IHC declares CDA chief’s appointment null and void

islamabad- The Islamabad High Court Friday declared the appointment of Sheikh Ansar Aziz as Chairman Capital Development Authority as null and void.

A single bench of IHC comprising Justice Athar Minallah issued the written verdict in the petition challenging appointment of Sheikh Ansar as Chairman CDA and nullified the notification appointing him as chairman CDA.

In his 38-pages judgment, Justice Athar note: “The gist of the arguments advanced by G.M Chaudhry, Raja Mohammad Shafqat Abbasi, Husnain Ibrahim Kazmi and Ch. Shafiq-ur- Rehaman who appeared on behalf of the petitioners is; the doctrine of separation of power enshrined in the Constitution of the Islamic Republic of Pakistan, 1973 requires the executive and the legislature to exercise powers within their respective spheres; the Act of 2015 is a distinct statute and that the respondent was elected as a mayor there under; the respondent was elected as a mayor and the said expression is defined under section 2(z) of the Act of 2015; the appointment of the respondent as chairman of the authority is in violation of section 3 of the Act of 2015; under section 12 of the Act of 2015, the office of mayor has been declared as an elected office, whereas a/Member of the Board of the Authority is appointed for a fixed term; the nomination of the mayor by designation as a Member of the Board of the authority is alien to section 6 of the Capital Development Authority Ordinance, 1960 (hereinafter referred to as the ‘Ordinance of 1960’); there is no concept of nomination of ex-officio Member; the impugned notifications, dated 06-09-2016, are without lawful authority, void ab initio and illegal.”

The IHC verdict added that the respondent Sheik Ansar was Chief Executive Officer and shareholder of M/s Anser Brothers (Pvt.) Ltd. (hereinafter referred to as the ‘Company’); the respondent held 90 per cent shares of the Company; the Company had a financial interest since it had participated in auction of commercial plots and also a contract was awarded in its favour by the Authority; the appointment, therefore, on account of conflict of interest was in violation of section 8(e) of the Ordinance of 1960.

It said: “The petitions are allowed and both the impugned notifications, dated 06-09-2016, are hereby set aside. However, the acts done or orders passed between 06-09-2016 till the rendering of this judgment shall be protected under the de facto doctrine.”

Justice Athar also said that the federal government is directed to forthwith initiate the process for selection of an eligible person to be appointed as Member of the Board of the Authority for the fixed term which has been specified under section 6(3) of the Ordinance of 1960, inter alia, having regard to the principles and law laid down by the august Supreme Court.

He continued that the federal government is further directed to complete the selection process and appoint a chairman for a fixed period of five years from amongst the members who have been appointed in accordance with the principles and law highlighted in this judgment, the Federal Government shall complete the process within forty five days (45 days) from the date of announcement of this judgment.

The IHC bench observed that it is the statutory duty of the federal government to ensure that the intent of the legislature is respected. An independent and autonomous authority is the key to realising the vision of the founding planners and giving effect to the Master Plan in letter and spirit.

It added: “The authority sans its guaranteed autonomy and a lack of will to enforce the laws within the Islamabad Capital Territory will lead to the creation of slums and cause irreparable damage and frustrate the vision of the founding planners of the Capital of Pakistan. The rule of law and not rule of men can free the Authority from the perception of its regulatory capture. The allegations of mismanagement and corruption erode public confidence. The integrity of the Authority can only be ensured by, inter alia, making it accountable in the manner prescribed under the Ordinance of 1960. It has become inevitable to give effect to the legislative intent and ensure the autonomy of the Board through appointing Members of the Board on merit and according to the provisions of the Ordinance of 1960 so as to meet the challenge of the looming environmental crisis on account of unregulated urbanisation and construction, which is in flagrant violation of the Ordinance of 1960 and the regulations made there under.”

He noted that it is the duty of the federal government, the parliament and every other organ of the State to ensure that the people of Pakistan have a Capital, which is an example of rule of law and a reflection of the vision of the founding planners. The first step in this direction is to ensure the autonomy of the Authority and to appoint the best of the best on merit and according to the intent of the legislature as Members of the Board.   

The petitioners including Farrukh Nawaz Bhatti moved the court through his counsel Hasnain Ibrahim Kazmi and nominated federal government through Prime Minister Secretariat, Secretary Capital Administration & Development Division (CADD), Secretary Establishment Division and Chairman Capital Development Authority (CDA) Sheikh Anser Aziz as respondents.

The petitioner adopted in the petitions before the IHC that Chairman CDA should be a gazetted officer and a public representative could not be appointed against this post. He said that besides Mayor Islamabad does not qualify to become part of CDA board under the rules.

He argued that the said notification was illegal, without lawful authority, in conflict of interest, in violation of law and principle of separation of powers.

He pointed that Sheikh Ansar Aziz was elected as Mayor and not chairman CDA. Mayor office got limited functions under the ICT local government act while CDA got more powers and the appointment of Aziz as chairman CDA is illegal.

Therefore, the petitioner prayed to the court to seek reply from the mayor/chairman CDA that under what authority of law he is holding the office of chairman CDA. He further requested that the notification regarding appointment of Sheikh Ansar Aziz as chairman CDA may be declared illegal as well as all his functions that he performed in this capacity.

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