FCC sets aside SC and IHC rulings that led to Margalla Hills restaurant demolitions

ISLAMABAD: The Federal Constitutional Court has ruled that earlier Supreme Court and Islamabad High Court decisions that resulted in the closure and demolition of restaurants operating inside Margalla Hills National Park amounted to an exceptional overreach of judicial authority and caused what it described as a grave miscarriage of justice.

In a short order issued on Wednesday, a three-member bench led by Justice Syed Hasan Azhar Rizvi accepted review petitions filed by the Capital Development Authority and the Metropolitan Corporation Islamabad against the Supreme Court’s August 21, 2024 ruling. The bench, which also included Justices Aamer Farooq and Syed Arshad Hussain Shah, held that questions over entitlement to the restaurant site, the lease granted to the Monal Group of Companies, and the recovery of rent involved disputed factual issues that must be decided by a competent civil court.

The Supreme Court had ordered the closure of Monal Restaurant and the adjoining La Montana restaurant on August 21, 2024, and both were shut the following month as part of measures aimed at protecting the park’s biodiversity. That judgement later paved the way for the closure of Monal, La Montana and Gloria Jeans, after which their structures were demolished.

Findings on leases and park administration

The FCC set aside the Supreme Court’s finding that any lease, licence, allotment or permission issued by any department or authority, including the CDA, for restaurant operations inside the protected national park was contrary to the Islamabad Wildlife (Protection, Preservation and Management) Ordinance, 1979 and therefore without legal effect.

The court held that Margalla Hills National Park is an integral part of the Islamabad Capital Territory and is subject to the laws, rules and regulations applicable to the federal capital. It said approval of construction plans or building activity for a public purpose within the park falls within the statutory jurisdiction of the CDA.

It also annulled the August 21, 2024 findings that the Islamabad Wildlife Management Board was entitled to withdraw rent deposited by the respondent for preservation, conservation and proper management of the park, and that the board could issue licences to regulate certain activities there. The FCC said those conclusions were contrary to law and directed that matters relating to the administration of the national park are to be regulated by the CDA strictly in accordance with the applicable legal framework.

The court further explained that because the 1979 ordinance has been repealed, the Nature Conservation and Wildlife Management Board, constituted under Section 3 of the Islamabad Nature Conservation and Wildlife Management Act, 2024, is now responsible for implementing that law. According to the order, this includes ensuring that the construction of rest houses, hotels and other public buildings inside the park complies with relevant laws.

Court criticises earlier rulings

The FCC said the Islamabad High Court had also failed to appreciate the correct legal position and delivered a judgement that caused a grave miscarriage of justice and was therefore unsustainable in law.

In its conclusions, the court said that once the Supreme Court judgement was reviewed, every consequential or derivative judgement based on it could not survive independently. It said the Supreme Court, while deciding interlocutory proceedings arising from pending civil suits, had recorded final and conclusive findings on questions that properly belonged to the exclusive domain of the civil court. According to the FCC, those findings prejudged disputes pending before the civil court and also affected the rights and liabilities of several persons who were not parties to the proceedings and were not given an opportunity to be heard under Article 10-A of the Constitution.

“A judgment affecting the rights of persons who have not been heard cannot ordinarily be permitted to attain finality merely because it has been pronounced by the highest court,” the FCC ruled.

The court said correcting such an error was part of a judge’s constitutional duty and stressed that the power to remove a manifest wrong does not depend on the existence of a procedural rule.

“The power to rectify a manifest wrong does not depend upon the existence of an enabling procedural rule; rather, it inheres in the very function of the court,” the FCC stated.

“Whenever an error has occasioned injustice, it is not merely within the court’s authority, but its bounden duty to correct it, for the administration of justice cannot permit a manifest illegality or injustice to endure merely on account of procedural constraints.”

“rules of procedure, technicalities, or procedural formalities cannot be permitted to obstruct the administration of justice. Law must bend in aid of justice.”

Cases to return to civil court

The FCC ordered the concerned civil court to take up the suits by consolidating them and proceed from the stage at which they had earlier stood. It said the plaintiffs would be free, at an appropriate time, to move fresh applications for interim relief regarding the subject property before the trial court, and such requests would be decided in accordance with law without being influenced by orders passed earlier by the Supreme Court, the Islamabad High Court, the district judge Islamabad or others.

It further directed that, after deciding any such interim applications, the civil court should proceed to determine the consolidated suits expeditiously on their own merits after giving all parties equal, fair and adequate opportunity to produce evidence.

Background of the dispute

In its earlier order, the Supreme Court had directed that the entrances to the restaurant area be barricaded and that the infrastructure be demolished with minimal disturbance to wildlife and without damaging trees in the national park.

On September 10, 2024, the Supreme Court had dismissed a similar set of review petitions filed by the Monal Group of Companies, Capital View Point Restaurant (La Montana), Sunshine Heights (Pvt) Ltd and Brig (retd) Falak Naz Bangash of the defence ministry. While rejecting those petitions, the court had declared Monal Group’s Luqman Ali Afzal to be no better than a trespasser, holding that he had no legal right to continue in possession of land in the national park. It had also ruled that the operation of La Montana and Gloria Jeans was in total disregard of the Islamabad Wildlife Ordinance.

In its 2024 judgement, the Supreme Court had observed that the restaurant operators and those who allowed them to function had disregarded the integrity of the national park, damaged its trees and flora, and disturbed endemic bird and animal life. It had also said the park’s natural environment had been adversely affected, including its role as a catchment area for rainfall and in the recharge of springs and streams, and warned that the public had borne, and future generations would continue to bear, an astronomical environmental cost.