2013 C L C 1095

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Syed WAQAR HUSSAIN GILLANI—-Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY and others—-Respondents

Writ Petitions Nos.2222 of 2008 and 2401 of 2009, decided on 13th March, 2013.

(a) Capital Development Authority Ordinance (XXIII of 1860)—

—-S. 14-A—Playgrounds, parks, green belts and other places of public use belong to all citizens of the country, whether belonging to urban areas or coming from rural background, more particularly residents of that vicinity and the city, where such places are located—Such places come in the joint ownership and constructive possession of all citizens, which is a constitutionally guaranteed right.

(b) Capital Development Authority Ordinance (XXIII of 1960)—

—-Ss. 11 & 12—Constitution of Pakistan, Art.199—Constitutional petition—Place meant for playground, subsequently carved out for purported allottees—Effect—Planning Department of CDA, without caring about the Master/Sector Plans, conspired to carve out plots, at the most valuable and significant places, which under no stretch of imagination could be described as bona fide act and lawful device—Allotments made in favour of allottees were cancelled.

—-Ss. 11 & 12—Carving out of plots meant for playground—Plots carved out were not in the area of cricket ground, rather outside the playing area of the same—Effect—Ground of any sport, more particularly cricket were not reduced to pitch and playing area inside boundary line, rather facilities like gym, tennis/squash courts, swimming pool, pavilion, dressing room, spectators place are essential—Capital Development Authority was bound to add such facilities instead of shrinking the areas of playground by carving out plots in the same—Places belonging to public at large are like trust which cast delicate duty upon the civic body to protect and preserve such properties.

(d) Constitution of Pakistan–

—-Arts. 9, 26 & 199—Capital Development Authority Ordinance (XXIII of 1960), Ss.11 & 12—Constitutional petition—Disposal of public property—Plots reserved for playground, carved out and allotted to purported allottees—Validity—Act of Capital Development Authority’s officials was not less than offence, like criminal breach of trust, cheating and fraud—Civic body was to initiate criminal proceedings and take disciplinary action against the culprits, who for personal benefit, gain and interests, sold the assets of nation—Such type of arbitrary decisions, polluted acts and corrupt practices was deprecated—Places like parks and playgrounds were necessary for healthy life and to convert such places to commercial use and residential purpose was an infringement of Fundamental Rights guaranteed by the Constitution, more particularly Art.9—Act of carving out of plots was declared as unconstitutional by High Court and said allotments were cancelled.

Pervaiz Oliver’s case PLD 1999 SC 26; New Murree Project’s case 2010 SCMR 361; Moulvi Iqbal Haider’s case PLD 2006 SC 394; Ardeshir Cowasjee’s case 1999 SCMR 2883; Shehla Zia’s case PLD 1994 SC 693 and Manzoor Bhatti’s case PLD 2002 Lah. 412 rel.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Mian M. Hanif, Advocate Supreme Court with Umar Hanif Khichi for CDA.

Ch. Haseeb Ijaz Buttar for Respondent No.5-A.

Malik Muzaffar Khan for Respondent No.5-C.

Date of hearing: 13th March, 2013.

JUDGMENT

SHAUKAT AZIZ SIDDIQUI, J.— Through this single judgment both the connected Writ Petitions Nos.2222 of 2008 and 2401 of 2009 are being disposed of as common questions of law and facts are involved.

2. Petitioner invoked the Constitutional Jurisdiction of this Court by way of filing instant Petition, with the following Prayer:—

“In the circumstances, it is, therefore, humbly prayed that the Hon’ble Court may graciously be pleased to accept the writ petition to the following effect;–

a. The act of the respondent No.1 in carving out Plots No.200-A, 200-B and 200-C through conversion of the open space (kept admittedly for a playground) adjacent to the house of the petitioner may graciously be declared as illegal, without lawful authority and void ab initio.

b. The respondent-CDA be directed to refrain from illegally changing the nature of the open spaces into residential plots and to further refrain allotting the same to any person.

c. The respondent-CDA may kindly be directed to refrain from handing the possession of Plots No.200-A, 200-B and 200-C to purported allottees and status quo is prayed as to any intended construction work on the suit plots.

d. The respondent No.1 be directed to fulfil its assertive intent and purpose of developing a playground on the open space adjacent to the house of the petitioner.

e. Any other relief which this Hon’ble Court deems fit and proper in the circumstances of the case may graciously be granted to the petitioner along with cost of these proceedings.”,

And presented the facts as under:—

3. That petitioner is owner-in-possession of House No.200 (measuring 800 Sq.Yards), St. No. 25, F-11/2, Islamabad, constructed over a corner plot, which he purchased in the year 1996. Adjacent area to the said plot was uneven and was left out from the purview of carving out plots by the CDA as was not fit for human inhabitation being close to WAPDA Grid Station and passing of high tension electric wires, converged and originated for supply of electricity to different developed Sectors of ICT. As the said area was full of security hazards, had wild growth, therefore, petitioner sought permission from the CDA for its beautification by making it even, planting grass, trees and flowers so that not only petitioner and his family but the nearby residents could also enjoy its beautification and avoid dreadful consequences from the wilderness but CDA instead of granting permission, vide letter dated 18-6-1996, replied that place was meant for a playground and issued directions to the respondent No.2 for taking appropriate measures in this regard. Since, development of playground for children was not in sight at all, therefore, petitioner at its own made it even, removed all the shrubs, bushes, etc and planted grass, flowers and little trees which brought beauty to the vicinity. Later, petitioner witnessed some real estate agents, frequently visiting the said open space along with ladies and gents, on query it revealed that three plots numbering 200-A, 200-B and 200-C, carved out for the purported allottees, who were in hurry to dispose of the same to intended purchasers at hefty considerations. The petitioner visited the CDA office for seeking relevant information which was refused to him, thus petitioner could not ascertain the name, parentage and addresses of the purported allottees.

4. Vide Order dated 6-7-2009, petitioner was directed to implead allottees of carved out Plot Nos.200-A, 200-B and 200-C.

5. On 11-1-2012 Writ Petition was dismissed for non-prosecution and for the reason that learned counsel for CDA, made the statement that, no change whatsoever, made in the master plan. However, vide order dated 10-4-2012 Writ Petition was restored to its original number. The stance of petitioner remained consistent that Planning Wing of CDA, for considerations alien to law carved out plots in the area, reserved for playground, which is besides the Master/Sector Plan. On the contrary CDA came up with a version that plots carved out were in fact on the left over land in order to accommodate the affectees. In order to have exact picture of the site and situation, this Court appointed Mr. Nauman Munir Paracha, Advocate High Court as Local Commission with the following reference:—

“Whether piece of land reserved for “Playground” in master plan is intact and whether any encroachment has been made over it.”

Learned Local Commission was directed to visit the site and to inspect the master plan and other relevant record, in order to make it part of his report. Petitioner was directed to pay fee of Rs.20,000/- to the learned Local Commission. In terms of reference learned Local Commission submitted his comprehensive report on 29-5-2012.

6. Interestingly, none of the parties preferred to file objections on the report of Local Commission, although an adjournment was sought by the learned counsel for CDA for this purpose but submitted comments only, which in fact, are sort of clarification of unearthed facts. For convenience, conclusion drawn by the learned Local Commission is being reproduced hereinbelow:—

“Based on the above, I am of the opinion that the newly-created residential plots 200-A, 200-B, 200-C and 200-D were part of the playground. They are, thus, an encroachment upon the area of the playground.”

7. In order to hear the view point of allottees, this Court ensured that they are properly served with notices, therefore, vide order dated 26-6-2012 Additional Director (Planning) was directed to place on record allotment letters, on receipt of same office issued notices. Except allottee of Plot No. 200-A, none appeared, therefore, order of substituted service, through proclamation in the daily “Jang” was passed. Respondents Nos.5-A and 5-C put appearance through their learned counsel and took the stance that, they have been allotted plots against their entitlement and if plots allotted to them are against the law, CDA may be directed to allot alternate plots at some other sector. Since, no one put appearance on behalf of respondent No.5-B, therefore, proceeded ex parte.

8. Learned Counsel for petitioner argued his case in line with pleadings and placed reliance on the report of learned Local Commission. Learned counsel for CDA defended the act of carving out plots and subsequent allotment to respondents Nos.5-A to 5-C. Learned counsel for allottees took the stance that after agonizing delay, plots allotted to them, however, if same are in violation of law, CDA may be directed to allot alternate plots.

9. I have heard learned counsel, perused the record on file and went through the provision of law.

10. Playgrounds, Parks, Green Belts and other places of public use belong to all citizens of the country, whether belonging to urban areas or coming from rural background, more particularly residents of that vicinity and the city, where such places are located. These places come in the joint ownership and constructive possession of all citizens, which is a constitutionally guaranteed right. It appears that Planning Department of CDA, without caring about the Master/Sector Plans, conspired to carve out plots, at the most valuable and significant places, which under no stretch of imagination can be described as bona fide act and lawful device. During the course of arguments one amazing, rather ridiculous explanation came forward from the officials of CDA that, plots carved out are not in the area of cricket ground, rather outside the playing area of it. It is a matter of common knowledge that ground of any sport, more particularly cricket is not reduced to pitch and playing area inside boundary line, rather facilities like gym, tennis/squash courts, swimming pool, pavilion, dressing room, spectators place are essential. CDA is bound to add these facilities instead of shrinking the areas of playground by carving out plots in it. Places belonging to public at large are like “TRUST” which cast upon delicate duty upon the civic body to protect and preserve such properties.

11. It is important to note that value of residential plots in all sectors is not equal, difference in prices enhances further, when comparison comes between the plots of developed and under developed sectors. One can easily understand and trace the reasons of undue favour extended to respondent Nos.5-A to 5-C as such type of benefits can only be extended with cryptic approach, lucrative influence and dubious dealings. I have no hesitation in observing that this act of the CDA officials is not less than offence, like criminal breach of trust, cheating and fraud. It is for the civic body to initiate criminal proceedings and take disciplinary action against the culprits, who for personal benefit, gain and interests, sold the assets of Nation. The Court of apex in the case of Pervaiz Oliver, reported as PLD 1999 SC 26 held authoritatively, about the Public Property in the following words of command:—

“Disposal of—No public property, big or small, tangible or intangible, can be disposed of except in accordance with law—Functionaries who transgress, expose themselves to the severest or penalties under law, the cardinal principle being that the higher the functionary, the higher the responsibility and, for that reason, the stricter the punishment”.

Superior Courts have always disapproved such type of arbitrary decisions, polluted acts and corrupt practices. It has been held time and again that places like parks and playgrounds are necessary for healthy life and to convert such places to commercial use and residential purposes is an infringement to fundamental rights guaranteed by the Constitution of the Islamic Republic of Pakistan, more particularly Article 9. There are numerous authoritative pronouncement on the issue but following judgments are lightship for times to come, “New Murree Project’s case (2010 SCMR 361), Moulvi Iqbal Haider Case (PLD 2006 SC 394) Ardeshir Cowasjee’s case (1999 SCMR 2883), Shehla Zia’s case (PLD 1994 SC 693) and Manzoor Bhatti’s case (PLD 2002 Lahore 412).

12. Thus, for the foregoing reasons both the connected petitions are allowed with the declaration that act of carving out of four plots in the playground of Sector F-11/2 Islamabad is unconstitutional, illegal, arbitrary, result of colorable exercise of authority, tainted with mala fide, for ulterior motives, outcome of irrelevant consideration, rarity, sham and besides the dictums laid down by the superior courts of the country. Allotments made in favour of respondents Nos.5-A to 5-C are hereby cancelled and set aside. It is directed that playground be restored to its original position, CDA may allot plots to respondents Nos.5-A to 5-C in any other Sector in accordance with their entitlement, which may also be verified. It is also directed that petitioner shall not change the nature of area adjacent to his house by raising any sort of structure or making part of his house.

JJK/73/Isl. Order accordingly.