ISLAMABAD - The Supreme Court has temporarily suspended the orders of Justice (r) Dost Muhammad Khan and issued notices to all Cantonment Boards in Pakistan on an application against removing educational and commercial buildings from cantonments areas in Pakistan.

“We issue notices to all the Cantonment Boards in Pakistan to submit their replies to the question as to why action has been taken in such haste and what was the urgency therein,” the written order stated following the hearing by a three-judge bench headed by Chief Justice Mian Saqib Nisar on the matter regarding removal of private educational institutions and commercial buildings from cantonments areas in Pakistan.

On October 24 of 2017, former Justice Dost Muhammad Khan in his 8-page judgment had dismissed an appeal and ordered to gradually remove private educational institutions and commercial buildings from the cantonment areas of Pakistan.

But the owners of private institutions in cantonment areas were directed by the authorities to shift the buildings from the cantonment areas within a period of 15 days.

“Yet from the note put up before us (the bench), it seems that the said order (authored by Justice (Retd) Dost Muhammad Khan) has not been complied with in letter and spirit and thus the educational career of a substantial number of students would be at stake if immediate action of removal of the said schools is allowed.”

“Till the next order to the contrary, the order of this court dated 24.10.2017 is held in abeyance, meaning thereby that no school shall be vacated/transferred from the cantonment areas till such order is passed by this Court,” the top court ruled.

The issue of removal or shifting of educational institutions and commercial buildings emanated from an appeal challenging the Oct 2007 Lahore High Court (LHC) judgment.

During the course of hearing before a two-judge bench headed by Justice Mushir Alam, it was argued that plot No.16-B was transferred in favour of one Major Ishtiaq-ur-Rehman Khan, who sold the same.

They further alleged that under the law and rules and the condition of original transfer letter issued by the Cantonment Board, Rawalpindi to the said Major Ishtiaq-ur-Rehman was to build a residential house on the plot, however, after purchase of the plot through registered deed measuring 3-k, 6-M and 44 Sq.ft., situated in Harley Street, Housing Scheme, Rawalpindi Cantt, the condition imposed was intriguingly deleted without approval of the competent authority.

It was further argued that commercial building was planned by the appellants on the plot and the Board granted approval to the proposed erection of commercial building for running a school in blatant violation and utter disregard of Cantonment Land Administration Rules, 1937 under the framed under the Cantonment Board Act, 1924 and also under section 179 and other relevant provisions.

Justice (Retd) Dost Muhammad Khan, who authored the judgment on the matter, had observed that the Cantonment Boards like any local government or the other governments are bound by the law and the Constitution.

“Under the provision of section 179 of the Act and the Administration of Cantonment Property Rules and more particularly the master plan containing all the facilities, required under the law and the rules for the residential areas, for which the Cantonment Housing Scheme was established, separate area was allotted for parks, public lavatories, disposal of refuse, animal slaughtering houses and allied facilities besides establishment of educational institutions by the Cantonment Board, to be run and managed by it,” he had observed. “However, with the passage of time, the cursing greed to generate funds throwing the fate of the residents of the posh area to dusty wind, it allowed at random the commercialisation of the residential area as is evident from the para-wise comments without any hesitation to think and take a pause submitted by the Cantonment Board in this case,” it had added.

The entire scheme of the ‘Act’ is seen, extra care has been taken of the residents of each Cantonment, even for every facility to be provided and violation thereof has been made punishable under the law, he had further observed.

“It is shocking that Cantonment Board approved the erection of new building for commercial purposes i.e. to run a school with hundreds of children, thus, conveniently ignored the initial condition imposed by itself that the plot shall not be used for any other purpose except residential house. The sanction was accorded blind-foldedly through third-degree tactics without the sanction of law.”

Justice (Retd) Dost Muhammad Khan had further observed that once the master plan is notified and it is accepted by the purchaser and the Board accepts the offer of purchaser then the Cantonment Board has no authority to bring changes in the master plan, designed for the housing scheme.

“If a residential building is found overcrowded, the Board has the authority to issue a notice to the owner to reduce the crowd or to face the penalty.”

The way the Cantonment Board illegally supported the cause of the appellant, it shows that it is bent upon to violate the law to mint money and to generate funds but through illegal means, the judgment had said.

“The respondents’ suit was fully justified because they are the residents of the same area situated at a little distance. If the school building is put into operation, hundreds of children would be brought in cars and other vehicles, for which there is no parking facility and even for the employees of the school, besides it would create massive pollution emitting carbon monoxide gas on daily basis,” he had observed adding that drinking water consumption would increase manifold which is not even sufficient to meet the requirements of the residents of the area. “Sanitation condition would be worsened because hundreds of children would definitely create multiple problems like pollution, garbage etc. The security of the area would be compromised in view of the prevailing condition in the country and the lives of the residents would be at stake as well.”

The judgment was sent to the Attorney General for Pakistan and Secretary Defence to ensure all the private educational institutions and all the commercial buildings erected in residential areas of Cantonments throughout Pakistan shall be removed gradually.

It was further ruled that periodical reports in this regard be submitted to the court and until the process is completed otherwise this court would be constrained to issue notice to the Secretary Defence, DG Cantonments as to why action under the law and rules shall not be taken against them.