Islamabad: Court moved against encroachments by diplomatic mission, cellular company
ISLAMABAD: The residents of federal capital have filed a petition in civil court against encroachments by the South African High Commission and a cellular company in sector F-8.
Complainants Ali Abbas, Rukhshanda Younus, Abid Ali Khan, Zahiz Ayub Rathore, Affan Ehsan and Muhammad Basharat Khan in a petition filed with the court of Civil Judge Mehmood Haroon Khan have made six parties as defendants including South Africa High Commission through its high commissioner, unknown owner of House No 48, F-8/2, Capital Development Authority (CDA) through its chairman, Ministry of Foreign Affaires through its Secretary, Ministry of Interior through its secretary and Islamabad Capital Territory (ICT) administration through chief commissioner.
The plaintiffs in the petition have quoted the decisions of apex courts and in light of those decisions prayed to the court to take a necessary action.
They said plaint was Public Service Litigation nature “to ensure public interest and protection of legal or constitutional rights of disadvantage and oppressed groups of individuals and to render social and economic justice to them. The petition said there can be such a situation when some persons may not even be aware of their rights and about the violation thereof and their exploitation. It can’t be said that under such circumstances a public interest litigation can not be maintained for protection and vindication of rights of such aggrieved groups of people “ (PLD 2010 Lahore 23)”.
According to PLD 2009 Lahore 22 “Public interest is not that type of litigation which is meant to satisfy the curiosity of the people, but it is a litigation which is instituted with a desire that the court would be able to give effective relief to the whole or a section of the society. In the interest of the administration of Justice some of the old and well-established procedural rules and practices have been altered. Public Interest Litigation now can be initiated not only by formal petitions in court but even by writing letters and telegrams”.
The petition said the defendant No l (High Commissioner) is legally immune by virtue of Section 86-A of the Civil Procedure Code read with the Diplomatic and Consular Privileges Act 1972 (which adopts various Articles of the Vienna Convention of 1961 and 1963) and the State Immunity Ordinance 1981.
But the suit may lie against a diplomatic agent by the virtues of the exceptions given in Section-86-A (1) of the Civil Procedure Code. The Defendant No l has constructed fortresses on footpaths and the road in front of its premises (which is public property), while the rest of the defendants did nothing but watched as silent spectators. The apathy of the rest of the defendants shows a lack of sensitivity to the rights of the citizens and an abdication of their statutory responsibilities.
That the footpath is completely blocked while the road is partially blocked causing inconvenience to pedestrians and road-users. The footpath could not be accessed at all due to 10 feet high cement wall build on it by the Defendant No I.
It further said Section-86-A (I) C states that a suit may lie against the diplomatic agent if he “indulges in any professional or commercial activity exercised by the diplomatic agent in Pakistan outside his officials functions.” Since constructing fortresses on footpaths and roads cannot amount to activities inside the domain of a diplomatic agent, it is requested that honorable court waive off diplomatic immunity.
The petition said the Vienna Convention requires of diplomats that “it is the duty of all persons enjoying privileges and immunities to respect the laws and regulation of the receiving state.”
The petitioners contended that construction on footpath and road by the high commission amounts to encroachment of public land and violation of at least three CDA bye-laws including Islamabad Building Regulations 1962, Islamabad Capital Territory Municipal Bylaws 1969 and Islamabad Residential Sectors Zoning (Building-Control) Regulation 1993.
Further it is a violation of the fundamental rights of individuals to be dealt with in accordance with the law (Article-4), privacy of the home and inviolability of the dignity of a person (Article-14), freedom of movement (Article-15), equality before the law (Article 25) and non-discrimination in respect to public places (Article-26).
They said therefore such acts were not only illegal, unconstitutional and unethical showing insensitivity to the rights of others, but also against diplomatic norms that cannot be encouraged. The petition prayed to pass a decree to remove the encroachments from the public property and restrict the high commission not to construct security walls in future.
Cellular company: In another petition Abid Ali Khan Yousufzai, a resident of house No 12, street 102 sector, I-8/4 and Ali Abbas, chamber No 3 Allama Iqbal block F-8 Markaz have filed a petition in the court of civil judge Irfan Naseem Tarar against encroachments by a cellular company.
They have made four parties as respondents including the cellular company, Security and Exchange Commission of Pakistan through its chairman, Capital Development Authority (CDA) through its chairman and Islamabad Capital Territory administration through Chief Commissioner.
The plaintiffs contended that the company had no right to encroach public property, as it was against the public rights and prayed to the court to declare the concrete blocks placed on the road illegal and without lawful authority and instruct the company and other parties to remove the blocks from the road as well as from the footpath and restrict the company to further encroach in future.