2017 PLP 138 (CLCN)

MALIK SHAHZAD AHMAD KHAN, J.

The petitioner through the instant petition has invoked the constitutional jurisdiction of this court on the grounds that the petitioner is a citizen of Pakistan and he uses Nawaz Sharif Park, Muree Road Rawalpindi for evening walk but the District Coordination Officer, Rawalpindi (respondent No.1) vide order No. GHC/2991 dated 16.07.2015, has allowed Sajjad All Bhatti, Chief Executive Media Entertainment Network (Pvt.) Limited Event Management Advertising and IV production, 22-M Saddique Trade Centre, Main Bouleverd Gulbarg Lahore (respondent No. 2), to run his business of circus, zoo and well of death , in the aforementioned park at the rate of Rs.50/- per child and Rs.100/- per adult. It is further averred that the government of Punjab has spent millions of rupees in the construction and maintenance of the aforementioned park but the grass and plants of the park have been destroyed at a large scale due to the illegal business activities of respondent No.2. It is further averred that a huge amount as gratification has been received by respondent No.1 from respondent No.2 for granting him the permission to run his aforementioned business in the Nawaz Sharif Park, Muree Road Rawalpindi, under the garb of Sohana Punjab Festival. It is also stated in the present petition that sufficient public toilets are not available in the aforementioned park and due to grant of permission to respondent No.2 to run his business of circus etc., there is garbage and filth in whole of the park. It is also stated that respondent No.1, in order to cover the amount, misappropriated in the name of maintenances of the aforementioned park, has passed the impugned order No.GHC/2991 dated 16.07.2015, with regard to grant of permission to respondent No.2 to run his business of circus etc in the said park.

2. The instant petition was filed by the petitioner Malik Liaqat Ali in person. Notices were issued to respondents vide order dated 11.08.2015 and on 19.08.2015, this court appointed Sheikh Zameer Hussain, Sheikh Muhammad Suleman and Muhammad Faisal Butt, Advocates as Amici Curiae, in this case in order to assist this court regarding the issues involved in this petition.

3. The District Coordination Officer, Rawalpindi (respondent No.1), denied the allegations levelled in the present petition and in his parawise comments, he stated that permission to respondent No.2 to hold Sohana Punjab Festival in Nawaz Sharif Park, Muree Road, Rawalpindi was granted in accordance with the law and rules on the subject.

4. It is also note worthy that during the pendency of the instant petition the amicus curiae namely Sheikh Muhammad Suleman, Advocate (President, High Court Bar Association, Rawalpindi), also submitted a report regarding the factual position on the site. The said report has been brought on the record of the instant petition through C.M. No.02 of 2015. Notice on the said Civil Miscellaneous was issued to the respondents vide order dated 27.08.2015, in presence of learned Assistant Advocate General and learned counsel for respondent No.2 but no written objections have been filed by the respondents on the said report.

5. The amici curiae Sheikh Zameer Hussain, Sheikh Muhammad Suleman and Muhammad Faisal Butt, Advocates have contended that playgrounds, parks, green belts and other places of public use belong to all citizens of the country, more particularly residents of that vicinity and the city, where such places are located and the public places cannot be used by the government officials in a way which is detrimental to the interest of the public; that citizens of Rawalpindi/Islamabad use Nawaz Sharif Park for healthy activities like walking, jogging, exercise etc but respondent No.1, vide the impugned order has permitted respondent No.2 to run his business of circus, zoo etc in the aforementioned park, which has created hurdle for the citizens of Rawalpindi and Islamabad to use the aforementioned park freely; that Rs.50/100 is being charged from the minors and adults for entering in that portion of the park which has been leased out to respondent No.2 and as such a public park is being used for commercial activities of respondent No.2; that no decision from the board of Directors as envisaged under section 6 of the Parks and Horticulture Authority Act, 2012 was obtained in the instant case while passing the impugned order; that respondent No.2 has been allowed to run his commercial activities with effect from 1st day of Eid-ul-Fitr (18th July, 2015) to 30th August 2015, whereas under section 10(4) of the Act ibid, no such permission can be granted for a period exceeding fifteen days if the intended use is likely to bring, directly or indirectly, any financial benefit to the applicant or any other person; that due to circus, zoo and presence of animals, the grass and plants of the park in question have been ruined badly; that the petitioner and other citizens of Rawalpindi and Islamabad have been restrained from using the aforementioned park freely, which is violative of their fundamental rights; that the District Coordination Officer, Rawalpindi (respondent No.1) being in league with the staff/officials of Park and Horticulture Authority, Rawalpindi and other concerned departments, in order to usurp the amount, which was allegedly spent for maintenance of the Nawaz Sharif Park, has granted permission in question to respondent No.2 vide the impugned order dated 16.07.2015, after taking gratification from the said respondent; that respondent No.1 has violated the fundamental rights of the petitioner, guaranteed under Articles 9 and 26 of the Constitution of the Islamic Republic of Pakistan, 1973; that the impugned order No.GHC/2991 dated 16.07.2015, issued by respondent No.1 may be declared illegal and unlawful, same may be cancelled and an order for registration of case against the respondents and their other allies with regard to aforementioned corruption may be ordered to be registered. In support of their contentions, amicus curiae placed reliance on the judgments reported as "Mian Fazal Din v. Lahore Improvement Trust, Lahore and another" (PLD 1969 Supreme Court 223), "Human Rights Case No. 4668 of 2006; Human Rights case No.1111 of 2007 and Human Rights Case No. 15283-G of 2010 (Action taken on news clippings regarding fast food outlet in F-9 Park Islamabad (PLD 2010 Supreme Court 759), "Subhash Kumar v. State of Bihar and others" (AIR 1991 Supreme Court 420), "Government of Punjab through Minister of Revenue, Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Limited" (PLD 2004 Supreme Court 108), "Ch. Muhammad Sidduque and 2 others v. Government of Pakistan through Secretary, Ministry of Law and Justice Division, Islamabad and others" (PLD 2005 Supreme Court 1), Ardeshir Cowasjee and 11 others v. Sindh Province and others" (2004 CLC 1353), "Shehri and others v. Province of Sindh and others" (2001 YLR 1139) and "Ms. Shehla Zia and others v. Wapda" (PLD 1994 Supreme Court 693).

6. On the other hand, this petition has been opposed by learned AAG and learned counsel for respondent No. 2 on the grounds that the instant petition is not maintainable because the petitioner has no legal right or grievance in respect of Nawaz Sharif Park, Muree Road, Rawalpindi; that respondent No.1 had the legal authority under the capacity of Administrator, District Government, Rawalpindi to issue order in question; that the impugned order was issued after receiving NOC from all the concerned departments; that the impugned order was issued in the light of direction issued by the Government of Punjab for holding Sohana Punjab Festival at all District Headquarters; that no illegal gratification has been obtained by respondent No.1 from respondent No.2 or any other person for the issuance of the impugned order; that no damage has been caused to the plants and grass of the park; that the petitioner has raised disputed questions of facts in this petition, hence the same is liable to be dismissed. During the pendency of the instant petition, learned counsel for respondent No.2 has also placed on the record different photographs in order to demonstrate that the grass and plants of the park in question are still intact and no damage has been caused to the park due to the activities of respondent No.2.

7. Heard.

8. Insofar as the objection of respondents regarding the maintainability of the instant petition is concerned, I have noted that the petitioner has raised the question regarding violation of his fundamental rights by respondents Nos.1 and 2, guaranteed under Articles 9 and 26 of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, this petition is maintainable. Reference in this context may be made to the cases reported as "Syed Waqar Hussain Gillani v. Capital Development Authority and others" (2013 CLC 1095), "Human Rights Case No.4668 of 2006; Human Rights case No.1111 of 2007 and Human Rights Case No.15283-G of 2010 (Action taken on news clippings regarding fast food outlet in F-9 Park Islamabad (PLD 2010 Supreme Court 759), "Barrister Sajjad Ahmed Satti v. Federation of Pakistan through Ministry of Defence and 9 others" (2013 CLC 1804), and "Moulvi Iqbal Haider v. Capital Development Authority and others" (PLD 2006 Supreme Court 394).

9. This is an admitted position that Nawaz Sharif Park, Muree Road, Rawalpindi is under the control of the Park and Horticulture Authority, Rawalpindi (hereinafter referred to as Authority). The District Coordination Officer, Rawalpindi vide the impugned order No.GHC/2991 dated 16.07.2015, granted permission to respondent No.2 to hold a Sohana Punjab Festival in the aforementioned park with effect from 15th day of Eid-ul-Fitr (18th July, 2015) to 30th August, 2015 from 11.00 a.m. to 10.00 p.m. daily. Respondent No. 2 under the garb of aforementioned permission for holding a Sohana Punjab Festival has started running his business of circus, zoo, well of death etc., at the rate of Rs.50/- per child and Rs.100/- per adult and as such the aforementioned public park is being used for commercial activities. I have noted that under section 6 of the Park and Horticulture Authority Act, 2012, only a Board of Directors, comprising of following persons can make a policy decision:- a) Chief Minister or any other person nominated by the Chief Minister; Chairperson b) Minister for Housing or any other person nominated by the Minster for housing; Vice Chairperson c) Two members of the Provincial Assembly of the Punjab nominated by the Speaker of the Assembly; Members d) the elected head of the local government of the area for which the Authority is established; Member e) Secretary to the Government, Housing Department or his nominee; Member f) Secretary to the Government, Finance Department or his nominee; Member g) Secretary to the Government, Local Government and Community Development Department or his nominee; Member h) District Coordination Officer of the area for which the Authority is established; Member i) Director General of the Development Authority of the area for which the Authority is established; Member j) two environmentalists nominated by the Government Member k) one horticulture expert nominated by the Government; Member l) one representative of the concerned Chamber of Commerce and Industry; and Member m) Director General Member/ Secretary It is evident from the perusal of the abovementioned provision of law that a board comprising of above directors was competent to make a policy decisions on behalf of the Authority but there is nothing on the record that any decision was taken by the aforementioned directors of the board and as such respondent No.1 has issued the impugned order in blatant and flagrant violation of provisions of law on the subject.

10. Furthermore provisions of section 10(1)(4) of the Act ibid are also relevant for the decision of the present petition, which read as under:

10. Use of Public Parks, green belts and green areas:-- (1) If any person intends to use a public park, green belt or green area for any purpose other than the normal use of the place, he shall make an application to the Authority. (2) (3) (4) The Authority shall not grant permission for a period exceeding fifteen days if the intended use is likely to bring, directly or indirectly, any financial benefit to the applicant or any other person.

11. It is clear from the bare reading of the aforementioned provision of law that no permission can be granted even by the Authority for a period exceeding fifteen days if the intended use is likely to bring, directly or indirectly, any financial benefit to the applicant but in the instant case the permission has been granted by respondent No.1 to respondent No.2 for his financial activities for a period of about 43 days. It is not understandable that under which provision of law, respondent No. 1 has passed the impugned order in favour of respondent No.2. Respondent No.1 along with his comments has also placed on the record NOC from Rawalpindi Arts Council dated 24th June, 2015 for holding Sohana Punjab Festival, 2015/2016 at Nawaz Sharif Park, Shamasabad Muree Road, Rawalpindi in order to demonstrate that NOC's were obtained from all the concerned departments before issuance of the impugned order. I have noted that there is nowhere stated in the aforementioned NOC regarding holding a circus, zoo, well of death etc in "Nawaz Sharif Park" for Sohana Punjab Festival. I have noticed that in the abovementioned NOC of Rawalpindi Arts Council, it was specifically mentioned that "the festival will be organized through a well-reputed event management company on no profit no loss basis through press ad" (underlining supplied) but admittedly no press ad was given before passing the impugned order in favour of respondent No.2, which is another patent illegality committed by respondent No.1, while passing the impugned order.

12. Playgrounds, parks, green belts and other places of public use belong to all citizens of the country, whether belonging to urban areas or coming from rural background, more particularly residents of that vicinity and the city, where such places are located. These places come in the joint ownership and constructive possession of all citizens, which is a constitutionally guaranteed right. It appears that DCO, Rawalpindi, (respondent No.1) without caring about the park in question and without taking into consideration the park and Horticulture Authority Act, 2012, conspired to pass the impugned order in favour of respondent No.2, which cannot be describe as bona fide Act of the abovementioned respondent. Respondents have placed on the record the master plan of the Nawaz Sharif Park, wherein a specific place has admittedly been allocated for the swings and other rides of the children but now respondent No.2 has stateldy installed swings and rides of the children around the walking track, constructed in the abovementions park.

13. As mentioned earlier, this petition was filed by the petitioner in person and vide order dated 19.08.2015, this court appointed Sheikh Zameer Hussain, Sheikh Muhammad Suleman and Muhammad Faisal Butt, Advocates as Amici Curiae, in this case in order to assist this court regarding the issues involved in this petition. During the pendency of this petition the amicus curiae namely Sheikh Muhammad Suleman, Advocate (President, High Court Bar Association, Rawalpindi), also submitted a report regarding the factual position on the site. The said report has been brought on the record through Civil Miscellaneous No.02 of 2015, in which notice was issued to the respondents vide order dated 27.08.2015, in presence of learned Assistant Advocate General and learned counsel for respondent No.2 but the respondents thereafter did not file any written objections on the aforementioned report. It is stated in the above-mentioned report that at the time of site inspection, circus and numbers of stalls were installed in the park, very loud and noisy sound speakers were buzzing there, more than 100 stalls of different commodities like cloths, grocery, bottles, shoes, Utensils were installed there. Swings on both sides of the walking track were in progress, shops and khokhas were temporary built with iron sheets in the park and on inquiry, one of the stall holder replied that he was paying Rs.1000/- per day for a stall measuring 10 x 10 feet. It was further stated in the report that grass and plot of the park has been destroyed at a large scale and nearly 70% of the park has been ruined and at least rupees twenty millions are required to bring the park on its previous position.

14. I have also gone through the article written about the park in question, published on the city age of Daily "The News" Islamabad/Rawalpindi Edition" dated 29.08.2015. The aforementioned newspaper has been placed on the record by amicus curiae. The hosting of so called "Mela" in the Nawaz Sharif Park has been deplored by the author of the abovementioned article. The said article also apprises about the destruction of Nawaz Sharif Park, Rawalpindi at the hands of the government officials. Under Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973, it has clearly been provided that no person shall be deprived of his life or liberty saved in accordance with the law. Right to enjoy pollution free life is also included in the right of life. Similarly under Article 26 of the Constitution of the Islamic Republic of Pakistan, 1973, it is provided that there shall be no discrimination in respect of access to public places but in the instant case, by imposing a ticket of Rs.50/- per child and Rs.100/- per adult, the citizens of Pakistan, more particularly the citizens of Rawalpindi/Islamabad have been restrained from entering in that part of the Nawaz Sharif Park, where the commercial activities are being run by respondent No.2 and as such the impugned order is violative of the fundamental rights guaranteed by the Constitution. The superior courts have also discouraged such type of arbitrary decisions and polluted acts. It has been held in different judgments of the Hon'ble Supreme Court of Pakistan that places like parks and playgrounds were necessary for healthy life and to convert such places to commercial use and residential purpose was an infringement of Fundamental rights as guaranteed under Articles 9 and 26 of the Constitution of the Islamic Republic of Pakistan, 1973. Reliance in this context is placed on the cases of Suo Motu Case No.10 of 2005 (Re: Environmental Hazard of the proposed New Murree Project) (2010 SCMR 361), "Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others" (1999 SCMR 2883) and "Moulvi Iqbal Haider v. Capital Development Authority and others" (PLD 2006 Supreme Court 394). Reference in this respect may also be made to the case reported as "Syed Waqar Hussain Gillani v. Capital Development Authority and others" (2013 CLC 1095).

15. In the light of above discussion, the instant petition is allowed and the impugned order No. GHC/2991 dated 16.07.2015, passed by the District Coordination Officer, Rawalpindi (respondent No.1) in favour of respondent No. 2 is hereby declared illegal, void and the same is hereby set aside. Respondents are further directed to immediately remove all the illegal constructions/installments, khokhas, stalls, present in the Nawaz Sharif Park, Murree Road, Rawalpindi. Respondent No.1 and officials of the Park and Horticulture Authority, Rawalpindi are directed to restore the original position of the park, within a period of three months from today. District Coordination Officer, Rawalpindi (respondent No.1) shall file a compliance report on or before 01.12.2015, before the Deputy Registrar Judicial of this court. The District Coordination Officer, Rawalpindi (respondent No.1) is permanently restrained from issuing any such order in future, which may destroy the utility of public parks.

16. Insofar as the allegations regarding corruption, levelled against respondents Nos.1 and 2 and other concerned officials, by the petitioner and amici curiae are concerned, it is clarified that the petitioner or any other citizen of Pakistan may avail the alternate remedies, provided under the law in this respect and if any application in this regard is moved, then the same shall be decided on its own merits, without being influenced by any observation made in this judgment. Attested copy of this order be sent to the Park and Horticulture Department, Rawalpindi and respondent No.1 and the same be placed on their record for future guidance. SL/L-4/L Petition allowed.