' MAULVI ANWARUL HAQ, J.- This judgment shall decide W.P.No,1822 of 1996, W.P.No,2440 of 2003 and W.P.No,2196of 2000.
2. Dispute in these cases pertains to a public park formally known as Topi Park then as Ayub Park presently as National Park located on National Highway (G.T. Road). Somehow or the other a portion of the said park measuring 4-50 acres was leased out to the Pakistan Tourism Development Corporation Limited for setting up a tourist village vide lease, dated 16-6-1985 w.e.f, 12-5-1977. The purpose was to set up Tourist Village. The said tourist village was never set up and the land was transferred by said Corporation to Tourist Village Ltd. By means of a sublease, dated 16-1-1986. The building plans filed by the said company were approved but the construction having not been raised sanctioned lapsed by afflux of time. Meanwhile, an attempt was made to install a petrol pump on a portion of the said land but proved abortive. W.P.No,1822 of 1996 came up before this Court on 3-12-1996 when it was admitted to hearing and status quo was ordered to be maintained at the spot. W.P.No,2440 of 2003 has been filed to question handing over of the said park to Army Heritage Foundation Rawalpindi, respondent No, 8 in this writ petition. The Chief Executive directive, dated 21-7-2000 in this behalf is sought to be declared illegal and void. It has been stated that the Governor of Punjab has transferred 547 acres land free of charge to the Central Government for the purpose of managing the park. According to the Defence department letter, dated 16-7-1940 the said land has been transferred to the Central Government only for management and proprietary rights remained unaffected vesting in the Provincial Government.
The Central Government in its turn entrusted the management of the park to the Rawalpindi Cantonment Board on the following terms:-
(a) No building whatsoever shall be erected without the Punjab Government's previous sanction which shall be applied for through the GOC-in-Chief, Northern Command and the Central Government and which will be sparingly given.
(b) The property shall be liable to be resumed:-
(i) if it is substantially required by the Govt, for the public purposd and;
(ii) if the condition regarding the erection of building is violated.
(c) Reasonable facilities shall be given for the Boy Scout Camp within the park.
(d) The park shall not on any account be alienated to outside parties.
(e) All income shall be credited and the expenditure debited to the Cantonment Board.
(3) If and when the park is included in the Rawalpindi Cantt. The land should be treated as Class B- 4 and the necessary entries made in the General Land Register to show that the land vests in the Crown for the purpose of the Punjab Province as well as to show the other rights retained by the Provincial Government.
' The land accordingly was classified B-4 land under Rule 6 of the Cantonment Administration Rules, 1973, in view of the specific terms of the said arrangement between the Governor of Punjab and Federal Government and later the said letter issued by the Defence department, the land could not have been alienated to any outsider.
3. The Federal Government, Cantonment Board as also said Army Heritage are fully supportive of the contentions of the writ petitioners inasmuch as they maintained that the said land is park and has to be maintained as such. In fact the said respondents duly averred that subsequent alienation of the land which has no nexus with the user thereof as park is void and otherwise unauthorized. These writ petitions are contested by Messrs Tourist Village (Pvt.) Ltd. Who also filed W.P.No,2196 of 2000 questioning the handing over of the park to the said Army Heritage Foundation but on the ground thai it claims title unto itself under the said sublease.
4. The said Army Heritage Foundation in its reply filed in W.P.No,2440 of 2003 has explained that Army Heritage Foundation is a Charitable Endowment within the meaning Charitable Endowment Act, 1890 and the Federal Government settled a scheme for the administration of the assets to be applied for charitable purposes i.e. The said Army Heritage Foundation, under section 5 of the said Act, 1890. The Chief Executive of the country passed an order, dated '21-7-2000 transferring Ayub National Park land in favour of said Army Heritage Foundation with the purpose of chronicling the Islamic Military History of South Asia in general and documenting/displaving achievements of Pakistan Military after 1947 projecting the correct prospective for present and future generations and to develop and maintain amusement/entertainment and theme parks of generally accepted international standards for general public. The foundation has been described as cultural and social welfare origination. It has been stressed that the Foundation is vigorously pursuing the mission of converting Ayub National Park into an amusement and thematic park of accepted international standards in the national and public interest and steps are being taken in this behalf at international level.
5. Messrs Rao Fazal Akhtar Khan and Shaukat Aziz Siddiqui, Advocates learned counsel for the petitioners in W.P. No, 1822 of 1996 and W.P.No,2440 of 2003 contend that the land admittedly being public park and belonging to the Provincial Government (Punjab) it cannot be used for any other purpose and its lease to the PTDC and further sub-lease to Messrs. Tourist Village , Ltd. Is wholly without lawful authority and similar is case with the Chief Executive Order transferring the land to Army Heritage Foundation. Mirza Viqas Rauf, Advocate, learned Federal Counsel who is also representing the Cantonment Board Rawalpindi while agreeing with learned counsel for the said petitioners that the said first mentioned alienations are void, maintained that the Chief Executive Order stands protected under Article 270-AA of the Constitution. Mirza Sadaqat Ali, Advocate, learned counsel for the said Army Heritage Foundation has also argued in lines with the contentions of the learned Federal Counsel with further contention that it is stated case of the said Foundation that the park will not only be maintained as such but rather will be further developed on an international level. Malik Qamar Afzal, Advocate representing the said sub-lessee contends while opposing the contentions of the learned counsel for the petitioners and pressing W.P.No,2196 of 2000 filed by his client that it is a private commercial transaction and his client intends to construct a Motel and petrol pump and the petitioners would not be having a locus standi to question the same. He attacks the said Chief Executive Order as constituting interference with property rights of his client. He has also argued that some member/Directors of the-said company who are sought to be politically victimized in the garb of the said Chief Executive Order.
6. I have gone through these files with the assistance, of the learned counsel for the said parties as also learned Federal Counsel. It is an admitted position on record that the land under the said park is owned by the Province of Punjab. There is no denial that the land was given to the Federal Government on terms as reflected in the said Defence Ministry letter, dated 16-7-1940. There is also no denial that the said land is and was always being used as public park.
7. The original lease in respect of 4.50 acres of land situate on Survey No,721 National Park was executed by the Cantonment Board Rawalpindi in favour of the Pakistan Tourist Development Corporation Ltd. (Pvt.) on 24-9-1977. It was registered on 3-7-1985. The said PTDC then executed a sub-lease in favour of Tourist Village Ltd. On 16-1-1986.
8. As to whether the Cantonment Board with or without sanction of the Federal Government could have leased out the said land to PTDC, the matter will have to be determined with reference to the provision of Constitution and Cantonments Act, 1924. As noted by me above there is no dispute that the land belonged to Provincial Government. Article 173 of the Constitution provides that executive authority of the Federation and of a Province shall extend (and this is further subject to an Act of the appropriate Legislature) to grant, sale, disposition or mortgage of any property vested in, and to purchase or acquisition of property on behalf of, the Federal Government, or as the case may be the Provincial Government. Para. 2 of Article 173 lays down that all the properties acquired for the purpose of Federation or the Province shall vest in the Federal Government or as the case may be in the Provincial Government. It will thus be seen that all Authority of Punjab Province in all matters pertaining to its property is to be exercised by the Provincial Government and similarly Constitution provides for the vesting of the property respectively in the Federation or the Province. Section 108 of the Cantonments Act, 1924 defines the property vesting in and belonging to the Board and the suit land does not at all fall in any heads (a) to (g) under the said section 108. It is not even the case of any of the respondents that the property was ever acquired or ordered to be acquired by the Federal Government from the Provincial Government either to vest in it or to vest in the Cantonment Board. Section 110 provides for mode of acquisition of the immovable property by the Cantonment Board and it is admitted position that the property was never acquired in the manner prescribed in the said section 110.
9. Army Heritage Foundation has relied on mutation No, 2 attested on 27-4-2002 to urge that the recovery stands transferred to the Central Government. I find the said plea to be baseless and for this only one needs to refer the said Chief Executive Order, dated 21-7-2000. In para. 3 thereof the Chief Executive has made request to the Government of Punjab to direct the concerned revenue authorities to mutate the land as per para. 3 of the Defence department letter, dated 16-7-1940. I have already reproduced the contents of the said letter above but I will be reproducing the said para. 3 referred to by the Chief Executive hereunder:-
(3) If and when the park is included in the Rawalpindi Cantt. The land should be treated as Class B- 4 and the necessary entries made in the General Land Register to show that the land vests in the Crown for the purpose of the Punjab Province as well as to show the other rights retained by the Provincial Government.
' It will thus be seen that according to the said para. 3 the mutation was to be effected in the General Land Register as treating the land as Class B-4 as and when the area in question was to be included within the limits of the Rawalpindi Cantonment. It was further insisted that the record should reflect that the land vests in the Crown (Federal Government) for the purposes of Punjab Province and also other rights retained by the Provincial Government. I do find that Chief Executive directive has been completely misread by the Board of Revenue Punjab who ordered the said mutation.
10. The land, thus, neither vesting in the Cantonment Board nor in the Federal Government and, of course, not belonging to any of them could not have been leased out to PTDC and so is case with the said sub-lease in favour of the Tourist Village Ltd.
11. So far as the user of the said land is concerned, the said petitioners Federal Government, Cantonment Board and the said Army Heritage Foundation are ad idem that it can only be used and maintained as a public park. The said transaction particularly sub-lease being violative of the said established user are void on this sole ground as well.
12. This leaves the question of transfer of park to the Army Heritage Foundation by virtue of the said Chief Executive Order, dated 21-7-2000. Before I proceed further I may note here that order specifically excludes the said 4.5 acres of land leased to PTDC which transaction has already been held to be void for the reasons stated above.
13. Having gone through the said order and in view of the stated case of the Army Heritage Foundation that the land will be used as a public park rather will be further developed as such and no intention is reflected in the said pleadings of the Army Heritage Foundation and contents of the said Chief Executive Order of any interference with user of the park as such for public, I do not feel necessity of further discussing the vires of the said Order. I have already noted above that the relevant directive of the Chief Executive contained in the para. 3 of the said order has been misread by the Board of Revenue Punjab. There is no doubt in my view that the said order is not at all derogative of the purpose for which the land was transferred to the Federal Government in the first instance and fully recognizes proprietary rights of the Provincial Government as declared in the Defence department letter, dated 16-4-1940. The said Army Heritage Foundation shall always abide by the said statement in its reply as to maintenance and development of the park in question as public park and not to do any act, in any manner to derogate from the user of public park in question as such.
14. For all that has been stated above W.P. No, 1822 of 1996 and W.P.No,2440 df 2003 are allowed inasmuch as the act of the lease of the land in favour of PTDC and sub-lease in favour of the said Tourist Village Ltd. Is declared without lawful authority and void and the official I respondents as also the said Army Heritage Foundation are directed to maintain and develop the park in question as public park and not to do any act in derogation of the said user of the Provincial Government land as public park, W.P.No,2196 of 2000 is dismissed. No order as to costs.