Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Safdar Zaman, etc. VS Respondent: Federation of Pakistan, etc
Court Name: Islamabad High Court Judge(s): Aamer Farooq, Mohsin Akhtar Kayani Title: Safdar Zaman, etc. vs Federation of Pakistan, etc Case No.: I.C.A. No.206/2015 (2) I.C.A. No.208/2015 (3) W.P. No.3721/2012 Date of Judgment:2019-01-17 Reported As: 2019 YLR 1625, 2019 IHC 14 Result: Petition disposed off
Judgment MOHSIN AKHT AR KAYANI, J: Through this single judgment, we intend to decide the captioned intra court appeals, writ petitions, and contempt petitions as the same have common questions of law and involved similar facts. 2. Brief facts referred in the captioned ICA No.206/2015 (Safdar Zaman, etc. vs. Federation of Pakistan, etc.) and ICA No.208/2015 (Shahid Saleem Butt vs. Federation of Pakistan, etc.) are that appellants are bonafide residents of Street No.112 and Street No.23 of Sector I-10/4, Islamabad, which are closed end streets and there is a green area/incidental open space at its end along with cul-de-sac area usually used for moving around and parking of vehicles of the residents, whereas the CDA authorities intended to carve out plots on the green area/incidental open space. The appellants feeling aggrieved with the inactions of CDA filed W.P. No.4318/2012 (Safdar Zaman & another vs. Federation of Pakistan, etc.) and W.P. No.76/2013 (Shahid Saleem Butt vs. Federation of Pakistan, etc.), which were dismissed by learned Single Judge in Chambers vide impugned judgment dated 22.04.2015. Hence, the captioned ICA No.206/2015 and ICA No.208/2015. 3. Brief facts referred in the captioned W.P. No.3721/2012 (Seema Illahi Baloch vs. CDA) are that petitioner is owner of corner Plot No.40 (old 316), Khayaban-e-Iqbal, F-7/2, Islamabad, which is adjacent to green area, and the CDA converted the green belt area into plots, which inaction devalued the petitioner's corner plot by making it a non-corner plot. Hence, the captioned W.P. No.3721/2012. 4. Brief facts referred in the captioned W.P. No.2047/2014 (Hoor Kamal Khan, etc. vs. CDA, etc.) are that petitioners against premium consideration purchased a corner plot in Sector F-11/1, Islamabad with an adjacent open space/green area, however the CDA carved out two new plots from the green area. Hence, the captioned W.P. No.2047/2014. 5. Brief facts referred in the captioned W.P. No.1192/2015 (Shoukat Faruqui, etc. vs. CDA, etc.) are that petitioners are lawful owners of Plot No.12, Street No.14, Sector F-7/2, Islamabad, which is an end corner plot with green belt,
---
## Page 2
however the CDA in violation of statutory law and rules converted the green area into residential plots. Hence, the captioned W.P. No.1192/2015. 6. Brief facts referred in the captioned W.P. No.1791/2015 (Mrs. Soraya Safdar vs. CDA, etc.) are that the petitioner is lawful allottee of Plot No.7, Street No.14, Sector F-7/2, Islamabad, which is an end corner plot having green belt and being used as cul-de-sac by the petitioner and other inhabitants, however the CDA authorities in violation of laws carved out residential plots over the green belt area, which could potentially devalue the petitioner's plot. Hence, the captioned W.P. No.1791/2015. 7. Brief facts referred in the captioned Crl. Org. No.20/2016 (Shahid Saleem Butt vs. Chairman CDA, etc.) are that the applicant filed ICA No.208/2015 seeking direction to restrain the CDA authorities from creating plots out of green area, whereby this Hon'ble Court vide order dated 16.06.2015 granted status quo but the allottee of the plot/respondent No.3, in violation of the status quo order, continued with the construction work over the disputed plot. Hence, the captioned Crl. Org. No.20/2016. 8. Brief facts referred in the captioned Crl. Org. No.182/2018 (Mrs. Khalida Parveen vs. Hoor Kamal Khan & another) are that respondents, who filed W.P. No.2047/2014 before this Hon'ble Court, whereby this Hon'ble Court vide order dated 29.04.2014 directed the respondents of writ petition to restrain from cutting down the trees out of suit area till next date of hearing, however the respondents/writ petitioners themselves started cutting trees from the newly carved out plot of present applicant i.e. Plot No.239-A. Hence, the captioned Crl. Org. No.182/2018. 9. Brief facts referred in the captioned ICA No.305/2016 (CDA, etc. vs. Sheraz Khanzada, etc.) are that the CDA decided to auction some plots in Sector F-7/2, Islamabad, against which the respondents through W.P. No.2611/2014 have been granted status quo order on 27.05.2014, whereas the allottees, who are claiming to have been allotted corner plots, have not been allotted corner plots as per record of the CDA, but the learned Single Judge in Chambers passed the impugned judgment dated 05.05.2016 without giving any weight to the submissions of the CDA, therefore, the same demands to be set-aside. 10. Learned counsel for petitioner in captioned W.P. No.3721/2012 contended that petitioner cannot be denied the position which existed at the time of allotment of plot; that the green areas cannot be destroyed; that the strip of land was sold out to the petitioner for consideration and with clear stipulation that petitioner could not construct a structure on it for being green area but the CDA intends to carve out residential plots on the said green area. 11. Learned counsel for appellants in captioned ICA No.206/2015 and ICA No.208/2015 contended that impugned judgment dated 22.04.2015 passed by learned Single Judge in Chambers is devoid of any reasoning qua the various legal assertions; that the learned Single Judge in Chambers on mere assertion of private respondent held that appellants have been encroaching upon the said area; that the conversion of green area/incidental open spaces into plots by the CDA authorities is against the provisions of CDA Ordinance, 1960 and dictum laid down by the Supreme Court of Pakistan. 12. Learned counsel for petitioners in W.P. No.2047/2014 (Hoor Kamal Khan, etc. vs. CDA, etc.) contended that CDA in violation of approved master plan of Sector F-11 carved out two new plots as there is no provision for creation of plots in open/green spaces; that the actions of CDA have serious environmental repercussions for the beauty of Islamabad; that the actions of CDA are violating the fundamental rights of the petitioners. 13. Learned counsel for petitioners in W.P. No.1192/2015 (Shoukat Faruqui, etc. vs. CDA, etc.) contended that the CDA has no right to change the Master Plan and to convert any park or public to a commercial or residential area; that it is the fundamental right of the petitioners to have the same status of their house which was at the time of its purchase; that the petitioners also requested the CDA authorities to desist from auctioning the newly created plots over green area but to no use. 14. Learned counsel for petitioner in W.P. No.1791/2015 (Mrs. Soraya Safdar vs. CDA, etc.) contended that according to Section 49-C of the CDA Ordinance, 1960, no land can be used for any other purpose other than for which it was authorized; that Section 4 of the Islamabad (Preservation of Landscape) Ordinance, 1966 prohibits destruction, damage or alteration of landscape; that the superior Courts have time and again directed the CDA authorities not to convert the green belts, public parks and other amenities plots to residential or commercial plots; that the additional creation of plots will affect the market value of the house of petitioner; that if the CDA authorities
---
## Page 3
not restrained from converting the disputed green belt into residential plots, the petitioner as well as other inhabitants of the street will suf fer irreparable loss. 15. Learned counsel for applicant Crl. Org. No.20/2016 (Shahid Saleem Butt vs. Chairman CDA, etc.) contended that this Hon'ble Court vide order dated 16.06.2015 restrained the CDA authorities and respondent No.3/allottee of the disputed plot from further construction, however respondent No.3, in violation of the said status quo order, continued with the construction on the disputed plot, which is violation of the status quo order; that the respondents are guilty of contempt of Court against whom contempt proceedings shall be initiated. 16. Learned counsel for applicant in Crl. Org. No.182/2018 (Mrs. Khalida Parveen vs. Hoor Kamal Khan & another) contended that this Hon'ble Court vide order dated 29.04.2014 restrained the parties from cutting down the trees out the suit area/newly carved plots, but the respondents, in violation of the said status quo order, removed the trees/plants from the applicant's plot; that the respondents are not only interfering into the peaceful possession of applicant over the plot but they have illegally removed the trees and plants belonged to applicant; that the acts of respondents are in flagrant disobedience and violation of this Hon'ble Court order dated 29.04.2014 17. Learned counsel for the CDA contended that authority has every right to re-plan the plots and leftover areas, however proper drainage system of the area has been planned when new plots were created and the CDA can change the layout plan at any time subject to law; that the appellants/petitioners have no authority to claim against the CDA that CDA should not create new plots as the CDA never violated any rule, master plan, regulations or policy decisions of the Board; that at the time of establishing the sectors, the CDA authorities left over different areas and plots for future purposes and every inch of land in Islamabad is a property of CDA and CDA is the best judge to consider its utilization; that master plan of Islamabad city was prepared in 1960 and subsequent to that layout plan of different sectors is being prepared and the areas were developed accordingly and as such, the CDA authorities are not changing the residential character of any sector without the approval of the Government as it will consider a change in the master plan of Islamabad, but they are only changing the layout plan of different sectors of Islamabad as Sections 12, 13, 15, & 19 of the CDA Ordinance, 1960 authorize the CDA for preparation of layout plan of sectors and amendments therein. 18. Arguments heard, record perused. 19. From the perusal of record, it has been observed that all these cases referred above are arising out of same question as to whether the plots allotted by the CDA authorities to individuals by way of transfer/auction along with its locations, amenities, parks, open spaces and leftover areas are to be considered complete in all respects and CDA authorities could not change the leftover areas or open space in every sector of Islamabad? The appellants, petitioners and applicants are aggrieved mainly due to creation of new plots in the leftover areas of different sectors of Islamabad i.e. Sector F-11, Sector I-10, and Sector F-7. 20. In order to understand the proposition, it is necessary to go through provisions and terminologies of law used in the CDA Ordinance, 1960 as well as in other regulations. The CDA Ordinance, 1960 created an authority called the Capital Development Authority and in terms of Section 2(o), Scheme means a planning scheme or development scheme made under the Ordinance and the administration of the CDA along with its affairs shall vest in the Board which will exercise all powers and do all acts which may be exercised or done by the authority in terms of Section 5 of the Ordinance. However, the question of policy regarding development, town planning and housing shall be guided by the direction of the Federal Government in terms of Section 5(2) of the Ordinance and any question arises as to whether any matter is a matter of policy or not, the decision of the Federal Government shall be considered final in terms of Section 5(3) of the Ordinance. 21. Chapter 3 of the Ordinance deals with the powers and duties of the authority and under Section 11, the authority shall prepare a master plan and phased master programme for the development of the capital site and may also prepare a similar plan and programme for specified areas and all such plans and programmes shall be submitted to the Federal Government for approval, whereas the authority in pursuant to the master plan and master programme may prepare a scheme related to land use, land reservation, zoning, public buildings, transportation, roads, streets, industry, utilization of water, power, natural resources, community planning, housing slums clearance, community facilities, drainage, sewerage disposal, etc. and such kinds of schemes are initially prepared when any sector is developed and as such, the authority vested with the powers to prepare a scheme in terms of Section 13 of the Ordinance regarding the subjects given above
---
## Page 4
and all such schemes shall be prepared in such a manner and form as the Federal Government may specifies, however the schemes must contain the information regarding description and manner of its execution, estimate of costs and benefits, and allocation of costs to various purposes to be served by the scheme. In order to implement the scheme, the CDA in terms of Section 15 can exercise the powers for acquisition, surveys, research, pass orders, restrict or prohibit any change in the use of land, removal of works and obstructions, or seek assistance for many other authorities, however all such actions must be supported by the Federal Government. 22. The learned counsel for CDA has heavily relied upon the powers conferred to CDA in terms of Section 19 of the CDA Ordinance, 1960 and contended that the CDA authorities can amend or modify any scheme and the only restriction in this case is to the extent of its financial limits, therefore, in order to understand the proposition, Section 19 is hereby reproduced as under: 19. Amendment of schemes:- Any scheme prepared under section 12 or section 13 may at any time be amended or modified:- a) In cases where the amended or modified scheme should exceed the financial powers of the Authority, by the Authority with previous approval in writing of the Federal Government, and b) In other cases, by the Authority. 23. While considering the above referred provision, which refers Sections 12 and 13, in which the CDA authorities were permitted to prepare a scheme and such scheme could be amended and modified, but in our humble view, Section 19 was incorporated by the legislature with reference to financial limits of the Authority as every scheme prepared in terms of Sections 12 and 13 by the Authority pursuant to the master program in the public interest requires the approval of expenditure incurred on preparation of any such scheme in terms of Section 12(4) of the CDA Ordinance, 1960, any difference could only be resolved by the Federal Government. The legislative intent behind the incorporation of Section 19 has to be seen in the light of entire scheme referred in CDA Ordinance, 1960 which deals with the planning and development of Islamabad within framework of regional development plan whereafter the master plan and master programme was prepared in terms of Section 11 of the Ordinance. Similarly, Section 12 was incorporated for preparation of scheme by the local bodies or agencies but those schemes within the bounds of Section 12(2)(a) to (i) and no other matter could be incorporated or taken into consideration beyond the subject referred in Section 12. The expenditure of preparation of scheme has been referred in Section 12(4). The power of authority in terms of Section 15 for acquisition of any land or any expenditure, machinery, instruments or material was with the Authority, however when certain amendments in schemes require extra expenditure beyond the financial limit of the authority or which falls within the domain of Federal Government, the said matter could only be resolved in terms of Section 19 of the Ordinance, hence, we are of the view that Section 19 could not be used to rectify, alter, amend, any scheme already approved in the master plan or in a layout plan by using the said provision by the CDA authorities, therefore, the arguments advanced by the learned counsel for CDA are misplaced and not justified in any manner. 24. Besides the CDA Ordinance, 1960, there are also certain other laws promulgated to protect the rights of individuals and the CDA authorities shall proceed in a structural manner which includes the Islamabad Capital Territory (Zoning) Regulations, 1992 in which Islamabad Capital Territory has been divided into five zones, and the land within the said zones can only be regulated in a manner referred in the said regulations and no change is permissible in the said zones as the master plan of Islamabad has been defined in the said regulations. Similarly, the Islamabad Land Disposal Regulations, 2005 was also promulgated with reference to the powers conferred under Section 49 of the CDA Ordinance, 1960 in which plots have been specified as residential, commercial and business, community buildings and facilities, administrative and public sector, industrial, diplomatic, public parks, playing fields, agro-farming and agro- industry, graveyards, and incidental open spaces, etc. However, the concept of public parks as defined in Section 11 of the Islamabad Land Disposal Regulations, 2005 is under: "11. Public Parks. (1) Public Parks, playing fields and graveyards, shall be planned, developed and maintained by the Authority. However, the Authority may license/rent out some sites or the portions of public parks, playing fields or open spaces to private sector on agreed terms and conditions for recreational purposes, sports facilities and ancillary usages. (2) Playing fields and open spaces may be categorized for sports purposes as under:---
---
## Page 5
(a) Cricket, hockey, football. (b) Basket ball, V olley ball, badminton, tennis and open gymnasiums. (c) Adventure sports:- (i) Rock climbing, dirt bike tracks, mountain bike cycling, horse riding, etc. (ii) Entertainment projects like Go Carts, Archery, Waters ports and amusement parks, etc. (3) Category (a) and (b) of (2) above will be managed as follows:--- (i) Grounds managed by professional sports organizations. (ii) Multi-purpose sectoral grounds managed by Directorate of Sports and Culture through Sector Management Committees. (4) The allotment for category (c) of (2) above will be considered on following criteria:--- (a) Type of project. (b) The best offer received in terms of rent; (c) The Size of Investment; (d) Commercial potential; and (e) Area, location and specific land use. 25. Keeping in view the above regulations, we have gone through each and every case and we are fortified with the views given by the apex Court as well as other superior Courts on subjects of open spaces, common properties, public parks, etc., therefore, it is appropriate to place the relevant extract of those judgments, which is as under: 2010 YLR 1866 Lahore (Mst. Bashiran. vs. Government of Punjab) " A vacant land lying for some useful purpose cannot be utilized for another purpose. Such land even if left unused by inaction for decades or even for centuries would be utilized by the succeeding generation. An open space, once lost, cannot be recreated. It is like a page of History which if once torn away, cannot be replaced. If the respondents are allowed to exploit this space, the noble purpose of gift as well as the sentiments that motivate the people to part with their own land for such sacred cause will die forever. Neither the new land can be created nor can the dead sentiments of sacrifice be reanimated." 2010 CLC 1663 Lahore (Residents' Welfare Society , Sector G-13 Islamabad vs. FGEHF , etc.) "Art. 199---Constitutional jurisdiction---Scope---Conversion of public utility areas of Housing Society into commercial plots---Registered welfare Society of residents challenged the conversion of public utility areas and open spaces into commercial and residential plots ---Society contended that the petitioner should have had recourse to arbitrator before seeking remedy through constitutional jurisdiction of High Court --Validity---Residential and commercial plots were admittedly carved out for public utility areas including school, parks and open spaces which could only be used for specified purposes---Open spaces were the common property of the residents and a heritage for the posterity, therefore, conversion of open spaces amounted to obliterate history--- Reducing the size of `Nullah' which worked as a drain during rainy season was not admissible under law---Earth-filling of the depressions that served as the natural outlets of rain water had always brought havoc by inundation of the localities during rainy reason---Conversion of land, in the present case, thus was illegal---Where an Authority had acted in a manner not warranted by law, remedies provided under the law need not be necessarily exhausted before seeking interference of High Court through constitutional jurisdiction--- People decide to choose a particular housing scheme for living in view of the provision of public utility areas, parks, schools, open spaces and topography of such housing scheme, petitioners, therefore, could not be deprived of such public utility areas which they had in their minds while they subscribed for the such housing scheme---Constitutional petition was accepted---Authorities were perpetually restrained from converting the public utility areas into residential or commercial places." 2013 CLC 1095 (Syed Waqar Hussain Gillani vs. CDA) 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
---
## Page 6
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…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.