IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

PRESENT:

MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ

MR. JUSTICE GHULAM RABBANI
MR. JUSTICE KHALIL-UR-REHMAN RAMDAY

HUMAN RIGHTS CASE NO. 4668 OF 2006

HUMAN RIGHTS CASE NO. 1111 OF 2007
HUMAN RIGHTS CASE NO. 15283-G OF 2010

[Action taken on news clippings regarding

Fast Food outlet in F-9 Park Islamabad]

Applicant: Barrister Saadia Abbasi with

Mr. Amanullah Kanrani, ASC

For the CDA: Mian Allah Nawaz, Sr. ASC

Mr. Afnan Karim Kundi, ASC
Mr. Imtiaz Inayat Illahi, Chairman, CDA with
Mr. Mazhar Hussain, Member (Environment)
Mr. Abdul Jabbar Milano, Member Planning/
Engineering
Syed Mustafain Kazmi, Member
Administration
Mr. Mansoor Ali Khan, Director DMA

For Siza Foods: Mr. Anwar Kamal, Sr. ASC

With Amin Muhammad Lakhani

For NPC: Mr. M. Bilal, Sr. ASC

Mr. Shah Sharabeel in person

Dates of hearing: 06, 07, 10 & 13.05.2010

.-.-.

JUDGMENT

IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – In January

2005, the Capital Development Authority (CDA) leased out a plot

of 6000 square yards in F-9 Park (Fatima Jinnah Park) to M/S

HRC 4668-2006 etc. 2

Siza Foods (Pvt.) Ltd., hereinafter referred to as “M/S Siza

Foods”, a franchise holder in Pakistan of McDonald’s Corporation,

Delaware, USA, for setting up a fast foods restaurant

(McDonald’s Pakistan) on the western side of F-9 Park (Fatima

Jinnah Park). The members of the civil society expressed grave

concerns in a segment of the press about the legality/desirability

of the project in a public park. Barrister Saadia Abbasi, Member,

Senate of Pakistan also, vide application dated 14.02.2007

highlighted the issue and alleged that permission to set up a fast

food restaurant in the public park was, in fact, a special

favour/benefit bestowed upon a particular individual in sheer

violation of CDA Rules and Regulations, which was also violative

of several fundamental rights guaranteed to the citizens of the

country under the Constitution. The matters were registered as

Human Rights Cases.

2. During hearing, it was divulged that apart from the

McDonald’s Restaurant, some other buildings, namely, Aiwan-e-

Quaid and Bowling Centre had already been constructed in F-9

Park and were operative, whereas Citizens Club was being

constructed. In pursuance of the Court orders, the Chairman CDA

filed comments/replies on all the above projects.

3. On the issue of McDonald’s, it was stated, inter alia,

that as per Master Plan developed by the Japan International

Cooperation Agency (JICA), various areas for different activities,

viz., amusement park, sport facilities and cuisine areas were

earmarked for shops, food outlets, etc. In order to develop

HRC 4668-2006 etc. 3

multinational food chain in the Park, expression of interest from

the interested parties through public advertisement was invited

on 08.07.2004. Two firms, namely M/S Siza Food and M/S

Sheikh Trading International, USA came forward. The expression

of interest was evaluated by a committee headed by Director

General (Environment), CDA, on whose recommendation, the

case was placed before the CDA Board for leasing out an area of

6000 sq. yards to M/S Siza Foods @ Rs.275,000/- per month or

5% of the gross income from sales, whichever was higher for a

period of 33 years. Offer letter was issued on 23.09.2004, the

MoU was signed on 25.09.2004 while the lease agreement

entered on 14.01.2005. Later on, a revised lease deed was

entered into between the parties wherein lease amount was

enhanced to Rs.316,250/- per month (15% higher than the

earlier one). It was further agreed that the lessee would also

develop five acres of the Park in two phases with its maintenance

until the expiry of the lease period.

4. In the rejoinder filed in HRC No. 1111/207, the

applicant alleged violation on the part of CDA authorities of

Articles 9, 25, 26 and 38 of the Constitution in the light of the

law laid down in the case of Iqbal Haider v. Capital Development

Authority (PLD 2006 SC 394) wherein it was held, inter alia, that

commercial activities in public parks were violative of Article 26

of the Constitution, therefore, the lease agreement granting

rights to a private company to operate a mini-golf course in a

public park in Sector F-7, Islamabad was set aside.

HRC 4668-2006 etc. 4

5. On the question of allotment of plot to Nazriya

Pakistan Council (NPC), the CDA submitted, inter alia, that vide

letter dated 04.06.2001, Director General, Libraries, Ministry of

Education informed CDA that Minister for Education had directed

to request CDA for allotment of plot earmarked for Library to NPC

for construction of Aiwan-e-Quaid, which would also house

Islamabad Public Library. The CDA, in turn, informed them that

as the provisions of Islamabad Land Disposal Regulations, 1993

did not allow allotment of such plots to private organizations, it

might consider to allot the site to the Ministry of Education. As

such, MoU was signed between Ministry of Education and NPC for

establishment of Aiwan-e-Quaid on the said plot. In pursuance of

Prime Minister Secretariat letter dated 30.05.2005, with the

approval of the Chairman, CDA, allotment letter dated

02.08.2005 was issued to NPC.

6. On the issue of Citizens Club, it was submitted that

the provision for a club house was there since long, which was

reflected in the Master Plans of 1992 and 1995 (prepared by

JICA). In June 2007, the then Chairman CDA, Mr. Kamran

Lashari during his visit to the F-9 Park instructed Mr. Nayyar Ali

Dada, the principal architect for development of the Park to

prepare the concept design of Citizens’ Club to be established in

the Park. The construction of Citizens Club was earlier proposed

in Sector H-11/2 but later on shifted to F-12 and then re-shifted

to Fatima Jinnah Park, Sector F-9 due to non-acquisition of land

in Sector F-12. The CDA Board, in its meetings held on

HRC 4668-2006 etc. 5

24.09.2007 and 01.10.2007 decided that M/S Nayyar Ali Dada &

Associates were already working as consultants for the

development of the Park as project consultants, therefore, there

was no need of separate approval of the case. The engineering

estimates prepared by the consultants were sanctioned for

Rs.1.383 billion by Member (Planning), CDA on 29.10.2007.

Pursuant to the invitation of tenders published in the newspaper,

the lowest bid quoted by M/S Expertise (Pvt.) Ltd., was accepted

by the Chairman. The club facilities would include auditorium,

conference rooms, fitness centre, gymnasium & aerobic area,

tennis courts, squash courts, billiard room, games room,

swimming pools, banquet halls, restaurants, bakery, library, car

parking and residential rooms for the members. The proposed

membership structure of the club was 62.5% (private citizens),

15% (government officers & parliamentarians), 7.5% (CDA

officers) and 15% (diplomats/corporate). Cost of the project

excluding furnishing was worked at Rs.1254.149 million. An

amount of Rs.575.146 million had been expended so far. Physical

progress of the work was 69.16%.

7. On the question of bowling centre, it was stated that

as per Master Plan prepared by JICA, a variety of amusement

and entertainment facilities were to be provided in south-western

part of the Park. On 11.06.1994, the CDA published notice for

pre-qualification in the newspapers to lease out a plot measuring

2 acres of land for construction and operation of a bowling centre

in F-9 Park to which seven parties responded. The highest bid of

HRC 4668-2006 etc. 6

Rs.752,000/- per annum was offered by M/S S&S Enterprizes.

The CDA Board, in its meeting dated 27.11.1994, approved

award of licence for a period of 20 years to M/S S&S Enterprizes.

It was, inter alia, provided that it would be a single storeyed

building having basement with a maximum covered area not

exceeding 1/3rd of the total land, which was reduced to 1.5 acres.

In 1997-98, the CDA issued various notices to the licensee for

illegal construction/extension of mezzanine floor, stair tower,

construction of swimming pool, changing room and toilets at the

basement level, 10 shops instead of 3 approved, extension of

basement, solid wall instead of see-through fence and ice cream

parlor. There was litigation between the licensee and the CDA.

Ultimately, the CDA Board in its meeting dated 07.06.2007

regularized the unauthorized construction on payment of certain

penalties/charges.

8. Mian Allah Nawaz, Sr. ASC, learned counsel

representing CDA in the matter of M/S Siza Foods candidly

conceded that no order for change in the Master Plan was

available on record and that the CDA, vide publication dated

09.07.2004 did not invite any national food chain, which violated

Article 18 of the Constitution. However, without controverting or

disputing the facts leading to grant of lease for the construction

of McDonald's restaurant, he insisted that as now huge amount

had been spent, therefore, following the principle of equity, the

violation of above constitutional provision and the law, if any, be

HRC 4668-2006 etc. 7

condoned by issuing direction in a manner that the restaurant

might also continue functioning in the interest of the CDA.

9. Mr. Anwar Kamal also candidly accepted violation of

Article 18 of the Constitution. However, his claim was that M/S

Siza Foods, a franchise holder of McDonald’s, hardly could be

held responsible for the same as in response to a publication

appeared in the newspaper in February 2004, they filed an

application and as no further progress was made, therefore,

when second publication appeared, M/S Siza Foods again

submitted expression of interest wherein they initially demanded

4000 square yards and subsequently by negotiation the area was

got increased to 6000 square yards at a monthly of Rs.275,000/-

per month or 5% of gross sale, whichever was higher, which was

later increased to Rs.316,250/- per month or 5% of gross sale,

as aforesaid, which was being paid regularly. In addition to it,

M/S Siza Foods had agreed to develop an area of 5 acres of land

in the Park without charges from CDA, which indicated good faith

on their part. However, any direction/suggestion, if given by the

Court, including reducing the area leased out shall be accepted

by M/S Siza Foods, but it would not be in the interest of the CDA

and M/S Siza Foods to demolish the restaurant on the application

filed by a person who otherwise had no legal right or interest in

the continuation or otherwise of the restaurant, therefore, taking

into consideration this aspect of the case, appropriate orders may

be passed.
HRC 4668-2006 etc. 8

10. When his attention was drawn towards two letters

written to the Prime Minister and the President, particularly to

the latter, criticizing judgment of the Supreme Court in the case

of Iqbal Haider v. Capital Development Authority (PLD 2006 SC

394) in a sarcastic manner, he stated that as the CDA authorities

were somehow reluctant to finalize bid of M/S Siza Foods,

therefore, high ups were requested to intervene. However, he

voluntarily stated that the author of the letter (Amin Muhammad

Lakhani) had respect for the Courts and was ready to voluntarily

explain his position, simultaneously tendering unconditional

apology. Such explanation as well as apology, however, was filed

later on.

11. It is to be noted that initially F-9 Park was a

residential sector as per admissions and documents available on

record. However, subsequently, in 1968, it was converted into a

Park comprising 800 acres of land and generally it was known as

Capital Park as well as Fatima Jinnah Park. There could not be

two opinions in respect of importance of Master Plan. Despite our

repeated insistence, original Master Plan was not produced

except the one which was got prepared from JICA for establishing

a Park. Sufficient time was given to CDA as the Court wanted to

apprise itself about the facilities, provisions, activities in the Park.

However, the photocopy of the Plan whatsoever was produced,

which indicated number of activities like Children Park, Ladies

Club, provision of restaurants at different places, which were to

be constructed/provided inside the Park. And on the southern

HRC 4668-2006 etc. 9

side, an area was earmarked as cuisine pavilions with dense

vegetation. As per plain meanings of the expression ‘dense

vegetation’, there was no provision for setting up a large

restaurant to be run by an international food chain. But, it did

mean that such a restaurant could not be constructed of course

after an amendment in the Master Plan made by the CDA Board,

replacing cuisine pavilions having dense vegetation with a

restaurant. According to section 14 of the CDA Ordinance, 1960,

the CDA Board is empowered to prepare schemes with the

approval of the Federal Government. As stated earlier, the

change was quite possible, but subject to section 19 of the CDA

Ordinance, 1960. No such document was placed on record,

inasmuch as the directions of the Court were not being carried

out, and prima facie it was ascertained that construction of the

restaurant suffered from lack of transparency, therefore, notice

was issued to Mr. Kamran Lashari, former Chairman CDA who

seemed to be the architect of this project.

12. In response to the notice he appeared and submitted

reply and also addressed the Court in person. His main emphasis

was that McDonald's restaurant was constructed in the Park for

the purpose of providing facilities, charm and temptation to the

general public in good faith, otherwise he had no bad intentions.

He explained that in the foreign countries as well, restaurants

along with other facilities were provided in the Parks. As far as

his explanation in exercising jurisdiction in good faith was

concerned, it could not be accepted for want of transparency in

HRC 4668-2006 etc. 10

the construction of McDonald's and violation of the constitutional

provision, which shall be discussed hereinbelow. At the cost of

repetition, it may be mentioned that he could not satisfy as to

why McDonald's restaurant was not allowed to be constructed

strictly in accordance with the provisions of CDA Ordinance,

discussed hereinbefore. It is also to be noted that in the Plan

prepared by JICA, different spaces providing for construction of

restaurant in the Park were available, but in the place of more

than one cuisine pavilion areas, construction of one restaurant

was not available. The incumbent Chairman, Imtiaz Inayat Illahi

also could not help Mr. Kamran Lashari, the former Chairman in

justifying violation of CDA Ordinance, 1960 as well as

constitutional provision. It is to be noted that non-adherence to

legislative provisions other than the Constitution is permissible,

provided it does not entail penal consequences as there are two

types of statutes/legislation, i.e. mandatory and directory. As far

as mandatory provision of law is concerned, same is required to

be enforced strictly without interpreting/construing it in any

manner liberally. Such a principle of interpretation is discussed

and applied in the case of Niaz Muhammad v. Mian Fazal

Raqib (PLD 1974 SC 134) in the following words:-

"It is the duty of the Courts to try to get at the real

intention of the Legislature, by carefully attending to
the whole scope of the statute to be construed. As a
general rule, however, a statute is understood to be
directory when it contains matter merely of direction,
but not when those directions are followed up by an
express provision that, in default of following them,
HRC 4668-2006 etc. 11

the acts shall be null and void. To put it differently, if

the Act is directory, its disobedience does not entail
any invalidity; if the Act is mandatory, disobedience
entails serious legal consequences amounting to the
invalidity of the act done in disobedience to the
provision".

In this respect it will be advantageous to refer to a celebrated

passage from the Interpretation of Statutes by Maxwell (Tenth

Edition – 1953): -

"On the other hand, where the prescriptions of a

statute relate to the performance of a public duty and
where the invalidation of acts done in neglect of them
would work serious general inconvenience or injustice
to persons who have no control over those entrusted
with the duty without promoting the essential aims of
the legislature, such prescriptions seem to be
generally understood as mere instructions for the
guidance and Government of those on whom the duty
is imposed, or, in other words, as directory only. The
neglect of them may be penal, indeed. but it does not
affect the validity of the act done in disregard of them.
It has often been held, for instance when an Act
ordered a thing to be done by a public body or public
officers and pointed out the specific time when it was
to be done, that the Act was directory only and might
be complied with after the prescribed time."

The nature of a mandatory provision is described in the “Words

and Phrases”, Permanent Edition, Vol. 26, p. 463 in the following

words: -

“Generally, where statutory provision concerning

powers and duties of public officer affect the public
HRC 4668-2006 etc. 12

interest or are intended to protect a private citizen

against loss or injuries to his property, provisions are
“mandatory” rather than “director”.

“A “mandatory provision” of a statute is one the

failure to follow which renders the proceeding to which
it relates illegal and void.”

The other principle of jurisprudence in this very context is that

the things are required to be done strictly according to law, or it

should not be done at all. Reference in this behalf may be made

to the case of Mir Dost Muhammad v. Govt. of Balochistan (PLD

1980 Quetta 1), relevant Para therefrom is reproduced below: -

“It is well settled principle of law that in a case where

statute provides a procedure for doing of a thing in a
particular manner, that thing should be done in that
manner and in no other way or it should not be done at
all. Indeed such statute impliedly prohibits doing of
thing in any other manner; particularly when the
procedure is laid down for taking proceedings before a
Tribunal or a Court where such procedure before a
Court or Tribunal is usually construed to be an
imperative one as doing of the act or a thing under that
statute is a condition precedent to conferring upon the
jurisdiction on a Court or a Tribunal, as the case may
be. The compliance of such act or thing in no way could
be either ignored or dispensed with. Their non-
compliance would certainly invalidate all the
proceedings, orders made or passed by the same
authority or any other authority either superior or
inferior thereto in respect of the same. Our views get
support from cases: -
(i) E. A. Evans v. Muhammad Ashraf P L D 1964
S C 536;
HRC 4668-2006 etc. 13

(ii) Atta Muhammad Qureshi v. The Settlement

Commissioner, Lahore Division Lahore and 2
others P L D 1971 S C 61;
(iii) Muhammad Yousaf Khan Khattak v. S. M.
Ayub and 2 others P L D 1972 Pesh. 151;
and
(iv) In the Statutory Laws, 6th Edn., Craies has
said that :-

"When a Statute confers jurisdiction upon a

Tribunal of a limited authority and statutory
origin, the conditions and qualifications
annexed to the ground must be strictly
complied with."

The same principle has been reiterated by High Courts as well as

this court in various judgments. Reference may be made to

Mazhar Illahi v. State (PLD 2008 Pesh. 162), Commissioner of

Income Tax/Wealth Tax v. M/s Idara-i-Kissan (2006 PTD 2569),

Iftikhar Ahmed alias Ali v. State (2006 YLR 2826), Dr. Ishtiaq

Hussain v. Special Judge Anti-Corruption (2004 YLR 716) and

Muhammad Iqbal v. SHO, PS New Anarkali, Lahore

(2000 PCRLJ 1924), Ghulam Hassan v. Jamshaid Ali (2001 SCMR

1001).

13. Non-production of Master Plan of the Park leads us to

draw inference that construction of a pakka restaurant perhaps

was not provided therein. Be that as it may, the CDA Board may

have taken a policy decision to convert cuisine pavilions with

dense vegetation, but no such decision has been brought on file.

Contrary to it, the CDA officials admitted that no such decision

was taken by the Board. Therefore, whole exercise has been

done illegally by Mr. Kamran Lashari, former Chairman, CDA.

No doubt, the Authority is competent to make alterations

in the Master Plan, but as discussed in Fazal Din v.

HRC 4668-2006 etc. 14

Lahore Improvement Trust (PLD 1969 SC 223), the alteration or

modification of a sanctioned scheme is permissible in the manner

prescribed by the relevant statute.

14. Now turning towards violation of constitutional

provision, there is no need to highlight this aspect of the case in

view of the admission made by learned counsel for the CDA as

well as M/S Siza Foods and to substantiate their plea, it would be

appropriate to refer to the publication appeared in the newspaper

on 09.07.2004 under the caption, “SPACE AVAILABLE FOR

INTERNATIONAL FOOD CHAIN”. It recited, inter alia, that the

CDA intended to provide an opportunity for setting up/opening a

branch of a “MULTI-NATIONAL FOOD CHAIN” (fast food) or

coffee/ice-cream chain, with all features including children play

area etc., in F-9 Park and the interested parties were requested

to express their interest and submit their applications by

25.09.2004 for pre-qualification with detailed technical proposal,

area required, terms and conditions, etc. Thus, as the

citizens/local chains were deprived to participate in the

competition, therefore, action taken by the Chairman is in

violation of Article 18 of the Constitution. It is to be noted that by

inviting expression of interest from international food chains

alone, not only Article 18 has been violated, but at the same time

the Chairman had allowed international food chains to have

monopoly, which, under clause (c) to the Proviso to Article 18 of

the Constitution was available to no one else except the

government. In this behalf, reference may be made to the case

HRC 4668-2006 etc. 15

of Arshad Mehmood v. Government of Punjab (PLD 2005 SC

193). In the precedent case, the Court examined the question

whether section 69-A of the West Pakistan Motor Vehicles

Ordinance, 1965 was contrary to the fundamental rights of the

appellants enshrined in Article 18 of the Constitution who were

restrained/ousted completely from the trade/business of

transport, which they were carrying on against valid route

permits issued by competent authority under the provisions of

the Ordinance for the last many years and in which they had

made huge investments by purchasing of vehicles i.e. wagons,

suzukies, etc. Another grievance was that the right of movement

of the general public could not be limited by compelling them to

undertake journey in the transport owned by the private

respondents because they had obtained franchise rights and were

charging exorbitant fare compared to other transporters who

used to ply buses on the same route, and if competition was

allowed, they would charge less fare from them, as such citizens,

having limited resources of income were not bound to pay fare to

respondents transporters at high rates. It was held that though

the right of trade/business or profession under Article 18 of the

Constitution was not an absolute right, but so long a trade or

business was lawful, a citizen, who was eligible to carry out the

same, could not be deprived from undertaking the same. In

another case titled Iqbal Haider v. Capital Development Authority

(PLD 2006 SC 394), this Court observed as under: -

HRC 4668-2006 etc. 16

“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.

Following observations made in the course of the above

judgment, being relevant in the context of the present case, are

also reproduced below: -

“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
arc framed, as it is evident from the contents of
Notification dated 18th December 1993 (No. CDAS-
30(2)(NOTI)-Coord 93). Reference of some of the
HRC 4668-2006 etc. 17

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 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.''
HRC 4668-2006 etc. 18

None-production of above file persuades us to draw

adverse inference against the C.D.A., necessarily with
all consequences.
“23. Thus, in view of above discussion, it is held
that the mala fides of respondent No.1 in concluding
the transaction with respondent No.2 are abundantly
apparent on record. This Court in the case of
Government of West Pakistan v. Begum 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.

“25. 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.”

The above observations are fully attracted in the present case.

15. It is beyond our comprehension that as to why

provisions of Article 18 of the Constitution were not applicable.

HRC 4668-2006 etc. 19

There could be two reasons: firstly, exclusive powers in this

behalf had been assumed by the then Chairman himself, or

secondly, on the intervention of high ups this exercise was

carried out to accommodate M/S Siza Foods. As far as investors

of outside country are concerned, they should be encouraged to

make investment, but subject to the law of the land, particularly

constitutional provisions. It is a fact that there are good number

of investors who belong to outside the country and are doing

trade/business in the country subject to following the law on the

subject and not otherwise. However, since violation of legal

provisions noted hereinabove also entails consequences because

the Park is only to be used for the purpose for which it has been

established and not for running a business/trade. In this behalf,

judicial notice can be taken of the fact that such facilities in parks

are used by general masses belonging to all walks of life

including citizens and children belonging to the families who are

living below poverty line. The persons like McDonald’s are bound

to earn profit as per its international standards, which is beyond

the reach of an ordinary person comparing to a local restaurant

providing food to the visitors of the Park at a cheaper rate.

Importance of such public parks has been adequately examined

by this Court in the case of Iqbal Haider (supra) in the following

paragraphs, which read as under: -

“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
HRC 4668-2006 etc. 20

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 I 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).”

“24. Learned counsel for respondent No.2 however,

persuaded to convince us that as status of the Public
Park has not been changed, therefore, provisions of
Regulation No.12(3) of the Regulation would not be
attracted. To substantiate his plea, he made reference
HRC 4668-2006 etc. 21

from the books written by Architects with regard to

explain the idea of planning and development of the
Islamabad. One of the Paras from the said book
compiled by C.D.A., Government of Pakistan i.e.
Communities and Housing, composed by Doxiadis
Associates, Consulting Engineers is reproduced herein
below for convenience:-
"305. The second and third categories of open
spaces, that is the public playgrounds, playing-
fields, parks and public gardens, have to be
reckoned together as this stage, since it is as yet
too early to define exactly how much will go for
playing-fields and how much for green spaces.
These spaces are usually planned together in
broader areas, and only after detailed planning is
a decision taken in each case as to exactly how
much will go for playgrounds and how much for
gardens and parks. It has to be borne in mind
that all these are general averages, since the
need for parks, gardens and playgrounds differs
enormously from area to area, and from one
social, professional or income group to another.
For example, high income groups, which have
their private gardens, do not need public
gardens and parks as such as the low income
groups, which are deprived of the benefit of
having their own private garden. On the
contrary, higher income groups may need
playing-fields requiring more space, like tennis,
playgrounds, etc. which the lower income groups
may not need to the same extent."

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
HRC 4668-2006 etc. 22

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 F payment of tickets etc.

“25. 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.”

Thus, in absence of any decision by the CDA Board, the use of

the restaurant by the masses is tantamount to defeating the

object/purpose for which the public park has been established in

view of the discussion in the judgment, relevant Para therefrom

are discussed hereinabove.

16. In addition to above, next important question relates

to transparency in granting lease to M/S Siza Foods. As it has

been pointed out that there was no decision by the CDA Board

either, and exercise of accommodating M/S Siza Foods on the

basis of chit issued under the signature of Mr. Kamran Lashari,

former Chairman, CDA, scanned image whereof is given below: -

HRC 4668-2006 etc. 23

17. After having seen the state of affairs on the basis of

which proceedings started, nothing is left to be discussed as the

above conduct of the then Chairman speaks for itself and needs

no further deliberation. Therefore, by no stretch of imagination, it

can be held that the transaction was a transparent one. It may

be noted that reportedly one of the parties who filed expression

of interest, namely, M/S Sheikh Trading International, when

inquired about the original application submitted by it, same was

not produced or shown except placing on record its photo copy.

Publication appeared in the newspaper indicates that 16 days

were given to international food chains to submit expression of

HRC 4668-2006 etc. 24

interest. How it is possible for the chains working outside the

country and any investor interested to run the business, following

certain provision of law including its registration under the

Companies Ordinance as well as meeting the criteria laid down

by the Board of Investment.

18. This Court, time and again, has insisted upon public

functionaries to adhere to the principle of transparency in the

performance of their duties. In the case of Messrs Airport

Support Services v. The Airport Manager (1998 SCMR 2268), this

Court dealt with the question whether a concluded contract could

be struck down on the grounds of mala fides, arbitrary exercise

of discretionary power, lack of transparency, discrimination and

unfairness, etc. Relevant portion from the judgment is

reproduced below: -

"Further a contract, carrying elements of public

interest, concluded by functionaries of the State, has
to be just, proper, transparent, reasonable and free of
any taint of mala fides, all such aspects remaining
open for judicial review. The rule is founded on the
premise that public functionaries, deriving authority
from, or under law, are obligated to act justly, fairly
equitably, reasonably, without any element of
discrimination and squarely within the parameters of
law, as applicable in a given situation. Deviation, if of
substance, can be corrected through appropriate
orders under Article 199 of the Constitution. In such
behalf even where a contract, pure and simple, is
involved, provided always that public element
presents itself and the dispute does not entail
HRC 4668-2006 etc. 25

evidentiary facts of a disputed nature, redress may be

provided."

In the case of Shams and Brothers v. Government of Pakistan

(2007 CLD 125), a Division Bench of the High Court of Sindh,

Karachi, while dealing with the issue of causing heavy financial

loss to the exchequer in awarding a contract, held as under: -

“23. From the above discussion, we have come to an

irresistible conclusion that the whole process of
inviting of tender/sealed offers by the respondent
No.2 on the first occasion as well as on the second
occasion was game of fraud and cheating full of
ulterior motive and mala fide, aimed to oblige some
particular party (respondent No.4) and for causing
heavy financial loss to public exchequer. Thus, we
have no option but to allow and dispose of this
petition in the terms that the acceptance of the bid of
respondent No.4 in the sum of Rs.6,05,000;
subsequent awarding of contract in his favour and the
whole process of bidding conducted by respondents
Nos.1 and 2 for this purpose is illegal, without lawful
authority and of no legal effect. The respondents Nos.
1 and 2 are, therefore, directed to invite fresh
bids/offers for granting of lease of Pakistan Sports
Board Coaching Centre plot at Sir Shah Suleman
Road, Karachi for the purpose of marriage lawn, by
incorporation of only such conditions, which are
available in the first advertisement or relevant and
necessary to safeguard the interest of respondents
Nos.1 and 2 properly.”

In Sheri-CBE v. Lahore Development Authority (2006 SCMR

1202), this Court while dealing with the issue of lease of amenity
HRC 4668-2006 etc. 26

plot to a private company for construction of big complex

including cinema and shopping mall, noted the following

questions/issues: -

“30. The question is, could the concerned

authorities be permitted to play around with Gulberg
Scheme on the pretext of non-availability of the
scheme? Since it is the respondents who wished to put
a piece of land which had been preserved and used as
an open space for over half a century, to a different
use, the onus lay on the said authorities to establish
that such a use was permitted by law. The question
could thus also be whether a mere plea of non-
availability of the said basic document could ever be
considered a sufficient discharge of the said burden
and a further question would be as to why adverse
inferences should not be drawn against the
respondents in the said matter on account of their
said conduct?

“31. Referring to the provisions of section 5 of

the Disposal of land by Development Authorities
(Regulation) Act No.XII of 1998, it was argued that
there was a complete and absolute prohibition on
converting a Public Utility area or a Public Amenity
plot to any other use and that the contravention of the
said prohibition was an offence in terms of section 6
thereof which was punishable with imprisonment up to
one year or with fine which could extend up to
Rs.1,000 per day from the date of such a conversion
till the default continued, or with both. It was added
that since the respondents could not offer any proof
and were, according to their own admission, not
possessed of any evidence that the plot in question
was not a public utility area or a public amenity park,
HRC 4668-2006 etc. 27

therefore, all concerned were guilty of the commission

of the said offence and were liable to be prosecuted
and punished for the same.

“33. Emphasis was next laid by the learned

Advocate Supreme Court for the petitioners on the
transfer of the said piece of land to the said company
for the said purpose. It was submitted that by virtue
of the provisions of section 47 of the L.D.A.. Act of
1975, all functions and powers relating to all such
schemes including Gulberg, together with all
properties and assets etc. pertaining to the same, had
got vested in the Lahore Development Authority
whereafter, as per section 6(3)(iv) of the said Act, the
said assets and properties could be sold, leased out,
exchanged or otherwise disposed of only by the said
Authority and even a licence or concession in respect
thereof could not be granted by any one except the
Lahore Development Authority which according to the
provisions of section 4 of the said Act consisted of the
members named therein with Zila Nazim of Lahore as
its Chairman.

“34. It was argued that even on the said score,

the entire action was illegal because it was never the
case of the respondents that the land in question had
ever been sold or leased out or even a licence or
concession in respect thereof had been granted to the
said company. by the L.D.A. The case of the
respondents before the High Court, in this connection
was, that it was the Chief Minister of Punjab, who on a
summary submitted to him for the purpose, had
leased out the said land to the said company for a
period of 25 years.
HRC 4668-2006 etc. 28

“35. Was this then a legal and a valid

transfer/entrustment of the said property vesting in
the L.D.A. to the said company?

“36. It was next complained that the building in

question which was intended to be a huge complex
was being constructed at the site without the
sanctioning of its plans by the competent authority.
The plea of the respondents was that construction of
Government buildings did not require sanctioning of
their building plans. The question is whether there
was any law exempting Government building from the
operation of the said legal requirement and question
would also be whether a building constructed by the
said company which was an independent legal entity
having been incorporated as such under the
Companies Ordinance of 1984, could be said to be a
Government building?

“37. It was submitted that the complex in

question which involved construction of a huge
building with an initial estimated cost of Rs.1500
million; which involved use of roads in a residential
locality by a large number of additional persons and
vehicles visiting the said plaza and which also involved
a change of land use, fell within the purview of a
`
Project' as defined by section 2(xxxv) of the Pakistan
Environmental Protection Act No.XXXIV of 1997 and in
view of the provisions of section 12 of the said Act of
1997, the very commencement of its construction
without filing an initial environmental examination
with the Federal Agency and without its approval
regarding the environmental impact assessment, was
grossly illegal and was even a culpable offence under
the said Act. This-issue also requires examination.
HRC 4668-2006 etc. 29

“38. It was next argued that the respondent

Government had entered into a contract with a foreign
company by the name of IMAX for the supply of
equipment for the cinema in question and that this
contract worth about Twenty-five crores in Pakistani
currency had been entered into with the said foreign
supplier/company in violation of the law, the rules and
the policy on the subject and also in violation of all
norms of transparency and good governance as no
advertisement or notice had ever been issued in the
national or international press inviting tenders, bids
and offers with respect to the sam e and the deal had
been finalized in secrecy and in a clandestine manner.

“40. Serious reservations had been expressed

by the petitioners even about the reasonableness and
the lack of bona fides regarding the conception of the
project in question. As has been noticed above, the
land on which the said project was being constructed
was worth around 2500 million rupees. It is on record
that the initial estimate of the project in question was
1500 million Rupees which would of course be subject
to escalation and inflation. It was submitted that more
than 4000 million Rupees of public money were thus
being dumped to produce a Cinema Hall and a
shopping complex on the pretext of showing
educational movies to the children which movies the
children could watch and were watching on Discovery
Channel and such-like other educational channels of
the T.V. every day; that there was hardly a household
in the city which did not have a television and further
that there was also no dirt of shopping plazas in the
city or even in Gulberg. It was added that a cinema of
the kind was available in a neighbouring country and
HRC 4668-2006 etc. 30

the per person ticket to watch a movie in the said

cinema was around Rs.4,000 (four thousand Pakistani
Rupees). It was contended that in a country like ours
where thousands were giving away their precious lives
yearning for a bed in a hospital or a single dose of
live-saving drugs and where millions were getting
afflicted with deadly diseases on account of non-
availability of clean drinking water, it did not behove
the Government to be involved in building luxurious
three dimensional movies theatres and expensive
shopping malls for the rich and the famous and that
also by j investing millions from the hard-earned
money of the public. We were asked whether such a
use of public money could never be condoned as a
reasonable exercise of executive power? We need to
answer it.

“41. Grave apprehensions and reservations had

also been expressed by the petitioners about the
manner in which the said company had been created;
the allegedly surreptitious manner in which a contract
had been settled by the Government with a foreign
company; the manner in which an invaluable piece of
land which even otherwise was a public amenity area
had been transferred to it and the manner in which
hundreds of millions of rupees of the public were
transferred to the said company which was then
directed to own the above-mentioned foreign contract
entered by the government and to produce a cinema
hall and a shopping complex on the site in question. It
was submitted that the said company, according to its
Memorandum and Articles of Association, was a
company formed by Twelve persons, each one of them
contributing "(A sum not exceeding Rs.1000 Rupees
one thousand only) with a "Paid up capital of Rs.1100
HRC 4668-2006 etc. 31

(Rupees eleven hundred only)" whereafter the "Equity

of the Company" was to be provided by the
Government in the form of fifty laks shares of Rs.100
each amounting to Rs. One Hundred and fifty million
only. It was added that only because ten of the said
twelve sponsors happened to be public servants
posted with the Government of Punjab could not ever
mean that the said was a company sponsored,
floated, formed or owned by the Government. It was
further submitted that nothing precluded these
Twelve, in law, from amending or altering the
Memorandum or the Articles of Association, that these
ten public servant sponsors were even otherwise
guilty of misconduct having involved themselves in a
trade/business as they had failed to show any
permission, in law, allowing them to indulge in such
an activity; that even if the Government of Punjab
thought that it had accomplished all other tasks and
discharged all its other all important obligations and
had now nothing better to do than running cinemas,
theaters and shops then it could have directly gone
into the said business instead of entrusting millions of
public money to a company which was an entity in
itself independent of all Governmental checks
including the control of the authorities established by
the Constitution to audit public accounts.

“42. Mr. S.M. Zafar, the learned Senior

Advocate Supreme Court attempted to put these
apprehensions at peace by submitting that the said
company was a State/Government-owned company;
that its Memorandum and Article of Association
prohibited its Sponsors/Directors to change the same;
that it was a global trend all over the world to achieve
governmental objectives by setting up companies
HRC 4668-2006 etc. 32

which was a more efficient and effective mode of

securing the said objects as these companies, not
being Government departments, were free of
bureaucratic red-tapism and controls; that the
company in question was to sovereign and was
subject to governmental controls and that the public
money entrusted to it was safe.

“44. The learned Advocate Supreme Court for

the petitioners, at this juncture, reminded us of an
earlier ruler of this Province who, despite being not an
elected representatives of the people, had resisted all
temptations of converting available vacant spaces in
the city into residential and commercial complexes
and had blessed the people of Lahore with powerful
public lungs in the form of Race-Course (now Jilani)
Park, Gulshan-e-Iqbal Park, Model Town Park, lqbal
Park (old Minto Park), Jallo Park, Lahore Park, a park
adjacent to Pearl-Continental Hotel on the Mall and so
on and that thousands of hands rose everyday praying
for his noble soul. He also made repeated references
to a recent judgment of this Court relating to public
amenity area in Islamabad and added that such
examples could be a valuable guide and a good food
for thought for all concerned.”

19. There is another important aspect of the case that

after executing the lease in pursuance whereof an area of 6000

square yards has been given for 33 years to M/S Siza Foods in

respect of most valuable property, which was actually earmarked

for Blue Area, but its subsequent change from residential sector

into Park has not been brought into our notice. In future, it would
HRC 4668-2006 etc. 33

be constructed along the site of F-9 Park where the McDonald’s

has been constructed.

20. No one appearing on behalf of CDA has assisted us

about the formula followed in calculating the rent. It is most

interesting part of this case that in the publication dated

09.07.2004, following conditions were mentioned: -

CDA intends to provide an opportunity for setting

up/opening a branch of a “MULTI-NATIONAL FOOD
CHAIN” (fast food) or coffee/ice-cream chain, with all
features including children play area etc., in F-9 Park,
Islamabad. Interested parties are, therefore,
requested to express their interest and submit their
applications by 25.09.2004 for pre-qualification with
detailed technical proposal, area required, terms and
conditions …..”

A perusal thereof indicates that the CDA had not disclosed the

location in which the area would be available for the said

purpose. Thus, incomplete advertisement was given so that no

one should have a clear idea about the future business prospects.

It is also not understandable as to why CDA agreed to lease out

4000 + 2000 = 6000 square yards of a valuable piece of land for

33 years at a rent of Rs. 316,250/- or 5% of gross sales.

Undoubtedly, CDA is an authority, which is supposed to discharge

its functions in the interest of public and if, in any manner,

establishment of restaurant was permissible, they should have

tried to fetch maximum price of the land. As far as developing 5

acres of land is concerned, this was also not without an object

and purpose, as it has been observed hereinabove to confer

HRC 4668-2006 etc. 34

exclusive rights on M/s Siza Foods. The CDA had signed MoU with

M/S Siza Foods, perusal whereof indicates that a third party,

namely, M/S Lakson group was also involved. Para 11 of the MoU

provided that construction and development of the Park may be

undertaken by M/S Lakson Group or any of its group company

and such Group/group company shall be entitled to advertise and

display its logo in the Park. The size/design of logo shall be

mutually agreed between CDA and Lakson Group/its group

company. It is not on record about the interest of M/S Siza Foods

with Lakson Group, but one can imagine that full facility is being

extended to install signage, etc. Such permission exclusively

cannot be granted by CDA in the garb of MoU between CDA and

M/S Siza Foods. There is no indication that after installing such

signage, benefit will be extended to the CDA or M/S Siza Foods.

Therefore, it is not correct to say that the Park was being

developed free of cost. In addition to it, MoU also indicates that

the CDA, even before the execution of the lease deed, permitted

and authorized M/S Siza Foods to undertake work to an

agreeable level and design. Thus, there was no transparency,

rather it was a shabby deal in violation of the Constitution and

the law.

21. A perusal of the letters which were sent by Amin

Muhammad Lakhani to the then Prime Minister and the President,

prima facie, showed use of influence. An officer of the status of

Chairman CDA (Mr. Kamran Lashari) has succumbed to the

pressure, and had not only violated the service discipline and the
HRC 4668-2006 etc. 35

provisions of the Constitution and the law, but prima facie has

also exposed himself to legal action because government

functionaries are not bound to carry out/implement any order

which is not in accordance with law.

22. It is pertinent to mention here that this was not the

first time that such irregularities were committed. Similar

instances have come before the Court on more than one occasion

in different cases. In the case of Iqbal Haider (supra) this Court

had dealt with a similar situation as under: -

“33. 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 m disciplinary action. This Court in
the case of Fazal Din v. Lahore Improvement Trust
(PLD 1969 SC 223), reference of which has already
been [made] 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 Cowasjee v.
Karachi Building Control Authority (1999 SCMR 2883),
wherein it has been held that without obtaining 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
HRC 4668-2006 etc. 36

parties, food chains, etc. In our opinion, such

delegation to private person to watch his financial
interests of the high degree [is] 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". As
a consequence of this observation, finally following
directions were made to the authority:--
"While, in this background, upholding the order
of the High Court, we dismiss the above listed
three petitions with costs, the one filed by the
Assistant Administrator also on the ground of
limitation, we would also direct the Chairman of
the Evacuee Trust Board to personally hold an
enquiry about the conduct of the above said
several functionaries involved by departmentally
proceeding with the matter and taking
appropriate action(s). This would also include the
examination of the question as to by whom and
under what circumstances sanction was accorded
firstly, for defending the petition in the High
Court and secondly, for preferring the leave
petition in this Court. The Chairman of the Board
would be required to submit the final enquiry
report(s) with details of action taken, within four
moths before the High Court of Balochistan,
copies being endorsed to this Court. It will then
be for the High Court to pass such orders in the
matter as it deems fit, including due activation, if
required, of the Federal Ombudsman and the
Chief Ehtesab Commissioner. A copy of this
order would be forwarded to the Chairman of the
Board, the Chief Ehtesab Commissioner the
Federal Ombudsman and the Secretary, Law and
Justice Division, of the concerned Ministry, for
action and for record."
HRC 4668-2006 etc. 37

23. This Court, on a number of occasions, has emphasized

upon the government functionaries to perform their duties

strictly in accordance with law. In the case of Government of

Balochistan v. Muhammad Ali (2007 SCMR 1574), this Court held

as under: -

“7. Undisputedly, the respondents have lodged the

claim in respect of the land measuring 4300 acres
approximately recorded in favour of the Provincial
Government in the year 1964-65 which being in
nature of the public property was supposed to have
been used, utilized and dealt with by the Provincial
Government or its Departments to whom it was
transferred in the year 1979 in the sole public interest
being the custodian of the public property and likewise
the public functionaries are supposed and required to
act accordingly under the law and to defend any legal
proceedings concerning the public property before any
Court or forum effectively; preserve, protect, and
defend the title, rights and interest of public property
in accordance with the law which did not vest or
belong to any of the public functionaries. It was the
bounden duty of all the concerted to have acted and
proceeded promptly and effectively to take
appropriate steps and to pursue the available
remedies against any proceedings, order or decree of
a Court within the prescribed period of limitation. The
serious lapses on the part of all the concerned in
withholding the matter and not having filed the appeal
before the learned Majlis-e-Shoora within the
prescribed period of limitation and after dismissal of
the revision petition by the learned High Court, even
approached to this Court after a considerable delay of
HRC 4668-2006 etc. 38

320 days in filing C.P.LA. speaks about the inaction,

inefficiency or deliberate omission by all the concerned
though being under legal obligation to have taken the
prompt action in availing the legal remedies but not so
done as above noted; cannot be ignored, yet; no
action in such behalf appears to have been taken by
the competent authority against the delinquents. Due
to the serious lapses and failure to discharge the legal
duties promptly and within the prescribed period of
limitation by all the concerned in the matter in view of
the decree of the trial Court; of course no actual loss,
damage or deprivation of rights has occurred to the
public functionaries concerned in the matter, rather;
the Government and the Forest Department stands
completely deprived of the public property solely
meant to be used, utilized and dealt with in the public
interest being a public property of which the
Government and the Department through its
functionaries are the custodian but decree of the trial
Court was not assailed before Majlis-e-Shoora within
the prescribed period of limitation and for such reason
alone, appeal was dismissed, upheld by the learned
High Court as well; consequently the Government
stood divested of huge public property for being its
custodian and thereby interests of the public stood
completely jeopardized merely because of the grave
omissions and inaction on the part of the concerned
public functionaries ……..”

In Capital Development Authority v. Shaheen Farooq (2007

SCMR 1328), this Court held as under: -

“7. We have gone through the impugned

order, relevant record and also attended to rival
contentions so raised before us. There is no cavil with
HRC 4668-2006 etc. 39

the proposition that the order of cancellation of

allotments had not b e e n passed by the Chairman, as
despite repeated asking, learned counsel for the
petitioner was unable to point out any document
showing that the cancellation orders were passed by
the Chairman except referring to certain documents
whereby a reference has been made to the verbal
orders of the Chairman. Verbal order has no sanctity
in law and such orders are alien to the process of the
law and the Courts. All orders I passed and acts
performed, particularly, by the State/public
functionaries and adversely affecting anyone must be
in writing, as section 24-A(1) of the General Clauses
Act, 1897 envisages that .the powers shall be
exercised reasonably, fairly and justly and subsection
(2) further makes it necessary that the authority
passing orders shall, so far as necessary or
appropriate, give reasons for making the orders and
unless the order is in writing, the reasons and fairness
etc. thereof cannot be ascertained/ adjudged.”

In the case of Mehr Ali v. Noor Muhammad (2007 SCMR 1965),

this Court held as under: -

“It is a settled law that public functionaries are duty

bound to decide the controversy between the parties
after judicial application of mind as envisaged by
section 24-A of General Clauses Act and Article 4 of
the Constitution as law laid down by this Court in
Aslam Warraich's case PLD 1991 SC 2330, Mollah
Ejahar Ali's case PLD 1970 SC 173 and Gouranga
Mohan Sikdar's case PLD 1970 SC 158. It is the
command of the Constitution by virtue of Articles 4
and 5(2) that the public functionaries have to decide
the controversy between the parties in accordance
HRC 4668-2006 etc. 40

with law and not in derogation of law as law laid down

by this Court in Utility Stores' case PLD 1987 SC 447.
The contention of the learned counsel for the
petitioner that the highest forum in the hierarchy of
Revenue Officers is the Member, Board of Revenue,
therefore, High Court had erred in law to interfere in
the findings with regard to appointment of Lambardar
has no force in view of aforesaid discussion that
Member, Board of Revenue is duty bound to decide
the cases in accordance with law and shall not disturb
the findings of fact recorded by the Tribunals below
unless and until the same are suffered from illegality
or irregularity or in violation of any law laid down by
the superior Courts.”

In Iqbal Hussain v. Province of Sindh (2008 SCMR 105), it was

held as under: -

“3. We are in complete agreement with the

view taken by the Division Bench of the High Court
when it says that public functionaries including the
Chief Minister can deal with the public property only
under a prescribed procedure within the parameters
of law under a duly sanctioned scheme and not at
their whims. Even if such order was passed by the
Chief Minister in favour of the petitioner, authorities
concerned would not be bound to follow such illegal
and void order of a superior authority. It would
rather be in the exigencies of good order of
administration and their duty to point out to the
high-ups that they were acting in excess of their
lawful authority and in violation of law and the
constitutional mandate. They may be apprised of the
legal consequences flowing from such acts. The
compliance of any illegal and arbitrary order is
HRC 4668-2006 etc. 41

neither binding on the subordinate forums nor valid

in the eyes of law. Reference in this behalf may be
made to decision of this Court in Abdul Haq Indhar
V. Province of Sindh 2000 SCMR 907 and (ii) Taj
Muhammad v. Town Committee 1994 CLC 2214.”

In the case of Government of Pakistan v. Farheen Rashid [2009

PLC (C.S.) 966], this Court held as under: -

“It is the inalienable right of every citizen to be

treated in accordance with law as envisaged by Article
4 of the Constitution. It is the duty and obligation of
the public functionaries to act within the four corners
of the mandate of the Constitution and law. Even the
Chief Executive of the country is not above the
Constitution and is bound to obey the command of the
Constitution as envisaged under Article 5(2) of the
Constitution and law laid down by the Court in various
pronouncements.”

In the case of Secretary Ministry of Health v. Rehana Hameed

(2010 SCMR 511) this Court made the following observations: -

“After addition of section 24-A in the General Clauses

Act, it is the duty and obligation of the public
functionaries to redress the grievances of the
citizens/their sub-ordinates with reasons as law laid
down by this Court in Messrs Airport Services case
1998 SCMR 2268. We may observe that since Pakistan
is founded on the basis of religion of Islam, efforts
should be made to bring out an egalitarian society
based on Islamic concept of fairplay and social justice.
Therefore public functionaries are expected to act
fairly and justly in a manner which should not give to
any one any cause of complaint on account of
discriminatory treatment or otherwise.”
HRC 4668-2006 etc. 42

24. This Court has also emphasized that the departmental

functionaries are only obliged to carry out lawful orders of their

superiors and if they are being pressurized to implement an

illegal order, they should have put on record their dissenting

note. Reference in this behalf can be made to the case of Zahid

Akhtar v. Government of Punjab through Secretary, Local

Government and Rural Development (PLD 1995 SC 530).

Relevant Para therefrom is reproduced herein below: -

"………We need not stress here that a tamed and

subservient bureaucracy can neither be helpful to
Government nor it is expected to inspire public
confidence in the administration. Good governance is
largely dependent on an upright, honest and strong
bureaucracy. Therefore, mere submission to the will of
superior is not a commendable trait in a bureaucrat.
Elected representatives placed as incharge of
administrative departments, of Government are not
expected to carry with them a deep insight in the
complexities of administration. The duty of a
bureaucrat, therefore, is, to apprise these elected
representatives the nicety of administration and
provide them correct guidance in discharge of their
functions in accordance with law. Succumbing to each
and every order or direction of such elected
functionaries without bringing to their notice the legal
infirmities in such orders/directions may sometimes
amount to an act of 'indiscretion on the part of
bureaucrats which may not be justifiable on the plane
of hierarchical discipline. It hardly needs to be
mentioned that a Government servant is expected to
comply only those orders/directions of his superior
HRC 4668-2006 etc. 43

which are legal and within his competence.

Compliance of an illegal or an incompetent
direction/order can neither be justified on the
plea that it came from a superior authority nor it could
be defended on the ground that its non-compliance
would have exposed the concerned Government
servant to the risk of disciplinary action."

This view was further reiterated by this Court in the case of

Muhammad Akhtar Shirani v. Punjab Tex Book Board (2004

SCMR 1077). Relevant portion therefrom is reproduced below: -

“We have noted with pain that departmental

authorities responsible to run its affairs do submit to
whims and wishes of their superiors and never feel
hesitation in implementing even an illegal order,
knowing well that it has no legal sanction and if such
order is implemented it is bound to give rise to a
number of complications in the future. This Court time
and again has emphasized that the departmental
functionaries are only obliged to carry out lawful
orders of their superiors and if they are being
pressurized to implement an illegal order they should
have put on record their dissenting note and if such
practice is followed chances of issuing/passing illegal
orders shall be minimized.”

25. Coming to the issue of NPC, we have examined, with

the assistance of the learned counsel for the NPC as also the

learned counsel for the CDA, the relevant record regarding

allotment of plot to the NPC for construction of Aiwan-e-Quaid on

the pattern of Aiwan-e-Iqbal, Lahore. To begin with, it may be

noted that Islamabad Land Disposal Regulation 1993, which laid

HRC 4668-2006 etc. 44

down different procedures for allotment of land of community

buildings and facilities in the public and private sectors. Under

regulation 12(2), community buildings and facilities shall be

allotted to government organizations at amenity rates whereas

under regulation 15(2), plots for other private institutions,

including plots for hospitals, maternity homes, clinics, art-

galleries, gymnasium, amusements parks, etc., shall be

sold/leased by auction. Clearly, NPC was a private entity, hence

not entitled to be allotted a plot on amenity rate as provided

under regulation 12(2). The procedure governing allotment of

plots to private institutions envisaged by regulation 15(2), viz.,

sale/lease by auction was not followed in the matter of allotment

of plot to NPC. In this view of the matter, the learned counsel for

the CDA did not support the transaction and stated that the CDA

was ready to take over the plot/building.

26. At this stage, we would like to advert to the MoU

dated 30.10.2001, signed between Ministry of Education and the

NPC. Evidently, the NPC had been approaching the CDA and

other governmental functionaries for allotment of plot reserved

for Islamabad Public Library in F-9 Park for establishment of

Aiwan-e-Quaid. However, keeping in view the afore-noted

provisions of the Regulation of 1993, no plot on amenity rate

could be allotted to a private organization, therefore, the

aforesaid MoU was reached, which provided as under: -

(1) Cost of plot as demanded by C.D.A. will be arranged

by the Council after President of the Islamic Republic
HRC 4668-2006 etc. 45

of Pakistan lays down the foundation stone of the

project.
(2) Cost of building structure, equipment, fixtures, etc.,
being integral part of the project, will be borne by the
council.
(3) Design of the buildings on the plot will be prepared by
the Capital Development Authority in consultation with
Director General Libraries and Nazriya Pakistan
Council according to their requirements.
(4) This will be a project of Department of Libraries,
Ministry of Education.
(5) The PC-1 will be prepared by the Department of
Libraries of the Ministry of Education and will be
subject to approval by the Planning Commission and
will be completed within 24 months of its
commencement.
(6) Any alteration or addition in the project building will
be the right of Department of Libraries.
(7) Maintenance cost of the project buildings will be borne
by the Department of Libraries of the Ministry of
Education.
(8) Revenues on account of renting out auditorium &
other parts of the building will be revenues of the
Department of Libraries. Rules for use of the facilities
will be approved by the Secretary to the Government
of Pakistan, Ministry of Education.
(9) An Executive Committee comprising Representative of
Nazria Pakistan Council (Mr. Ashraf Nadeem), Joint
Educational Adviser (HE&LB) of Ministry of Education
and Director General, Department of Libraries will
administer the affairs of the project till its completion.
Thereafter, the Director General, Department of
Libraries will be responsible for its operations.
(10) To ensure smooth and prompt implementation of the
project, Aiwan-e-Quaid Authority on the pattern of
HRC 4668-2006 etc. 46

Aiwan-e-Iqbal Authority, Lahore, has been set up by

the Education Minister with the following
composition:-
a. Minister for Education Chairman
b. Minister for Interior Member
c. Joint Secretary (ICT-CDA) Member
d. Chairman, CDA Member
e. Mr. Mahmood Ali (NPC) Member
f. Joint Secretary (Admn) Member
Ministry of Education
g. Gen. (Retd.) Imran Ullah Khan Member
Executive Committee of NPC
h. Director General Libraries Member
i. President, NPC (Mr. Zahid Malik) Secretary
General”

It transpired during the hearing that the cost of land was paid

from the government exchequer on a directive of the Prime

Minister and the funds for construction of the project were also

granted by the government, though as per MoU, the cost of plot

as also cost of building structure, equipment, fixtures, etc, being

integral part of the project was to be borne by the NPC. Further,

according to the MoU, it was a project of Department of Libraries,

Ministry of Education and was to be run by the Aiwan-e-Quaid

Authority set up on the pattern of Aiwan-e-Iqbal Authority,

Lahore by the Education Minister with the composition mentioned

in the MoU. However, it appears that no such Authority was set

up and instead the project was given in the hands of NPC. It was

nothing but grabbing of State land, that too, unfortunately in the

name of the father of the nation, Quaid-e-Azam Muhammad Ali

Jinnah.
HRC 4668-2006 etc. 47

27. On the last date of hearing, the learned counsel filed

application on behalf of NPC, containing decisions of the

Executive Committee of the Council, which are reproduced

below: -

(1) That keeping in view the observations of the

Honourable Court and realizing that while the Council
acted in good faith, yet there is a legal aspect of the
case which may adversely affect the status of the
lease deed granted by the CDA the same can,
therefore, be treated as cancelled thus reverting the
plot to the CDA. NPC is not interested in ownership of
the property but in the concept and in the process of
running the Library.
(2) A request be made to the Honourable Court that
Nazriya Pakistan Council may be allowed to continue
and operate Aiwan-e-Quaid.
(3) Finally that NPC would like the CDA to nominate its
representative to the Executive Committee of the
Council.”

We have given anxious consideration to the submission of the

NPC in the light of the provisions of MoU. In our view, the Aiwan-

e-Quaid ought to be managed and controlled on the pattern of

Aiwan-e-Iqbal Authority, Lahore, as envisaged by the aforesaid

MoU dated 30.10.2001, signed between the Ministry of Education

and the NPC. We, therefore, direct that the project shall be taken

over by the above mentioned Aiwan-e-Quaid Authority.

Necessary legal cover will be provided to it by the concerned

quarters.
HRC 4668-2006 etc. 48

28. Now we take up the establishment of Citizens Club in

F-9 Park. Admittedly, according to the Master plan of F-9 Park,

no residential building for lodging/boarding of the members of

the Citizens Club could be constructed without approval of the

competent authority and without taking into consideration the

requirements of the public park. The revised Master Plan of 1995,

which envisaged establishment of a club, itself was not a legal

document in absence of approval by the Federal Government in

terms of section 19 of the CDA Ordinance, 1960; therefore, no

superstructure could be built upon it and no scheme prepared in

pursuance thereof. It is pertinent to mention here that as per

minutes of the decisions of the CDA Board taken in the meetings

held on 24.09.2007 and 01.10.2007, the construction of Citizens’

Club was earlier proposed in Sector H-11, but later on shifted to

Sector F-12 and then re-shifted to Sector F-9 (Fatima Jinnah

Park) due to non-acquisition of land in Sector F-12. The scheme

for a full-fledged Citizens’ Club with 18 holes golf course and

amphitheatre, ladies club and for children sports area was

examined and approved in a meeting presided over by the

Chairman CDA, and attended by officers of the CDA Environment

Directorate. Here too, the scheme was approved neither by the

CDA Board nor by the Federal Government in accordance with

the provisions of the CDA Ordinance, 1960, referred to

hereinabove. Further, assuming for the sake of argument, though

not accepting, there was a provision for establishing a club in the

Park, an elitist club with a commercial perspective was hardly

HRC 4668-2006 etc. 49

justified considering the primary aims and objectives of the

public park. In the case of Iqabal Haider (supra), this Court

considered the issue of establishment of a mini golf course in the

Jubilee Park situated in Sector F-7, Islamabad, relevant

paragraphs have already been reproduced in Para 15 above. In

this view of the matter, the establishment of Citizens’ Club aimed

at providing facilities to the elitist class alone was not for the

general masses for whom F-9 Park was primarily meant. As such,

the same was not permissible.

29. In the case of Bangalore Medical Trust v. B.S.

Muddappa (AIR 1991 SC 1902) the Supreme Court of India

considered the issue of construction of a hospital in the space

reserved for Public Park. According to the facts of the case, an

improvement scheme was adopted under the City of Bangalore

Improvement Act, 1945 and, in terms of the Bangalore

Development Authority Act, 1976, was deemed to have been

prepared and duly sanctioned by the Government. Under the

scheme, a site was reserved as an open space for Public Park.

Pursuant to the orders of the State Government, and by a

Resolution, the Bangalore Development Authority (BDA) allotted

the said open space in favour of a private medical trust, for the

purpose of constructing a hospital. This allotment and diversion

of the user of the site was challenged before the High Court by

the respondents, as residents of the locality and as general

public, contending that it was contrary to the provisions of the

Act and the scheme sanctioned thereunder, and the legislative

HRC 4668-2006 etc. 50

intent to protect and preserve the environment by reserving open

space for ventilation, recreation and playgrounds and parks for

the general public. A Single Judge of the High Court dismissed

the Writ Petition holding that a hospital being a civic amenity, the

allotment of the site by the BDA in favour of the appellant for the

purpose of constructing a hospital was valid and in accordance

with law, and, rejected the claim of the petitioners that the BDA

had no power to alter the scheme, and in any event, a site

reserved for a civic amenity could not have been allotted for

construction of a hospital, on the ground that the scheme could

be altered under Section 19(4) of the Act, and it was done with

approval of State Govt. On appeal, a Division Bench of the High

Court held that though the BDA had the authority to deal with

the plot in question, the area having been reserved in the

sanctioned scheme for a Public Park, its diversion from that

object and allotment in favour of a private body was not

permissible under the Act, even if the object of the allotment was

the construction of a hospital, since a hospital could not be

considered to be an amenity, and that in allotting the site to the

Trust, a largesse was conferred on it in utter violation of law and

rules, and set aside the allotment of the site in question with

liberty to the BDA to make a fresh allotment of any alternative

site in favour of the Trust. While dismissing the appeal, the

Supreme Court held as under:-

“A private Nursing Home could neither be considered

to be an amenity nor it could be considered
improvement over necessity like a public park. The
HRC 4668-2006 etc. 51

exercise of power, therefore, was contrary to the

purpose for which it is conferred under the statute.

“Financial gain by a local authority at the cost of

public welfare has never been considered as legitimate
purpose even if the objective is laudable. Sadly the
law was thrown to winds for a private purpose. The
extract of the Chief Minister's order quoted in the
letter of Chairman of the BDA leaves no doubt that the
end result having been decided by the highest
executive in the State, the lower in order of hierarchy
only followed with 'ifs' and 'buts' ending finally with
resolution of BDA which was more or less a formality.
In less than ninety days, the machinery in BDA and
Government moved so swiftly that the initiation of the
proposal, by the appellant, a rich trust with foreign
deposits, query on it by the Chief Minister of the
State, guidance of way out by the Chairman, direction
on it by the Chief Minister, orders of Govt., resolution
by the BDA and allotment were all completed and the
site for public park stood converted into site for
private nursing home without any intimation direct or
indirect to those who were being deprived of it.

“Speedy or quick action in public institutions calls for

appreciation but our democratic system shuns
exercise of individualised discretion in public matters
requiring participatory decision by rules and
regulations. No one howsoever high can arrogate to
himself or assume without any authorisation express
or implied in law a discretion to ignore the rules and
deviate from rationality by adopting a strained or
distorted interpretation as it renders the action ultra
vires and bad in law.

“An illegality cannot be cured only because it was

undertaken by the Government, or because it is done
HRC 4668-2006 etc. 52

at the behest of the Chief Executive of the State. No

one is above law. In a democracy what prevails is law
and rule and not the height of the person exercising
the power.

“The executive or the administrative authority must

not be oblivious that in a democratic set up the people
or community being sovereign, the exercise of
discretion must be guided by the inherent philosophy
that the exerciser of discretion is accountable for his
action, it is to be tested on anvil of rule of law and
fairness or justice particularly if competing interests of
members of society are involved.”

30. Learned counsel for the CDA placed on record copy of

PC-I for construction of Citizens’ Club. According to estimate

worked out for its completion, an amount of Rs.1.28 billion has

been allocated. This huge amount belongs to no one else except

the taxpayers/citizens. Such amount, therefore, could have been

spent appropriately for their welfare instead of providing

luxurious type of Citizens’ Club only for its members. There is no

dispute that facility of membership can only be availed by the

persons who have resources, and not by the general public who

have no financial means to avail such facilities; therefore,

besides violation of the CDA laws, a huge segment of the society

belonging to downtrodden class have been deprived. Incumbent

Chairman CDA informed that physical work progress was 69%

and an amount of Rs.575 million had been spent so far. He was

of the opinion that construction of Citizens’ Club shall be

providing additional facility not only to members, but also to

HRC 4668-2006 etc. 53

those who would visit Islamabad, including diplomats; therefore,

from this point of view, the Club was being constructed. We are

not opposing establishment/construction of such like clubs in the

Capital, but definitely on a suitable place and by not curtailing

rights of the general public. History as it has been traced

hereinbefore suggests that the Club was proposed in different

sectors, such as H-11 and F-12, but the construction work could

not commence for want of acquisition of land in those sectors.

This explanation does not seem to be impressive. CDA can

undertake such projects not in the park, but in any other area,

ensuring at the same time that the money of taxpayers shall not

be used for such purposes. However, as now a huge amount has

already been spent; therefore, CDA with the approval of the

Federal Government, instead of abandoning the project, may

utilize the building and other facilities for any public welfare

project, like women university, medical/engineering college,

science, technology or IT institution, etc.

31. On the issue of Megazone (formerly named as Hot

Shots), Mr. Afnan Karim Kundi submitted that the Master Plan of

F-9 Park envisaged setting up of a bowling alley/centre. In

pursuance of advertisement published in the press in the year

1994 to which in all seven firms responded. M/S S&S Enterprizes,

a Pvt. Ltd. Co., one of the seven parties to the bid, having

offered the highest bid of Rs.752,000/- was selected. The CDA

Board, in its meeting held on 27.11.1994 approved grant of

licence to M/S S&S Enterprizes. The management of the centre

HRC 4668-2006 etc. 54

had changed hands. As no notice was issued to them, they were

not before the Court.

32. Mr. Qamar Afzal, ASC appeared on behalf of M/S S&S

Enterprizes Pvt. Ltd., occupants of the bowling alley/centre, first

operated in the name of ‘Hot Shots’, and now named as

‘Megazone’. He submitted that presently the concern was being

managed and operated by Brig. (R) Iftikhar Ahmed (Chief

Executive) along with Mr. Shi Hua Ping a Chinese national

(Director). He submitted that there was litigation between his

clients and the CDA on account of unauthorized construction of

basement, mezzanine floor, etc., and non-conforming use of the

premises, e.g. swimming pool, shops, etc., and ultimately,

certain portions of the constructed area were demolished while

the rest was compounded by the CDA on payment of fine/rent.

He was asked to explain under what provisions of law the CDA

had so compounded the unauthorized construction. He referred

to different Regulations of the CDA, e.g., the CDA Ordinance,

1960, Islamabad Building Regulations, 1963, Islamabad

Residential Sectors Zoning (Building Control) Regulation, 1993,

etc., but failed to show how the aforesaid Ordinance/Regulations

were applicable to the building in question, which was not of

residential nature. He then submitted that the answer to the

proposition was found in the record of the CDA (pp. 108-110 of

the CDA P/B Part IV), which we have perused with his assistance.

The issue was considered by the CDA Board in its meeting dated

20.11.2002 and made the following decisions: -

HRC 4668-2006 etc. 55

(1) Compoundable violations of excess area of basement

and ground floor may be regularized by imposing
compounding charges of Rs.10,000/- (lump sum) &
fine @ Rs.1500/- per sq ft or to demolish the area
constructed over and above the approved plan and
beyond the terms and conditions of bid.
(2) The non-compoundable violations of additional
facilities i.e. construction of mezzanine floor, stair
tower, swimming pool, toilets, etc., provided in the
basement against its lawful use may be demolished
after giving the licensee proper/mandatory notice.

The CDA vide letter dated 10.07.2003 worked out amount of

fine, etc. and directed M/S S&S Enterprizes to deposit

compounding charges in the sum of Rs.73,87,000/- failing which

the Authority would remove the same. In the same letter, the

CDA gave the detail of non-compoundable violations area, e.g.

mezzanine floor, stair tower, swimming pool, etc., but did not

propose to take any consequential penal action. The Deputy

Commissioner, CDA, in pursuance of the report by the CDA, vide

order dated 15.01.2004 directed the CDA to take action against

M/S S&S Enterprizes, i.e. to stop the non-conforming use of the

premises. Pursuant to an application submitted by M/S S&S

Enterprizes, the CDA Board in its meeting dated 12.05.2004

decided to regularize the basement and swimming pool without

charges, and to regularize extended portion of ground floor,

mezzanine floor on payment of charges/fine @ Rs.1500/- sq. ft.

along with charges for non-conforming use/activities and asked

the licensee to pay Rs.1,99,72,742/-. The CDA Board, then in its

HRC 4668-2006 etc. 56

meeting dated 19.10.2004 decided that existing halls, which

were used for marriage parties, would be utilized for sports and

recreational activities and asked the Cost Accountant and

Planning Wing to examine the rates while keeping in mind the

rules and regulations to work out excess rates, compound and

other charges. The Deputy Director BCS-II, having re-measured

the area, calculated/worked out a sum of Rs. 66,39,507/- to be

paid by M/S S&S Enterprizes in terms of the Islamabad

Residential Sectors Zoning (Building Control) Regulation, 1993,

which was approved by the Member (Planning) and the Chairman

CDA. It was pointed out during the 2005 Audit that the

compoundable charges came to Rs.2,24,70,000/- against the

demanded amount of Rs.66,39,507/-, which caused a loss of

Rs.1,99,72,000/- to the Authority. The above amount having

been paid by the licensee, the CDA Board, in its meeting dated

07.06.2007 regularized the compoundable violations.

33. The above narration in no way provides an answer to

the question under what law the CDA had regularized the

compoundable as well as non-compoundable constructions. The

learned counsel agreed that the premises in question were not

governed by any of the aforesaid laws/regulations. Mr. Afnan

Karim Kundi, too, was unable to refer to any legal instrument in

support of the decisions/actions of the CDA authorities. In

absence of any legal instrument empowering the CDA to take the

kind of actions that it did, the entire transaction from the

beginning to the end was illegal and unsustainable in law.

HRC 4668-2006 etc. 57

34. The CDA Board, in its meeting dated 27.11.1994

decided, inter alia, that the bidder himself would construct the

bowling centre on international standards and that the land

would be licensed out for 20 years, renewable on mutual consent

of both parties for another term of 20 years on new/re-

negotiated terms. Thus, there was no provision for transfer of the

licence. Surprisingly, in the licence deed dated 07.05.1995 issued

by the CDA in favour of M/S S&S Enterprizes, a clause was added

providing for transfer of the bowling centre to a Pakistan based

company registered under the Companies Ordinance, 1984 after

completion of construction, issuance of completion certificate and

execution of the lease deed in favour of the licensee. Later,

though the construction was completed with certain alterations

and additional constructed area in violation of the approved

building plan, but no completion certificate was obtained nor any

lease deed was executed. Later on, the company created a

collaboration with a Chinese Company, namely, M/S North

Industrial Corporation of Peoples Republic of China (NORINCO),

which got itself incorporated in Islamabad as M/S Islamabad

NORIN Co. (Pvt.) Ltd., with Chinese Directors and Brig. (R)

Iftikhar Ahmed as Chief Executive. M/S S&S Enterprizes entered

into construction agreement dated 09.08.1995 with M/S

Islamabad NORIN Co. After construction of the centre, the

project in the name and style of M/S Hot Shots Bowling Centre

became operational. Later on, M/S S&S Enterprizes surrendered

all its rights in favour of M/S International NORIN Co., and the
HRC 4668-2006 etc. 58

possession was formally handed over to Brig. (R) Iftikhar Ahmed

who was presently running the centre, later called as Megazone.

All the above actions were done in violation of the decision of the

CDA Board on the issue, as also the relevant rules and

regulations of the CDA.

35. The revised Master Plan prepared in 1995 was not

approved by the competent authority. On that view of the

matter, spaces reserved for cuisine area, bowling alley, etc., in

the un-approved Master Plan did not have the proper legal

sanction at their backing and the CDA authorities thus rendered

bereft of the power to go ahead with the preparation of schemes

in relation thereto, as envisaged by section 13 of the CDA

Ordinance, 1960. As such, the issuance of licence to M/S S&S

Enterprizes was illegal and unsustainable. Having held so, the

reference to the terms of the licence governing non-conforming

use of the premises by the licensee, or in case of breach of

anyone or more of the conditions of licence, the licence was liable

to be withdrawn/cancelled and the structure, if any, would be

confiscated without any payment, was of no consequence. Even

otherwise, regulation 12(3) of the Islamabad Land Disposal

Regulation, 1993 obligates the CDA to itself develop and

maintain public parks, playing fields and graveyards, which the

CDA violated by awarding lease/licence in favour of M/S S&S

Enterprizes and M/S Siza Foods. This aspect was highlighted by

HRC 4668-2006 etc. 59

this Court in the case of Iqbal Haider (supra) in the following

words: -

“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 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.”

36. Thus, for the foregoing reasons, it is declared and held

as under: –

(1) Establishment/construction of McDonald’s restaurant

in Fatima Jinnah Park, Sector F-9, Islamabad was
contrary to Article 18 of the Constitution read with
CDA Ordinance, 1960. Consequently, CDA is directed
to cancel the lease of M/S Siza Foods forthwith, put up
the matter before the CDA Board for converting
cuisine pavilion area with dense vegetation into
restaurant area, and then re-auction a site for setting
up a food outlet therein, and seek approval from the
Federal Government to the Master Plan as also the
schemes prepared thereunder, in accordance with the
provisions of the CDA Ordinance, 1960 and the other
relevant rules and regulations. If the CDA Board or the
HRC 4668-2006 etc. 60

Federal Government declined to grant conversion of

the cuisine pavilions into a site for construction of food
restaurant, the existing superstructure raised by the
McDonald’s shall be demolished by defunct lease
holder at its cost within three months. Fresh
applications shall be invited from the local as well as
international food chains by inviting expression of
interest, indicating the area, facilities, etc., and
whosoever succeeds shall be entitled to set up a food
outlet accordingly. However, if M/S Siza Foods
participated and succeeded in the auction, it shall
continue with the business subject to fresh terms and
conditions, without introducing in the business any
third party, like Lakson Group/group company, etc.
However, if any other food chain succeeded, then the
parties with the intervention of the CDA shall
negotiate the cost of the existing structure of
McDonald’s restaurant;
(2) The CDA shall forthwith cancel the allotment of land to
NPC, take over the premises along with facilities and
place the matter before the Federal Government in
the light of the MoU signed between the Ministry of
Education and the NPC so as to run affairs of Aiwan-e-
Quaid smoothly and achieve the objects for which it
was established. However, it would be for the Federal
Government to allow representation to NPC in the
management committee, but complete administration
of the premises shall rest with the Government;
(3) As far as Megazone is concerned, its transfer in the
name of Brig. (R) Iftikhar Ahmed and others was
made contrary to the terms of the licence; therefore,
the occupants subject to the rights of the original
licence holder shall be given opportunity to get the
same transferred in their name in accordance with
law/guidelines issued by the Securities and Exchange
HRC 4668-2006 etc. 61

Commission of Pakistan within a period of three

months, failing which the licence shall be cancelled,
the land shall be taken over by the CDA and the
occupants shall be directed to restore it to the position
as it was prevailing before issuing the licence in favour
of M/S S&S Enterprizes;
(4) As far as Citizens Club is concerned, its construction
shall be completed as a huge amount of public money
has been spent over it unauthorizedly and the building
with other facilities shall be used for a project of public
welfare;
(5) A perusal of the documents made available to the
Court abundantly makes it clear that Mr. Kamran
Lashari, the former Chairman CDA, in violation of the
constitutional provisions, CDA Ordinance, 1960 as well
as other rules and regulations on the subject granted
lease for 33 years of government land at a very
nominal lease money to M/S Siza Foods in a non-
transparent manner, undoubtedly, with the
connivance of the other officials of the CDA; therefore,
they all deserve to be dealt with strictly for
misconduct, departmentally as well as by instituting
both civil and criminal action against them, so that it
may serve as a deterrent for like-minded persons,
who discharge their duties/functions without adhering
to the relevant provisions of the Constitution and the
law. Such an action has become necessary with a view
to avoiding in future violation of any provision of the
Constitution and the law. In the case of Iqbal Haider
(supra), it was observed that action against the
responsible officer/official of the CDA was called for in
view of the judgment of this Court in Pervaiz Oliver
(supra), but it seems that no action against anyone
was taken so far. The CDA through Establishment
Division, Government of Pakistan is directed to take
HRC 4668-2006 etc. 62

action against Mr. Kamran Lashari, former Chairman

CDA for violation of the Constitution, the CDA
Ordinance, 1960, rules and regulations, reference
whereof has already been given in the case of Iqbal
Haider (supra);
(6) The Chairman CDA shall ensure implementation of
directions in the above Paragraph through concerned
functionaries of the Federal Government within a
period of three months from the date of this
judgment. He is also directed to ensure transparency
in other projects of the CDA and at the same time
office files of Master Plan and preparation of schemes
shall be maintained properly instead of showing
helplessness to produce the record before the Court;
(7) Unconditional apology tendered by Amin Muhammad
Lakhani, proprietor of M/S Siza Foods is accepted
because he himself volunteered for the same.
However, he is warned to be careful in future and
avoid scandalizing the courts.
(8) As these petitions have been considered involving
public interest/general masses/citizens, thus no order
as to costs.

The listed HR cases are disposed of in the above terms.

CHIEF JUSTICE

JUDGE

JUDGE
Islamabad
Announced in Court on __________.

C.J.
APPROVED FOR REPORTING