IN THE SUPREME COURT OF PAKISTAN 
(Original Jurisdiction) 
 
 
 
 
 
 
 
PRESENT: 
 
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ 
MR. JUSTICE GHULAM RABBANI 
MR. JUSTICE KHALIL-UR-REHMAN RAMDAY 
 
HUMAN RIGHTS CASE NO. 4668 OF 2006 
HUMAN RIGHTS CASE NO. 1111 OF 2007  
HUMAN RIGHTS CASE NO. 15283-G OF 2010 
 
[Action taken on news clippings regarding 
Fast Food outlet in F-9 Park Islamabad] 
 
Applicant:   
 
Barrister Saadia Abbasi with  
Mr. Amanullah Kanrani, ASC 
 
 
 
  
 
For the CDA:  
 
Mian Allah Nawaz, Sr. ASC  
Mr. Afnan Karim Kundi, ASC  
 
 
 
 
Mr. Imtiaz Inayat Illahi, Chairman, CDA with 
 
 
 
 
Mr. Mazhar Hussain, Member (Environment) 
 
 
 
 
Mr. Abdul Jabbar Milano, Member Planning/ 
 
 
 
 
Engineering 
 
 
 
 
Syed Mustafain Kazmi, Member  
 
 
 
 
Administration 
 
 
 
 
Mr. Mansoor Ali Khan, Director DMA  
 
 
 
 
 
For Siza Foods:   
Mr. Anwar Kamal, Sr. ASC 
 
 
 
 
With Amin Muhammad Lakhani 
 
For NPC:   
 
Mr. M. Bilal, Sr. ASC  
 
 
 
 
 
Mr. Shah Sharabeel in person 
 
Dates of hearing:  
06, 07, 10 & 13.05.2010  
.-.-.  
 
JUDGMENT  
 
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – In January 
2005, the Capital Development Authority (CDA) leased out a plot 
of 6000 square yards in F-9 Park (Fatima Jinnah Park) to M/S 
HRC 4668-2006 etc. 
2 
Siza Foods (Pvt.) Ltd., hereinafter referred to as “M/S Siza 
Foods”, a franchise holder in Pakistan of McDonald’s Corporation, 
Delaware, 
USA, 
for 
setting 
up 
a 
fast 
foods 
restaurant 
(McDonald’s Pakistan) on the western side of F-9 Park (Fatima 
Jinnah Park). The members of the civil society expressed grave 
concerns in a segment of the press about the legality/desirability 
of the project in a public park. Barrister Saadia Abbasi, Member, 
Senate of Pakistan also, vide application dated 14.02.2007 
highlighted the issue and alleged that permission to set up a fast 
food restaurant in the public park was, in fact, a special 
favour/benefit bestowed upon a particular individual in sheer 
violation of CDA Rules and Regulations, which was also violative 
of several fundamental rights guaranteed to the citizens of the 
country under the Constitution. The matters were registered as 
Human Rights Cases.   
2.  
 
During hearing, it was divulged that apart from the 
McDonald’s Restaurant, some other buildings, namely, Aiwan-e-
Quaid and Bowling Centre had already been constructed in F-9 
Park and were operative, whereas Citizens Club was being 
constructed. In pursuance of the Court orders, the Chairman CDA 
filed comments/replies on all the above projects.  
3.  
 
On the issue of McDonald’s, it was stated, inter alia, 
that  as per Master Plan developed by the Japan International 
Cooperation Agency (JICA), various areas for different activities, 
viz., amusement park, sport facilities and cuisine areas were 
earmarked for shops, food outlets, etc. In order to develop 
HRC 4668-2006 etc. 
3 
multinational food chain in the Park, expression of interest from 
the interested parties through public advertisement was invited 
on 08.07.2004. Two firms, namely M/S Siza Food and M/S 
Sheikh Trading International, USA came forward. The expression 
of interest was evaluated by a committee headed by Director 
General (Environment), CDA, on whose recommendation, the 
case was placed before the CDA Board for leasing out an area of 
6000 sq. yards to M/S Siza Foods @ Rs.275,000/- per month or 
5% of the gross income from sales, whichever was higher for a 
period of 33 years. Offer letter was issued on 23.09.2004, the 
MoU was signed on 25.09.2004 while the lease agreement 
entered on 14.01.2005. Later on, a revised lease deed was 
entered into between the parties wherein lease amount was 
enhanced to Rs.316,250/- per month (15% higher than the 
earlier one). It was further agreed that the lessee would also 
develop five acres of the Park in two phases with its maintenance 
until the expiry of the lease period.  
4.  
 
In the rejoinder filed in HRC No. 1111/207, the 
applicant alleged violation on the part of CDA authorities of 
Articles 9, 25, 26 and 38 of the Constitution in the light of the 
law laid down in the case of Iqbal Haider v. Capital Development 
Authority (PLD 2006 SC 394) wherein it was held, inter alia, that 
commercial activities in public parks were violative of Article 26 
of the Constitution, therefore, the lease agreement granting 
rights to a private company to operate a mini-golf course in a 
public park in Sector F-7, Islamabad was set aside.  
HRC 4668-2006 etc. 
4 
5. 
 
On the question of allotment of plot to Nazriya 
Pakistan Council (NPC), the CDA submitted, inter alia, that vide 
letter dated 04.06.2001, Director General, Libraries, Ministry of 
Education informed CDA that Minister for Education had directed 
to request CDA for allotment of plot earmarked for Library to NPC 
for construction of Aiwan-e-Quaid, which would also house 
Islamabad Public Library. The CDA, in turn, informed them that 
as the provisions of Islamabad Land Disposal Regulations, 1993 
did not allow allotment of such plots to private organizations, it 
might consider to allot the site to the Ministry of Education. As 
such, MoU was signed between Ministry of Education and NPC for 
establishment of Aiwan-e-Quaid on the said plot. In pursuance of 
Prime Minister Secretariat letter dated 30.05.2005, with the 
approval 
of 
the 
Chairman, 
CDA, 
allotment 
letter 
dated 
02.08.2005 was issued to NPC.   
6.  
 
On the issue of Citizens Club, it was submitted that 
the provision for a club house was there since long, which was 
reflected in the Master Plans of 1992 and 1995 (prepared by 
JICA). In June 2007, the then Chairman CDA, Mr. Kamran 
Lashari during his visit to the F-9 Park instructed Mr. Nayyar Ali 
Dada, the principal architect for development of the Park to 
prepare the concept design of Citizens’ Club to be established in 
the Park. The construction of Citizens Club was earlier proposed 
in Sector H-11/2 but later on shifted to F-12 and then re-shifted 
to Fatima Jinnah Park, Sector F-9 due to non-acquisition of land 
in Sector F-12. The CDA Board, in its meetings held on 
HRC 4668-2006 etc. 
5 
24.09.2007 and 01.10.2007 decided that M/S Nayyar Ali Dada & 
Associates 
were 
already 
working 
as 
consultants 
for 
the 
development of the Park as project consultants, therefore, there 
was no need of separate approval of the case. The engineering 
estimates prepared by the consultants were sanctioned for 
Rs.1.383 billion by Member (Planning), CDA on 29.10.2007. 
Pursuant to the invitation of tenders published in the newspaper, 
the lowest bid quoted by M/S Expertise (Pvt.) Ltd., was accepted 
by the Chairman. The club facilities would include auditorium, 
conference rooms, fitness centre, gymnasium & aerobic area, 
tennis courts, squash courts, billiard room, games room, 
swimming pools, banquet halls, restaurants, bakery, library, car 
parking and residential rooms for the members. The proposed 
membership structure of the club was 62.5% (private citizens), 
15% (government officers & parliamentarians), 7.5% (CDA 
officers) and 15% (diplomats/corporate). Cost of the project 
excluding furnishing was worked at Rs.1254.149 million. An 
amount of Rs.575.146 million had been expended so far. Physical 
progress of the work was 69.16%.  
7.  
 
On the question of bowling centre, it was stated that 
as per Master Plan prepared by JICA, a variety of amusement 
and entertainment facilities were to be provided in south-western 
part of the Park. On 11.06.1994, the CDA published notice for 
pre-qualification in the newspapers to lease out a plot measuring 
2 acres of land for construction and operation of a bowling centre 
in F-9 Park to which seven parties responded. The highest bid of 
HRC 4668-2006 etc. 
6 
Rs.752,000/- per annum was offered by M/S S&S Enterprizes. 
The CDA Board, in its meeting dated 27.11.1994, approved 
award of licence for a period of 20 years to M/S S&S Enterprizes. 
It was, inter alia, provided that it would be a single storeyed 
building having basement with a maximum covered area not 
exceeding 1/3rd of the total land, which was reduced to 1.5 acres. 
In 1997-98, the CDA issued various notices to the licensee for 
illegal construction/extension of mezzanine floor, stair tower, 
construction of swimming pool, changing room and toilets at the 
basement level, 10 shops instead of 3 approved, extension of 
basement, solid wall instead of see-through fence and ice cream 
parlor. There was litigation between the licensee and the CDA. 
Ultimately, the CDA Board in its meeting dated 07.06.2007 
regularized the unauthorized construction on payment of certain 
penalties/charges.  
8. 
 
Mian 
Allah 
Nawaz, 
Sr. 
ASC, 
learned 
counsel 
representing CDA in the matter of M/S Siza Foods candidly 
conceded that no order for change in the Master Plan was 
available on record and that the CDA, vide publication dated 
09.07.2004 did not invite any national food chain, which violated 
Article 18 of the Constitution. However, without controverting or 
disputing the facts leading to grant of lease for the construction 
of McDonald's restaurant, he insisted that as now huge amount 
had been spent, therefore, following the principle of equity, the 
violation of above constitutional provision and the law, if any, be 
HRC 4668-2006 etc. 
7 
condoned by issuing direction in a manner that the restaurant 
might also continue functioning in the interest of the CDA.  
9. 
 
Mr. Anwar Kamal also candidly accepted violation of 
Article 18 of the Constitution. However, his claim was that M/S 
Siza Foods, a franchise holder of McDonald’s, hardly could be 
held responsible for the same as in response to a publication 
appeared in the newspaper in February 2004, they filed an 
application and as no further progress was made, therefore, 
when second publication appeared, M/S Siza Foods again 
submitted expression of interest wherein they initially demanded 
4000 square yards and subsequently by negotiation the area was 
got increased to 6000 square yards at a monthly of Rs.275,000/- 
per month or 5% of gross sale, whichever was higher, which was 
later increased to Rs.316,250/- per month or 5% of gross sale, 
as aforesaid, which was being paid regularly. In addition to it, 
M/S Siza Foods had agreed to develop an area of 5 acres of land 
in the Park without charges from CDA, which indicated good faith 
on their part. However, any direction/suggestion, if given by the 
Court, including reducing the area leased out shall be accepted 
by M/S Siza Foods, but it would not be in the interest of the CDA 
and M/S Siza Foods to demolish the restaurant on the application 
filed by a person who otherwise had no legal right or interest in 
the continuation or otherwise of the restaurant, therefore, taking 
into consideration this aspect of the case, appropriate orders may 
be passed.  
HRC 4668-2006 etc. 
8 
10. 
 
When his attention was drawn towards two letters 
written to the Prime Minister and the President, particularly to 
the latter, criticizing judgment of the Supreme Court in the case 
of Iqbal Haider v. Capital Development Authority (PLD 2006 SC 
394) in a sarcastic manner, he stated that as the CDA authorities 
were somehow reluctant to finalize bid of M/S Siza Foods, 
therefore, high ups were requested to intervene. However, he 
voluntarily stated that the author of the letter (Amin Muhammad 
Lakhani) had respect for the Courts and was ready to voluntarily 
explain his position, simultaneously tendering unconditional 
apology. Such explanation as well as apology, however, was filed 
later on.  
11. 
 
It is to be noted that initially F-9 Park was a 
residential sector as per admissions and documents available on 
record. However, subsequently, in 1968, it was converted into a 
Park comprising 800 acres of land and generally it was known as 
Capital Park as well as Fatima Jinnah Park. There could not be 
two opinions in respect of importance of Master Plan. Despite our 
repeated insistence, original Master Plan was not produced 
except the one which was got prepared from JICA for establishing 
a Park. Sufficient time was given to CDA as the Court wanted to 
apprise itself about the facilities, provisions, activities in the Park. 
However, the photocopy of the Plan whatsoever was produced, 
which indicated number of activities like Children Park, Ladies 
Club, provision of restaurants at different places, which were to 
be constructed/provided inside the Park. And on the southern 
HRC 4668-2006 etc. 
9 
side, an area was earmarked as cuisine pavilions with dense 
vegetation. As per plain meanings of the expression ‘dense 
vegetation’, there was no provision for setting up a large 
restaurant to be run by an international food chain. But, it did 
mean that such a restaurant could not be constructed of course 
after an amendment in the Master Plan made by the CDA Board, 
replacing cuisine pavilions having dense vegetation with a 
restaurant. According to section 14 of the CDA Ordinance, 1960, 
the CDA Board is empowered to prepare schemes with the 
approval of the Federal Government. As stated earlier, the 
change was quite possible, but subject to section 19 of the CDA 
Ordinance, 1960. No such document was placed on record, 
inasmuch as the directions of the Court were not being carried 
out, and prima facie it was ascertained that construction of the 
restaurant suffered from lack of transparency, therefore, notice 
was issued to Mr. Kamran Lashari, former Chairman CDA who 
seemed to be the architect of this project.  
12. 
 
In response to the notice he appeared and submitted 
reply and also addressed the Court in person. His main emphasis 
was that McDonald's restaurant was constructed in the Park for 
the purpose of providing facilities, charm and temptation to the 
general public in good faith, otherwise he had no bad intentions. 
He explained that in the foreign countries as well, restaurants 
along with other facilities were provided in the Parks. As far as 
his explanation in exercising jurisdiction in good faith was 
concerned, it could not be accepted for want of transparency in 
HRC 4668-2006 etc. 
10 
the construction of McDonald's and violation of the constitutional 
provision, which shall be discussed hereinbelow. At the cost of 
repetition, it may be mentioned that he could not satisfy as to 
why McDonald's restaurant was not allowed to be constructed 
strictly in accordance with the provisions of CDA Ordinance, 
discussed hereinbefore. It is also to be noted that in the Plan 
prepared by JICA, different spaces providing for construction of 
restaurant in the Park were available, but in the place of more 
than one cuisine pavilion areas, construction of one restaurant 
was not available. The incumbent Chairman, Imtiaz Inayat Illahi 
also could not help Mr. Kamran Lashari, the former Chairman in 
justifying 
violation 
of 
CDA 
Ordinance, 
1960 
as 
well 
as 
constitutional provision. It is to be noted that non-adherence to 
legislative provisions other than the Constitution is permissible, 
provided it does not entail penal consequences as there are two 
types of statutes/legislation, i.e. mandatory and directory. As far 
as mandatory provision of law is concerned, same is required to 
be enforced strictly without interpreting/construing it in any 
manner liberally. Such a principle of interpretation is discussed 
and applied in the case of Niaz Muhammad v. Mian Fazal 
Raqib (PLD 1974 SC 134) in the following words:- 
"It is the duty of the Courts to try to get at the real 
intention of the Legislature, by carefully attending to 
the whole scope of the statute to be construed. As a 
general rule, however, a statute is understood to be 
directory when it contains matter merely of direction, 
but not when those directions are followed up by an 
express provision that, in default of following them, 
HRC 4668-2006 etc. 
11 
the acts shall be null and void. To put it differently, if 
the Act is directory, its disobedience does not entail 
any invalidity; if the Act is mandatory, disobedience 
entails serious legal consequences amounting to the 
invalidity of the act done in disobedience to the 
provision". 
 
In this respect it will be advantageous to refer to a celebrated 
passage from the Interpretation of Statutes by Maxwell (Tenth 
Edition – 1953): -  
"On the other hand, where the prescriptions of a 
statute relate to the performance of a public duty and 
where the invalidation of acts done in neglect of them 
would work serious general inconvenience or injustice 
to persons who have no control over those entrusted 
with the duty without promoting the essential aims of 
the 
legislature, 
such 
prescriptions 
seem 
to 
be 
generally understood as mere instructions for the 
guidance and Government of those on whom the duty 
is imposed, or, in other words, as directory only. The 
neglect of them may be penal, indeed. but it does not 
affect the validity of the act done in disregard of them. 
It has often been held, for instance when an Act 
ordered a thing to be done by a public body or public 
officers and pointed out the specific time when it was 
to be done, that the Act was directory only and might 
be complied with after the prescribed time." 
 
The nature of a mandatory provision is described in the “Words 
and Phrases”, Permanent Edition, Vol. 26, p. 463 in the following 
words: -  
“Generally, where statutory provision concerning 
powers and duties of public officer affect the public 
HRC 4668-2006 etc. 
12 
interest or are intended to protect a private citizen 
against loss or injuries to his property, provisions are 
“mandatory” rather than “director”.  
 
“A “mandatory provision” of a statute is one the 
failure to follow which renders the proceeding to which 
it relates illegal and void.”  
 
The other principle of jurisprudence in this very context is that 
the things are required to be done strictly according to law, or it 
should not be done at all. Reference in this behalf may be made 
to the case of Mir Dost Muhammad v. Govt. of Balochistan (PLD 
1980 Quetta 1), relevant Para therefrom is reproduced below: - 
“It is well settled principle of law that in a case where 
statute provides a procedure for doing of a thing in a 
particular manner, that thing should be done in that 
manner and in no other way or it should not be done at 
all. Indeed such statute impliedly prohibits doing of 
thing in any other manner; particularly when the 
procedure is laid down for taking proceedings before a 
Tribunal or a Court where such procedure before a 
Court or Tribunal is usually construed to be an 
imperative one as doing of the act or a thing under that 
statute is a condition precedent to conferring upon the 
jurisdiction on a Court or a Tribunal, as the case may 
be. The compliance of such act or thing in no way could 
be either ignored or dispensed with. Their non-
compliance 
would 
certainly 
invalidate 
all 
the 
proceedings, orders made or passed by the same 
authority or any other authority either superior or 
inferior thereto in respect of the same. Our views get 
support from cases: -  
(i)  
E. A. Evans v. Muhammad Ashraf P L D 1964 
S C 536; 
HRC 4668-2006 etc. 
13 
(ii)  Atta Muhammad Qureshi v. The Settlement 
Commissioner, Lahore Division Lahore and 2 
others P L D 1971 S C 61; 
(iii)  Muhammad Yousaf Khan Khattak v. S. M. 
Ayub and 2 others P L D 1972 Pesh. 151; 
and 
(iv)  In the Statutory Laws, 6th Edn., Craies has 
said that :-  
 
"When a Statute confers jurisdiction upon a 
Tribunal of a limited authority and statutory 
origin, 
the 
conditions 
and 
qualifications 
annexed to the ground must be strictly 
complied with." 
 
 The same principle has been reiterated by High Courts as well as 
this court in various judgments. Reference may be made to 
Mazhar Illahi v. State (PLD 2008 Pesh. 162), Commissioner of 
Income Tax/Wealth Tax  v. M/s Idara-i-Kissan (2006 PTD 2569), 
Iftikhar Ahmed alias Ali v. State (2006 YLR 2826), Dr. Ishtiaq 
Hussain v. Special Judge Anti-Corruption (2004 YLR 716) and 
Muhammad 
Iqbal 
v. 
SHO, 
PS 
New 
Anarkali, 
Lahore 
(2000 PCRLJ 1924), Ghulam Hassan v. Jamshaid Ali (2001 SCMR 
1001).  
13.   
Non-production of Master Plan of the Park leads us to 
draw inference that construction of a pakka restaurant perhaps 
was not provided therein. Be that as it may, the CDA Board may 
have taken a policy decision to convert cuisine pavilions with 
dense vegetation, but no such decision has been brought on file. 
Contrary to it, the CDA officials admitted that no such decision 
was taken by the Board. Therefore, whole exercise has been 
done illegally by Mr. Kamran Lashari, former Chairman, CDA.   
No doubt, the Authority is competent to make alterations          
in the Master Plan, but as discussed in Fazal Din v.                
HRC 4668-2006 etc. 
14 
Lahore Improvement Trust (PLD 1969 SC 223), the alteration or 
modification of a sanctioned scheme is permissible in the manner 
prescribed by the relevant statute.    
14.   
Now 
turning 
towards 
violation 
of 
constitutional 
provision, there is no need to highlight this aspect of the case in 
view of the admission made by learned counsel for the CDA as 
well as M/S Siza Foods and to substantiate their plea, it would be 
appropriate to refer to the publication appeared in the newspaper 
on 09.07.2004 under the caption, “SPACE AVAILABLE FOR 
INTERNATIONAL FOOD CHAIN”. It recited, inter alia, that the 
CDA intended to provide an opportunity for setting up/opening a 
branch of a “MULTI-NATIONAL FOOD CHAIN” (fast food) or 
coffee/ice-cream chain, with all features including children play 
area etc., in F-9 Park and the interested parties were requested 
to express their interest and submit their applications by 
25.09.2004 for pre-qualification with detailed technical proposal, 
area required, terms and conditions, etc. 
Thus, as the 
citizens/local 
chains 
were 
deprived 
to 
participate 
in 
the 
competition, therefore, action taken by the Chairman is in 
violation of Article 18 of the Constitution. It is to be noted that by 
inviting expression of interest from international food chains 
alone, not only Article 18 has been violated, but at the same time 
the Chairman had allowed international food chains to have 
monopoly, which, under clause (c) to the Proviso to Article 18 of 
the Constitution was available to no one else except the 
government. In this behalf, reference may be made to the case 
HRC 4668-2006 etc. 
15 
of Arshad Mehmood v. Government of Punjab (PLD 2005 SC 
193). In the precedent case, the Court examined the question 
whether section 69-A of the West Pakistan Motor Vehicles 
Ordinance, 1965 was contrary to the fundamental rights of the 
appellants enshrined in Article 18 of the Constitution who were 
restrained/ousted 
completely 
from 
the 
trade/business 
of 
transport, which they were carrying on against valid route 
permits issued by competent authority under the provisions of 
the Ordinance for the last many years and in which they had 
made huge investments by purchasing of vehicles i.e. wagons, 
suzukies, etc. Another grievance was that the right of movement 
of the general public could not be limited by compelling them to 
undertake journey in the transport owned by the private 
respondents because they had obtained franchise rights and were 
charging exorbitant fare compared to other transporters who 
used to ply buses on the same route, and if competition was 
allowed, they would charge less fare from them, as such citizens, 
having limited resources of income were not bound to pay fare to 
respondents transporters at high rates. It was held that though 
the right of trade/business or profession under Article 18 of the 
Constitution was not an absolute right, but so long a trade or 
business was lawful, a citizen, who was eligible to carry out the 
same, could not be deprived from undertaking the same. In 
another case titled Iqbal Haider v. Capital Development Authority 
(PLD 2006 SC 394), this Court observed as under: -  
HRC 4668-2006 etc. 
16 
“13.  From perusal of publications, appeared initially 
on 1st and 2nd February 2004 in "Daily Frontier Post" 
and 
"Daily 
Jang" 
respectively 
as 
well 
as 
the 
publication appeared on 14th August 2004 in "Daily 
Jang" and "Daily Dawn", it is abundantly clear that no 
area 
was 
earmarked 
for 
the 
purpose 
of 
establishing/developing Mini Golf Course at the site of 
Jubilee Park in Sector F-7. It seems that this device 
was adopted to keep the interested parties out of 
competition, 
except 
the 
respondent 
No.2, 
who 
statedly had the experience of running identical 
project at Lahore. Thus, we are of the opinion that 
disclosure of the area, on which the Mini Golf Course 
was to be developed, was necessary in the publication 
and in this way the interested parties would have 
given much higher bids than the one, on which, C.D.A. 
had leased out land to respondent No.2 i.e. Rs.2.55 
million per annum. We were told that admittedly the 
plot of five acres, leased out to respondent No.2, is 
situated in most expensive location of Sector F-7 and 
is situated adjacent to the main road, therefore, it is a 
prime land being situated in the heart of the Capital.  
 
Following observations made in the course of the above 
judgment, being relevant in the context of the present case, are 
also reproduced below: -  
“18.   
It is to be observed that under section 49 
of the Ordinance, 1960 C.D.A. retains powers for the 
purpose of leasing, selling, exchanging the land etc. 
vested in it. For the purpose of achieving the object of 
this section, from time to time, Rules and Regulations 
arc framed, as it is evident from the contents of 
Notification dated 18th December 1993 (No. CDAS-
30(2)(NOTI)-Coord 93). Reference of some of the 
HRC 4668-2006 etc. 
17 
Regulations, framed thereunder, has already been 
made herein above. [The Islamabad Land Disposal 
Regulation 1993]. It is equally important to note that 
learned counsel for petitioner when called upon to 
satisfy as to whether in terms of Ordinance 1960, the 
master plan is available with the C.D.A., he produced 
the same but stated that according to its contents 
Sector-wise division of the Capital has not been made. 
He also explained that in Sector F-7, one public park 
under discussion was created by means of preparing 
PC-1, therefore, it may be presumed that the plan 
submitted along with PC-1 must be having separate 
identification of the Jubilee Park, where the Mini Golf 
Course is being established. In this behalf he has 
referred to a copy of the site plan attached with the 
reply of the C.D.A. to demonstrate that the Jubilee 
Park is situated in the area of Markaz F-7. He was 
called upon to produce the original file/documents, 
including PC-1 as we wanted to ascertain the status of 
the plot in question for the purpose of examining the 
proposition that in terms of section 49 of the 
Ordinance, 1960, the lease has rightly been executed 
in favour of respondent No.2 by C.D.A. or not? But 
despite of our demand, said file was not produced and 
ultimately Chairman C.D.A. gave a statement in 
writing expressing disability of the authority to 
produce 
the 
file. 
The 
contents, 
whereof 
are 
reproduced herein below for reference: 
  
"The file of PC-1 of Sector F-7 is presently not 
available and being traced out. It will be 
produced before the learned Court as it is found 
out. 
  
                                                                                    (Sd.) 
                                                                     Chairman C.D.A.'' 
  
HRC 4668-2006 etc. 
18 
None-production of above file persuades us to draw 
adverse inference against the C.D.A., necessarily with 
all consequences.  
“23.   
Thus, in view of above discussion, it is held 
that the mala fides of respondent No.1 in concluding 
the transaction with respondent No.2 are abundantly 
apparent on record. This Court in the case of 
Government of West Pakistan v. Begum Agha Abdul 
Kharim Shorash Kashmiri (PLD 1969 SC 14) has held 
that mala fide is to be proved on record. This view has 
been reiterated by this Court in the case of Ahmad 
Hassan v. Government of Punjab (2005 SCMR 186). 
Therefore, applying the test laid down in these 
judgments on the facts of the present case, we are 
inclined to hold that in view of the admitted facts on 
record, mala fides on the part of respondent No.1 in 
granting lease to respondent No.2 are apparent, thus, 
the lease agreement dated 4th June, 2005 is not 
transparent. 
 
“25.   
Learned counsel stated that the right of 
entertainment can only be made available subject to 
law as it is defined in section 2(d) of the West 
Pakistan Entertainment Act, 1958. There is no cavil 
with his this argument but subject to the condition 
that 
if 
the 
arrangements 
of 
providing 
such 
entertainment to the citizens is made in transparent 
manner 
by 
an 
authority 
in 
exercise 
of 
lawful 
jurisdiction which lacks in instant case as discussed 
above.” 
 
The above observations are fully attracted in the present case. 
15.   
It is beyond our comprehension that as to why 
provisions of Article 18 of the Constitution were not applicable. 
HRC 4668-2006 etc. 
19 
There could be two reasons: firstly, exclusive powers in this 
behalf had been assumed by the then Chairman himself, or 
secondly, on the intervention of high ups this exercise was 
carried out to accommodate M/S Siza Foods. As far as investors 
of outside country are concerned, they should be encouraged to 
make investment, but subject to the law of the land, particularly 
constitutional provisions. It is a fact that there are good number 
of investors who belong to outside the country and are doing 
trade/business in the country subject to following the law on the 
subject and not otherwise. However, since violation of legal 
provisions noted hereinabove also entails consequences because 
the Park is only to be used for the purpose for which it has been 
established and not for running a business/trade. In this behalf, 
judicial notice can be taken of the fact that such facilities in parks 
are used by general masses belonging to all walks of life 
including citizens and children belonging to the families who are 
living below poverty line. The persons like McDonald’s are bound 
to earn profit as per its international standards, which is beyond 
the reach of an ordinary person comparing to a local restaurant 
providing food to the visitors of the Park at a cheaper rate. 
Importance of such public parks has been adequately examined 
by this Court in the case of Iqbal Haider (supra) in the following 
paragraphs, which read as under: -  
“16. There is yet another important provision of law, 
which prohibits C.D.A. to amend the scheme i.e. 
sections 19 and 21. Admittedly, in instant case, in 
terms of these sections, neither the permission was 
HRC 4668-2006 etc. 
20 
sought to convert the Public Park into the Mini Golf 
Park nor before doing so objections were invited from 
the general public in terms of I section 21 of the 
Ordinance, 1960. This Court way back in 1969 in the 
case of Mian Fazal Din v. Lahore Development Trust, 
Lahore (PLD 1969 SC 223) has held that "the plots in 
a Housing Scheme for public use cannot be converted 
for other use". Relevant Para from this judgment has 
already been reproduced in the order dated 26th 
December 2005. Admittedly a Public Park, if is 
earmarked in a housing scheme, creates a right 
amongst the public and that right includes their entry 
in the Park without any obstacle, being fundamental 
right enshrined in Article 26 read with Article 9 of the 
Constitution. It may be noted that liberty of a person, 
to have access or utilize a right available to him, 
cannot be taken away by converting such facility into 
commercial one, for the purpose of extending benefit 
to a third person, because in instant case considerably 
a big plot of land, measuring five acres, has been 
handed over to respondent No.2 at a throwaway lease 
money, causing huge loss to the public exchequer, 
therefore, tax payers have a right to inquire from 
C.D.A. as to how a right of life and liberty can be 
denied to them. As in instant case, above facts are 
admitted, therefore, no formal evidence is required to 
prove these facts. Reference in this behalf can be 
made to Government of Punjab v. Crescent Textile 
(PLD 2004 SC 108).”  
 
“24. Learned counsel for respondent No.2 however, 
persuaded to convince us that as status of the Public 
Park has not been changed, therefore, provisions of 
Regulation No.12(3) of the Regulation would not be 
attracted. To substantiate his plea, he made reference 
HRC 4668-2006 etc. 
21 
from the books written by Architects with regard to 
explain the idea of planning and development of the 
Islamabad. One of the Paras from the said book 
compiled by C.D.A., Government of Pakistan i.e. 
Communities and Housing, composed by Doxiadis 
Associates, Consulting Engineers is reproduced herein 
below for convenience:- 
"305. The second and third categories of open 
spaces, that is the public playgrounds, playing-
fields, parks and public gardens, have to be 
reckoned together as this stage, since it is as yet 
too early to define exactly how much will go for 
playing-fields and how much for green spaces. 
These spaces are usually planned together in 
broader areas, and only after detailed planning is 
a decision taken in each case as to exactly how 
much will go for playgrounds and how much for 
gardens and parks. It has to be borne in mind 
that all these are general averages, since the 
need for parks, gardens and playgrounds differs 
enormously from area to area, and from one 
social, professional or income group to another. 
For example, high income groups, which have 
their private gardens, do not need public 
gardens and parks as such as the low income 
groups, which are deprived of the benefit of 
having 
their 
own 
private 
garden. 
On 
the 
contrary, higher income groups may need 
playing-fields requiring more space, like tennis, 
playgrounds, etc. which the lower income groups 
may not need to the same extent." 
  
A perusal of above Para is sufficient to hold that the 
jubilee Park of Public Park is meant for the use of 
general public, majority of which i.e. is more than 
HRC 4668-2006 etc. 
22 
90% is living in the vicinity. Under Article 26 of the 
Constitution, it is fundamental right of the citizens to 
have access to public places of entertainment or 
resorts. As per the socio-financial status of the citizens 
of Pakistan, majority of public is not in a position to 
afford luxury of joining Mini Golf Course along with 
children, subject to F payment of tickets etc. 
 
“25. Learned counsel stated that the right of 
entertainment can only be made available subject to 
law as it is defined in section 2(d) of the West 
Pakistan Entertainment Act, 1958. There is no cavil 
with his this argument but subject to the condition 
that 
if 
the 
arrangements 
of 
providing 
such 
entertainment to the citizens is made in transparent 
manner 
by 
an 
authority 
in 
exercise 
of 
lawful 
jurisdiction which lacks in instant case as discussed 
above.”  
 
Thus, in absence of any decision by the CDA Board, the use of 
the restaurant by the masses is tantamount to defeating the 
object/purpose for which the public park has been established in 
view of the discussion in the judgment, relevant Para therefrom 
are discussed hereinabove.  
16.   
In addition to above, next important question relates 
to transparency in granting lease to M/S Siza Foods. As it has 
been pointed out that there was no decision by the CDA Board 
either, and exercise of accommodating M/S Siza Foods on the 
basis of chit issued under the signature of Mr. Kamran Lashari, 
former Chairman, CDA, scanned image whereof is given below: -  
HRC 4668-2006 etc. 
23 
 
 
 
17.   
After having seen the state of affairs on the basis of 
which proceedings started, nothing is left to be discussed as the 
above conduct of the then Chairman speaks for itself and needs 
no further deliberation. Therefore, by no stretch of imagination, it 
can be held that the transaction was a transparent one. It may 
be noted that reportedly one of the parties who filed expression 
of interest, namely, M/S Sheikh Trading International, when 
inquired about the original application submitted by it, same was 
not produced or shown except placing on record its photo copy. 
Publication appeared in the newspaper indicates that 16 days 
were given to international food chains to submit expression of 
HRC 4668-2006 etc. 
24 
interest. How it is possible for the chains working outside the 
country and any investor interested to run the business, following 
certain provision of law including its registration under the 
Companies Ordinance as well as meeting the criteria laid down 
by the Board of Investment.  
 
18.   
This Court, time and again, has insisted upon public 
functionaries to adhere to the principle of transparency in the 
performance of their duties. In the case of Messrs Airport 
Support Services v. The Airport Manager (1998 SCMR 2268), this 
Court dealt with the question whether a concluded contract could 
be struck down on the grounds of mala fides, arbitrary exercise 
of discretionary power, lack of transparency, discrimination and 
unfairness, 
etc. 
Relevant 
portion 
from 
the 
judgment 
is 
reproduced below: -   
 
"Further a contract, carrying elements of public 
interest, concluded by functionaries of the State, has 
to be just, proper, transparent, reasonable and free of 
any taint of mala fides, all such aspects remaining 
open for judicial review. The rule is founded on the 
premise that public functionaries, deriving authority 
from, or under law, are obligated to act justly, fairly 
equitably, 
reasonably, 
without 
any 
element 
of 
discrimination and squarely within the parameters of 
law, as applicable in a given situation. Deviation, if of 
substance, can be corrected through appropriate 
orders under Article 199 of the Constitution. In such 
behalf even where a contract, pure and simple, is 
involved, 
provided 
always 
that 
public 
element 
presents itself and the dispute does not entail 
HRC 4668-2006 etc. 
25 
evidentiary facts of a disputed nature, redress may be 
provided." 
 
In the case of Shams and Brothers v. Government of Pakistan 
(2007 CLD 125), a Division Bench of the High Court of Sindh, 
Karachi, while dealing with the issue of causing heavy financial 
loss to the exchequer in awarding a contract, held as under: -  
“23. From the above discussion, we have come to an 
irresistible conclusion that the whole process of 
inviting of tender/sealed offers by the respondent 
No.2 on the first occasion as well as on the second 
occasion was game of fraud and cheating full of 
ulterior motive and mala fide, aimed to oblige some 
particular party (respondent No.4) and for causing 
heavy financial loss to public exchequer. Thus, we 
have no option but to allow and dispose of this 
petition in the terms that the acceptance of the bid of 
respondent 
No.4 
in 
the 
sum 
of 
Rs.6,05,000; 
subsequent awarding of contract in his favour and the 
whole process of bidding conducted by respondents 
Nos.1 and 2 for this purpose is illegal, without lawful 
authority and of no legal effect. The respondents Nos. 
1 and 2 are, therefore, directed to invite fresh 
bids/offers for granting of lease of Pakistan Sports 
Board Coaching Centre plot at Sir Shah Suleman 
Road, Karachi for the purpose of marriage lawn, by 
incorporation of only such conditions, which are 
available in the first advertisement or relevant and 
necessary to safeguard the interest of respondents 
Nos.1 and 2 properly.”  
 
In Sheri-CBE v. Lahore Development Authority (2006 SCMR 
1202), this Court while dealing with the issue of lease of amenity 
HRC 4668-2006 etc. 
26 
plot to a private company for construction of big complex 
including cinema and shopping mall, noted the following 
questions/issues: -  
 “30.  
The question is, could the concerned 
authorities be permitted to play around with Gulberg 
Scheme on the pretext of non-availability of the 
scheme? Since it is the respondents who wished to put 
a piece of land which had been preserved and used as 
an open space for over half a century, to a different 
use, the onus lay on the said authorities to establish 
that such a use was permitted by law. The question 
could thus also be whether a mere plea of non-
availability of the said basic document could ever be 
considered a sufficient discharge of the said burden 
and a further question would be as to why adverse 
inferences 
should 
not 
be 
drawn 
against 
the 
respondents in the said matter on account of their 
said conduct?  
 
“31.   
Referring to the provisions of section 5 of 
the Disposal of land by Development Authorities 
(Regulation) Act No.XII of 1998, it was argued that 
there was a complete and absolute prohibition on 
converting a Public Utility area or a Public Amenity 
plot to any other use and that the contravention of the 
said prohibition was an offence in terms of section 6 
thereof which was punishable with imprisonment up to 
one year or with fine which could extend up to 
Rs.1,000 per day from the date of such a conversion 
till the default continued, or with both. It was added 
that since the respondents could not offer any proof 
and were, according to their own admission, not 
possessed of any evidence that the plot in question 
was not a public utility area or a public amenity park, 
HRC 4668-2006 etc. 
27 
therefore, all concerned were guilty of the commission 
of the said offence and were liable to be prosecuted 
and punished for the same. 
 
“33.   
Emphasis was next laid by the learned 
Advocate Supreme Court for the petitioners on the 
transfer of the said piece of land to the said company 
for the said purpose. It was submitted that by virtue 
of the provisions of section 47 of the L.D.A.. Act of 
1975, all functions and powers relating to all such 
schemes 
including 
Gulberg, 
together 
with 
all 
properties and assets etc. pertaining to the same, had 
got vested in the Lahore Development Authority 
whereafter, as per section 6(3)(iv) of the said Act, the 
said assets and properties could be sold, leased out, 
exchanged or otherwise disposed of only by the said 
Authority and even a licence or concession in respect 
thereof could not be granted by any one except the 
Lahore Development Authority which according to the 
provisions of section 4 of the said Act consisted of the 
members named therein with Zila Nazim of Lahore as 
its Chairman. 
 
“34.   
It was argued that even on the said score, 
the entire action was illegal because it was never the 
case of the respondents that the land in question had 
ever been sold or leased out or even a licence or 
concession in respect thereof had been granted to the 
said company. by the L.D.A. The case of the 
respondents before the High Court, in this connection 
was, that it was the Chief Minister of Punjab, who on a 
summary submitted to him for the purpose, had 
leased out the said land to the said company for a 
period of 25 years. 
 
HRC 4668-2006 etc. 
28 
“35.   
Was 
this 
then 
a 
legal 
and 
a 
valid 
transfer/entrustment of the said property vesting in 
the L.D.A. to the said company? 
 
“36.   
It was next complained that the building in 
question which was intended to be a huge complex 
was being constructed at the site without the 
sanctioning of its plans by the competent authority. 
The plea of the respondents was that construction of 
Government buildings did not require sanctioning of 
their building plans. The question is whether there 
was any law exempting Government building from the 
operation of the said legal requirement and question 
would also be whether a building constructed by the 
said company which was an independent legal entity 
having 
been 
incorporated 
as 
such 
under 
the 
Companies Ordinance of 1984, could be said to be a 
Government building? 
 
“37.   
It was submitted that the complex in 
question which involved construction of a huge 
building with an initial estimated cost of Rs.1500 
million; which involved use of roads in a residential 
locality by a large number of additional persons and 
vehicles visiting the said plaza and which also involved 
a change of land use, fell within the purview of a 
`Project' as defined by section 2(xxxv) of the Pakistan 
Environmental Protection Act No.XXXIV of 1997 and in 
view of the provisions of section 12 of the said Act of 
1997, the very commencement of its construction 
without filing an initial environmental examination 
with the Federal Agency and without its approval 
regarding the environmental impact assessment, was 
grossly illegal and was even a culpable offence under 
the said Act. This-issue also requires examination. 
HRC 4668-2006 etc. 
29 
 
“38.   
It was next argued that the respondent 
Government had entered into a contract with a foreign 
company by the name of IMAX for the supply of 
equipment for the cinema in question and that this 
contract worth about Twenty-five crores in Pakistani 
currency had been entered into with the said foreign 
supplier/company in violation of the law, the rules and 
the policy on the subject and also in violation of all 
norms of transparency and good governance as no 
advertisement or notice had ever been issued in the 
national or international press inviting tenders, bids 
and offers with respect to the same and the deal had 
been finalized in secrecy and in a clandestine manner. 
  
“40.   
Serious reservations had been expressed 
by the petitioners even about the reasonableness and 
the lack of bona fides regarding the conception of the 
project in question. As has been noticed above, the 
land on which the said project was being constructed 
was worth around 2500 million rupees. It is on record 
that the initial estimate of the project in question was 
1500 million Rupees which would of course be subject 
to escalation and inflation. It was submitted that more 
than 4000 million Rupees of public money were thus 
being dumped to produce a Cinema Hall and a 
shopping 
complex 
on 
the 
pretext 
of 
showing 
educational movies to the children which movies the 
children could watch and were watching on Discovery 
Channel and such-like other educational channels of 
the T.V. every day; that there was hardly a household 
in the city which did not have a television and further 
that there was also no dirt of shopping plazas in the 
city or even in Gulberg. It was added that a cinema of 
the kind was available in a neighbouring country and 
HRC 4668-2006 etc. 
30 
the per person ticket to watch a movie in the said 
cinema was around Rs.4,000 (four thousand Pakistani 
Rupees). It was contended that in a country like ours 
where thousands were giving away their precious lives 
yearning for a bed in a hospital or a single dose of 
live-saving drugs and where millions were getting 
afflicted with deadly diseases on account of non-
availability of clean drinking water, it did not behove 
the Government to be involved in building luxurious 
three dimensional movies theatres and expensive 
shopping malls for the rich and the famous and that 
also by j investing millions from the hard-earned 
money of the public. We were asked whether such a 
use of public money could never be condoned as a 
reasonable exercise of executive power? We need to 
answer it. 
 
“41.   
Grave apprehensions and reservations had 
also been expressed by the petitioners about the 
manner in which the said company had been created; 
the allegedly surreptitious manner in which a contract 
had been settled by the Government with a foreign 
company; the manner in which an invaluable piece of 
land which even otherwise was a public amenity area 
had been transferred to it and the manner in which 
hundreds of millions of rupees of the public were 
transferred to the said company which was then 
directed to own the above-mentioned foreign contract 
entered by the government and to produce a cinema 
hall and a shopping complex on the site in question. It 
was submitted that the said company, according to its 
Memorandum and Articles of Association, was a 
company formed by Twelve persons, each one of them 
contributing "(A sum not exceeding Rs.1000 Rupees 
one thousand only) with a "Paid up capital of Rs.1100 
HRC 4668-2006 etc. 
31 
(Rupees eleven hundred only)" whereafter the "Equity 
of the Company" was to be provided by the 
Government in the form of fifty laks shares of Rs.100 
each amounting to Rs. One Hundred and fifty million 
only. It was added that only because ten of the said 
twelve sponsors happened to be public servants 
posted with the Government of Punjab could not ever 
mean that the said was a company sponsored, 
floated, formed or owned by the Government. It was 
further 
submitted 
that 
nothing 
precluded 
these 
Twelve, in law, from amending or altering the 
Memorandum or the Articles of Association, that these 
ten public servant sponsors were even otherwise 
guilty of misconduct having involved themselves in a 
trade/business as they had failed to show any 
permission, in law, allowing them to indulge in such 
an activity; that even if the Government of Punjab 
thought that it had accomplished all other tasks and 
discharged all its other all important obligations and 
had now nothing better to do than running cinemas, 
theaters and shops then it could have directly gone 
into the said business instead of entrusting millions of 
public money to a company which was an entity in 
itself 
independent 
of 
all 
Governmental 
checks 
including the control of the authorities established by 
the Constitution to audit public accounts. 
 
“42.   
Mr. 
S.M. 
Zafar, 
the 
learned 
Senior 
Advocate Supreme Court attempted to put these 
apprehensions at peace by submitting that the said 
company was a State/Government-owned company; 
that its Memorandum and Article of Association 
prohibited its Sponsors/Directors to change the same; 
that it was a global trend all over the world to achieve 
governmental objectives by setting up companies 
HRC 4668-2006 etc. 
32 
which was a more  efficient and effective mode of 
securing the said objects as these companies, not 
being 
Government 
departments, 
were 
free 
of 
bureaucratic 
red-tapism 
and 
controls; 
that 
the 
company in question was to sovereign and was 
subject to governmental controls and that the public 
money entrusted to it was safe. 
 
“44.   
The learned Advocate Supreme Court for 
the petitioners, at this juncture, reminded us of an 
earlier ruler of this Province who, despite being not an 
elected representatives of the people, had resisted all 
temptations of converting available vacant spaces in 
the city into residential and commercial complexes 
and had blessed the people of Lahore with powerful 
public lungs in the form of Race-Course (now Jilani) 
Park, Gulshan-e-Iqbal Park, Model Town Park, lqbal 
Park (old Minto Park), Jallo Park, Lahore Park, a park 
adjacent to Pearl-Continental Hotel on the Mall and so 
on and that thousands of hands rose everyday praying 
for his noble soul. He also made repeated references 
to a recent judgment of this Court relating to public 
amenity area in Islamabad and added that such 
examples could be a valuable guide and a good food 
for thought for all concerned.” 
 
19.   
There is another important aspect of the case that 
after executing the lease in pursuance whereof an area of 6000 
square yards has been given for 33 years to M/S Siza Foods in 
respect of most valuable property, which was actually earmarked 
for Blue Area, but its subsequent change from residential sector 
into Park has not been brought into our notice. In future, it would 
HRC 4668-2006 etc. 
33 
be constructed along the site of F-9 Park where the McDonald’s 
has been constructed.  
20.   
No one appearing on behalf of CDA has assisted us 
about the formula followed in calculating the rent. It is most 
interesting part of this case that in the publication dated 
09.07.2004, following conditions were mentioned: -  
CDA intends to provide an opportunity for setting 
up/opening a branch of a “MULTI-NATIONAL FOOD 
CHAIN” (fast food) or coffee/ice-cream chain, with all 
features including children play area etc., in F-9 Park, 
Islamabad. 
Interested 
parties 
are, 
therefore, 
requested to express their interest and submit their 
applications by 25.09.2004 for pre-qualification with 
detailed technical proposal, area required, terms and 
conditions …..”  
  
A perusal thereof indicates that the CDA had not disclosed the 
location in which the area would be available for the said 
purpose. Thus, incomplete advertisement was given so that no 
one should have a clear idea about the future business prospects. 
It is also not understandable as to why CDA agreed to lease out 
4000 + 2000 = 6000 square yards of a valuable piece of land for 
33 years at a rent of Rs. 316,250/- or 5% of gross sales. 
Undoubtedly, CDA is an authority, which is supposed to discharge 
its functions in the interest of public and if, in any manner, 
establishment of restaurant was permissible, they should have 
tried to fetch maximum price of the land. As far as developing 5 
acres of land is concerned, this was also not without an object 
and purpose, as it has been observed hereinabove to confer 
HRC 4668-2006 etc. 
34 
exclusive rights on M/s Siza Foods. The CDA had signed MoU with 
M/S Siza Foods, perusal whereof indicates that a third party, 
namely, M/S Lakson group was also involved. Para 11 of the MoU 
provided that construction and development of the Park may be 
undertaken by M/S Lakson Group or any of its group company 
and such Group/group company shall be entitled to advertise and 
display its logo in the Park. The size/design of logo shall be 
mutually agreed between CDA and Lakson Group/its group 
company. It is not on record about the interest of M/S Siza Foods 
with Lakson Group, but one can imagine that full facility is being 
extended to install signage, etc. Such permission exclusively 
cannot be granted by CDA in the garb of MoU between CDA and 
M/S Siza Foods. There is no indication that after installing such 
signage, benefit will be extended to the CDA or M/S Siza Foods. 
Therefore, it is not correct to say that the Park was being 
developed free of cost. In addition to it, MoU also indicates that 
the CDA, even before the execution of the lease deed, permitted 
and authorized M/S Siza Foods to undertake work to an 
agreeable level and design. Thus, there was no transparency, 
rather it was a shabby deal in violation of the Constitution and 
the law.  
21.   
A perusal of the letters which were sent by Amin 
Muhammad Lakhani to the then Prime Minister and the President, 
prima facie, showed use of influence. An officer of the status of 
Chairman CDA (Mr. Kamran Lashari) has succumbed to the 
pressure, and had not only violated the service discipline and the 
HRC 4668-2006 etc. 
35 
provisions of the Constitution and the law, but prima facie has 
also exposed himself to legal action because government 
functionaries are not bound to carry out/implement any order 
which is not in accordance with law.  
22.   
It is pertinent to mention here that this was not the 
first time that such irregularities were committed. Similar 
instances have come before the Court on more than one occasion 
in different cases. In the case of Iqbal Haider (supra) this Court 
had dealt with a similar situation as under: -   
“33.   
It 
is 
most 
important 
to 
note 
that 
functionaries, exercising statutory powers like C.D.A., 
are bound to discharge their functions strictly in 
accordance with law, otherwise the action contrary to 
law would not be sustainable and such authority shall 
expose itself for m disciplinary action. This Court in 
the case of Fazal Din v. Lahore Improvement Trust 
(PLD 1969 SC 223), reference of which has already 
been [made] herein above, has discouraged denial of 
valuable rights of the residents in respect of the plot, 
meant for specific purpose. This principle has also 
been reiterated in the case of Ardeshir Cowasjee v. 
Karachi Building Control Authority (1999 SCMR 2883), 
wherein it has been held that without obtaining no 
objection from the general public, such plots cannot 
be used for any other purpose. As it has been noted 
herein above that in instant case, objections were not 
invited from the general public by the competent 
authority before converting the Jubilee Park into a 
commercial 
oriented 
amusement Park, with the 
collaboration of multinational companies, delegating 
powers to respondent No.2 to enter into joint venture 
or franchise for giving licences to local or international 
HRC 4668-2006 etc. 
36 
parties, food chains, etc. In our opinion, such 
delegation to private person to watch his financial 
interests of the high degree [is] tantamount to 
depriving the authority as well as the public from their 
valuable rights, for whose benefits such authority has 
been created, and apparently such action has got no 
legal 
sanctity, 
therefore, 
action 
against 
such 
responsible officer/official of the authority is called for 
in view of the judgment of this Court Pervaiz Oliver v. 
St. Gabriel School (PLD 1999 SC 26), wherein it has 
been held that "no public property, big or small, 
tangible or intangible, can be disposed of except in 
accordance with law. Those who transgress, expose 
themselves to the severest penalty under the law". As 
a consequence of this observation, finally following 
directions were made to the authority:-- 
"While, in this background, upholding the order 
of the High Court, we dismiss the above listed 
three petitions with costs, the one filed by the 
Assistant Administrator also on the ground of 
limitation, we would also direct the Chairman of 
the Evacuee Trust Board to personally hold an 
enquiry about the conduct of the above said 
several functionaries involved by departmentally 
proceeding 
with 
the 
matter 
and 
taking 
appropriate action(s). This would also include the 
examination of the question as to by whom and 
under what circumstances sanction was accorded 
firstly, for defending the petition in the High 
Court and secondly, for preferring the leave 
petition in this Court. The Chairman of the Board 
would be required to submit the final enquiry 
report(s) with details of action taken, within four 
moths before the High Court of Balochistan, 
copies being endorsed to this Court. It will then 
be for the High Court to pass such orders in the 
matter as it deems fit, including due activation, if 
required, of the Federal Ombudsman and the 
Chief Ehtesab Commissioner. A copy of this 
order would be forwarded to the Chairman of the 
Board, the Chief Ehtesab Commissioner the 
Federal Ombudsman and the Secretary, Law and 
Justice Division, of the concerned Ministry, for 
action and for record."  
HRC 4668-2006 etc. 
37 
 
23.   
This Court, on a number of occasions, has emphasized 
upon the government functionaries to perform their duties 
strictly in accordance with law. In the case of Government of 
Balochistan v. Muhammad Ali (2007 SCMR 1574), this Court held 
as under: -  
“7. Undisputedly, the respondents have lodged the 
claim in respect of the land measuring 4300 acres 
approximately recorded in favour of the Provincial 
Government in the year 1964-65 which being in 
nature of the public property was supposed to have 
been used, utilized and dealt with by the Provincial 
Government or its Departments to whom it was 
transferred in the year 1979 in the sole public interest 
being the custodian of the public property and likewise 
the public functionaries are supposed and required to 
act accordingly under the law and to defend any legal 
proceedings concerning the public property before any 
Court or forum effectively; preserve, protect, and 
defend the title, rights and interest of public property 
in accordance with the law which did not vest or 
belong to any of the public functionaries. It was the 
bounden duty of all the concerted to have acted and 
proceeded 
promptly 
and 
effectively 
to 
take 
appropriate 
steps 
and 
to 
pursue 
the 
available 
remedies against any proceedings, order or decree of 
a Court within the prescribed period of limitation. The 
serious lapses on the part of all the concerned in 
withholding the matter and not having filed the appeal 
before 
the 
learned 
Majlis-e-Shoora 
within 
the 
prescribed period of limitation and after dismissal of 
the revision petition by the learned High Court, even 
approached to this Court after a considerable delay of 
HRC 4668-2006 etc. 
38 
320 days in filing C.P.LA. speaks about the inaction, 
inefficiency or deliberate omission by all the concerned 
though being under legal obligation to have taken the 
prompt action in availing the legal remedies but not so 
done as above noted; cannot be ignored, yet; no 
action in such behalf appears to have been taken by 
the competent authority against the delinquents. Due 
to the serious lapses and failure to discharge the legal 
duties promptly and within the prescribed period of 
limitation by all the concerned in the matter in view of 
the decree of the trial Court; of course no actual loss, 
damage or deprivation of rights has occurred to the 
public functionaries concerned in the matter, rather; 
the Government and the Forest Department stands 
completely deprived of the public property solely 
meant to be used, utilized and dealt with in the public 
interest being a public property of which the 
Government 
and 
the 
Department 
through 
its 
functionaries are the custodian but decree of the trial 
Court was not assailed before Majlis-e-Shoora within 
the prescribed period of limitation and for such reason 
alone, appeal was dismissed, upheld by the learned 
High Court as well; consequently the Government 
stood divested of huge public property for being its 
custodian and thereby interests of the public stood 
completely jeopardized merely because of the grave 
omissions and inaction on the part of the concerned 
public functionaries ……..”  
 
In Capital Development Authority v. Shaheen Farooq (2007 
SCMR 1328), this Court held as under: -  
“7.   
We have gone through the impugned 
order, relevant record and also attended to rival 
contentions so raised before us. There is no cavil with 
HRC 4668-2006 etc. 
39 
the proposition that the order of cancellation of 
allotments had not been passed by the Chairman, as 
despite repeated asking, learned counsel for the 
petitioner was unable to point out any document 
showing that the cancellation orders were passed by 
the Chairman except referring to certain documents 
whereby a reference has been made to the verbal 
orders of the Chairman. Verbal order has no sanctity 
in law and such orders are alien to the process of the 
law and the Courts. All orders I passed and acts 
performed, 
particularly, 
by 
the 
State/public 
functionaries and adversely affecting anyone must be 
in writing, as section 24-A(1) of the General Clauses 
Act, 1897 envisages that .the powers shall be 
exercised reasonably, fairly and justly and subsection 
(2) further makes it necessary that the authority 
passing 
orders 
shall, 
so 
far 
as 
necessary 
or 
appropriate, give reasons for making the orders and 
unless the order is in writing, the reasons and fairness 
etc. thereof cannot be ascertained/ adjudged.”  
 
In the case of Mehr Ali v. Noor Muhammad (2007 SCMR 1965), 
this Court held as under: -  
“It is a settled law that public functionaries are duty 
bound to decide the controversy between the parties 
after judicial application of mind as envisaged by 
section 24-A of General Clauses Act and Article 4 of 
the Constitution as law laid down by this Court in 
Aslam Warraich's case PLD 1991 SC 2330, Mollah 
Ejahar Ali's case PLD 1970 SC 173 and Gouranga 
Mohan Sikdar's case PLD 1970 SC 158. It is the 
command of the Constitution by virtue of Articles 4 
and 5(2) that the public functionaries have to decide 
the controversy between the parties in accordance 
HRC 4668-2006 etc. 
40 
with law and not in derogation of law as law laid down 
by this Court in Utility Stores' case PLD 1987 SC 447. 
The contention of the learned counsel for the 
petitioner that the highest forum in the hierarchy of 
Revenue Officers is the Member, Board of Revenue, 
therefore, High Court had erred in law to interfere in 
the findings with regard to appointment of Lambardar 
has no force in view of aforesaid discussion that 
Member, Board of Revenue is duty bound to decide 
the cases in accordance with law and shall not disturb 
the findings of fact recorded by the Tribunals below 
unless and until the same are suffered from illegality 
or irregularity or in violation of any law laid down by 
the superior Courts.”  
 
In Iqbal Hussain v. Province of Sindh (2008 SCMR 105), it was 
held as under: -  
“3.   
We are in complete agreement with the 
view taken by the Division Bench of the High Court 
when it says that public functionaries including the 
Chief Minister can deal with the public property only 
under a prescribed procedure within the parameters 
of law under a duly sanctioned scheme and not at 
their whims. Even if such order was passed by the 
Chief Minister in favour of the petitioner, authorities 
concerned would not be bound to follow such illegal 
and void order of a superior authority. It would 
rather be in the exigencies of good order of 
administration and their duty to point out to the 
high-ups that they were acting in excess of their 
lawful authority and in violation of law and the 
constitutional mandate. They may be apprised of the 
legal consequences flowing from such acts. The 
compliance of any illegal and arbitrary order is 
HRC 4668-2006 etc. 
41 
neither binding on the subordinate forums nor valid 
in the eyes of law. Reference in this behalf may be 
made to decision of this Court in Abdul Haq Indhar 
V. Province of Sindh 2000 SCMR 907 and (ii) Taj 
Muhammad v. Town Committee 1994 CLC 2214.”  
 
In the case of Government of Pakistan v. Farheen Rashid [2009 
PLC (C.S.) 966], this Court held as under: -  
“It is the inalienable right of every citizen to be 
treated in accordance with law as envisaged by Article 
4 of the Constitution. It is the duty and obligation of 
the public functionaries to act within the four corners 
of the mandate of the Constitution and law. Even the 
Chief Executive of the country is not above the 
Constitution and is bound to obey the command of the 
Constitution as envisaged under Article 5(2) of the 
Constitution and law laid down by the Court in various 
pronouncements.”  
 
In the case of Secretary Ministry of Health v. Rehana Hameed 
(2010 SCMR 511) this Court made the following observations: -  
“After addition of section 24-A in the General Clauses 
Act, it is the duty and obligation of the public 
functionaries 
to 
redress 
the 
grievances 
of 
the 
citizens/their sub-ordinates with reasons as law laid 
down by this Court in Messrs Airport Services case 
1998 SCMR 2268. We may observe that since Pakistan 
is founded on the basis of religion of Islam, efforts 
should be made to bring out an egalitarian society 
based on Islamic concept of fairplay and social justice. 
Therefore public functionaries are expected to act 
fairly and justly in a manner which should not give to 
any one any cause of complaint on account of 
discriminatory treatment or otherwise.”  
HRC 4668-2006 etc. 
42 
 
24.   
This Court has also emphasized that the departmental 
functionaries are only obliged to carry out lawful orders of their 
superiors and if they are being pressurized to implement an 
illegal order, they should have put on record their dissenting 
note. Reference in this behalf can be made to the case of Zahid 
Akhtar v. Government of Punjab through Secretary, Local 
Government and Rural Development (PLD 1995 SC 530). 
Relevant Para therefrom is reproduced herein below: - 
"………We need not stress here that a tamed and 
subservient bureaucracy can neither be helpful to 
Government nor it is expected to inspire public 
confidence in the administration. Good governance is 
largely dependent on an upright, honest and strong 
bureaucracy. Therefore, mere submission to the will of 
superior is not a commendable trait in a bureaucrat. 
Elected 
representatives 
placed 
as 
incharge 
of 
administrative departments, of Government are not 
expected to carry with them a deep insight in the 
complexities 
of 
administration. 
The 
duty 
of 
a 
bureaucrat, therefore, is, to apprise these elected 
representatives the nicety of administration and 
provide them correct guidance in discharge of their 
functions in accordance with law. Succumbing to each 
and 
every 
order 
or 
direction 
of 
such 
elected 
functionaries without bringing to their notice the legal 
infirmities in such orders/directions may sometimes 
amount to an act of 'indiscretion on the part of 
bureaucrats which may not be justifiable on the plane 
of hierarchical discipline. It hardly needs to be 
mentioned that a Government servant is expected to 
comply only those orders/directions of his superior 
HRC 4668-2006 etc. 
43 
which 
are 
legal 
and 
within 
his 
competence. 
Compliance 
of 
an 
illegal 
or 
an 
incompetent 
direction/order 
can 
neither 
be 
justified 
on 
the 
plea that it came from a superior authority nor it could 
be defended on the ground that its non-compliance 
would have exposed the concerned Government 
servant to the risk of disciplinary action." 
 
This view was further reiterated by this Court in the case of 
Muhammad Akhtar Shirani v. Punjab Tex Book Board (2004 
SCMR 1077). Relevant portion therefrom is reproduced below: - 
“We 
have 
noted 
with 
pain 
that 
departmental 
authorities responsible to run its affairs do submit to 
whims and wishes of their superiors and never feel 
hesitation in implementing even an illegal order, 
knowing well that it has no legal sanction and if such 
order is implemented it is bound to give rise to a 
number of complications in the future. This Court time 
and again has emphasized that the departmental 
functionaries are only obliged to carry out lawful 
orders of their superiors and if they are being 
pressurized to implement an illegal order they should 
have put on record their dissenting note and if such 
practice is followed chances of issuing/passing illegal 
orders shall be minimized.” 
 
25.   
Coming to the issue of NPC, we have examined, with 
the assistance of the learned counsel for the NPC as also the 
learned counsel for the CDA, the relevant record regarding 
allotment of plot to the NPC for construction of Aiwan-e-Quaid on 
the pattern of Aiwan-e-Iqbal, Lahore. To begin with, it may be 
noted that Islamabad Land Disposal Regulation 1993, which laid 
HRC 4668-2006 etc. 
44 
down different procedures for allotment of land of community 
buildings and facilities in the public and private sectors. Under 
regulation 12(2), community buildings and facilities shall be 
allotted to government organizations at amenity rates whereas 
under regulation 15(2), plots for other private institutions, 
including plots for hospitals, maternity homes, clinics, art-
galleries, 
gymnasium, 
amusements 
parks, 
etc., 
shall 
be 
sold/leased by auction. Clearly, NPC was a private entity, hence 
not entitled to be allotted a plot on amenity rate as provided 
under regulation 12(2). The procedure governing allotment of 
plots to private institutions envisaged by regulation 15(2), viz., 
sale/lease by auction was not followed in the matter of allotment 
of plot to NPC. In this view of the matter, the learned counsel for 
the CDA did not support the transaction and stated that the CDA 
was ready to take over the plot/building.  
26.   
At this stage, we would like to advert to the MoU 
dated 30.10.2001, signed between Ministry of Education and the 
NPC. Evidently, the NPC had been approaching the CDA and 
other governmental functionaries for allotment of plot reserved 
for Islamabad Public Library in F-9 Park for establishment of 
Aiwan-e-Quaid. However, keeping in view the afore-noted 
provisions of the Regulation of 1993, no plot on amenity rate 
could be allotted to a private organization, therefore, the 
aforesaid MoU was reached, which provided as under: -   
(1) 
Cost of plot as demanded by C.D.A. will be arranged 
by the Council after President of the Islamic Republic 
HRC 4668-2006 etc. 
45 
of Pakistan lays down the foundation stone of the 
project.  
(2) 
Cost of building structure, equipment, fixtures, etc., 
being integral part of the project, will be borne by the 
council.  
(3) 
Design of the buildings on the plot will be prepared by 
the Capital Development Authority in consultation with 
Director 
General 
Libraries 
and 
Nazriya 
Pakistan 
Council according to their requirements.  
(4) 
This will be a project of Department of Libraries, 
Ministry of Education.  
(5) 
The PC-1 will be prepared by the Department of 
Libraries of the Ministry of Education and will be 
subject to approval by the Planning Commission and 
will 
be 
completed 
within 
24 
months 
of 
its 
commencement.  
(6) 
Any alteration or addition in the project building will 
be the right of Department of Libraries.  
(7) 
Maintenance cost of the project buildings will be borne 
by the Department of Libraries of the Ministry of 
Education.  
(8) 
Revenues on account of renting out auditorium & 
other parts of the building will be revenues of the 
Department of Libraries. Rules for use of the facilities 
will be approved by the Secretary to the Government 
of Pakistan, Ministry of Education.  
(9) 
An Executive Committee comprising Representative of 
Nazria Pakistan Council (Mr. Ashraf Nadeem), Joint 
Educational Adviser (HE&LB) of Ministry of Education 
and Director General, Department of Libraries will 
administer the affairs of the project till its completion. 
Thereafter, the Director General, Department of 
Libraries will be responsible for its operations.  
(10) To ensure smooth and prompt implementation of the 
project, Aiwan-e-Quaid Authority on the pattern of 
HRC 4668-2006 etc. 
46 
Aiwan-e-Iqbal Authority, Lahore, has been set up by 
the 
Education 
Minister 
with 
the 
following 
composition:-  
a. Minister for Education  
 
 
Chairman 
b. Minister for Interior  
 
 
Member 
c. Joint Secretary (ICT-CDA) 
 
Member 
d. Chairman, CDA 
 
 
 
Member 
e. Mr. Mahmood Ali (NPC)  
 
Member      
f. Joint Secretary (Admn)  
 
Member 
Ministry of Education  
g. Gen. (Retd.) Imran Ullah Khan  
Member  
Executive Committee of NPC  
h. Director General Libraries 
 
Member  
i. President, NPC (Mr. Zahid Malik)  
Secretary   
 
 
 
 
 
 
 
General”  
 
It transpired during the hearing that the cost of land was paid 
from the government exchequer on a directive of the Prime 
Minister and the funds for construction of the project were also 
granted by the government, though as per MoU, the cost of plot 
as also cost of building structure, equipment, fixtures, etc, being 
integral part of the project was to be borne by the NPC. Further, 
according to the MoU, it was a project of Department of Libraries, 
Ministry of Education and was to be run by the Aiwan-e-Quaid 
Authority set up on the pattern of Aiwan-e-Iqbal Authority, 
Lahore by the Education Minister with the composition mentioned 
in the MoU. However, it appears that no such Authority was set 
up and instead the project was given in the hands of NPC. It was 
nothing but grabbing of State land, that too, unfortunately in the 
name of the father of the nation, Quaid-e-Azam Muhammad Ali 
Jinnah.  
HRC 4668-2006 etc. 
47 
27.   
On the last date of hearing, the learned counsel filed 
application on behalf of NPC, containing decisions of the 
Executive Committee of the Council, which are reproduced 
below: -  
(1) 
That keeping in view the observations of the 
Honourable Court and realizing that while the Council 
acted in good faith, yet there is a legal aspect of the 
case which may adversely affect the status of the 
lease deed granted by the CDA the same can, 
therefore, be treated as cancelled thus reverting the 
plot to the CDA. NPC is not interested in ownership of 
the property but in the concept and in the process of 
running the Library.  
(2) 
A request be made to the Honourable Court that 
Nazriya Pakistan Council may be allowed to continue 
and operate Aiwan-e-Quaid.  
(3) 
Finally that NPC would like the CDA to nominate its 
representative to the Executive Committee of the 
Council.”  
 
We have given anxious consideration to the submission of the 
NPC in the light of the provisions of MoU. In our view, the Aiwan-
e-Quaid ought to be managed and controlled on the pattern of 
Aiwan-e-Iqbal Authority, Lahore, as envisaged by the aforesaid 
MoU dated 30.10.2001, signed between the Ministry of Education 
and the NPC. We, therefore, direct that the project shall be taken 
over 
by 
the 
above 
mentioned 
Aiwan-e-Quaid 
Authority. 
Necessary legal cover will be provided to it by the concerned 
quarters.  
HRC 4668-2006 etc. 
48 
28. 
 
Now we take up the establishment of Citizens Club in 
F-9 Park. Admittedly, according to the Master plan of F-9 Park, 
no residential building for lodging/boarding of the members of 
the Citizens Club could be constructed without approval of the 
competent authority and without taking into consideration the 
requirements of the public park. The revised Master Plan of 1995, 
which envisaged establishment of a club, itself was not a legal 
document in absence of approval by the Federal Government in 
terms of section 19 of the CDA Ordinance, 1960; therefore, no 
superstructure could be built upon it and no scheme prepared in 
pursuance thereof. It is pertinent to mention here that as per 
minutes of the decisions of the CDA Board taken in the meetings 
held on 24.09.2007 and 01.10.2007, the construction of Citizens’ 
Club was earlier proposed in Sector H-11, but later on shifted to 
Sector F-12 and then re-shifted to Sector F-9 (Fatima Jinnah 
Park) due to non-acquisition of land in Sector F-12. The scheme 
for a full-fledged Citizens’ Club with 18 holes golf course and 
amphitheatre, ladies club and for children sports area was 
examined and approved in a meeting presided over by the 
Chairman CDA, and attended by officers of the CDA Environment 
Directorate. Here too, the scheme was approved neither by the 
CDA Board nor by the Federal Government in accordance with 
the provisions of the CDA Ordinance, 1960, referred to 
hereinabove. Further, assuming for the sake of argument, though 
not accepting, there was a provision for establishing a club in the 
Park, an elitist club with a commercial perspective was hardly 
HRC 4668-2006 etc. 
49 
justified considering the primary aims and objectives of the 
public park. In the case of Iqabal Haider (supra), this Court 
considered the issue of establishment of a mini golf course in the 
Jubilee Park situated in Sector F-7, Islamabad, relevant 
paragraphs have already been reproduced in Para 15 above. In 
this view of the matter, the establishment of Citizens’ Club aimed 
at providing facilities to the elitist class alone was not for the 
general masses for whom F-9 Park was primarily meant. As such, 
the same was not permissible.  
29.   
In the case of Bangalore Medical Trust v. B.S. 
Muddappa (AIR 1991 SC 1902) the Supreme Court of India 
considered the issue of construction of a hospital in the space 
reserved for Public Park. According to the facts of the case, an 
improvement scheme was adopted under the City of Bangalore 
Improvement Act, 1945 and, in terms of the Bangalore 
Development Authority Act, 1976, was deemed to have been 
prepared and duly sanctioned by the Government. Under the 
scheme, a site was reserved as an open space for Public Park. 
Pursuant to the orders of the State Government, and by a 
Resolution, the Bangalore Development Authority (BDA) allotted 
the said open space in favour of a private medical trust, for the 
purpose of constructing a hospital. This allotment and diversion 
of the user of the site was challenged before the High Court by 
the respondents, as residents of the locality and as general 
public, contending that it was contrary to the provisions of the 
Act and the scheme sanctioned thereunder, and the legislative 
HRC 4668-2006 etc. 
50 
intent to protect and preserve the environment by reserving open 
space for ventilation, recreation and playgrounds and parks for 
the general public. A Single Judge of the High Court dismissed 
the Writ Petition holding that a hospital being a civic amenity, the 
allotment of the site by the BDA in favour of the appellant for the 
purpose of constructing a hospital was valid and in accordance 
with law, and, rejected the claim of the petitioners that the BDA 
had no power to alter the scheme, and in any event, a site 
reserved for a civic amenity could not have been allotted for 
construction of a hospital, on the ground that the scheme could 
be altered under Section 19(4) of the Act, and it was done with 
approval of State Govt. On appeal, a Division Bench of the High 
Court held that though the BDA had the authority to deal with 
the plot in question, the area having been reserved in the 
sanctioned scheme for a Public Park, its diversion from that 
object and allotment in favour of a private body was not 
permissible under the Act, even if the object of the allotment was 
the construction of a hospital, since a hospital could not be 
considered to be an amenity, and that in allotting the site to the 
Trust, a largesse was conferred on it in utter violation of law and 
rules, and set aside the allotment of the site in question with 
liberty to the BDA to make a fresh allotment of any alternative 
site in favour of the Trust. While dismissing the appeal, the 
Supreme Court held as under:-  
“A private Nursing Home could neither be considered 
to be an amenity nor it could be considered 
improvement over necessity like a public park. The 
HRC 4668-2006 etc. 
51 
exercise of power, therefore, was contrary to the 
purpose for which it is conferred under the statute.  
“Financial gain by a local authority at the cost of 
public welfare has never been considered as legitimate 
purpose even if the objective is laudable. Sadly the 
law was thrown to winds for a private purpose. The 
extract of the Chief Minister's order quoted in the 
letter of Chairman of the BDA leaves no doubt that the 
end result having been decided by the highest 
executive in the State, the lower in order of hierarchy 
only followed with 'ifs' and 'buts' ending finally with 
resolution of BDA which was more or less a formality. 
In less than ninety days, the machinery in BDA and 
Government moved so swiftly that the initiation of the 
proposal, by the appellant, a rich trust with foreign 
deposits, query on it by the Chief Minister of the 
State, guidance of way out by the Chairman, direction 
on it by the Chief Minister, orders of Govt., resolution 
by the BDA and allotment were all completed and the 
site for public park stood converted into site for 
private nursing home without any intimation direct or 
indirect to those who were being deprived of it.  
“Speedy or quick action in public institutions calls for 
appreciation 
but 
our 
democratic 
system 
shuns 
exercise of individualised discretion in public matters 
requiring 
participatory 
decision 
by 
rules 
and 
regulations. No one howsoever high can arrogate to 
himself or assume without any authorisation express 
or implied in law a discretion to ignore the rules and 
deviate from rationality by adopting a strained or 
distorted interpretation as it renders the action ultra 
vires and bad in law.  
“An illegality cannot be cured only because it was 
undertaken by the Government, or because it is done 
HRC 4668-2006 etc. 
52 
at the behest of the Chief Executive of the State. No 
one is above law. In a democracy what prevails is law 
and rule and not the height of the person exercising 
the power.  
“The executive or the administrative authority must 
not be oblivious that in a democratic set up the people 
or community being sovereign, the exercise of 
discretion must be guided by the inherent philosophy 
that the exerciser of discretion is accountable for his 
action, it is to be tested on anvil of rule of law and 
fairness or justice particularly if competing interests of 
members of society are involved.”  
 
30.   
Learned counsel for the CDA placed on record copy of 
PC-I for construction of Citizens’ Club. According to estimate 
worked out for its completion, an amount of Rs.1.28 billion has 
been allocated. This huge amount belongs to no one else except 
the taxpayers/citizens. Such amount, therefore, could have been 
spent appropriately for their welfare instead of providing 
luxurious type of Citizens’ Club only for its members. There is no 
dispute that facility of membership can only be availed by the 
persons who have resources, and not by the general public who 
have no financial means to avail such facilities; therefore, 
besides violation of the CDA laws, a huge segment of the society 
belonging to downtrodden class have been deprived. Incumbent 
Chairman CDA informed that physical work progress was 69% 
and an amount of Rs.575 million had been spent so far. He was 
of the opinion that construction of Citizens’ Club shall be 
providing additional facility not only to members, but also to 
HRC 4668-2006 etc. 
53 
those who would visit Islamabad, including diplomats; therefore, 
from this point of view, the Club was being constructed. We are 
not opposing establishment/construction of such like clubs in the 
Capital, but definitely on a suitable place and by not curtailing 
rights of the general public. History as it has been traced 
hereinbefore suggests that the Club was proposed in different 
sectors, such as H-11 and F-12, but the construction work could 
not commence for want of acquisition of land in those sectors. 
This explanation does not seem to be impressive. CDA can 
undertake such projects not in the park, but in any other area, 
ensuring at the same time that the money of taxpayers shall not 
be used for such purposes. However, as now a huge amount has 
already been spent; therefore, CDA with the approval of the 
Federal Government, instead of abandoning the project, may 
utilize the building and other facilities for any public welfare 
project, like women university, medical/engineering college, 
science, technology or IT institution, etc.  
31.   
On the issue of Megazone (formerly named as Hot 
Shots), Mr. Afnan Karim Kundi submitted that the Master Plan of 
F-9 Park envisaged setting up of a bowling alley/centre. In 
pursuance of advertisement published in the press in the year 
1994 to which in all seven firms responded. M/S S&S Enterprizes, 
a Pvt. Ltd. Co., one of the seven parties to the bid, having 
offered the highest bid of Rs.752,000/- was selected. The CDA 
Board, in its meeting held on 27.11.1994 approved grant of 
licence to M/S S&S Enterprizes. The management of the centre 
HRC 4668-2006 etc. 
54 
had changed hands. As no notice was issued to them, they were 
not before the Court.   
32.   
Mr. Qamar Afzal, ASC appeared on behalf of M/S S&S 
Enterprizes Pvt. Ltd., occupants of the bowling alley/centre, first 
operated in the name of ‘Hot Shots’, and now named as 
‘Megazone’. He submitted that presently the concern was being 
managed and operated by Brig. (R) Iftikhar Ahmed (Chief 
Executive) along with Mr. Shi Hua Ping a Chinese national 
(Director). He submitted that there was litigation between his 
clients and the CDA on account of unauthorized construction of 
basement, mezzanine floor, etc., and non-conforming use of the 
premises, e.g. swimming pool, shops, etc., and ultimately, 
certain portions of the constructed area were demolished while 
the rest was compounded by the CDA on payment of fine/rent. 
He was asked to explain under what provisions of law the CDA 
had so compounded the unauthorized construction. He referred 
to different Regulations of the CDA, e.g., the CDA Ordinance, 
1960, 
Islamabad 
Building 
Regulations, 
1963, 
Islamabad 
Residential Sectors Zoning (Building Control) Regulation, 1993, 
etc., but failed to show how the aforesaid Ordinance/Regulations 
were applicable to the building in question, which was not of 
residential nature. He then submitted that the answer to the 
proposition was found in the record of the CDA (pp. 108-110 of 
the CDA P/B Part IV), which we have perused with his assistance. 
The issue was considered by the CDA Board in its meeting dated 
20.11.2002 and made the following decisions: -  
HRC 4668-2006 etc. 
55 
(1) 
Compoundable violations of excess area of basement 
and ground floor may be regularized by imposing 
compounding charges of Rs.10,000/- (lump sum) & 
fine @ Rs.1500/- per sq ft or to demolish the area 
constructed over and above the approved plan and 
beyond the terms and conditions of bid.  
(2) 
The 
non-compoundable 
violations 
of 
additional 
facilities i.e. construction of mezzanine floor, stair 
tower, swimming pool, toilets, etc., provided in the 
basement against its lawful use may be demolished 
after giving the licensee proper/mandatory notice.  
 
The CDA vide letter dated 10.07.2003 worked out amount of 
fine, etc. and directed M/S S&S Enterprizes to deposit 
compounding charges in the sum of Rs.73,87,000/- failing which 
the Authority would remove the same. In the same letter, the 
CDA gave the detail of non-compoundable violations area, e.g. 
mezzanine floor, stair tower, swimming pool, etc., but did not 
propose to take any consequential penal action. The Deputy 
Commissioner, CDA, in pursuance of the report by the CDA, vide 
order dated 15.01.2004 directed the CDA to take action against 
M/S S&S Enterprizes, i.e. to stop the non-conforming use of the 
premises. Pursuant to an application submitted by M/S S&S 
Enterprizes, the CDA Board in its meeting dated 12.05.2004 
decided to regularize the basement and swimming pool without 
charges, and to regularize extended portion of ground floor, 
mezzanine floor on payment of charges/fine @ Rs.1500/- sq. ft. 
along with charges for non-conforming use/activities and asked 
the licensee to pay Rs.1,99,72,742/-. The CDA Board, then in its 
HRC 4668-2006 etc. 
56 
meeting dated 19.10.2004 decided that existing halls, which 
were used for marriage parties, would be utilized for sports and 
recreational activities and asked the Cost Accountant and 
Planning Wing to examine the rates while keeping in mind the 
rules and regulations to work out excess rates, compound and 
other charges. The Deputy Director BCS-II, having re-measured 
the area, calculated/worked out a sum of Rs. 66,39,507/- to be 
paid by M/S S&S Enterprizes in terms of the Islamabad 
Residential Sectors Zoning (Building Control) Regulation, 1993, 
which was approved by the Member (Planning) and the Chairman 
CDA. It was pointed out during the 2005 Audit that the 
compoundable charges came to Rs.2,24,70,000/- against the 
demanded amount of Rs.66,39,507/-, which caused a loss of 
Rs.1,99,72,000/- to the Authority. The above amount having 
been paid by the licensee, the CDA Board, in its meeting dated 
07.06.2007 regularized the compoundable violations.  
33.   
The above narration in no way provides an answer to 
the question under what law the CDA had regularized the 
compoundable as well as non-compoundable constructions. The 
learned counsel agreed that the premises in question were not 
governed by any of the aforesaid laws/regulations. Mr. Afnan 
Karim Kundi, too, was unable to refer to any legal instrument in 
support of the decisions/actions of the CDA authorities. In 
absence of any legal instrument empowering the CDA to take the 
kind of actions that it did, the entire transaction from the 
beginning to the end was illegal and unsustainable in law.  
HRC 4668-2006 etc. 
57 
34.   
The CDA Board, in its meeting dated 27.11.1994 
decided, inter alia, that the bidder himself would construct the 
bowling centre on international standards and that the land 
would be licensed out for 20 years, renewable on mutual consent 
of both parties for another term of 20 years on new/re-
negotiated terms. Thus, there was no provision for transfer of the 
licence. Surprisingly, in the licence deed dated 07.05.1995 issued 
by the CDA in favour of M/S S&S Enterprizes, a clause was added 
providing for transfer of the bowling centre to a Pakistan based 
company registered under the Companies Ordinance, 1984 after 
completion of construction, issuance of completion certificate and 
execution of the lease deed in favour of the licensee. Later, 
though the construction was completed with certain alterations 
and additional constructed area in violation of the approved 
building plan, but no completion certificate was obtained nor any 
lease deed was executed. Later on, the company created a 
collaboration with a Chinese Company, namely, M/S North 
Industrial Corporation of Peoples Republic of China (NORINCO), 
which got itself incorporated in Islamabad as M/S Islamabad 
NORIN Co. (Pvt.) Ltd., with Chinese Directors and Brig. (R) 
Iftikhar Ahmed as Chief Executive. M/S S&S Enterprizes entered 
into 
construction 
agreement 
dated 
09.08.1995 
with 
M/S 
Islamabad NORIN Co. After construction of the centre, the 
project in the name and style of M/S Hot Shots Bowling Centre 
became operational. Later on, M/S S&S Enterprizes surrendered 
all its rights in favour of M/S International NORIN Co., and the 
HRC 4668-2006 etc. 
58 
possession was formally handed over to Brig. (R) Iftikhar Ahmed 
who was presently running the centre, later called as Megazone. 
All the above actions were done in violation of the decision of the 
CDA Board on the issue, as also the relevant rules and 
regulations of the CDA. 
  
35.   
The revised Master Plan prepared in 1995 was not 
approved by the competent authority. On that view of the 
matter, spaces reserved for cuisine area, bowling alley, etc., in 
the un-approved Master Plan did not have the proper legal 
sanction at their backing and the CDA authorities thus rendered 
bereft of the power to go ahead with the preparation of schemes 
in relation thereto, as envisaged by section 13 of the CDA 
Ordinance, 1960. As such, the issuance of licence to M/S S&S 
Enterprizes was illegal and unsustainable. Having held so, the 
reference to the terms of the licence governing non-conforming 
use of the premises by the licensee, or in case of breach of 
anyone or more of the conditions of licence, the licence was liable 
to be withdrawn/cancelled and the structure, if any, would be 
confiscated without any payment, was of no consequence. Even 
otherwise, regulation 12(3) of the Islamabad Land Disposal 
Regulation, 1993 obligates the CDA to itself develop and 
maintain public parks, playing fields and graveyards, which the 
CDA violated by awarding lease/licence in favour of M/S S&S 
Enterprizes and M/S Siza Foods. This aspect was highlighted by 
HRC 4668-2006 etc. 
59 
this Court in the case of Iqbal Haider (supra) in the following 
words: -   
“15. What 
we 
have 
understood 
from 
above 
documents is that in the Capital territory, a master 
plan was prepared at the time of its inception and 
subsequently 
under 
different 
schemes, 
different 
sectors were set up. In this behalf, reference to the 
preamble and sections 11 and 12 of the Ordinance, 
1960 may be made. In the scheme of a sector, some 
of the areas have been earmarked as a Public Park to 
attract general public. According to Article 12(3) of the 
Regulation, the public parks, playing fields and 
graveyards are to be developed and maintained by the 
CDA. 
Thus 
the 
conclusion 
is 
that 
during 
the 
classification of the plots, under Article 3 of the 
Regulation, if a piece of land has been earmarked for 
purpose of Public Park, same cannot be leased out and 
CDA itself is bound to develop the same.”  
 
36.   
Thus, for the foregoing reasons, it is declared and held 
as under: –  
(1) 
Establishment/construction of McDonald’s restaurant 
in Fatima Jinnah Park, Sector F-9, Islamabad was 
contrary to Article 18 of the Constitution read with 
CDA Ordinance, 1960. Consequently, CDA is directed 
to cancel the lease of M/S Siza Foods forthwith, put up 
the matter before the CDA Board for converting 
cuisine pavilion area with dense vegetation into 
restaurant area, and then re-auction a site for setting 
up a food outlet therein, and seek approval from the 
Federal Government to the Master Plan as also the 
schemes prepared thereunder, in accordance with the 
provisions of the CDA Ordinance, 1960 and the other 
relevant rules and regulations. If the CDA Board or the 
HRC 4668-2006 etc. 
60 
Federal Government declined to grant conversion of 
the cuisine pavilions into a site for construction of food 
restaurant, the existing superstructure raised by the 
McDonald’s shall be demolished by defunct lease 
holder at its cost within three months. Fresh 
applications shall be invited from the local as well as 
international food chains by inviting expression of 
interest, indicating the area, facilities, etc., and 
whosoever succeeds shall be entitled to set up a food 
outlet accordingly. However, if M/S Siza Foods 
participated and succeeded in the auction, it shall 
continue with the business subject to fresh terms and 
conditions, without introducing in the business any 
third party, like Lakson Group/group company, etc. 
However, if any other food chain succeeded, then the 
parties with the intervention of the CDA shall 
negotiate the cost of the existing structure of 
McDonald’s restaurant;  
(2) 
The CDA shall forthwith cancel the allotment of land to 
NPC, take over the premises along with facilities and 
place the matter before the Federal Government in 
the light of the MoU signed between the Ministry of 
Education and the NPC so as to run affairs of Aiwan-e-
Quaid smoothly and achieve the objects for which it 
was established. However, it would be for the Federal 
Government to allow representation to NPC in the 
management committee, but complete administration 
of the premises shall rest with the Government;  
(3) 
As far as Megazone is concerned, its transfer in the 
name of Brig. (R) Iftikhar Ahmed and others was 
made contrary to the terms of the licence; therefore, 
the occupants subject to the rights of the original 
licence holder shall be given opportunity to get the 
same transferred in their name in accordance with 
law/guidelines issued by the Securities and Exchange 
HRC 4668-2006 etc. 
61 
Commission of Pakistan within a period of three 
months, failing which the licence shall be cancelled, 
the land shall be taken over by the CDA and the 
occupants shall be directed to restore it to the position 
as it was prevailing before issuing the licence in favour 
of M/S S&S Enterprizes;   
(4) 
As far as Citizens Club is concerned, its construction 
shall be completed as a huge amount of public money 
has been spent over it unauthorizedly and the building 
with other facilities shall be used for a project of public 
welfare;  
(5) 
A perusal of the documents made available to the 
Court abundantly makes it clear that Mr. Kamran 
Lashari, the former Chairman CDA, in violation of the 
constitutional provisions, CDA Ordinance, 1960 as well 
as other rules and regulations on the subject granted 
lease for 33 years of government land at a very 
nominal lease money to M/S Siza Foods in a non-
transparent 
manner, 
undoubtedly, 
with 
the 
connivance of the other officials of the CDA; therefore, 
they all deserve to be dealt with strictly for 
misconduct, departmentally as well as by instituting 
both civil and criminal action against them, so that it 
may serve as a deterrent for like-minded persons, 
who discharge their duties/functions without adhering 
to the relevant provisions of the Constitution and the 
law. Such an action has become necessary with a view 
to avoiding in future violation of any provision of the 
Constitution and the law. In the case of Iqbal Haider 
(supra), it was observed that action against the 
responsible officer/official of the CDA was called for in 
view of the judgment of this Court in Pervaiz Oliver 
(supra), but it seems that no action against anyone 
was taken so far. The CDA through Establishment 
Division, Government of Pakistan is directed to take 
HRC 4668-2006 etc. 
62 
action against Mr. Kamran Lashari, former Chairman 
CDA for violation of the Constitution, the CDA 
Ordinance, 1960, rules and regulations, reference 
whereof has already been given in the case of Iqbal 
Haider (supra);  
(6) 
The Chairman CDA shall ensure implementation of 
directions in the above Paragraph through concerned 
functionaries of the Federal Government within a 
period of three months from the date of this 
judgment. He is also directed to ensure transparency 
in other projects of the CDA and at the same time 
office files of Master Plan and preparation of schemes 
shall be maintained properly instead of showing 
helplessness to produce the record before the Court; 
(7) 
Unconditional apology tendered by Amin Muhammad 
Lakhani, proprietor of M/S Siza Foods is accepted 
because he himself volunteered for the same. 
However, he is warned to be careful in future and 
avoid scandalizing the courts.   
(8) 
As these petitions have been considered involving 
public interest/general masses/citizens, thus no order 
as to costs.   
 
The listed HR cases are disposed of in the above terms.  
 
CHIEF JUSTICE 
 
 
     JUDGE 
 
 
     JUDGE  
Islamabad 
 
Announced in Court on __________.  
 
 
 
 
 
 
 
 
 
C.J.  
 
APPROVED FOR REPORTING  
