IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALL AKBAR NAQVI
AK
Civil Appeal No.639 of 2014
(On appeal against judgment of the High Court
of Sindh at Karachi dated 04.12.2013 4 ot, - .2 .L.,
in C.P.No. 1143 of2011) 
Mall Development (Pvt) Ltd 
Appellant(s)
Versus
Waleed Khanzada & others 
Respondent(s)
For the Petitioner(s) Syed Ali Zafar, ASC
For the Respondent(s) 
Mr. Khaiid Javed, ASC r-f.
Malik Nacem Iqbal, ASC - F.,. 4.ç.
t.flo. 0 
v.. Ica,.ct)
Date of Hearing: 
l2.05.2022.
JUDGMENT
IJAZ UL AHSAN-. By way of this Appeal, the
Appellants have challenged a judgment of the High Court of
Sindh, Karachi dated 04.02.2014 passed in Constitutional
Petition No. 1143 of 2011 (hereinafter referred to as
"Impugned Judgment"). Through the Constitutional Petition,
the Respondent (Barrister Waleeci Khanzada) challenged the
merger by the Appellants of a plot of land measuring 3600
Square Yard plot (hereinafter referred to as "Adjacent Plot")
with an 8000 Square Yard commercial plot titled as "Zam-1"
(hereinafter referred to as "Commercial Plot"). The case of
the Respondent was that the 3600 Square Yard plot, being an
amenity plot by nature, could not have been merged with the
8000 Square Yard commercial plot. The learned High Court,
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through the Impugned Judgment, allowed the Constitutional
Petition filed by the Respondent.
2. The necessary facts giving rise to this Us are that,
on the basis of an agreement dated 17.07.1987 between the
Appellants and DHA (Respondent No. 04); DHA sold a plot
measuring 8000 Sq. Yards (hereinafter referred to as
"Agreement with DHA") to the Appellants. Admittedly,
Clause 02 of the Agreement with DHA stipulated that only
70% of the area of the Commercial Plot could be constructed
upon whereas, 30% of the area of the Commercial Plot shall
be utilized for providing amenities. Since leasehold rights of
the Commercial Plot vested in DHA, therefore, a C-lease was
executed on 16.09.1998 whereby, leasehold rights of the
Commercial Plot were transferred in favour of the Appellants
by DHA. On 14.12.2005, an Amending Deed was executed,
through which, the Appellants purportedly acquired the
adjacent plot measuring 3600 Sq. Yards, located on the
western side of the original 8000 Sq. Yard plot. Resultantly,
as averred by the Appellants, the area of the Commercial Plot
increased from 8000 Sq. Yards to 11,600 Sq. Yards. The
Respondent, after learning that the Adjacent Plot had been
acquired by the Appellants and, that they were undertaking
construction on it, filed a Constitutional Petition. They took
the stance that, since the Adjacent Plot was an amenity plot
on which DHA Park existed, therefore, the Appellants could
not have raised any construction on it. The Petition of the
Respondent was allowed vide the Impugned Judgment.
C . A. 
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Aggrieved, the Appellants filed a CPLA before this Court
against the Impugned Judgment.
3.
Leave to appeal was granted by this Court vide
order dated 17.04.2014 in the following terms: -
'Leave is granted, inter alia, to consider whether the High
Court has decided the main issues involved in the matter
without looking at the relevant record, in that, the master
lease of the year 1972 in favour of DHA and the master plan;
whether the learned High Court has overlooked the key fact
of the case that according to the master plan of the year
1973, the plot i.e., 3600 square yards in question is part of a
commercial plot and there has never been any change for its
use from the commercial to that of public amenity; whether,
as per the record, before the learned High Court and also
before us, the plot in question has been or was ever
converted as public amenity plot before its lease to the
Petitioner and, therefore, neither it could be validly allotted to
the petitioner for any commercial activity for it can be put to
such a use. On the basis of the agreements of the
respondent, leave is also granted on the points whether the
master plan was never part of the record before the High
Court and thus it was incumbent upon the learned High
Court for deciding such crucial issue after first having
requisition the master plan and then to decide about the
nature of the plot (Note: Mr. Makhdoom All Khan though has
submitted that master plan was requisitioned by the High
Court vide order dated 1508.2012 and was part of the
record); and whether the lease in favour of the Petitioner with
regard to 3600 square yards plot is a colourable transaction,
non-transparent; and was granted to the Petitioner with
ma/a fide intention as the Chief Executive of the Company, at
the relevant point in time, was the employee of DHA and
member of the Auction Committee, this would vitiate the
entire transaction,
4.
The learned Counsel for the Appellants has argued
that the High Court relied upon a 1975 Master Lease which
does not relate to the Plot. He has further argued that the
1975 Master Lease relates to areas in Gizri and Korangi,
S
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therefore, it has no connection with the dispute in hand. The
learned ASC for the Appellant has further submitted that
consideration in the sum of Rs. 18 Million was paid to DHA for
the Adjacent Plot. In this respect, he has relied upon a letter
by DHA for grant of lease, dated 1902.2003 and, counter
affidavits filed by the Appellants and DHA. Learned Counsel
for the Appellants has further argued that, nowhere does the
Master Plan of 1972 mention that the plot in question is an
amenity plot. Rather, the 1972 Master Plan clearly provides
that it is a commercial plot. The learned Counsel for the
Appellants has also argued that through the Impugned
Judgment, the learned High Court has effectively made
Clause 3 of the Agreement with IDHA redundant. It has
further been argued that the Appellants have not constructed
any commercial building on the Adjacent Plot and, will follow
and comply with the terms of the Agreement with DHA. The
learned Counsel for the Appellants has additionally argued
that the Second Building Plan submitted by the Appellants
was tacitly approved by this Court while hearing CPLAs 297-K
and 298-K of 1996, since the Second Building Plan was not
struck down.
5.
The Respondent-in-Person, on the other hand has
supported the Impugned Judgment.
6.
Learned Counsel for Respondent No. 03 has
argued on similar lines, as argued by the Learned Counsel for
the Appellants. He has mainly argued that the Impugned
Judgment proceeds on an incorrect appreciation of the facts 
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and record. He has further argued that the Military Estates
Officer was not made a party in the matter and, his point of
view was not considered while passing the Impugned
Judgment. He has further argued that the Adjacent Plot was
validly added in the lease with the Appellants and, the
learned High Court failed to consider this fact while passing
the Impugned Judgment.
7. We have heard the learned Counsel for the parties
and perused the record. Essentially, this Court has two
issues before it for adjudication, namely: -
(i)
Did DHA "inadvertently" mention the
Adjacent Plot as DHA Park whereas it was
part of the Commercial Plot?
(ii)
Could the Adjacent Plot be utilized in any
manner it deemed fit by the Appellant, if
consideration was paid for it?
DID DHA "INADVERTENTLY " MENTION THE ADJACENT
PLOT AS DHA PARK WHEREAS IT WAS PART OF THE
COMMERCIAL PLOT?
8. The learned High Court in the Impugned
Judgment has held that as per the Agreement with DHA
dated 17.07.1987, the area of the Commercial Plot is 8000
Sq. Yards. The learned High Court has also concluded that,
the C-Lease dated 16.09.1998 also mentions the area of the
Commercial Plot to be 8000 Sq. Yards. We have examined the
Agreement with DHA and also the C-Lease. Both of these
documents admittedly mention the area of the Commercial
Plot as 8000 Square Yards. The said documents are the
foundation on which the transaction between the Appellants
and the Respondent Nos. 3 and 4 is based. Nowhere in the
C-A.ófl/h1.
said documents is it mentioned that the Appellant is being
allotted the Adjacent Plot. In this respect, Counsel for the
Appellants has placed reliance on an Amending "Deed" dated
14.12.2005 to argue that subsequently, the Appellants
acquired the Adjacent Plot by paying valuable consideration.
As such, the Adjacent Plot was acquired validly and lawfully.
9. We are unable to agree with the learned Counsel
for the Appellants. It is pertinent to mention that, in the
Agreement with DHA, it has been mentioned that the
Appellants "in response to an Advertisement" made an offer to
buy the Commercial Plot which was accepted by the
Respondent-Authority. Since leasehold rights of the
Commercial Plot vested with the Respondent-Authority,
therefore, a C-Lease to this effect was executed. Clause 5(b) of
the C-Lease states that the lessee shall comply with and
observe all the rules and by-laws of CBC and DHA. In the
Amending "Deed" dated 14.12.2005, it has nowhere been
mentioned, whether the Adjacent Plot (if it is assumed that it
was a commercial plot) was advertised/ auctioned and
therefore, available to the general public. It has simply been
mentioned in the Amending "Deed" that the area of the
Commercial Plot has been "increased" to 11,600 Sq. Yards.
There is nothing on the record to show that the said Adjacent
Plot was advertised to be sold/ transferred or, that objections
were called from the general public when it was purportedly
being sold by converting it into a commercial plot. This casts
a shadow on the entire transaction and, goes to suggest that
the transfer of the Adjacent Plot in favour of the Appellants
lacked transparency and adherence to the law. Land and
valuable property, the rights of which vest in the Government,
cannot be sold off arbitrarily. It is settled law that an amenity
plot or public park cannot be converted for commercial use,
nor can its land use be changed to one which affects the
rights of other residents of the locality to enjoy the public
park or amenity. Any transaction in this respect cannot be
deemed to be legal because, one of the stakeholders in such a
transaction is the general public.
10. One of the responsibilities of the Military Estates
Officer is to ascertain whether any construction etc., is
adverse to the interest of the Government or violates any
rules or regulations which are meant to safeguard the interest
of the public. The Military Estates Officer cannot, as per his
own wishes and whims declare that a plot is a Park or a
Commercial Plot. We have on record a letter of the Military
Estates Officer dated 22.07.2003 which mentions the
Adjacent Plot as a "Park". The learned Counsel for the
Appellants, while placing reliance on the letter dated
22.07.2003 has argued that the Military Estates Officer
provided a "clarification" about the nature of the Adjacent Plot
by stating that it was to be maintained as a Park as per
Clause 3 of the Agreement of DHA and, that the Adjacent Plot
was not "DHA Park" as argued by the Respondent-in-Person.
We are unable to agree with the learned Counsel for the
Appellants. The fact that the Military Estates Officer
CA. 431 A. 
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mentioned the word "Park" in his letter establishes that the
Adjacent Plot was not to be used for a commercial purpose.
11.
Further and more importantly, Clause 3 of the
Agreement with DHA only allows the Appellant to "develop"
the Adjacent Plot with "amenities". As such, the mode and
manner in which the Adjacent Plot could be used, has been
restricted. The Agreement with DHA was executed in 1987,
which means that it has held the field for 35 years. The
Appellants cannot at this stage, request the Court to absolve
the Appellants of their responsibility to abide by the terms of
the Agreement dated 17.07.1987. It is pertinent to mention
here that, as per Clause 2 of the Agreement with DHA, the
Appellants were only allowed to construct over 70% of the
total area of the plot and, 30% of the area of the plot was to
be utilized for "amenities". The fact that the Agreement itself
mentions the words "amenities" and that too, in the clause
relied upon by the Counsel of the Appellants, goes to show
that the Adjacent Plot was not merely mentioned as DI-IA Park
by inadvertence. We have seen in the record the Minutes of
the Executive Board of DHA dated 06.05.1995. The said
minutes too, incorporate a decision taken on Item No.37, that
construction could not be made on the "park area".
12.
Learned Counsel for the Appellants has argued
that, the Minute Sheet dated 14.12.1999 wherein, the
Adjacent Plot has been ear-marked as a park for the general
public, is fabricated. There is nothing on the record to suggest
any fabrication. On the contrary, DHA in a letter dated
S
c.A.N S )4.
3o.07.2007 clarified that no cO5° 
was allowed in the
area mentioned in the enthng Deed. In another letter dated
02.072007 DHk has stated that the Adjacent plot is to be
utilized as a leisure park for the general public. The fact that
the Adjacent plot is mentioned as a "park" in various letters
d other documents establishes the fact that the Adjacent
Plot was meant and intended to be a public park 
and not a
commercial plot. It is clear from 
the record that the Adjacent
a park and, a letter issued by the
plot had ways been 
the nature of the
MilitaryEstates Officer could not 
Adjacent Plot or, allow the Respondents to construct or use it
however they pleased- We have also found 
on the record a
letter dated 27.O5.2003 issued by the Additional Director
General (Lands) to the Mi1it 
Estates Officer, Karachicircle,
11Y mentioned in the said
Karachi Cantt it has been tegori 
letter that plots reserved for en1ue5 cannot be used for Y
other purpose.
13. 
Even otherwise, the second 13uilding plan, relied
upon by the Appellants counsel, specifically menti0ns an
hnowable covered Area". This further establishes that the
Appellants could only consuct over the area approved for
construction and, not more. In the presence of mateñal
on the record, discussed above, we
available that 
of the
opinion that that the learned High court was correct to hold
Plot was unlawfully annexed to the
that the Adjacent 
roniniercial Plot.
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4
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C . A. 6 11
 
a I
A
COULD THE ADJACENT PLOT BE UTILIZED IN ANY
MANNER DEEMED 
BY THE APPELLANT IF
14. 
The learned Counsel for the Appell5 has argued
that, the Appellants paid Valuable consideration for the
Adjacent Plot and have a right to use it in any manner
deemed appropriate by them. The High Court in this respect
has held that By-Laws 125 and 126 of 
the Cantonment Board
Clifton (Building) By-Laws, 2007 
clearly stipulate a procedure
which must be followed if the nature of a plot is to be
changed. There is nothing on the record that may show that
the Appellants 
applied for the Adjacent Plot to be converted
into a commercial plot. The onlyargument advanced by the
Counsel for the Appellants in this respect is that they paid
vid Consideration for the Adjacent Plot. We do not a&ee with
this argument for the reason that, payment of consideration
does not ipso facto absolve the Appellants of their
responsibility to follow proper procedure of the law. Merely
Paying consideration did not mean that the Appellants could
do whatever they wanted with the Adjacent Plot. In the 1972
Master Lease, it has been Clearly stated that "Amenity 
Plots"
could only be Used for the P urpose for which they were ear-
"led- Mere payment of consideration does not mean that
anything done illegally would get protection of the law. It is
settled law that, when the law provides a 
Particular manner of
doing things, they must be done in that manner or not at an.
Anything done to the contrary would be illegal, ex-facie
erroneous and unsustainable in law.
I
Cm . 31J14. 
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15. It has been specifically mentioned in the
Agreement with DHA and in the C-Lease that the Appellants
shall abide by the by-laws of Cantonment Board Clifton and
DHA. When the Respondent-Authority has repeatedly
informed the Appellants that the Adjacent Plot could not be
used for any other purpose; they were bound by such
declarations made by DHA. The Appellants cannot at this
stage, wriggle out of their part of the Agreement with DHA.
This is because they chose to bind themselves by the
conditions in the Agreement with DHA and, in the C-Lease.
Learned Counsel for the Appellants has stated that this Court
"impliedly approved" the Second Building Plan since this
Court did not reject it outright. We do not agree with this
argument. Merely because this Court did not struck down the
Second Building Plan, does not, by any stretch of the
language, mean that the Second Building Plan was
"approved" by this Court. This Court, in its judgment handed
down in CPLAs No. 297-K and 298-K, has nowhere used the
word "approved" for the Second Building Plan. This Court, in
various judgments, has held that an amenity plot cannot be
used for commercial activities and by now it is settled law.
Article 9 of the Constitution of the Islamic Republic of
Pakistan, 1973 protects the fundamental right of life of every
citizen of this Country. Right to life has been given an
expansive interpretation by this Court. The right to life inter
alia includes the right to enjoy public spaces such as parks.
This Court is empowered to do complete justice and, nobody
can be allowed to take fundamental rights guaranteed to the
C.ft.3JJf - 12..-
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citizens from the citizens, which are protected by the
Constitution of the Islamic Republic of Pakistan, 1973. No
doubt, commercial activities support the economy. However,
commercial activities cannot be a made a basis to deprive
citizens of basic amenities such as parks. There is sufficient
material on the record to support the proposition that the
Adjacent Plot was in fact, an amenity plot by its nature and
use, which could not be allotted to the Appellants in an
arbitrary and non-transparent manner, as done in the
present case. As such, the learned High Court was correct to
hold that the adjacent plot was illegally and unlawfully
amalgamated with the Commercial plot and that nature and
land use of the adjacent plot could not be changed, altered or
modified in violation of the rights of public at large which are
guaranteed by the Constitution of the country.
16. We find that the learned High Court has
proceeded on correct factual and legal grounds in the
impugned judgment. The learned ASC for the Petitioners has
been unable to point out any misreading or non-reading of
evidence by the High Court while passing the Impugned
Judgment. Further, no jurisdictional defect, error or flaw in
the Impugned Judgment has been found that may warrant
interference of this Court. On hearing the learned ASCs for
the parties and carefully perusing the record, we have arrived
at the same conclusion as the High Court and find no valid
ground, reason or basis to take a view different from the one
taken by the High Court.
t43j/h,. 
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17. In view of the foregoing, this Appeal is found to be
without merit. It is accordingly dismissed. The Impugned
Judgment dated 04.02.2014 passed b he High Court f
Sindh at Karachi is affirmed and upheld .
 
ISLAMABAD. THE
12 .05.2022
Hari3Ashtiaq LC/*
7fA pproved For Rrting'
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