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Petitioner: Moulvi IQBAL HAIDER VS Respondent: CAPITAL DEVELOMENT AUTHORITY and others
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Shakirullah Jan, Sayed Saeed Ashhad Title: Moulvi IQBAL HAIDER vs CAPITAL DEVELOMENT AUTHORITY and others Case No.: Constitution Petition No,36 of 2005 Date of Judgment:2006-02-07 Reported As: PLD 2006 Supreme Court 394 Result: Order accordingly
Judgment ORDER IFTIKHAR MUHAMAMD CHAUDHRY, C.J.---This petition, filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution"), involves the question of public importance with reference to enforcement of fundamental rights, detail whereof, article-wise , has been mentioned in memo of the petition. 2. Petitioner has voiced against leasing out a piece of land, measuring approximately five acres, known as Jubilee Park, situated in Sector F-7, Islamabad by Capital Development Authority (hereinafter referred to as "CDA" (respondent No,1), to Shah Sharabeel, owner of Al-Falah Mini Golf (respondent No,2), a Lahore based party, for development/running a "Mini Golf Course", as a joint venture, with local and international parties. It is also alleged that the deal between respondents No,1 and 2 shall cause huge loss to the public exchequer. 3. It is spelt out from the memo. Of petition that a Public Park, situated in Sector F-7, has been allowed to be converted into a Mini Golf Course and the land in this behalf has been leased out in favour of respondent No,2 for a period of 15 years, with extendable period, at the rate of Rs,2.55 million per annum, with increase of 25% in rent after every 5 years. It is also mentioned in lease agreement that the rent will start after twenty months (8+12=20) from the functioning of Mini Golf Course project. It is most important to note that CDA (respondent No,1) had also delegated its powers to respondent No,2 to enter into joint venture and franchise or give licence to local or international parties, food chains etc. Petitioner has alleged that as per the contents of the lease agreement, respondent No,2 has also been authorized to hold promotional functions like golf tournaments, funfair, Basant Festival, theoretical activities, without paying any extra charges or rent to the C.D.A. Or seeking its prior permission, without caring that such a prime land has actually
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been reserved for general public park. It is alleged that initially respondent No,2 had deposited Rs,5'lacs with respondent No,1 at the time of signing of lease agreement and has been bound down to pay the amount of rent Rs,2.55 million per annum at the time of starting of the project. The transaction of leasing out five acres land concluded in an obscured manner as before allowing the conversion of the Public Park into the Mini Golf Course no opportunity was given to the general public and other stakeholders to submit their objections. Inasmuch as lease has been granted to respondent No,2 without inviting bids from the general public through newspapers, as such the transaction is unconstitutional and has no legal effect. 4. The petition was admitted on 26th December, 2006 by means of following order:- ."Notice to respondents. 2. Learned counsel for the respondent No,2 stated that he needs some time to file documents. The petitioner who appeared in person argued that valuable plot measuring 5 acres situated in F-7, Islamabad has been given on lease without adopting a transparent procedure. He has further stated that an amenity plot has been given on lease to respondent No,2 which cannot be converted for commercial activities. According to him respondent No,2 intends to construct outdoor entertainment park comprising of mini-golf etc. Which would be out of reach of the members of the general public because all the activities shall be on commercial basis against the entry fee. In this behalf, it may be noted that this Court in the case of Mian Fazal Din v. Lahore Improvement Trust Lahore and others PLD 1969 SC 223 has observed "that the plots in a Housing Scheme for public use cannot be converted for other use the relevant para for the convenience therefrom is reproduced herein below:-- "....The deprivation of such a facility would, in our opinion, confer a sufficiently valuable right upon the residents of the scheme to enable them to maintain an application for enforcing the Trust to discharge its obligation of executing the Scheme as sanctioned by the Government." 3. After hearing learned counsel and having gone through the above judgment, we direct that pending decision of the petition, no further construction or other developments or any other commercial activity shall be carried out on the plot. The order be communicated to Inspector General of Police, Islamabad for its enforcement/implementation forthwith. He shall submit report on the next date of hearing in this behalf. Adjourned to a date in office in the month of February, 2006." 5. Petitioner submitted an application for initiating proceedings of contempt of Court as allegedly during pendency of the petition, the order passed by this Court reproduced herein above has been, prima facie, violated. Thus separate proceedings by means of order dated 6th February, 2006 have, been issued which shall be disposed of independently. 6. On behalf of petitioner, it is contended that:-- (a) Whenever, a scheme under the Provisions of section 12 of the Capital Development Authority Ordinance, 1960 (herein after referred to as "the Ordinance, 1960") is prepared by the CDA, amenity plots including the plot for Public Park, playing field, graveyard, and incidental open places, etc. Areear marked separately. (b) Under Regulation No,3 of the Islamabad Land Disposal Regulation 1993 (hereinafter referred to as "the Regulation") for the purpose of establishing Mini Golf Course on the Public Park, no permission was sought from the Federal Government nor objections were invited in this behalf in accordance with section 19 read with section 20 of the Ordinance, 1960. (c) The transaction has been made by respondent No,1 with respondent No,2 without any lawful authority and jurisdiction,as such, in this manner the fundamental rights of the general public enshrined in Articles 9 and 26 of the Constitution have been denied. (d) In a public park, citizens including children are not required to purchase tickets and once Mini Golf Course is established, the entry of general public would be obstructed in terms of imposing
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conditions, including purchase of tickets and to enjoy other amusement against payments. (e) C.D.A. Is committed to provide a Public Park for the residents of Sector F-7, which will be maintained by the authority itself and it cannot be allowed to be converted into a commercial project by the third party, in terms of Article 12(3) of the Regulation. 7. On the other hand learned counsel appearing for respondent No,1 contended that:- (a) C.D.A. Being the competent authority has jurisdiction to lease out a property which has been acquired by it for the purpose of establishing public/amusement Park, to ensure entertainment facility to the inhabitants of the area. (b) The transaction entered into by respondent No,1 with respondent No,2 is highly transparent as it was concluded after observing all code formalities including making the same open through publication, allowing to interested parties to participate in bid and as respondent No,2 fulfilled the requisite criteria, therefore, its firm was declared successful bidder. (c) Petition is not maintainable under Article 184(3) of the Constitution because no right of petitioner, guaranteed by the Constitution has been violated by respondent No,1 8. Learned counsel appearing for respondent No,2 argued that:- (i) Respondent No,1 had not converted a Public Park into a commercial activity, except that an amusement Park for the purpose of entertainment, being built up with better facilities to entertain general public including the inhabitants of the area. (ii) Lease has been given to respondent No,2 by respondent No,1 after observing all code formalities, therefore, the same is not liable to be declared illegal as it is the obligation of the Courts to make all efforts to safeguard the official acts of the Government. (iii) Respondent No,2, by now, had spent a considerable amount on the development of the Park, therefore, a valuable right has been created in his favour which is not to be interfered. 9. We have heard the parties counsel at length and have also gone through relevant record carefully including the concise statement submitted by C.D.A. 10. The concise statement filed by C.D.A. Proves that:-- (i) The site, on which Mini Golf Course is being established, is a Public Park. It has not been developed into regular Park and its typography has remained intact all through. (ii) The area of the land leased out to respondent No,2 is about five acres, situated in Markez F-7 and it is separated by a "Nullah" from the constructed and developed portion of Sector F-7. (iv) The depth of the site of Mini Golf Course varies at different places from road level and there is a long ditch on this side as well, as such it is an ideal place for Mini Golf Course. 11. It is true that C.D.A. Vide publications appeared on 1st and 2nd February, 2004 in "Daily Frontier Post" and "Daily Jang", respectively, issued notices for development of entertainment spots, including Mini Golf Course on its land, to be leased out to provide entertainment, recreation projects and its allied features in Islamabad for its general public and invited proposals for the accomplishment of the project, on terms and conditions noted therein. These publications .In newspapers were followed by a second publication appeared in "Daily Jang" and "Daily Dawn" dated 14th August 2004. In this publication technical/financial proposals were invited from interested parties to obtain the project on lease basis. For reference contents of the publication dated 14th August, 2004 are reproduced hereinbelow:-- "Development of Entertainment Spots on lease basis(Directorate General Environment) CDA intends to develop Entertainment Spots on the following sites on lease basis:-- S.No,Site Entertainment Activity 1. Jubilee Park F-7 Markez Mini Golf course 2. Rawal Park Joy Land and other allied recreation 3. 1-8/3 & F-9 Park Go carting 4. Hill Park F-6/3 Rock Climbing, paint ball and skating Rink
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5. F-6 Markaz Foot Ball Ground Remote Control Car Racting 6. F-7/4 Children Park Fun Games 7. Suitable open spaces Community Sports Grounds (i) No heavy Civil Structure will be allowed. (ii) Open and soft landscaping will be done. (iii) Rides should be environment friendly. (iv) Heavy rides will only be allowed in joy land. The interested parties are required to submit their technical/ financial proposal on lease basis for development of entertainment spots with layout/design along with the names of firms its legal status, Registration with Government/Semi Government Organizations, details of Technical staff, list of works of similar nature executed in past, list of similar works in hand and present status, list of T/P, Financial status, Income-tax Registration with certificate with latest renewal and non-litigation certificate. The interested parties/contractors fulfilling the above requirements should submit their technical/financial proposals for designing and construction of entertainment spots in a sealed cover so as to reach in this office of Directorate General Environment located in Room No,7, Block No,2, Sector G-7/4, latest by 26-8-2004. The undersigned can be contacted during the office hours for any information required. Director-General Environment, CDA." 12. It is most important to note that learned counsel for the CDA was time and again called upon to produce the order of the competent authority, on the basis of which the above noted projects, were launched, but he failed to do so. However, a perusal of summary prepared for the Board dated 22nd April 2005, copy of which is available along with the concise statement, filed by C.D.A., indicates that C.D.A. Board in its meeting held on 15th February 2005 considered the summary (Non Agenda item No,8109/1006/2005-741/BF dated 15th February 2005). A perusal of this admitted document reveals that after making publications on 1st and 2nd February 2004 in "Daily Frontier Post" and "Daily Jang" respectively, some of the parties have given their proposals for development of Entertainment Spots etc. Which also include the proposal of M/s. Al-Falah Mini Golf, Lahore and its proposals were accepted for the following major terms and conditions:- "The following major terms and conditions are framed for the agreement and will be made as a part of the lease agreement by the Authority for the lease of the said Jubilee Park which shall be binding on the firm/developer:- (i) 18 holes golf course to be completed within 8 months from the date of lease agreement and possession of the site. (ii) Rs,2.55 million (Twenty five lacs and fifty thousand only) annual consolidated rent inclusive of all charges such as sponsorship tools/signs in the project with 25 % increase every five years for the land which is approximately 5.05 acres also known as jubilee park in F-7 Markaz as shown in the survey plan. (iii) The title of the land will not be changed and CDA will remain the Sole Owner of the land and the total area of the park will be utilized for the development of the Mini golf course and its allied features keeping it predominantly open. (iv) The covered/built up area for indoor services and facilities as office/Administration Block =100 Sq. Yards, store room = 25 Sq. Yards, toilets = 20 Sq. Yards, ticket + Clubs/Putter booths = 20 Sq. Yards, Juice Bar = 60 Sq. Yards, indoor Chai Ghar (Tea House) = 275 Sq. Yards and coffee shop/fast food cafe = 450 Sq. Yards will be up to the maximum aggregate of 950 (Nine Hundred and Fifty) Sq. Yards will be allowed. (v) Semi covered areas with all sides open, covered from the sky for table top games, snooker, pool and multiple ground level games / rides for families and children activities & eating court. Will be
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up to 1500 (Fifteen Hundred) Sq. Yards. (vi) All remaining area utilized for Mini Golf Course and other open air facilities and allied features will be highly landscaped. (vii) No permanent structures/construction will be allowed in the area so granted to the firm/developer except as mentioned above. (viii) The entire area so granted by the Authority will be developed and maintained by the firm/developer at their own cost. (ix) The party/firm will submit site specific design and a complete master plan with features of services and allied facilities conforming to international standard of Golf Hole Designs. (x) A Bank draft /Pay order, in favour of Directorate Sports & Culture, C.D.A. To an amount of Rs,500,000 (Rupees five hundred thousand only) will be furnished by the developer as security at the time of signing of the lease agreement. (xi) The execution of the lease agreement and the possession of the park will be completed within two weeks from the approval of the Board and execution of construction work will commence within 3 months of the possession. (xii) Multiple ground level/bare minimum height ride and other similar sports/entertainment activities are allowed. (xiii) The rent will be charged one year after the start of mini golf operations to sustain stability which is the launch/opening of commercial operations. (xiv) The lease period for the project is 15 (fifteen) years and is renewable for another term on the satisfactory performance of the developer." The above conditions were subsequently incorporated in the lease agreement dated 5th June 2005. 13. From perusal of publications, appeared initially on 1st and 2nd February 2004 in "Daily Frontier Post" and "Daily Jang" respectively as well as the publication appeared on 14th August 2004 in "Daily Jang" and "Daily Dawn", it is abundantly clear that no area was earmarked for the purpose of establishing/developing Mini Golf Course at the site of Jubilee Park in Sector F-7. It seems that this device was adopted to keep the interested parties out of competition, except the respondent No,2, who statedly had the experience of running identical project at Lahore. Thus, we are of the opinion that disclosure of the area, on which the Mini Golf Course was to be developed, was necessary in the publication and in this way the interested parties would have given much higher bids than the one, on which, C.D.A. Had leased out land to respondent No,2 i.e Rs,2.55 million per annum. We were told that admittedly the plot of five acres, leased out to respondent No,2, is situated in most expensive location of Sector F-7 and is situated adjacent to the main road, therefore, it is a prime land being situated in the heart of the Capital. 14. There is yet another important aspect of the case which requires serious consideration namely as per the contents of the publication dated 14th August 2004 in "Daily Dawn" the interested parties were prohibited not to raise heavy civil structure, whereas according to the terms of the lease agreement, construction of the area equal to 950 sq. Yards has been allowed to respondent No,2. In this behalf, reference be made to the conditions No,4& 5, which have been reproduced herein above. So far as condition No,5 is concerned, as per its contents, the provision of an eating place on 1500 sq. Yard has also been allowed, meaning thereby that a big space has been allocated for the purpose of selling and catering eatables. 15. 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 Park to attract general public. According to Article 12(3) of the Regulation, the public
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parks, 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 Park, same cannot be leased out and CDA itself is bound to develop the same. 16. 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 public 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 public 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. Reference in this behalf can be made to Government of Punjab v. Crescent Textile (PLD 2004 SC 108). Relevant para. Therefrom is reproduced herein below:-- "15. The argument that a number of questions of facts were involved in the case which were required to be decided, therefore, the respondent, writ petitioner should have been directed to seek alternate remedy of filing suit, for evidence to determine disputed questions of facts could not be recorded within the scope of constitutional Jurisdiction under Article 199 of the Constitution has also no force though there can be no cavil with the general proposition of law as contained in this argument. The only question which was involved in this case was as to the date with reference to which the price of the land is to be determined and charged from the respondent writ petitioner, as such the same could legally be decided in the constitutional jurisdiction. 17. 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 me agree 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. 18. 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 evident from the contents of Notification dated 18th December 1993 (No, CDAS-30(2)(NOTI)-Cord 93). Reference of some of the Regulations, framed thereunder, has already been made herein above. [The Islamabad Land Disposal Regulation 1993]. It is equally important to note that learned counsel for
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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 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. 19. 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,…
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