IN THE SUPREME COURT OF PAKISTAN 
   (Original Jurisdiction) 
 
 
 
 
 
Present: 
 
 
 
Mr. Justice Iftikhar Muhammad Chaudhry, CJ. 
 
 
 
Mr. Justice Mian Shakirullah Jan 
 
 
 
Mr. Justice Saiyed Saeed Ashhad 
 
CONSTITUTION PETITION NO. 36 OF 2005. 
 
 
(Conversion of Public Park into a Mini Golf Course) 
 
Moulvi Iqbal Haider  
 
 
 
 
Petitioner. 
versus 
Capital Development Authority etc. 
 
 
 
Respondents. 
 
 
For the Petitioner 
 
: 
Raja Muhammad Ibrahim Satti, ASC a/w 
Moulvi Iqbal Haider,  
 
 
 
Ch. Muhammad Akram, AOR. 
 
For respondent No.1  
: 
Malik Muhammad Nawaz, ASC. 
 
 
 
 
 
Rai Muhammad Nawaz Kharral, ASC. 
 
 
 
 
 
Raja Abdul Ghafoor, AOR.  
 
For Respondent No. 2 
: 
Mr. Ahmer Bilal Sufi, ASC. a/w 
 
 
 
 
 
Mr. Arshad Ali Chaudhry, AOR. 
 
 
Date of hearing 
 
: 
07.02.2006. 
 
 
 
 
O R D E R 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – This petition, 
filed under Article 184(3) of the Constitution of Islamic Republic of 
Pakistan, 1973 [herein after referred to as “the Constitution”], involves the 
question of public importance with reference to enforcement of 
fundamental rights, detail whereof, article-wise, has been mentioned in 
memo of the petition.  
2. 
Petitioner has voiced against leasing out a piece of land, measuring 
approximately five acres, known as Jubilee Park, situated in Sector F-7, 
Islamabad by Capital Development Authority [herein after referred to as 
Const.P.36/2005 
2
“CDA”] (respondent No.1), to Shah Sharabeel, owner of Al-Falah Mini 
Golf (respondent No.2), a Lahore based party, for development/ running a 
“Mini Golf Course”, as a joint venture, with local and international 
parties, It is also alleged that the deal between respondent No.1 and 2 shall 
cause huge loss to the public exchequer.  
3. 
It is spelt out from the memo of petition that a Public Park, situated 
in Sector F-7, has been allowed to be converted into a Mini Golf Course 
and the land in this behalf has been leased out in favour of respondent No.2 
for a period of 15 years, with extendable period, at the rate of Rs.2.55 
million per annum, with increase of 25% in rent after every 5 years. It is 
also mentioned in lease agreement that the rent will start after twenty 
months (8+12=20) from the functioning of Mini Golf Course project. It is 
most important to note that CDA (respondent No.1) had also delegated its 
powers to respondent No.2 to enter into joint venture and franchise or give 
licence to local or international parties, food chains etc. Petitioner has 
alleged that as per the contents of the lease agreement, respondent No.2 has 
also been authorized to hold promotional functions like golf tournaments, 
funfair, Basant festival, theoretical activities, without paying any extra 
charges or rent to the CDA or seeking its prior permission, without caring 
that such a prime land has actually been reserved for general public park. It 
is alleged that initially respondent No.2 had deposited Rs.5 lacs with 
respondent No.1 at the time of signing of lease agreement and has been 
bound down to pay the amount of rent Rs.2.55 million per annum at the 
time of starting of the project. The transaction of leasing out five acres land 
concluded in an obscured manner as before allowing the conversion of the 
Public Park into the Mini Golf Course no opportunity was given to the 
Const.P.36/2005 
3
general public and other stakeholders to submit their objections. Inasmuch 
as lease has been granted to respondent No.2 without inviting bids from the 
general public through newspapers, as such the transaction is 
unconstitutional and has no legal effect.  
4. 
The petition was admitted on 26th December 2006 by means of 
following order :-- 
“Notice to respondents. 
2. 
Learned counsel for the respondent No.2 stated that he 
needs some time to file documents. The petitioner who 
appeared in person argued that valuable plot measuring 5 Acres 
situated in F-7, Islamabad has been given on lease without 
adopting a transparent procedure. He has further stated that an 
amenity plot has been given on lease to respondent No. 2 
which cannot be converted for commercial activities. 
According to him respondent No. 2 intends to construct 
outdoor entertainment park comprising of mini-golf etc, which 
would be out of reach of the members of the general public 
because all the activities shall be on commercial basis against 
the entry fee. In this behalf, it may be noted that this Court in 
the case of “Mian Fazal Din vs. Lahore Improvement Trust, 
Lahore and others” (PLD 1969 SC 223) has observed “that the 
plots in a Housing Scheme for public use cannot be converted 
for other use”, the relevant para for the convenience therefrom 
is reproduced herein below: - 
“---The deprivation of such a facility would, 
in our opinion, confer a sufficiently valuable 
right upon the residents of the scheme to 
enable them to maintain an application for 
enforcing 
the 
Trust 
to 
discharge 
its 
obligation of executing the Scheme as 
sanctioned by the Government.” 
 
3. 
After hearing learned counsel and having gone 
through the above judgment, we direct that pending decision of 
the petition, no further construction or other developments or 
any other commercial activity shall be carried out on the plot. 
The order be communicated to Inspector General of Police, 
Islamabad for its enforcement/implementation forthwith. He 
shall submit report on the next date of hearing in this behalf. 
Adjourned to a date in office in the month of February, 2006.” 
 
Const.P.36/2005 
4
5. 
Petitioner submitted an application for initiating procedings of 
contempt of Court as allegedly during pendency of the petition, the order 
passed by this Court reproduced herein above has been, prima facie, 
violated. Thus separate proceedings by means of order dated 6th February 
2006 have been issued which shall be disposed of independently.  
6. 
On behalf of petitioner, it is contended that :---  
a) 
Whenever, a scheme under the Provisions of 
Section 
12 
of 
the 
Capital 
Development 
Authority Ordinance 1960 [herein after referred 
to as “the Ordinance, 1960”] is prepared by the 
CDA, immunity plots including the plot for 
Public Park, playing field, graveyard, and 
incidental open places, etc. are earmarked 
separately.  
b) 
Under Regulation No.3 of the Islamabad Land 
Disposal Regulation 1993 [herein after referred 
to as “the Regulation”] for the purpose of 
establishing Mini Golf Course on the Public 
Park, no permission was sought from the Federal 
Government nor objections were invited in this 
behalf in accordance with Section 19 read with 
Section 20 of the Ordinance, 1960.  
c) 
The transaction has been made by respondent 
No.1 with respondent No.2 without any lawful 
authority and jurisdiction, as such, in this 
manner the fundamental rights of the general 
public enshrined in Articles 9 and 26 of the 
Constitution have been denied.  
Const.P.36/2005 
5
d) 
In a public park, citizens including children are 
not required to purchase tickets and once Mini 
Golf Course is established, the entry of general 
public would be obstructed in terms of imposing 
conditions, including purchase of tickets and to 
enjoy other amusement against payments.  
e) 
CDA is committed to provide a Public Park  for 
the residents of Sector F-7, which will be 
maintained by the authority itself and it cannot 
be allowed to be converted into a commercial 
project by the third party, in terms of Article 
12(3) of the Regulation. 
7. 
On the other hand learned counsel appearing for respondent No.1 
contended that :-- 
a) 
CDA being the competent authority has 
jurisdiction to lease out a property which has 
been acquired by it for the purpose of 
establishing public/amusement Park, to ensure 
entertainment facility to the inhabitants of the 
area.  
b) 
The transaction entered into by respondent No.1 
with respondent No.2 is highly transparent as it 
was concluded after observing all codel 
formalities including making the same open 
through publication, allowing to interested 
parties to participate in bid and as respondent 
No.2 fulfilled the requisite criteria, therefore, its 
firm was declared successful bidder. 
 
Const.P.36/2005 
6
c) 
Petition is not maintainable under Article 184(3) 
of the Constitution because no right of 
petitioner, guaranteed by the Constitution has 
been violated by respondent No.1. 
8. 
Learned counsel appearing for respondent No.2 argued that:---  
i) 
Respondent No.1 had not converted a Public 
Park into a commercial activity, except that an 
amusement 
Park 
for 
the 
purpose 
of 
entertainment, being built up with better 
facilities to entertain general public including 
the inhabitants of the area. 
ii) 
Lease has been given to respondent No.2 by 
respondent No.1 after observing all codel 
formalities, therefore, the same is not liable to be 
declared illegal as it is the obligation of the 
Courts to make all efforts to safeguard the 
official acts of the Government. 
iii) 
Respondent No.2, by now, had spent a 
considerable amount on the development of the 
Park, therefore, a valuable right has been created 
in his favour which is not to be interfered.   
9. 
We have heard the parties counsel at length and have also gone 
through relevant record carefully including the concise statement submitted 
by CDA.  
10. 
The concise statement filed by CDA proves that:--- 
i) 
The site, on which Mini Golf Course is being 
established, is a Public Park. It has not been 
developed into regular Park and its typography 
has remained intact all through.  
Const.P.36/2005 
7
ii) 
The area of the land leased out to respondent 
No.2 is about five acres, situated in Markez F-7 
and it is separated by a “Nullah” from the 
constructed and developed portion of Sector F-7.  
iv) 
The depth of the site of Mini Golf Course varies 
at different places from road level and there is a 
long ditch on this side as well, as such it is an 
ideal place for Mini Golf Course.  
11. 
It is true that CDA vide publications appeared on 1st and 2nd 
February 2004 in “Daily Frontier Post” and “Daily Jang”, respectively, 
issued notices for development of entertainment spots, including Mini Golf 
Course on its land, to be leased out to provide entertainment, recreation 
projects and its allied features in Islamabad for its general public and 
invited proposals for the accomplishment of the project, on terms and 
conditions noted therein. These publications in newspapers were followed 
by a second publication appeared in “Daily Jang” and “Daily Dawn” dated 
14th August 2004. In this publication technical/financial proposals were 
invited from interested parties to obtain the project on lease basis. For 
reference contents of the publication dated 14th August 2004 are 
reproduced herein below:--- 
“Development of Entertainment  
Spots on lease basis 
(Directorate General Environment) 
CDA intends to develop Entertainment Spots on the following 
sites on lease basis : 
 
Sr.No. 
Site 
Entertainment Activity 
1. 
Jubilee Park F-7 Markaz 
Mini Golf course 
2. 
Rawal Park 
Joy Land and other allied 
recreation 
3. 
I-8/3 &F-9 Park 
Go carting  
4. 
Hill Park F-6/3 
Rock Climbing, paint ball and 
skating Rink  
5. 
F-6 Markaz Foot Ball Ground 
Remote Control Car Racing 
6. 
F-7/4 Children Park  
Fun Games 
7. 
Suitable open spaces  
Community Sports Grounds 
i) 
No heavy Civil Structure will be allowed. 
ii) 
Open and soft landscaping will be done. 
Const.P.36/2005 
8
iii) 
Rides should be environment friendly. 
iv) 
Heavy rides will only be allowed in joy land. 
The interested parties are required to submit their technical / 
financial proposal on lease basis for development of 
entertainment spots with layout/design alongwith the names of 
firms its Legal status, Registration with government / Semi 
Government  Organizations, details of Technical staff, list of 
works of similar nature executed in past, List of similar works 
in hand and present status, list of T/P, Financial status, Income 
tax Registration with certificate with latest renewal and non-
litigation certificate. 
The interested parties/ contractors fulfilling the above 
requirements should submit their technical /financial proposals 
for designing and construction of entertainment spots in a 
sealed cover so as to reach in this office of Directorate General 
Environment located in Room No.7, Block No.2 Sector G-7/4, 
latest by 26-08-2004. The undersigned can be contacted during 
the office hours for any information required. 
  
 
Director General Environment, CDA.”  
 
12. 
It is most important to note that learned counsel for the CDA was 
time and again called upon to produce the order of the competent authority, 
on the basis of which the above noted projects, were launched, but he failed 
to do so. However, a perusal of summary prepared for the Board dated 22nd 
April 2005, copy of which is available alongwith the concise statement, 
filed by CDA, indicates that CDA Board in its meeting held on 15th 
February 
2005 
considered 
the 
summary 
(Non 
Agenda 
item 
No.8109/1006/2005-741/BF dated 15th February 2005). A perusal of this 
admitted document reveals that after making publications on 1st and 2nd 
February 2004 in “Daily Frontier Post” and “Daily Jang” respectively, 
some of the parties have given their proposals for development of 
Entertainment Spots etc. which also include the proposal of M/s Al-Falah 
Mini Golf, Lahore and its proposals were accepted for the following major 
terms and conditions:-- 
“The following major terms and conditions are framed 
for the agreement and will be made as a part of the lease 
agreement by the Authority for the lease of the said Jubilee 
Park which shall be binding on the firm /developer:-- 
Const.P.36/2005 
9
i. 
18 
holes 
golf 
course 
to 
be 
completed within 8 months from the 
date 
of 
lease 
agreement 
and 
possession of the site.  
ii. 
Rs.2.55 million (Twenty five lacs 
and fifty thousand only) annual 
consolidated rent  inclusive of all 
charges such as sponsorship tools/ 
signs in the project with 25% 
increase every five years for the 
land which is approximately 5.05 
acres also known as jubilee park in 
F-7 Markaz as shown in the survey 
plan.  
iii. 
The title of the land will not be 
changed and CDA will remain the 
Sole Owner of the land and the total 
area of the park will be utilized for 
the development of the Mini golf 
course and its allied features 
keeping it predominantly open.  
iv. 
The covered / built up area for 
indoor services and facilities as 
office / Administration Block = 100 
Sq. Yards, store room  = 25 Sq. 
Yards, toilets = 20 Sq. Yards, ticket 
+ Clubs / Putter booths = 20 Sq. 
Yards, Juice Bar = 60 Sq. Yards, 
indoor chai Ghar (Tea House) = 275 
Sq. Yards and coffee shop /  fast 
food café = 450 Sq. yards  will be 
up to the maximum aggregate of 
950 (Nine Hundred and Fifty) Sq 
Yards will be allowed.  
v. 
Semi Covered areas with all sides 
open, covered from the sky for table 
top games, snooker, pool and 
multiple ground level games /rides 
for families and children activities 
& eating Court. will be up to 1500 
(Fifteen Hundred) Sq Yards. 
vi. 
All remaining area utilized for Mini 
Golf Course and other open air 
facilities and allied features will be 
highly landscaped.  
vii. 
No 
permanent 
structures/ 
construction will be allowed in the 
area so granted to the firm / 
developer except as mentioned 
above.  
viii. 
The entire area so granted by the 
Authority will be developed and 
maintained by the firm / developer 
at their own cost.  
ix. 
The party / firm will submit site 
specific design and a complete 
master 
plan 
with 
features 
of 
services 
and 
allied 
facilities 
Const.P.36/2005 
10
conforming 
to 
international 
standard of Golf Hole Designs.  
x. 
A Bank draft / Pay order, in favour 
of Directorate Sports & Culture, 
CDA to an amount of Rs.500,000/- 
(Rupees five hundred thousand 
only) will be furnished by the 
developer as security at the time of 
signing of the lease agreement.  
xi. 
The 
execution 
of 
the 
lease 
agreement and the possession of the 
park will be completed within two 
weeks from the approval of the 
Board and execution of construction 
work will commence within 3 
months of the possession.  
xii. 
Multiple 
ground 
level 
/ 
bare 
minimum height rides and other 
similar 
sports 
/ 
entertainment 
activities are allowed.  
xiii. 
The rent will be charged one year 
after 
the 
start 
of 
mini 
golf 
operations to sustain stability which 
is 
the 
launch/opening 
of 
commercial operations.  
xiv. 
The lease period for the project is 
15 (fifteen) years and is renewable 
for another term on the satisfactory 
performance of the developer.  
 
The above conditions were subsequently incorporated in the lease 
agreement dated 5th June 2005.   
13. 
From perusal of publications, appeared initially on 1st and 2nd 
February 2004 in “Daily Frontier Post” and “Daily Jang” respectively as 
well as the publication appeared on 14th August 2004 in “Daily Jang” and 
“Daily Dawn”, it is abundantly clear that no area was earmarked for the 
purpose of establishing/developing Mini Golf Course at the site of Jubilee 
Park in Sector F-7. It seems that this device was adopted to keep the 
interested parties out of competition, except the respondent No.2, who 
statedly had the experience of running identical project at Lahore. Thus, we 
are of the opinion that disclosure of the area, on which the Mini Gold 
Course was to be developed, was necessary in the publication and in this 
Const.P.36/2005 
11
way the interested parties would have given much higher bids then the one, 
on which CDA had leased out land to respondent No.2 i.e Rs.2.55 million 
per annum. We were told that admittedly the plot of five acres, leased out to 
respondent No.2, is situated in most expensive location of Sector F-7 and is 
situated adjacent to the main road, therefore, it is a prime land being 
situated in the heart of the Capital.  
14. 
There is yet another important aspect of the case which requires 
serious consideration namely as per the contents of the publication dated 
14th August 2004 in “Daily Dawn” the interested parties were prohibited not 
to raise heavy civil structure, whereas according to the terms of the lease 
agreement, construction of the area equal to 950 sq. yards has been allowed 
to respondent No.2. In this behalf, reference be made to the conditions No.4 
& 5, which have been reproduced herein above. So far as condition No.5 is 
concerned, as per its contents, the provision of an eating place on 1500 sq. 
yard has also been allowed, meaning thereby that a big space has been 
allocated for the purpose of selling and catering eatables.  
15. 
What we have understood from above documents is that in the 
Capital territory, a master plan was prepared at the time of its inception and 
subsequently under different schemes, different sectors were set up. In this 
behalf, reference to the preamble and Sections 11 and 12 of the Ordinance, 
1960 may be made. In the scheme of a sector, some of the areas have been 
earmarked as a Public Park to attract general public. According to Article 
12(3) of the Regulation, the public 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 
Const.P.36/2005 
12
piece of land has been earmarked for the purpose of Public Park, same 
cannot be leased out and CDA itself is bound to develop the same.  
16. 
There is yet another important provision of law, which prohibits 
CDA to amend the scheme i.e. Sections 19 and 21. Admittedly, in instant 
case, in terms of these Sections, neither the permission was sought to 
convert the Public Park into the Mini Golf Park nor before doing so 
objections were invited from the general public in terms of Section 21 of 
the Ordinance, 1960. This Court way back in 1969 in the case of Mian 
Fazal Din    v.    Lahore Development Trust, Lahore  (PLD 1969 SC 
223) has held that “the plots in a Housing Scheme  for public use cannot be 
converted for other use”. Relevant para from this judgment has already 
been reproduced in the order dated 26th December 2005. Admittedly a 
Public Park, if is earmarked in a housing scheme, creates a right amongst 
the public and that right includes their entry in the Park without any 
obstacle, being fundamental right enshrined in Article 26 read with Article 
9 of the Constitution. It may be noted that liberty of a person, to have 
access or utilize a right available to him, cannot be taken away by 
converting such facility into commercial one, for the purpose of extending 
benefit to a third person, because in instant case considerably a big plot of 
land, measuring five acres, has been handed over to respondent No.2 at a 
throughway lease money, causing huge loss to the public exchequer, 
therefore, tax payers have a right to inquire from CDA 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.   
Const.P.36/2005 
13
Crescent Textile (PLD 2004 SC 108). Relevant para therefrom is 
reproduced herein below:-- 
“15. 
The argument that a number of questions of facts 
were involved in the case which were required to be 
decided, therefore, the respondent, writ petitioner should 
have been directed to seek alternate remedy of filing suit, 
for evidence to determine disputed questions of facts 
could not be recorded within the scope of Constitutional 
Jurisdiction under Article 199 of the Constitution has also 
no force though there can be no cavil with the general 
proposition of law as contained in this argument. The 
only question which was involved in this case was as to 
the date with reference to which the price of the land is to 
be determined and charged from the respondent writ 
petitioner, as such the same could legally be decided in 
the Constitutional jurisdiction……………….”  
 
17. 
It has been noted that deal between respondent No.1 and 2 has not 
been made in a transparent manner, coupled with the fact that the lease of a 
Public Park has been given for 15 years at the rate of Rs.2.55 million per 
annum, which shall be paid after about 20 months as according to lease 
agreement the project is to be completed within eight months and the rent 
would be due after one year from the date of the functioning of the project 
with clear delegated authority to the lessee that it can issue licence to the 
local or international parties for the purpose of providing amusement/ 
commercial activities, etc. whereas the law, on the other hand, is, as 
discussed herein above, that such Parks are to be developed or to be 
maintained by the CDA itself. Essentially, when a party makes investment, 
may be meager one, it would make money by granting licences, franchise, 
etc. for which it will enter into agreements with local and international 
parties and the burden of the same ultimately is to be borne by the general 
public, in terms of tickets, amusement fee etc. 
Const.P.36/2005 
14
18. 
It is to be observed that under Section 49 of the Ordinance, 1960 
CDA retains powers for the purpose of leasing, selling, exchanging the land 
etc. vested in it. For the purpose of achieving the object of this Section, 
from time to time, Rules and Regulations are framed, as it is evident from 
the contents of Notification dated 18th December 1993 (No.CDAS-
30(2)(NOTI)-Coord 93.) Reference of some of the Regulations, framed 
thereunder, has already been made herein above. [The Islamabad Land 
Disposal Regulation 1993]. It is equally important to note that learned 
counsel for petitioner when called upon to satisfy as to whether in terms of 
Ordinance 1960, the master plan is available with the CDA, 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 alongwith 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 CDA 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 CDA or not? But despite of our 
demand, said file was not produced and ultimately Chairman CDA gave a 
Const.P.36/2005 
15
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 CDA.” 
 
Non-production of above file persuades us to draw adverse inference 
against the CDA, necessarily with all consequences.  
19. 
It is quite surprising to note that the CDA though claimed that the 
transaction of leasing out the Jubilee Park Markaz F-7, is transparent but it 
had miserably failed to demonstrate the same for the reasons, one of them 
noted herein above, and the others are being discussed below. It is a matter 
of record that before inviting proposals for leasing out different open areas 
for the development of Mini Golf Course, etc. no decision was taken by the 
Board of CDA, constituted under Section 6 of the Ordinance, 1960. Thus 
publications, dated 1st and 2nd February 2004, appeared in Daily Frontier 
Post and Daily Jang, respectively, were without any legal sanctions. It 
seems that in pursuance of publications, interested parties submitted their 
proposals and out of them, after short listing, respondent No.2 and M/s 
Family Entertainment Center were selected. It may be noted that M/s 
Family Entertainment Center claims itself to be developers, promoters and 
project manager of Tourist Resorts, Amusement/Theme Parks, Miniature 
Golf, Water Play Amenities, Attractions Developments and is acting as a 
consultant/ collaborator in developing the required Golf Course on behalf 
of a company known as  M/s LOMMA Enterprises Incorporation of 
Scranton, Pennsylvania, USA through its CEO Mr. Adnan Hameed, and 
respondent No.2 i.e. Al-Falah Mini Golf were pre-qualified to participate in 
Const.P.36/2005 
16
the bid. Later on, in pursuance of the publication appeared in newspapers 
i.e. Daily Jang and Daily DAWN, on 14th August 2004 they were called 
upon to submit their tenders for acquiring the land on lease to develop the 
Mini Golf Course.  
20. 
At this juncture, to unfold the mala fides on the part of respondent 
No.1 i.e. CDA, it is to be noted that in the publication, neither specification 
of the area of Jubilee Park Markaz F-7 was mentioned, on which Mini Golf 
Course was to be developed nor the period for which the lease was intended 
to be given. Inasmuch as, it was not disclosed in the publication that what is 
the reserved lease money fixed by the CDA because in absence of such 
information, the genuine bidder could not offer bid accurately except those 
bidders who have the blessings of the authority competent to accommodate 
any one of them out of way. It is also important to be kept in mind that 
volume of the lease money depends upon the area of the land, as we are of 
the opinion that if CDA had disclosed in publication that an area of 5.05 
acres is available for the purpose of development of Mini Golf Course, 
there was every possibility of fetching much higher lease money, than one, 
on which it has been given to respondent No.2. We are told that the plot is 
situated in the commercial area of Markaz F-7, where the prices of the 
property are extremely on a high side but with ulterior intentions, this 
important information was concealed.  
21. 
Be that as it may, out of both the pre-qualified interested parties, M/s 
Family Entertainment Center offered 2.5 million (Rs.25 lacs) per annum for 
the subject matter, whereas respondent No.2 offered Rs.6 lacs per annum 
rent for the subject matter for a period of at least 15 years, with 25% 
increase on every three years. It is stated that the CDA evaluated both the 
Const.P.36/2005 
17
offers and rejected the one quoted by M/s Family Entertainment Center, as 
it has failed to secure requisite points as obtained by respondent No.2, as 
such respondent No.2 was called upon to increase/match the bid up to 
Rs.2.5 million. However, the report of evaluation committed is not 
available to ascertain as to whether it was carried out independently or 
otherwise. Thus it is held that in such like situation,  CDA if at all was 
interested  to lease out the Public Park, instead of developing the same, may 
have invited fresh proposals instead of calling upon respondent No.2 to 
enhance the lease money because in granting contracts for the purpose of 
fetching money to support the public exchequer, the competent authority 
had an obligation to adopt such devices on the basis of which more money 
could be procured as it has been held in Captain-PQ Chemical Industries  
(Pvt) Ltd.   v.   A.W. Brothers (2004 SCMR 1956). CDA seems to be 
interested to grant lease of Jubilee Park to respondent No.2, as it is evident 
from preceding narration of facts. The negotiation with respondent No.2 
culminated in its success because of its agreeing to match the bid to the 
extent of Rs.2.5 million, which was however, subject to extending him 
extra ordinary benefit in formulating the conditions of agreement, two of 
them are most important, which may be referred to from the conditions 
reproduced herein above i.e. being No.4 & 5, which, later on, became part 
of the lease agreement dated 4th June 2005 as conditions No.14 and 15. 
These concessions were allowed to respondent No.2 contrary to the 
restriction imposed in the advertisement published on 14th August 2004 
namely, no heavy civil structure will be allowed, open and soft landscaping 
will be done, whereas contrary to it, respondent No.2 has been allowed to 
construct area of 1000 sq. yards besides 1500 sq. yards for family and 
Const.P.36/2005 
18
children activities and eating court, which is impossible unless a concrete 
flooring is made. It is also to be seen that nothing was mentioned in the 
publication in respect of concession expected to be available to successful 
bidders in terms of period of lease, the area, as it has been pointed out 
herein above, the period of completion of project and commencing date for 
the purpose of making payment of lease money i.e. after a period of about 
20 months, etc.  
22. 
It is an unfortunate aspect of the case that prime land situated in one 
of the most posh area of the capital city has been leased out in a most 
opaque manner, causing colossal loss to the public exchequer for which 
CDA had no authority, as discussed above.  It is also to be noted that 2nd 
contesting party i.e. M/s LOMMA Enterprises Incorporation through its 
CEO Mr. Adnan Hameed i.e. M/s Family Entertainment Center, challenged 
the approval of the bid in favour of respondent No.2 before the High Court 
by way of filing Writ Petition. Written reply of the same was also submitted 
by respondent No.1. In that Writ Petition very serious allegations were 
leveled, which though were repudiated but subsequently, writ petition was 
got dismissed in absentia, reasons known to the writ petitioners as well as 
to respondent No.1 because on the date of dismissal of writ petition, CDA 
also opted not to appear in the Court, therefore, for such reason no 
favourable inference can be drawn in respect of conduct of respondent No.1 
during the proceedings.  
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 Karim Shorash Kashmiri 
Const.P.36/2005 
19
(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. 
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 from the books 
written by Architects with regard to explain the idea of planning and 
development of the Islamabad. One of the para from the said book 
compiled by CDA, Government of Pakistan i.e. Communities & 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 an dhow 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 
Const.P.36/2005 
20
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. more than 
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 alongwith children, subject to 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.  
26. 
Learned counsel emphasized that it` is the obligation of this Court to 
safeguard the acts of the Government. To support his arguments, he 
referred to Lahore Improvement Trust    v.   Custodian of Evacuee 
Property (PLD 1971 SC 811).  
In above judgment it has been held that “before an order passed by a 
public authority is struck down, it is the duty of the court to explore every 
possible explanation for its validity and examine the entire field of powers 
conferred on the authority in pursuance to which the impugned order has 
Const.P.36/2005 
21
been passed. We subscribe to the principle laid down in this judgment but it 
is to be seen whether the authority who has granted lease to respondent 
No.2 has acted fairly, transparently, judiciously and above any suspicion. 
Unfortunately, these elements are lacking in instant case, therefore, 
allowing respondent No.2 to avail the benefit out of the lease agreement, 
would tantamount to perpetuate the unlawful/illegal acts of both of them. 
27. 
Learned counsel vehemently emphasized that respondent No.2 has 
acquired a right to enjoy the lease hold rights, as after taking over 
possession, he spent a considerable amount in the development of the 
Jubilee Park.  
In this behalf it may be noted that in the concise statement 
respondent 
No.2 
has 
admitted 
that 
a 
foreign 
investment 
of 
telecommunication concern  namely “WARID”, which is a multinational 
company, with funds to utilize for public service development and if 
petition is entertained and allowed, it would result in irreparable loss to 
respondent No.2 as well as many other future service projects under the 
patronage and support of this multinational company. With reference to this 
statement of fact, it is to be noted that respondent No.2 had taken over the 
possession of five acres prime land, after paying only security amount of 
Rs.5 lacs and had constructed a boundary fence temporarily, on which a 
logo of “WARID & CDA” was applied. This fact is available in Criminal 
Original Petition No. 1 of 2006, which is being dealt with separately. 
Essentially alongwith a commercial multinational company to get the 
publicity of its product by using even temporarily constructed boundary 
fence, means to attract business for the said company and such concession 
obviously cannot be allowed, without any consideration. Moreover, 
Const.P.36/2005 
22
Investor of the multinational company has not entered into contract with the 
authority or the Government of Pakistan directly. Actually they wanted to 
run the business with respondent No.2 being a lessee, which he has 
obtained by means of illegal transaction, which has got no legal sanctity. 
For such reason, no concession can be extended to respondent No.2 or any 
other party who is not before the Court. If at all, the multinational company 
is interested in the business, it could have participated in open bid for 
obtaining development lease hold rights, subject to law from the CDA. 
Furthermore, if the company had not apparently provided any facility to the 
general public, how they can sacrifice their fundamental rights, solely for 
the reason that it has got permission to publicize its product, in 
collaboration with respondent No.2 for the purpose of earning profit at their 
cost.   In addition to it, in future, if such multinational company alongwith 
others would be permitted to use the plot for other commercial purposes, its 
financial burden has to be borne by an ordinary person, in violation of the 
Article 26 of the Constitution, which is not permissible.  
28. 
It may be noted that a vested right of an individual can be protected, 
if the order passed in his favour is lawful as it has been held in Engineer-
in-Chief Branch    v.     Jalaluddin  (PLD 1992 SC 207) and Abdul 
Haque Indhar    v.   Province of Sindh  (2000 SCMR 907). Therefore, the 
arguments so put forward by the learned counsel has no force.  
29. 
Now turning towards the maintainability of the petition under Article 
184(3) of the Constitution, as according to learned counsel for respondent 
No.1, the petition is liable to be dismissed in view of the judgments 
reported in  Muhammad Shahbaz Sharif      v.      Federation of Pakistan 
(PLD 2004 SC 583) and All Pakistan Newspapers Society    v.    
Const.P.36/2005 
23
Federation of Pakistan (PLD 2004 SC 600). In both these judgments it 
has been held that petition can be maintained subject to establishing by the 
petitioner that question of public importance with reference to enforcement 
of fundamental rights has been made out. According to learned counsel, as 
both these elements are missing, therefore, a person, who is outsider i.e. is 
not resident of Islamabad could not maintain such petition.  
30. 
Learned counsel for petitioner when confronted with above 
arguments of learned counsel for respondent No.1, contended that the Court 
is not bound to examine the credential of an individual who has laid 
information before the Court but to see the nature of action under challenge. 
Reliance in this behalf has been placed by him Pakistan Tobacco 
Company Ltd.   v.   Federation of Pakistan (1999 SCMR 382). It would 
be appropriate to quote reference from the judgment for convenience, 
wherein this Court has highlighted very important principle to attract the 
provisions of Article 184(3) of the Constitution :--- 
“maintainability of a petition under Article 184(3) of the 
Constitution is to be examined not on the basis as to who 
has filed the same but if the controversy involves 
question of public importance with reference to 
enforcement of any of the fundamental right, petition will 
be sustainable” 
In addition to above principle, this Court in the case of  Javed Ibrahim 
Paracha   v.   Federation of Pakistan and others  (PLD 2004 SC 482) has 
held that “a person can invoke the Constitutional jurisdiction of the superior 
Courts as pro bono publico but while exercising this jurisdiction, he has to 
show that he is litigating, firstly, in the public interest and, secondly, for the 
public good or for the welfare of the general public. The word ‘pro bono 
publico’  as defined in Blacks Law Dictionary, Chambers Dictionary and 
Const.P.36/2005 
24
Oxford Dictionary generally means ‘for the public good’ or ‘for welfare of 
the whole’ being or involving uncompensated legal services performed 
especially for the public good. ‘Public interest’ in the Black Law 
Dictionary, has been defined as the general welfare of the public that 
warrants recognition and protection. Something in which the public as a 
whole has a stake; esp., an interest that justifies governmental regulation. It 
thus signifies that in case of public interest litigation, one can agitate the 
relief on his own behalf and also on behalf of the general public against 
various public functionaries, where they have failed to perform their duties 
relating to the welfare of public at large, which they are bound to provide 
under the relevant laws. Viewing the bona fide of petitioner in the above 
contest, we are of the opinion that the petitioner has not been able to show 
that he was aggrieved person within the meaning of Article 199 of the 
Constitution and can agitate his grievance as ‘pro bono publico’.”    
Thus, following the above principles, we are of the opinion that 
petition on behalf of petitioner is maintainable in view of above noted facts 
and circumstances of the case.  
31. 
Now we will examine whether in view of the given facts and 
circumstances of the case, any of the fundamental rights guaranteed to the 
citizens of Pakistan have been denied. Islamabad, being a capital city, 
attracts representation from all over Pakistan in different capacities. Thus it 
is their right to enjoy access to the places of entertainment like the Jubilee 
Park, etc. under Article 26 of the Constitution. The same is the position of 
the inhabitants of the area where the Park is situated. As it has been stated 
herein above that necessary documents have been withheld by the CDA 
from the Court for which, observation have been made herein above. Thus, 
Const.P.36/2005 
25
it is held that Jubilee Park was earmarked in the original scheme of  Sector 
F-7, as it was meant for low income group, who are deprived of the benefits 
of having their own private gardens, comparing to higher income groups, 
therefore, converting such Parks for commercial activity with the 
collaboration of multinational companies, would deny the rights guaranteed 
to them.  
32.  
Next question in this regard is whether the action violating the 
fundamental rights can be perpetuated merely for the reason that petitioner 
is outsider. In our considered opinion, for such reason alone, the person 
who approaches the Court for exercising the jurisdiction under Article 
184(3) of the Constitution by this Court is not disqualified and the petition 
can be maintained accordingly. So far as the judgments relied upon by the 
learned counsel for respondent No.1 are concerned, those are not attracted 
in view of the fact that in both the case, rights of individuals were involved 
and the conditions laid down under Article 184(3) of the Constitution that 
the question of public importance with reference to enforcement of 
fundamental rights are not available, whereas in instant case on account of 
conversion of Jubilee Park into a commercial oriented amusement Park, 
fundamental rights of the public have been violated and due to non-
enforcement of the public rights, enshrined in Article 26 of the 
Constitution, the question of public importance has been made out, 
therefore petition is maintainable, particularly when there is no disputed 
fact as it has been noted herein above. This Court and the High Courts in 
such like cases have encouraged invoking jurisdiction of Courts directly 
Const.P.36/2005 
26
with  a view to do complete justice. Reference in this behalf may be made 
to Muhammad Bashir   v.   Abdul Karim (PLD 2004 SC 271). Relevant 
para therefrom reads as under:-- 
“15. 
…………………We are not persuaded to agree 
with Sardar Muhammad Ghazi, learned Advocate 
Supreme Court  for appellant that the scope of Article 
199 is limited and such like controversy could not have 
been dilated upon and decided by the High Court while 
exercising Constitutional jurisdiction for the simple 
reason that record was crystal clear and accordingly the 
controversy being not ticklish and complicated could 
have been decided. It is well settled by now that “Article 
199 casts an obligation on the High Court to act in aid of 
law, protect the rights of the citizens ithin frame work of 
the Constitution against the infringement of law and 
constitution by the executive authorities, strike a rational 
compromise and a fair balance between the rights of the 
citizens and the actions of the State functionaries, 
claimed  to be in the larger interest of society. This power 
is conferred on the High Court under the Constitution and 
is to be exercised subject to Constitutional limitations. 
The Article is intended to enable the High Court to 
control executive action so as to bring it in conformity 
with the law. Whenever the executive acts in violation of 
the law, an appropriate order can be granted, which will 
relieve the citizen of the effects of illegal action. It is an 
omnibus Article under which relief  can be granted to the 
citizens of the country against infringement of any 
provision of law or of the Constitution. If the citizens of 
this country are deprived of the guarantee given to them 
under the Constitution, illegally or, not in accordance 
with law, then Article 199 can always be invoked for 
redress”. (Ghulam Mustafa Khar   v.  Pakistan and others 
PLD 1988 Lah. 49, Muhammad Hussain Khan  v.  
Federation of Pakistan PLD 1956 Kar. 538 (FB), S.M. 
Yousuf   v.  Collector of Customs PLD 1968 Kar. 599 
(FB). It is to be noted that “paramount consideration in 
exercise of Constitutional jurisdiction is to foster justice 
Const.P.36/2005 
27
and right a wrong”. (Rehmatullah   v.  Hameeda Begum 
1986 SCMR 1561, Raunaq Ali   v.  Chief Settlement 
Commissioner PLD 1973 SC 236). There is no cavil with 
the proposition that “so long as statutory bodies and 
executive authorities act without fraud and bona fide 
within the powers conferred on them by the Statute, the 
judiciary cannot interfere with them. There is ample 
power vested in the High Court to issue direction to an 
executive authority when such an authority is not 
exercising its power bona fide for the purpose 
contemplated by the law or is influenced by extraneous 
and 
irrelevant 
considerations. 
Where 
a 
statutory 
functionary acts mala fide or in a partial, unjust and 
oppressive  manner, the High Court in the exercise of its 
writ jurisdiction has ample power  to grant relief to the 
aggrieved party”. (East and West Steamship Co.   v.  
Pakistan  PLD 1958 SC (Pak) 41). In our considered 
view, technicalities cannot prevent High Court from 
exercising its Constitutional jurisdiction and affording 
relief which otherwise respondent is found entitled to 
receive.…………………”     
33. 
It is most important to note that functionaries, exercising statutory 
powers like CDA, 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 disciplinary action. 
This Court in the case Fazal Din    v.  Lahore Improvement Trust (PLD 
1969 SC 223), reference of which has already been 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 
Const.P.36/2005 
28
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 parties, food chains etc. In our opinion, such 
delegation to private person to watch his financial interests of the high 
degree 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 abovesaid 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 months before the High Court of 
Balochistan, copies being endorsed to this Court. It will 
Const.P.36/2005 
29
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.”   
     
 
34. 
Thus for the foregoing reasons, petition is accepted in the following 
terms:--- 
a) 
The lease agreement dated 4th June 2005, 
executed by respondent No.1 with respondent 
No.2, for the development of Mini Golf Course 
on the site of Jubilee Park, Sector F-7, is not 
sustainable in the eye of law, being contrary to 
fundamental rights of the General Public, 
enshrined under Article 26 of the Constitution. 
b) 
Respondent No.2 is directed to handover vacant 
possession of the plot, lease of which has been 
obtained by him from respondent No.1 within a 
period of four weeks, in its original condition, 
subject to complying with the supra direction. 
Respondent No.1 will refund Rs.5 lacs to 
respondent No.2 deposited by it as security. 
Enquiry report shall be sent to Registrar within 
three months for our perusal in Chambers and 
passing further order, if need be.  
c) 
The Board of CDA shall examine the case 
thoroughly to explore possibility of initiating 
disciplinary/penal action before the competent 
forum against the delinquent Officers/ Officials, 
responsible for executing the lease with 
respondent No.2, in view of the law laid down 
Const.P.36/2005 
30
by this Court in the case of Pervaiz Oliver  
(ibid).  
d) 
The Board of CDA will take steps to find out the 
record of Jubilee Park, F-7 i.e. PC-1, etc. and if 
record is not made available, then report shall be 
lodged before the competent law enforcing 
agency, according to law.  
e) 
CDA, however, shall be free to develop Jubilee 
Park itself for the purpose of providing 
entertainment to the public of Islamabad, in 
discharge of its duties under the law.  
No order as to costs.      
     
 
 
 
 
 
 
 
CJ. 
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
J. 
Islamabad, 
07.02.2006. 
Irshad /* 
 
 
 
APPROVED FOR REPORTING.  
