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P L D 2006 SC 394

MOULVI IQBAL HAIDER
V/S
CAPITAL DEVELOPMENT AUTHORITY AND OTHERS

Per Iftikhar Muhammad Chaudhry, J-Constitution of Pakistan (1973), Arts. 184(3), 9 & 26-

What we have understood from above documents is that in the Capital territory, a master plan was prepared at the time of its inception and subsequently under different schemes, different sectors were set up. In this behalf, reference to the preamble and sections 11 and 12 of the Ordinance, 1960 may be made. In the scheme of a sector, some of the areas have been earmarked as a Public Part to attract general public. According to Article 12(3) of the Regulation, the public parts, playing fields and graveyards are to be developed and maintained by the CDA. Thus the conclusion is that during the classification of the plots, under Article 3 of the Regulation, if a piece of land has been earmarked for purpose of Public Part, same cannot be leased out and CDA itself is bound to develop the same.

There is yet another important provision of law, which prohibits C.D.A. to amend the scheme i.e. sections 19 and 21. Admittedly, in instant case, in terms of these sections, neither the permission was sought to convert the Public Park into the Mini Golf Park nor before doing so objections were invited from the general public in terms of section 21 of the Ordinance, 1960. This Court way back in 1969 in the case of Mian Fazal Din v. Lahore Development Trust, Lahore (PLD 1969 SC 223) has held that “the plots in a Housing Scheme for public use cannot be converted for other use”. Relevant para. from this judgment has already been reproduced in the order dated 26th December 2005. Admittedly a Public Park, if is earmarked in a housing scheme, creates a right amongst the pubic and that right includes their entry in the Park without any obstacle, being fundamental right enshrined in Article 26 read with Article 9 of the Constitution. It may be noted that liberty of a person, to have access or utilize a right available to him, cannot be taken away by converting such facility into commercial one, for the purpose of extending benefit to a third person, because in instant case considerably a big plot of land, measuring five acres, has been handed over to respondent no. 2 at a throwaway lease money, causing huge loss to the pubic exchequer, therefore, tax payers have a right to inquire from C.D.A. as to how a right of life and liberty can be denied to them. As in instant case, above facts are admitted, therefore, no formal evidence is required to prove these facts.

It has been noted that deal between respondents Nos. 1 and 2 has not been made in a transparent manner, coupled with the fact that the lease of a Public Park has been given for 15 years at the rate of Rs. 2.55 million per annum, which shall be paid after about 20 months as according to lease agreement the project is to be completed within eight months and the rent would be due after one year from the date of the functioning of the project with clear delegated authority to the lessee that it can issue licence to the local or international parties for the purpose of providing amusement/commercial activities, etc. Whereas the law, on the other hand, is, as discussed herein above, that such Parks are to be developed or to be maintained by the CDA itself. Essentially, when a party makes investment, may be meager one, it would make money by granting licences, franchise, etc. for which it will enter into agreements with local and international parties and the burden of the same ultimately is to be borne by the general public, in terms of tickets, amusement fee etc.

It is to be observed that under section 49 of the Ordinance, 1960 C.D.A. retains powers for the purpose of leasing, selling, exchanging the land etc. vested in it. For the purpose of achieving the object of this section, from time to time, Rules and Regulations are framed, as it is evidence from the contents of Notification dated 18th December 1993 (No. CDAS-30(2)(NOTI)-Coord 93). Reference of some of the Regulations, framed there under, has already been made herein above. [The Islamabad Land disposal Regulation 1993]. It is equally important to note that learned counsel for petitioner when called upon to satisfy as to whether in terms of Ordinance 1960, the master plan is available with the C.D.A, he produced the same but stated that according to its contents Sector-wise division of the Capital has not been made. He also explained that in Sector F-7, one public park under discussion was created by means of preparing PC-1, therefore, it may be presumed that the plan submitted along with PC-1, therefore, it may be presumed that the plan submitted along with PC-1 must be having separate identification of the Jubilee Park, where the Mini Golf Course is being established. In this behalf he has referred to a copy of the site plan attached with the reply of the C.D.A. to demonstrate that the Jubilee Park is situated in the area of Markaz F-7. He was called upon to produce the original file/documents, including PC-1 as we wanted to ascertain the status of the plot in question for the purpose of examining the proposition that in terms of section 49 of the Ordinance, 1960, the lease has rightly been executed in favour of respondent no. 2 by C.D.A. or not? But despite of our demand, said file was not produced and ultimately Chairman C.D.A. gave a statement in writing expressing disability of the authority to produce the file. The contents, whereof are reproduced herein below for reference:–

“The file of PC-1 of Sector F-7 is presently not available and being traced out. It will be produced before the learned Court as it is found out.

(Sd.)
Chairman C.D.A.”

None-production of above file persuades us to draw adverse inference against the C.D.A., necessarily with all consequences.

It is quite surprising to note that the C.D.A., though claimed that the transaction of leasing out the Jubilee Park Markaz F-7, is transparent but is had miserably failed to demonstrate the same for the reasons, one of them noted herein above, and the others are being discussed below. It is a matter of record that before inviting proposals for leasing out different open areas for the development of Mini Golf Course, etc. no decision was taken by the Board of C.D.A., constituted under section 6 of the Ordinance, 1960. Thus publications, dated 1st and 2nd February, 2004, appeared in Daily Frontier Post and Daily Jang, respectively, were without any legal sanctions. It seems that in pursuance of publications, interested parties submitted their proposals and out of them, after short listing, respondent no. 2 and M/s Family Entertainment Centre were selected. It may be noted that M/s Family Entertainment Centre claims itself to be developers, promoters and project manager of Tourist Resorts, Amusement/Theme Parks, Miniature Golf, Water Play Amenities, Attractions Developments and is acting as a consultant/collaborator in developing the required Gold Course on behalf of a company known as M/s LOMMA Enterprises Incorporation of Scranton, Pennsylvania, USA through its CEO Mr. Adnan Hameed, and respondent no. 2 i.e. Al-Falah Mini Golf were pre-qualified to participate in the bid. Later on, in pursuance of the publication appeared in newspapers i.e. Daily Jang and Daily DAWN, on 14th August 2004 they were called upon to submit their tenders for acquiring the land on lease to develop the Mini Golf Course.

At this juncture, to unfold the mala fides on the part of respondent no. 1 i.e. C.D.A, it is to be noted that in the publication, neither specification of the areas of Jubilee Park Markaz F-7 was mentioned, on which Mini Golf Course was to be developed nor the period for which the lease was intended to be given. Inasmuch as, it was not disclosed in the publication that what is the reserved lease money fixed by the C.D.A. because in absence of such information, the genuine bidder could not offer bid accurately except those bidders who have the blessings of the authority competent to accommodate any one of them out of way. It is also important to be kept in mind that volume of the lease money depends upon the area of the land, as we are of the opinion that if C.D.A had disclosed in publication that an area of 5.05 acres is available for the purpose of development of Mini Golf Course, there was every possibility of fetching much higher lease money, than one, on which it has been given to respondent no. 2. We are told that the plot is situated in the commercial area of Markaz F-7, where the prices of the property are extremely on a high side but with ulterior intentions, this important information was concealed.

Be that as it may, out of both the pre-qualified interested parties, M/s Family Entertainment Centre offered 2.5 million (Rs. 25 lacs) per annum for the subject matter, whereas respondent no. 2 offered Rs. 6 lacs per annum rent for the subject matter for a period of at least 15 years, with 25% increase on every three years. It is stated that the C.D.A. evaluated both the offers and rejected the one quoted by M/s Family Entertainment Centre, as it has failed to secure requisite points obtained by respondent no. 2, as such respondent no. 2 was called upon to increase/match the bid up to Rs., 2.5 million. However, the report of evaluation committed is not available to ascertain as to whether it was carried out independently or otherwise. Thus it is held that in such like situation, C.D.A. if at all was interested to lease out the Public Park, instead of developing the same, may have invited fresh proposals instead of calling upon respondent no. 2 to enhance the lease money because in granting contracts for the purpose of fetching money to support the public exchequer, the competent authority had an obligation to adopt such devices on the basis of which more money could be procured as it has been held in Captain-PQ Chemical Industries (Pvt) Ltd. v. A.W. Brothers (2004 SCMR 1956). C.D.A. seems to be interested to grant lease of Jubilee Park to respondent no. 2, as it is evident from preceding narration of facts. The negotiation with respondent no. 2 culminated in its success because of its agreeing to match the bid to the extent of Rs. 2.5 million, which was however, subject to extending him extraordinary benefit in formulating the conditions of agreement, two of them are most important, which may be referred to from the conditions reproduced herein above i.e. being nos. 4 & 5, which, later on, became part of the lease agreement dated 4th June, 2005 as Conditions No. 14 and 15. These concessions were allowed to respondent no. 2 contrary to the restriction imposed in the advertisement published on 14th August, 2004 namely, no heavy civil structure will be allowed, open and soft landscaping will be done, whereas contrary to it, respondent no. 2 has been allowed to construct areas of 1000 sq. yards besides 1500 sq. yards for family and children activities and eating court, which is impossible unless a concrete flooring is made. It is also to be seen that nothing was mentioned in the publication in respect of concession expected to be available to successful bidders in terms of period of lease, the area, as it has been pointed out herein above, the period of completion of project and commencing date for the purpose of making payment of lease money i.e. after a period of about 20 months, etc.

It is an unfortunate aspect of the case that prime land situated in one of the most posh area of the capital city has been leased out in a most opaque manner, causing colossal loss to the public exchequer for which C.D.A had no authority, as discussed above. It is also to be noted that 2nd contesting party i.e. M/s Lomma Enterprises Incorporation through its CEO Mr. Adnan Hameed i.e. M/s Family Entertainment Center, challenged the approval of the bid in favour of respondent no.2 before the High Court by way of Writ Petition. Written reply of the same was also submitted by respondent no. 1. In that Writ Petition very serous allegations were leveled, which though were repudiated but subsequently, writ petition was got dismissed in absentia, reasons known to the writ petitioners as well as to respondent no. 1 because on the date of dismissal of writ petition, C.D.A. also opted not to appear in the Court, therefore, for such reason no favourable inference can be drawn in respect of conduct of respondent no. 1 during the proceedings.

Thus, in view of above discussion, it is held that the mala fides of respondent no. 1 in concluding the transaction with respondent no. 2nare abundantly apparent on record. This Court in the case of Government of West Pakistan v. Begm Agha Abdul Kharim Shorash Kashmiri (PLD 1969 SC 14) has held that mala fide is to be proved on record. This view has been reiterated by this Court in the case of Ahmad Hassan v. Government of Punjab (2005 SCMR 186). Therefore, applying the test laid down in these judgments on the facts of the present case, we are inclined to hold that in view of the admitted facts on record, mala fides on the part of respondent no. 1 in granting lease to respondent no. 2 are apparent, thus, the lease agreement dated 4th June, 2005 is not transparent.

A perusal of above para is sufficient to hold that the jubilee Park of Public Park is meant for the use of general public, majority of which i.e. is more than 90% is living in the vicinity. Under Article 26 of the Constitution, it is fundamental right of the citizens to have access to public places of entertainment or resorts. As per the socio-financial status of the citizens of Pakistan, majority of public is not in a position to afford luxury of joining Mini Golf course along with children, subject to payment of tickets etc.

Learned counsel stated that the right of entertainment can only be made available subject to law as it is defined in section 2(d) of the West Pakistan Entertainment act, 1958. There is no cavil with his this argument but subject to the condition that if the arrangements of providing such entertainment to the citizens is made in transparent manner by an authority in exercise of lawful jurisdiction which lacks in instant case as discussed above

In above judgment it has been held that “before an order passed by a public authority is struck down, it is the duty of the court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has been passed. We subscribe to the principle laid down in this judgment but is to be seen whether the authority who has granted lease to respondent no. 2 has acted fairly, transparently, judiciously and above any suspicion. Unfortunately, these elements are lacking in instant case, therefore, allowing respondent no. 2 to avail the benefit out of the lease agreement, would tantamount to perpetuate the unlawful/illegal acts of both of them.

Essentially along with a commercial multinational company to get the publicity of its product by using even temporarily constructed boundary fence, means to attract business for the said company and such concession obviously cannot be allowed, without any consideration. Moreover, Investor of the multinational company has not entered into contract with the authority or the Government of Pakistan directly. Actually they wanted to run the business with respondent no. 2 being a lessee, which he has obtained by means of illegal transaction, which has got no legal sanctity. For such reason, no concession can be extended to respondent no. 2 or any other party who is not before the Court. If at all, the multinational company is interested in the business, it could have participated in open bid for obtaining development lease hold rights, subject to law from the CDA. Furthermore, if the company had not apparently provided any facility to the general public, how they can sacrifice their fundamental rights, solely for the reason that it has got permission to publicize its product, in collaboration with respondent no. 2 for the purpose of earning profit at their cost. In addition to it, in future, if such multinational company along with others would be permitted to use the plot for other commercial purposes, its financial burden has to be borne by an ordinary person, in violation of the Article 26 of the Constitution, which is not permissible.

Now we will examine whether in view of the given facts and circumstance of the case, any of the fundamental rights guaranteed to the citizens of Pakistan have been denied. Islamabad, being a capital city, attracts representation from all over Pakistan in different capacities. Thus it is their right to enjoy access to the places of entertainment like the Jubilee Park, etc. under Article 26 of the constitution. The same is the position of the inhabitants of the area where the Park is situated. As it has been stated herein above that necessary documents have been withheld by the C.D.A. from the court for which, observation have been made herein above. Thus, it is held that Jubilee Park was earmarked in the original scheme of Sector F-7, as it was meant for low income group, who are deprived of the benefits of having their own private gardens, comparing to higher income groups, therefore, converting such Parks for commercial activity with the collaboration of multinational companies, would deny the rights guaranteed to them.

Next question in this regard is whether the action violating the fundamental rights can be perpetuated merely for the reason that petitioner is outsider. In our considered opinion, for such reason alone, the person who approaches the Court for exercising the jurisdiction under article 184(3) of the Constitution by this Court is not disqualified and the petition can be maintained accordingly. So far as the judgments relief upon by the learned counsel for respondent no. 1 are concerned, those are not attracted in view of the fact that in both the cases, rights of individuals were involved and conditions laid down under Article 184(3) of the Constitution that the question of public importance with reference to enforcement of fundamental rights are not available, whereas in instant case on account of conversion of Jubilee Park into a commercial oriented amusement Park, fundamental rights of the public have been violated and due to non-enforcement of the public rights enshrined in Article 26 of the Constitution, the question of public importance has been made out, therefore, petition is maintainable, particularly when there is no disputed fat as it has been noted herein above. This Court and the High Courts in such like cases have encouraged invoking jurisdiction of Courts directly with a view to do complete justice.

It is most important to note that functionaries, exercising statutory powers like C.D.A., are bound to discharge their functions strictly in accordance with law, otherwise the action contrary to law would not be sustainable and such authority shall expose itself for disciplinary action. This Court in the case of Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223), reference of which has already been herein above, has discouraged denial of valuable rights of the residents in respect of the plot, meant for specific purpose. This principle has also been reiterated in the case of Ardeshir Cowasje v. Karachi Building Control Authority (1999 SCMR 2883), wherein it has been held that without obtaiing no objection from the general public, such plots cannot be used for any other purpose. As it has been noted herein above that in instant case, objections were not invited from the general public by the competent authority before converting the Jubilee Park into a commercial oriented amusement Park, with the collaboration of multinational companies, delegating powers to respondent no. 2 to enter into joint venture or franchise for giving licences to local or international parties, food chains etc. In our opinion, such delegation to private person to watch his financial interests of the high degree tantamount to depriving the authority as well as the public from their valuable rights, for whose benefits such authority has been created, and apparently such action has got no legal sanctity, therefore, action against such responsible officer/official of the authority is called for in view of the judgment of this Court Pervaiz Oliver v. St. Gabriel School PLD 1999 SC 26, wherein it has been held that “no public property big or small, tangible or intangible, can be disposed of except in accordance with law. Those who transgress, expose themselves to the severest penalty under the law”

The lease agreement dated 4th June, 2005, executed by respondent no. 1 with respondent no. 2, for the development of Mini Golf Course on the site of Jubilee Park, Sector F-7, is not sustainable in the eye of law, being contrary to fundamental rights of the general Public, enshrined under Article 26 of the Constitution.

Respondent no. 2 is directed to hand over vacant possession of the plot, lease of which has been obtained by him from respondent no. 1 within a period of four weeks in its original condition, subject to complying with the supra direction. Respondent no. 1 will refund Rs. 5 lacs to respondent no. 2 deposited by it as security. Enquiry report shall be sent to Registrar within three months for our perusal in chambers and passing further order, if need be. [p. 406, 407, 410, 411, 412, 414, 416, 417] A,B,C,D,E,F,G,H,K,L,M,N & O

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