1. ' Petitioners have impugned the purported conversion of Plot No,ST-9, Block 8, Clifton measuring 5082,66 square yards originally earmarked and designated as a park to the master plan.
2. ' It appears that the subject area fall within the jurisdiction of the then K.D.A.. Administrative control of the area including the area earmarked for the park was transferred to Clifton Cantonment Board under Notification dated 2-3-1983, whereas the property continued to be vested in the then K.D.A.
3. Now succeeded by CDGK.
4. ' It also appears that the Clifton Cantonment Board proposed to establish a degree college for boys at Shireen Jinnah Colony, Karachi, and the subject plot was identified for such purpose. The contract was awarded and the work commenced. The residents of the area and K.D.A. Itself protested against such conversion and construction, through letter, dated 14-6-1994 available at page 75 of the file.
5. ' The petitioners, who were residents of the vicinity in the surrounding area, filed instant petition on 27-6-1994. It appears that interim orders were passed on 7-7-1994 after due notice to all the parties concerned, the petition was also admitted to regular hearing. It seems that despite passing of the restraining orders the construction continued, the Court vide order, dated 10-8-1994 appointed Official Assignee as a receiver to take over the possession of the plot under construction and contempt proceedings were initiated.
6. ' Learned counsel appearing for the petitioners contends that without formally converting the area earmarked for the park Clifton Cantonment Board attempts to convert it for another purpose.
7. According to the petitioners counsel the Board is not even the owner of the property the conversion, if at all, was within the domain of K.D.A. Under the Karachi Development Authority Order.
8. No,5 of 1957. It was urged that by virtue of amendment subsection (2) was added to brought in Article 52-A of the K.D.A. Order, 1957 and conversion of. Amenity plot is not permissible under any circumstances.
9. ' Mr. Naimur Rehman has also drawn our attention to a reported case titled as Shafiqur Rehman and others v. Government of Sindh PLD 2006 Kar.
10. In the cited case the learned Division Bench of this Court confronted with the similar situation ruled that "Authority could not violate mandate of statute by allotting a different number to any amenity plot---Lessee could not use amenity plot for commercial purpose even though expressly provided in lease". He has also drawn our attention to the case of Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 at p.414. In cited case a park earmarked in the original scheme for low-income group, was not allowed to be converted into Private Park. It was urged that indeed establishment of the educational institution is a laudable object but it cannot be established at the alter of another novel purpose for which the plot was originally reserved.
10. ' Learned counsel for the CDGK supports the petition. Contesting respondent, the Clifton Cantonment Board in its counter-affidavit took up a position that to address the growing demand for establishment of education institution in the locality of Shireen Jinnah Colony, subject plot was found most suitable. The decision for using the plot for establishing college was taken in the best interest of the locality to particular and society in general. It was pleaded that consequent upon transfer of the area including subject plot the jurisdiction of the area vest in the Clifton Cantonment Board under Cantonments Act, 1924, it was therefore, urged the petition is motivated and is liable to be dismissed.
11. ' Mr. Sohail H.K. Rana when confronted with the legal position as to whether the ownership and title was transferred to the Clifton Cantonment Board. He fairly conceded that such was of the purposes of civic amenities and administrative control and the title still vest in KDA. Such being the legal position, it becomes very difficult to defend the instance taken by the Clifton Cantonment Board. Admittedly the ownership and title to the property transferred for the purpose of civic amenities and administrative control. Clifton Cantonment Board cannot be allowed to convert the area reserved for the Park purposes to any other purposes. The judgment cited at bar by the learned counsel for the petitioner applies to the instant case as well. Accordingly the petition succeeds. Action of the respondent Clifton Cantonment Board, converting part into college is struck down.
12. ' At this stage Mr. Naeemur Rehman contends that the petitioners may be allowed to maintain the park at their own as they have been doing in the past. Mr. Sohail H.K. Rana, learned counsel opposes the request, he rightly contended that provision of the civic amenity is the responsibility of the Clifton Cantonment Board.
13. ' It is, therefore, directed that Cantomnent Board as suggested by Mr. Sohail H.K. Rana shall develop and maintain a park for the use of residents of the locality in particular and for the citizens in general. Needless to say that all those using the park shall assist the Board in proper up-keep of the park so developed.
14. ' Petition in term of the above stand disposed of.