Monal Restaurant Case (Civil Petition No. 304 of 2022 etc.)

A Legal Perspective on the Supreme Court’s Judgment on Monal Restaurant: A Long-Overdue Enforcement of Environmental Law

The recent Supreme Court judgment ordering the closure and demolition of Monal Restaurant and other establishments within the Margalla Hills National Park marks a pivotal moment in Pakistan’s environmental jurisprudence. Authored by Chief Justice Qazi Faez Isa and supported by Justices Jamal Khan Mandokhail and Naeem Akhtar Afghan, this decision underscores the judiciary’s role in upholding the rule of law, especially in the face of longstanding environmental degradation facilitated by unlawful commercial activities.

The Core of the Judgment: Upholding Environmental Laws

At the heart of the judgment is the Islamabad Wildlife (Protection, Preservation, Conservation, and Management) Ordinance, 1979, a law designed to safeguard the natural environment of Islamabad, particularly the Margalla Hills National Park. This ordinance, which prohibits commercial activities within the park, was flagrantly violated by the Monal Group and other restaurateurs, leading to severe environmental damage over the years.

Chief Justice Qazi Faez Isa, in his detailed reasoning, highlighted the significance of this ordinance, noting that the right to life under Article 9 of the Constitution is intrinsically linked to a healthy environment. The court also invoked the Pakistan Environmental Protection Act, 1997 (PEPA), emphasizing that the failure of these establishments to conduct Environmental Impact Assessments (EIAs) before commencing operations was a blatant disregard for the law.

A Critique of Institutional Failures

The judgment did not merely target the restaurateurs but also critically examined the role of state institutions like the Capital Development Authority (CDA) and the Remount, Veterinary and Farms Directorate (RV&FD) of the Pakistan Army. The CDA, responsible for regulating land use in Islamabad, was found complicit in permitting illegal leases that contravened the very laws it was supposed to enforce. Similarly, the RV&FD’s involvement in granting an unlawful lease to Monal Restaurant was condemned, with the court declaring such actions void ab initio.

The judgment pointed out that these violations were not isolated incidents but part of a broader pattern of corruption and abuse of power, where personal interests and influence often trumped legal obligations. The decision to dismantle these illegal structures and restore the park is, therefore, not just about enforcing environmental laws but also about restoring the integrity of state institutions.

The Judgment’s Impact and the Road Ahead

While the judgment has been hailed as a necessary step in protecting Islamabad’s natural heritage, it has also sparked debate over its timing and impact. Some argue that this action, though just, comes too late to reverse the significant damage already done to the Margalla Hills. Others have raised concerns about the socio-economic impact of the judgment, particularly the loss of jobs for those employed by the affected businesses.

However, as Justice Isa pointed out, the preservation of the environment is not just a legal obligation but a moral one, essential for the survival of future generations. The court’s decision, though it may have come after years of neglect, sets a powerful precedent for the enforcement of environmental laws in Pakistan.

In conclusion, this judgment represents a critical juncture in Pakistan’s legal history, where the Supreme Court has reaffirmed its commitment to upholding the Constitution and the laws that protect our natural environment. It is a reminder that the rule of law must prevail, even in the face of powerful interests, and that the preservation of nature is a duty owed not just to the present but to future generations.

This judgment, delivered by a bench led by Chief Justice Qazi Faez Isa, will undoubtedly be studied for years to come as a landmark in environmental jurisprudence in Pakistan.

Too little too late?

The Supreme Court’s judgment ordering the closure and demolition of Monal Restaurant and other establishments within the Margalla Hills National Park is largely seen as appropriate, albeit a case of “too little too late.” The decision was driven by the need to protect the ecological integrity of the National Park, which had been significantly compromised due to illegal constructions and commercial activities. The judgment reflects a strong stance on environmental conservation, emphasizing the importance of preserving natural habitats from urban encroachment and commercial exploitation.

However, opinions on the judgment’s timing and its socio-economic impact are divided. Some commentators argue that the decision, though correct in principle, came after years of environmental damage that could have been mitigated if stricter enforcement had occurred earlier. The delayed action allowed substantial harm to the park, raising questions about why these illegal activities were permitted to continue for so long.

Moreover, the judgment has sparked debate over the socio-economic consequences, particularly concerning the loss of jobs and investments associated with the closure of these businesses. Critics have highlighted the negative impact on workers who depended on these establishments for their livelihoods, suggesting that the court should have considered alternative measures to balance environmental protection with economic realities.

Despite these concerns, the judgment is broadly viewed as a necessary step towards rectifying past negligence and setting a precedent for stricter environmental regulation. It underscores the judiciary’s role in upholding the rule of law and protecting public assets from private exploitation, even if the action taken is seen as overdue.

In conclusion, while the judgment is considered appropriate in addressing the environmental violations, its timing and the broader impact on affected stakeholders have sparked a complex debate about the balance between environmental stewardship and socio-economic considerations.

Facts of the Monal Restaurant Case

The facts of the case revolve around the leasing and subsequent use of land within the Margalla Hills National Park by the Monal Group of Companies, led by Mr. Luqman Ali Afzal, and the legal disputes that arose as a result of these activities. The key facts are as follows:

1. Initial Lease Agreement:
   • On 10 March 2006, the Capital Development Authority (CDA) leased a site within the Margalla Hills National Park to Mr. Luqman Ali Afzal for the operation of Monal Restaurant. The lease was for a period of fifteen years, set to expire on 10 March 2021. The lease agreement stipulated that the CDA would remain the sole owner of the site/structure, and Mr. Afzal, representing “Ze Grill Restaurants,” agreed to pay monthly rent to the CDA.
2. Expiry of the Lease and Legal Dispute:
   • As the lease expiration approached in February 2021, Mr. Afzal filed a suit against the CDA, claiming that the CDA had no lawful right to demand or receive rent from him. He further sought a refund of the rent already paid. This suit was dismissed by the Civil Judge and subsequently upheld by the District Judge and the Islamabad High Court.
3. Illegal Lease with the Remount, Veterinary and Farms Directorate:
   • During the subsistence of the CDA lease, Mr. Afzal entered into another lease agreement on 30 September 2019 with the Remount, Veterinary and Farms Directorate (RV&FD) of the Pakistan Army. This lease was for a period of seventeen years. The RV&FD lease was identical in terms to the original CDA lease, except that it was executed without the legal authority to do so, as the Directorate had no jurisdiction over the land, which was within the National Park. This lease was later declared void by the courts.
4. Environmental and Legal Violations:
   • Mr. Afzal and other restaurateurs expanded their operations beyond the original leased premises, causing significant environmental damage to the Margalla Hills National Park. The expansion involved the illegal use of land, cutting down of trees, improper waste management, and the violation of several environmental laws, including the Islamabad Wildlife Ordinance, 1979, and the Pakistan Environmental Protection Act, 1997.
5. High Court Proceedings:
   • In 2022, the Islamabad High Court ruled against Mr. Afzal, ordering the protection and restoration of the National Park. The court emphasised the State’s constitutional obligation to protect ecosystems and natural habitats, which are linked to the right to life under Article 9 of the Constitution.
6. Supreme Court Involvement:
   • Mr. Afzal filed Civil Petitions for Leave to Appeal (CPLAs) in the Supreme Court, seeking relief against the Islamabad High Court’s decision. The Supreme Court initially ordered a status quo but later upheld the High Court’s ruling, with further directions for the removal of illegal structures and the restoration of the National Park.
7. Final Judgment and Orders:
   • On 11 June 2024, the Supreme Court granted Mr. Afzal and other restaurateurs three months to voluntarily vacate the premises. The court declared all leases, licenses, and permissions granted by the CDA and the Directorate to operate restaurants within the National Park as null and void. The court ordered that the illegal structures be demolished, and the land restored to its natural state.
8. Actions Against Involved Parties:
   • The judgment also called for actions against the CDA officials and others involved in facilitating the illegal activities. The Wildlife Board was directed to take over the possession of the land and oversee the restoration of the National Park, with the assistance of the CDA and the Islamabad Capital Territory Police.

These facts outline a complex case involving the illegal use of protected land, violations of environmental laws, and a legal battle that culminated in the Supreme Court’s order to protect and restore the Margalla Hills National Park.

Legislation Cited 

The judgment in the case involving Monal Restaurant and other establishments within the Margalla Hills National Park cited and involved several key laws and legal principles. The main legal instruments referenced include:

1. Islamabad Wildlife (Protection, Preservation, Conservation, and Management) Ordinance, 1979:
   • This ordinance is central to the case as it governs the protection and management of wildlife and natural habitats within Islamabad, including the Margalla Hills National Park. The ordinance prohibits any activities that would disturb the wildlife, including construction or commercial activities within the park. The judgment highlighted violations of this ordinance by the Monal Restaurant and others operating within the park.
2. Pakistan Environmental Protection Act, 1997 (PEPA):
   • PEPA was cited concerning the environmental impact assessments (EIAs) and the initial environmental examinations (IEEs) that are required for any development projects that may impact the environment. The judgment noted that Monal Restaurant and other establishments failed to comply with the requirements of PEPA, particularly in obtaining the necessary environmental approvals before commencing their activities.
3. Capital Development Authority Ordinance, 1960:
   • This ordinance provides the legal framework for the establishment and operation of the Capital Development Authority (CDA). The judgment referenced the CDA’s role in the unauthorized leasing of land within the Margalla Hills National Park, which was a key point of contention in the case.
4. Islamabad (Preservation of Landscape) Ordinance, 1966:
   • This ordinance prohibits the removal, destruction, damage, or alteration of the landscape without proper authorization. The judgment pointed out that the construction activities carried out by Monal and other establishments violated this ordinance by altering the landscape of the National Park without the necessary permissions.
5. Master Plan for Islamabad:
   • The judgment also referenced the Master Plan for Islamabad, which designates certain areas, including the Margalla Hills, as protected areas where commercial activities are prohibited. The illegal construction and commercial use of land within these protected areas were highlighted as violations of the Master Plan.
6. Islamabad Capital Territory Zoning Regulations, 1992:
   • These regulations were cited in the judgment to emphasize the restrictions on land use within different zones of Islamabad. The Margalla Hills National Park falls within Zone-3, where commercial activities are prohibited, reinforcing the illegality of the operations of Monal and other restaurants.
7. Fundamental Rights under the Constitution of Pakistan:
   • The judgment invoked the fundamental right to life and the right to a clean and healthy environment as guaranteed under Articles 9 and 14 of the Constitution. The court emphasized that protecting the environment and natural resources is essential to upholding these fundamental rights.

The judgment also referenced international environmental principles and Pakistan’s obligations under various international treaties, reinforcing the importance of environmental protection in line with global standards.

These legal provisions formed the basis for the court’s decision to order the closure and demolition of the illegal structures within the National Park and to mandate the restoration of the area to its natural state.

Instances of Corruption Cited in the Monal Restaurant Case

The judgment in the case identified several instances of corruption and abuse of power, particularly involving powerful individuals and state institutions. These instances are as follows:

1. Improper Lease Agreements:
   • The original lease agreement between the Capital Development Authority (CDA) and Mr. Luqman Ali Afzal for the operation of Monal Restaurant was questionable, especially given the environmental sensitivity of the Margalla Hills National Park. Later, Mr. Afzal unilaterally substituted the CDA as his lessor with the Remount, Veterinary and Farms Directorate (RV&FD) of the Pakistan Army. This was done through an illegal lease agreement executed on 30 September 2019, despite the Directorate having no legal authority over the land, which was part of the National Park. The judgment noted that Mr. Afzal had “audacity” and showed a “complete disregard of the law” by attempting to shift his obligations from CDA to the Directorate.
2. Violation of Environmental Laws with Impunity:
   • The judgment highlighted that Mr. Afzal and other restaurateurs expanded their establishments within the National Park, violating multiple environmental and zoning laws, including the Islamabad Wildlife Ordinance, 1979, and the Pakistan Environmental Protection Act, 1997. Despite repeated notices and environmental protection orders from the Environmental Protection Agency (EPA), these violations were ignored. The judgment suggested that Mr. Afzal’s connections and influence allowed him to continue his illegal activities with impunity.
3. Nepotism and Influence Peddling:
   • The judgment pointed out that Mr. Afzal likely leveraged his relationships with powerful individuals, including his brother, who held a high-ranking position in the bureaucracy, to facilitate and continue his unlawful activities. It was implied that Mr. Afzal believed himself to be “above the law” due to these connections.
4. Collusion with State Officials:
   • The judgment strongly condemned the actions of the CDA officials who were complicit in allowing the illegal construction and operation of restaurants within the National Park. It was evident that CDA officials, including those in senior positions, acted in ways that favoured the private interests of the restaurateurs over the public interest and environmental conservation. The judgment suggested that these actions were motivated by personal gain and were a betrayal of the public trust.
5. Illegal and Violent Actions Against the Wildlife Board:
   • The judgment detailed an instance where around 50 to 60 personnel from the CDA forcibly dispossessed the Islamabad Wildlife Management Board from its properties within the National Park. This action, which included destroying locks and removing equipment, was described as a “blatant act of harassment and usurpation.” The judgment noted that such actions could only have been carried out with the directive of the highest officials within the CDA, indicating a severe level of corruption and abuse of power.
6. Involvement of High-Ranking Military Officials:
   • The judgment also criticised the involvement of military officials, particularly the Director-General of the RV&FD Directorate, in executing the illegal lease with Monal Restaurant. It was noted that the Directorate, although a component of the Pakistan Army, had no separate legal existence and acted as if it were a legal entity, executing agreements that were void ab initio.

These instances of corruption and abuse of power, as identified in the judgment, underscore a systemic issue where personal relationships, influence, and a disregard for the law have led to significant environmental degradation and the misuse of public lands. The judgment calls for accountability and the restoration of the National Park, emphasising the importance of upholding the rule of law and protecting public assets from private exploitation.

Chronology of the Case

The facts and events leading to the case, as well as the order, can be summarised as follows:

1. Initial Lease and Operations:
   • The Monal Group of Companies, led by Mr. Luqman Ali Afzal, entered into a lease agreement with the Capital Development Authority (CDA) on 10 March 2006 for the operation of a restaurant at Pir Sohawa within the Margalla Hills National Park. The lease was set to expire on 10 March 2021.
2. Expiry and Dispute Over the Lease:
   • As the lease expiration approached in February 2021, Mr. Afzal filed a suit against the CDA, claiming that the CDA had no lawful right to demand or receive rent. This claim was subsequently dismissed by the Civil Judge and later upheld by the District Judge and the Islamabad High Court.
3. Illegal Lease and Activities:
   • During the subsistence of the original lease with CDA, Mr. Afzal entered into another lease with the Remount, Veterinary and Farms Directorate (RV&FD) of the Pakistan Army on 30 September 2019 for a period of seventeen years. This lease was deemed void as the Directorate had no legal authority over the land, which was part of the National Park.
4. Environmental and Legal Violations:
   • Mr. Afzal and other restaurateurs expanded their operations, causing significant environmental damage to the National Park. They ignored various environmental protection laws, including the Islamabad Wildlife Ordinance, 1979, and the Pakistan Environmental Protection Act, 1997. Their actions led to the destruction of natural habitats, illegal use of water resources, and encroachment upon protected lands.
5. High Court’s Decision:
   • In 2022, the Islamabad High Court ruled against Mr. Afzal, ordering the protection and restoration of the National Park. The court emphasized the constitutional obligation of the State to protect ecosystems and natural habitats as part of the right to life under Article 9 of the Constitution.
6. Supreme Court’s Involvement:
   • Mr. Afzal filed Civil Petitions for Leave to Appeal (CPLAs) in the Supreme Court, which initially granted a status quo order. However, the Supreme Court eventually upheld the Islamabad High Court’s decision, with further clarifications. The Supreme Court ordered the removal of all illegal structures, including Monal Restaurant, and mandated the restoration of the National Park.
7. Final Order:
   • On 11 June 2024, the Supreme Court granted three months for the voluntary vacating of the premises by Monal and other restaurants. The court emphasized the importance of protecting the National Park and directed that any lease, license, or permission granted by CDA or the Directorate for operating restaurants in the park was contrary to the law and therefore null and void.
8. Implementation and Future Actions:
   • The court ordered that the Wildlife Board take over the possession of the said restaurants with the assistance of CDA and the Islamabad Capital Territory Police by 11 September 2024. The structures are to be demolished, and the land is to be restored as part of the National Park.

The Supreme Court’s judgment highlights the critical importance of environmental protection and the rule of law in safeguarding national assets such as the Margalla Hills National Park. The case also underscores the judiciary’s role in holding powerful entities accountable for environmental violations.

Memorable Quotes from the Judgement 

Here are some impressionable quotes from the judgment in the Monal case delivered by Chief Justice Qazi Faez Isa and supported by Justices Jamal Khan Mandokhail and Naeem Akhtar Afghan:

1. On the Importance of Environmental Conservation:
   • “The fundamental right to life, and to live it with dignity (respectively Articles 9 and 14 of the Constitution) is to live in a world which has an abundance of all species. It has by now been scientifically well established that if the earth becomes bereft of birds, animals, insects, trees, plants, clean rivers, unpolluted air, soil it will be the precursor of our destruction, and scientific research establishes that nothing in nature is without value and purpose.”
2. On the Role of the State and Institutions:
   • “Protection of ecosystems and natural habitats is a constitutional obligation of the State, its institutions and every public functionary. The destruction of the National Park is violative of the fundamental rights of the people of Pakistan and saving it from further harm an inviolable duty of the State, its institutions and the public functionaries.”
3. On the Violation of Laws:
   • “Constructing a restaurant in a designated national park is a clear violation of the Ordinance. Unrestricted construction and commercial activities within a national park also denigrate its protected status.”
4. On the Responsibility of the State’s Servants:
   • “Such servants of the State, whose salaries are paid by the poor people of this country, have shifted their loyalty away from Pakistan, its laws, and from the people. Those selling the laws of Pakistan and the land of the National Park do so for personal gain and profit.”
5. On the Sanctity of National Assets:
   • “The National Park land is under grave and imminent danger. The rich, powerful and well-connected want to wrest it away for their personal use and/or gain. This must stop. The people cannot be deprived of the National Park, its flora and fauna, and of the benefits of this amazing national asset.”
6. On the Concept of Stewardship:
   • “The Creator has bestowed rights on all of His creation and created the earth in perfect balance (al-mizan). We must fulfill our designated role as stewards of the earth (khalifa fil ardh), embrace, protect, and conserve the natural world; in it lies our survival, and our salvation.”

These quotes reflect the judgment’s strong stance on environmental protection, the rule of law, and the responsibility of state institutions and officials to act in the public interest. The judgment is a powerful reminder of the legal and moral obligations to protect Pakistan’s natural heritage for present and future generations.

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