merely seeks execution and supervision of a Supreme Court judgment, which does not fall within the ambit of Article 199. He also submitted that the Petitioner has filed this Petition to stop economic advancement, as delay in the Project would cause substantial loss of foreign investments, disrupt planned development and curtail economic activity, and that the Government, after acquiring land through Joint Venture Agreement dated 11.10.2019, has already spent almost Rs.12 billion on development, while the Petitioner is attempting to disrupt such economic progress through repeated Petitions. He, therefore, prayed for dismissal of the writ Petition.

W.P.No.2371 of 2024

(iv)Submission of Respondents No.5

10.M/s. Ali Nawaz Khan and Malik Saqib Mehmood Khalid, Advocates have also objected to the maintainability of this petition and relied on the arguments advanced by learned counsel for the Respondent No.4.

(v)Submission made by Syed Qalb-e-Hassan, ASC for the Respondent No.6/FGEHA

11.Syed Qalb-e-Hassan, ASC for the Respondent No.6/FGEHA, while affirming, relying and supporting the arguments advanced by learned counsel for the Respondent No.4, objected to the maintainability of this Petition on the basis of vague and multiple prayers. He further submitted that the area in question is not reserved for forest. Added that they started the project after obtaining all the required approvals/NOCs from the concerned authorities/departments and have incurred billions of rupees, as the project now stands at an advanced stage. Therefore, vested rights have accrued in their favour and now its withdrawal without any solid reason at this advance stage, would cause irreparable loss.

(vi)Submission made by Raja Waqar Ilyas, Advocate for the Respondent No.8/RDA.

12.Raja Waqar Ilyas, Advocate for the Respondent No.8/RDA has also objected to the maintainability of this Petition by stating that the NOCs/approval have been issued to the Respondents after completion of all legal as well as codal formalities. He, however, supported the arguments advanced by learned counsel for the Respondents No.4 to 6 and prayed for dismissal of this Petition.

13.I have heard the learned counsel for the parties and perused the record with their able assistance.

(V) DETERMINATION BY THE COURT

14.In order to resolve the issues involved in this case following constitutional moot points are framed for determination: (I). Whether the grievances raised by the Petitioner, particularly regarding the alleged re-initiation of the

W.P.No.2371 of 2024

Housing Project during the period from 2019 to 2021 and subsequent development activities fall within the ambit of constitutional jurisdiction under Article 199 of the Constitution?

(II). Whether this Court, in exercise of jurisdiction under Article 199, can direct implementation of a judgment rendered under Article 187(2), claimed to be binding under Article 189; when a Special Bench for implementation of the aforesaid judgment has already been constituted by the Hon’ble Supreme Court?

(III). Whether such a petition with vague or multiple prayers is maintainable in view of Article 199(1-A).

I shall now proceed to examine and decide the aforesaid constitutional moot points one by one.

(I). Whether the grievances raised by the Petitioner, particularly regarding the alleged re-initiation of the Housing Project during the period from 2019 to 2021 and subsequent development activities fall within the ambit of constitutional jurisdiction under Article 199 of the Constitution?

15.In the backdrop of the respective contentions advanced by the learned counsel for the parties and upon perusal of the record, this is the foremost question which arises for determination by this Court. No doubt, this Court has consistently passed judgments dealing with environmental impact and enforcement of Environmental Laws, emphasizing the necessity of strict compliance with statutory requirements and protection of ecological balance in the cases reported as “Pervaiz Abbasi Versus Government of Punjab and others” (PLD 2025 Lahore 191), “Muhammad Banaras Versus Govt. of the Punjab etc.” (PLJ 2024 Lahore 242) (Rawalpindi Bench) and the Article on “Bhurban Declaration and the Environmental Laws of Pakistan” (the “Article”) written by me [(Jawad Hassan) when I was the Additional Advocate-General Punjab at Supreme Court, Islamabad], which was published in 2012 CLD Journal at page 79 [PLD Publishers]. The Article mentions the excellent efforts of the Hon’ble Supreme Court of Pakistan in

W.P.No.2371 of 2024

convening the South Asian Conference on Environmental Justice, in Bhurban, Pakistan on 24th and 25th of March, 2012, brought together Chief Justices and their designees from the highest Courts of Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, Sri Lanka, Malaysia, and Indonesia, which was supported by the Asian Development Bank (ADB), United Nation’s Environment Program (UNEP) and the International Union for Conservation of Nature (IUCN). At the end of the Conference, the South East Asian Judiciaries adopted the Vision Statement by declaring the Bhurban Declaration (the “BD”) after developing an Action Plan for Environmental Justice, Governance, the Rule of Law and Sustainable Development in SAARC countries. The outcome of the Conference, which is the “BD”, is to strengthen specialized Environmental Tribunals and establish Green Benches, where they exist and consider establishing them where they do not exist. Therefore, the Hon’ble Chief Justices established the Green Benches in the Supreme Court and the High Courts under the respective Supreme Court and High Court Rules to hear the environmental cases similar to the other South Asian countries.

16.It is pertinent to mention here that the Respondents have totally negated the Petitioner’s version by stating that they have obtained all requisite approvals/NOCs and no violation of the Supreme Court’s directions has occurred. The record is also totally silent as to whether the Petitioner has raised his grievance before the proper forum(s) at the time of aforesaid approvals. Therefore, when the Respondents have obtained all the necessary approvals/NOCs and paid the requisite fee, therefore, vested rights have accrued in their favour and now its withdrawal without any solid reason at this advance stage of the Project, would not only cause irreparable loss but would also against the principle of Promissory Estoppel developed by the Supreme Court of Pakistan in the case of Gadoon Textile Mills and 814 others versus WAPDA and others (1997 SCMR 641). Furthermore, Article 4 of the Constitution provides that it is an inalienable right of every citizen to be treated in accordance with law and no action

W.P.No.2371 of 2024

detrimental to his/her life, liberty, reputation or property shall be taken except as per law; and due to interference by this Court, the Petitioner’s fundamental right of business & trade as enshrined under Article 18 of the Constitution will badly be infringed. In this regard, reliance can be placed upon the judgment reported as M.C.R. (Pvt) Ltd, franchisee of Pizza Hut versus Multan Development Authority and others (2021 CLD 639), wherein this Court has highlighted the scope of Article 18 of the Constitution, relevant portion of which is reproduced hereunder:- “28. Undoubtedly freedom of trade, business and commerce is a fundamental right guaranteed under Article 18 of the Constitution which states that every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. One of the basic purposes behind provision of this fundamental right is certainly to advance culture of socio-economic progress and to protect and promote business and trade activities and, at the same time, to encourage simplification of the process of establishing and carrying out new business ventures throughout the country because activities of business and trade create opportunities for the masses around and provide job options, financial stability and progress in the area.

29.Since the Pizza Hut is an international chain and entered into lease agreement with WASA, it is the duty of the Courts in Pakistan to see the rights of the parties and to protect their interest in order to build confidence of investors in Pakistan but at the same time the interest of government functionaries has also to be examined regarding financial interest of the Government.The learned Civil/Commercial Court is, therefore, directed to decide the case expeditiously but not later than 60 days from the receipt of copy of this judgment in accordance with law.”

W.P.No.2371 of 2024

17.In view of the above discussion although the apprehension raised by the Petitioner regarding possible environmental impact of the Housing Project, including cutting of trees and disturbance of ecological balance, cannot be brushed aside altogether, as environmental protection and sustainable development are recognized and protected under the constitutional and statutory framework of the country but at the same time, it is equally evident from the record that the Petitioner has not approached the relevant statutory foras at the appropriate stage, particularly at the time of issuance of requisite approvals/NOCs, nor has he challenged the same before the competent authorities in accordance with the mechanism provided under the relevant environmental and regulatory laws. The Supreme Court of Pakistan in the judgment categorically permitted housing schemes by private Respondents subject to clearance from the governmental agencies like EPA, RDA and the Forest Department, etc. The record reflects that the Respondents have proceeded with the Project after obtaining necessary approvals/NOCs from the concerned authorities. Details of the aforesaid NOCs/Approvals reads as follows:

i. More than 6,500 kanals in Mouza Kathar and Mengal have been mutated in the name of FGEHA, hence, it holds sole ownership and enjoys peaceful possession of the land. ii. The Divisional Forest Officer, Murree Forest Division, issued an NOC for the project via letter dated 22-04-2014 (Annex- XVI) iii. The Environmental Protection Agency ("EPA") granted its approval and NOC on 11-11-2019. This followed a comprehensive review of the Environmental Impact Assessment ("EIA") Report, Site Suitability Report by the District Officer (Environment), a Public Hearing held on 05-05-2015 under Regulation 10 of the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact

W.P.No.2371 of 2024

Assessment Regulations, 2000 ("IEE & EIA Regulations"), and Section 12 of the Pakistan Environmental Protection Act, 1997 ("ΕΡΑ 1997"). The approval was based on the recommendations of a Committee of Experts constituted under Regulation 11(2) of the IEE & EIA Regulations and other relevant records (Annex-XVII).

iv. Regarding allegations of Shamilat land in the project, the National Accountability Bureau (NAB) initiated an inquiry. On 17-12-2020, NAB concluded its inquiry and granted an NOC for Mouza Kathar (Annex-XVIII).

Subsequently, vide letter dated 19-05-2022 (Annex-XIX), NAB closed its inquiry proceedings for Mouza Mengal as well.

v. All available documents and records unequivocally confirm that FGEHA has not violated the Supreme Court judgment reported as 2018 SCMR 2051 The housing projects are being launched and constructed after obtaining all required approvals and NOCs from the relevant agencies and departments.

The aforesaid situation makes it very much clear that all legal and codal formalities were fulfilled before launching of the housing scheme by FGEHA which consists of approximately 5600 plots of different sizes and the same has been allotted to Federal Government employees and others who are waiting for long to have possession thereof. Thus, the rights of thousands of allottees have been accrued, which are being infringed by filing such petition as the Respondents have made substantial investments, and the Project has already reached at an advance stage. In such circumstances, the omission on the part of the Petitioner to avail the appropriate remedy at the relevant time creates a lacuna, which cannot be permitted to be cured through invocation of constitutional jurisdiction at a belated stage, especially when disputed questions of fact are involved. Moreover, interference by this Court, in the

W.P.No.2371 of 2024

absence of any patent illegality or jurisdictional defect on the face of record, would not only unsettle vested rights accrued in favour of the Respondents but may also run contrary to the settled principles of promissory estoppel and legitimate expectation.

18.Therefore, while recognizing the importance of environmental safeguards, this Court is of the considered view that the grievances agitated by the Petitioner do not, in the peculiar facts and circumstances of the case, warrant interference under Article 199 of the Constitution. Consequently, no further adjudication on disputed questions of fact is required at this stage, and the point under consideration is answered against the Petitioner.

(II). Whether this Court, in exercise of jurisdiction under Article 199, can direct implementation of a judgment rendered under Article 187(2), claimed to be binding under Article 189; when a Special Bench for implementation of the aforesaid judgment has already been constituted by the Hon’ble Supreme Court?

19.Having answered the first point, I now proceed to dilate upon the second question for determination, which pertains to the scope and extent of this Court’s constitutional jurisdiction under Article 199 of the Constitution, particularly to direct implementation of a judgment rendered by the Supreme Court under Article 187(2), claimed to be binding under Article 189, when admittedly a Special Bench for implementation of the judgment has already been constituted by the Supreme Court. For ready reference the relevant part of the judgment (2018 SCMR 2051) is reproduced as under: If at all a great deal of construction work has been done on the property comprised in shamilat-i-deh, plots have been transferred, superstructure has been raised thereon and third- party interest has been created therein, a spade would remain a spade and an illegal act would remain illegal. However, the questions what to do with the allottees, how to deal with their cases and what remedial measures could be taken in this behalf shall be dealt with by the implementation Bench. We, therefore, request the Honourable Chief Justice of Pakistan to constitute an implementation bench in this behalf to deal with the questions mentioned above. It is, however, added that the Provincial

W.P.No.2371 of 2024

Government and the Forest Department would take care of the areas of the Shamilat-i-deh to develop it by afforestation and reforestation.

The Petitioner has filed this writ Petition under Article 199 of the Constitution seeking enforcement of the aforesaid judgment of the Supreme Court. In continuation to the said judgment, a Special Bench for implementation of the judgment has already been constituted by the Supreme Court of Pakistan. The tenor of the aforesaid directions clearly manifests that the Supreme Court, while exercising jurisdiction under Article 187(2), has not only declared the law but has also devised a specific mechanism for its enforcement by constituting an Implementation Bench and retaining seisin of the matter. In such circumstances, the constitutional scheme does not envisage that the operative directions of the Supreme Court be enforced through independent proceedings under Article 199 before a High Court, particularly when the apex Court itself has assumed control over the process of implementation. The binding force of Article 189, though undeniable, is confined to the ratio decidendi of the judgment and does not extend to converting every direction into a separate cause of action capable of enforcement through writ jurisdiction. Permitting such a course would inevitably result in parallel proceedings, multiplicity of litigation and the risk of conflicting determinations, thereby undermining the hierarchical judicial structure and the doctrine of judicial propriety. Therefore, once a dedicated forum has been constituted by the Supreme Court for implementation of its judgment, all matters relating to compliance, execution or grievance arising therefrom must necessarily be agitated before that forum alone. This Court, in exercise of its jurisdiction under Article 199, cannot assume the role of an executing or supervisory authority. Reliance in this regard is placed on the judgment reported as “Salah ud Din Khan versus Frontier Sugar Mills Limited” (PLD 1978 Peshawar 128) wherein it has been held that: Article 187, Clause (2) of the Constitution lays down that:

W.P.No.2371 of 2024

"Any such direction, order or decree shall be enforceable throughout Pakistan and shall where it is to be executed in a Province or a territory or an area not forming of a Province but within the jurisdiction of the High Court of the Province be executed as if it had been issued by the High Court of the Province."

The High Court is, therefore, duty bound to execute the order of the Supreme Court and the words "direction, order had decree" are in no manner inhibited or circumscribed by any consideration whatever. So long as it is an order or a decree given by the Supreme Court, Article 187 of the Constitution makes the same executable and also makes it the duty of the High Court concerned to execute it.

Article 190 of the Constitution may also be quoted in this respect. It provides :-"All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court."

Similarly, this Court while relying on the judgment (PLD 1978 Peshawar 128) (mentioned supra) has passed judgment reported as “ICI PAKISTAN LTD./SODA ASH WORKS, KHEWRA, DISTRICT JHELUM versus ZILA COUNCIL, JHELUM through Chairman and another” (1994 MLD 235) has observed that:

... When the matter came up before Supreme Court, it directed the appellants to have recourse to execution proceedings before this Court. Article 187, clause (2) of the Constitution lay down that:---

Any such direction, order or decree shall be enforceable throughout Pakistan and shall where it is to be executed in a province or a territory or an area not forming of a

W.P.No.2371 of 2024

province but within the jurisdiction of the High Court of the Province, be executed as it if had been issued by the High Court of the Province.'

The High Court is, therefore, duty bound to execute the Order of the Supreme Court and the words "direction, order and decree" are in no manner inhibited or circumscribed by any consideration whatever. So long as it is an order or a decree given by the Supreme Court, Article 187 of the Constitution makes the same executable and also makes it the duty of the High Court concerned to execute it.

Resume of the case-law referred to above clearly shows that if an executable order, decree or direction is passed by the Hon'ble Supreme Court of Pakistan, the High Court is bound to execute the same under Article 187 read with Article 190 as well as the provision of Order 45, Rule 15, C.P.C. However, in case the order passed by the Hon'ble Supreme Court is declaratory in nature and no specific direction is made therein or no enforceable relief is specifically granted there is nothing to be executed and the order being not executory in nature, the execution petition cannot be entertained by the High Court as there is nothing to be executed or implemented in such a situation.”

20.Whereas in relation to Article 189, the High Court acts as a constitutionally bound subordinate or court. Its jurisdiction under Article 199 and other laws must be exercised consistently with the law declared by the Apex Constitutional Court. A contrary view of law by the High Court cannot prevail over Article 189.

Hence, Article 189 and Article 187(2) operate in different constitutional fields. Article 189 is a rule of precedent and judicial discipline, whereas Article 187(2) is a rule of enforceability and execution. Consequently, without

W.P.No.2371 of 2024

entering into a detailed exposition of Articles 187(2) and 189 of the Constitution, especially when a Special Bench for implementation of the judgment has already been constituted by the Supreme Court of Pakistan; it is held that the instant petition, to the extent of seeking implementation of the aforesaid judgment, is not maintainable before this Court. (III). Whether such a petition with vague or multiple prayers is maintainable in view of Article 199(1-A).

21.To deal with this point, it is important to mention here that as mandated by Article 199(1)(1A) of the Constitution, introduced through Section 16 of the Constitution (Twenty-sixth Amendment) Act (the “Twenty-sixth Amendment”) on 21.10.2024, this Court cannot exercise jurisdiction or issue directives beyond the matters explicitly raised in the petition. For ready reference Article 199(1)(1A) reads as follows:

“For removal of doubt, the High Court shall not make an order or give direction or make a declaration on its own or in the nature of suo motu exercise of jurisdiction beyond the contents of any application filed under clause (1).”

Therefore, the contents of a petition must be clear and apt which lead to actual grievance of the person. In this regard reliance is placed on the judgment of the Supreme Court of Pakistan reported as N.W.F.P. PUBLIC SERVICE COMMISSION and others Versus MUHAMMAD ARIF and others (2011 SCMR 848) wherein it has been held that right which is the foundation of an Application under Article 199 is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone, who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. Unless whatever right, personal or otherwise, on which the Application is based is established, no order can issue under Article 199 of the Constitution. The Supreme Court of Pakistan further enunciates in the

W.P.No.2371 of 2024

judgment cited as ASDULLAH MANGI Versus PAKISTAN INTERNATIONAL AIRLINES CORPORATION (2005 SCMR 445) that the object of the proceeding initiated under Article 199 of the Constitution is the enforcement of a right and not the establishment of legal right, therefore the right of the incumbent concerned which he seeks to enforce must not only be clear and complete but simplicitor. There must be an actual infringement of the right. This view is further strengthened in judgment reported as OWAIS SHAMS DURRANI and others Versus VICE-CHANCELLOR, BACHA KHAN UNIVERSITY, CHARSADDA and another (2020 SCMR 1041) that it is trite that where a citizen seeks relief in Constitutional jurisdiction he must point to a right statutory or constitutional which vests in him and has been denied in violation of the law. The Petitioners have failed to point out any right to seek regularization on the basis of any constitutional guarantee or statutory law or instrument which may have been denied to them. The Supreme Court of Pakistan also held in the judgment cited as MUHAMMAD RIAZ BHATTI Versus FEDERATION OF PAKISTAN and another (2004 SCMR 1120) that on the basis of vague plea the Petitioner has sought relief, as such the office of the High Court refused to accept the said writ petition. Moreover, in the judgment reported as Dr. AKHTAR HASSAN KHAN and others Versus FEDERATION OF PAKISTAN and others (2012 SCMR 455) it has been observed by the Supreme Court of Pakistan that the Court has to guard against frivolous petitions as it is a matter of common observation that in the garb of public interest litigation, matters are brought before the Court which are neither of public importance nor relatable to enforcement of a fundamental right or public duty. The supra case law relies on Ashok Kumar Pandey v. State of West Bengal (AIR 2004 SC 280) wherein it was held that Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The

W.P.No.2371 of 2024

attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs. Furthermore, the scope of a vague prayer has been vastly discussed in light of the aforesaid constitutional amendment by this Court recently in the judgment reported as Kakakhail Traders versus Province of Punjab etc. (PLD 2025 Lahore 630). The relevant paragraph of the said judgment is reproduced as under:

“10. So far as to prayer made by the “Petitioners” in these petitions, it is observed that these petitions were filed with a vague and unclear prayer. As mandated by Article 199(1)(1A) of the “Constitution”, introduced through Section 16 of the Constitution (Twenty-sixth Amendment) Act (the “Twenty-sixth Amendment”) on 21.10.2024, this Court cannot exercise jurisdiction or issue directives beyond the matters explicitly raised in these petitions. For ready reference Article 199(1)(1A) reads as follows:

“For removal of doubt, the High Court shall not make an order or give direction or make a declaration on its own or in the nature of suo motu exercise of jurisdiction beyond the contents of any application filed under clause (1).”

W.P.No.2371 of 2024

Hence, this Court finds that the writ petition with vague and multiple prayer(s) is not maintainable.

(VI) CONCLUSION

22.In view of the foregoing discussion on all the three moot points, this Court concludes that this Petition is not maintainable, which is accordingly dismissed. However, the Petitioner, if so advised, may avail appropriate remedy before the competent/relevant forum, in accordance with law.

(JAWAD HASSAN)

JUDGE

Approved for reporting.

JUDGE

[email protected]