' CH. IJAZ AHMED, J.--- Brief facts out of which the present petition arises are that Plot No,27 measuring about 600 square yards situated at Street No,39, 1-8/2, Islamabad, was originally allotted to Bashir Ahmed on 12-2-1990 which was purchased by the petitioner and the same was transferred in the name of the petitioner on 9-4-2005. The petitioner had constructed house over the plot in question. Allegedly respondent No,1 approved sector plan of sector 1-8/2 and adjacent to his house as well as other House No,22 towards north area has been left as "green area".
Respondent No,1 had created four plots to accommodate respondents Nos.3, 4, 6 and 7. The petitioner being aggrieved filed Constitution Petition No,1045 of 2007 in the Lahore High Court, Rawalpindi Bench, Rawalpindi, with the following prayer:-- "In the circumstances it is respectfully prayed that the conversion of the area earmarked as "green" attached to the house of the petitioner and House No,22, situated at Street No,39, Sector 1-8/2, Islamabad may kindly be declared as illegal, based on mala fide. An appropriate writ may kindly be issued and respondents be restrained from converting the green area into the plots for the benefits of the respondents."
' The afore-said writ petition was dismissed by the learned High Court vide order dated 18-5-2007.
Petitioner being aggrieved filed C.P. No,553 of 2007 which was fixed before this Court on 12-9-2007.
Leave was granted in the following terms:- "The questions as whether the C.D.A. Authorities can make allotment of a residential or commercial plots in the C.D.A. Area in their discretion and policy of law regarding disposal of such plots through public auction is not mandatory and can be dispensed with and whether green area can be converted into residential or commercial plots without the change of the master plan, would require consideration. Leave is accordingly granted to consider the above questions and in the meanwhile subject to notice to the private respondents, status quo in all respects shall be maintained by the parties vis-a-vis the plots in question."
' The said petition.Was converted into Appeal No,1637 of 2007 which was finally decided on 15-4- 2008 in the following terms by this Court:--- "Messrs Malik Muhammad Qayyum, learned Attorney General for Pakistan and Abdur Rehman Siddiqui, Advocate Supreme Court appearing on behalf of Federation of Pakistan and C.D.A. Have stated that green area adjacent to House No,27 Street No,39, 1-8/2, Islamabad belonging to appellant Khalid Rashid shall not be disturbed and will remain as such.
' In view of above, Mr. Muhammad Akram Sh., learned Senior Advocate Supreme Court appearing on behalf of appellant is satisfied and does not want to pursue the matter further to which Messrs Babar Awan, learned counsel appearing on behalf of private respondents and Muhammad Ishtiaq Ahmed Raja, learned Advocate Supreme Court appearing in C.M.A. No,3026 of 2007 have no objection.
' Accordingly, instant appeal along with C.M.As. Nos.2872 and 3026 of 2007 and C.M.A. No,641 of 2008 are disposed of in the above terms with no order as to cost."
' Respondents allegedly failed to honour their commitment in terms of the order of this Court dated 15-4-2008. Petitioner being aggrieved filed Criminal Original Petition with the following.Prayer--
(i) The respondents Nds.1 to 7 be punished for contempt of Court.
(ii) That respondents Nos.1 to 7 be directed to comply with the order dated 15th April, 2008 in letter and spirit and to demolish construction of building carried out after the 15-4-2008 and to confirm in writing to the honourable Court compliance of the order dated 15th April, 2008,
(iii) To direct the respondents to pay the cost of the petitioner's litigation besides, paying Rs,50 million as compensation to the petitioner for the mental agony and distress for over one year.
(iv) Any other relief, which the petitioner is entitled in law, justice and equity may also be awarded."
The said contempt petition was fixed before this Court on 3-9-2008 and the following order was passed:--- "This Court vide order dated 15-4-2008 had disposed of the matter with consent and with the observation that green area adjacent to House No,27, Street No,39, Sector 1-8/2, Islamabad, belonging to the appellant Khalid Rashid shall not be disturbed and will remain as such. Through the instant criminal original petition, the appellant has agitated that the orders of this Court have been violated and respondents have started construction on the green area mentioned above. The respondents have filed written statement and have denied the contention raised in the contempt application.
' In order to resolve the dispute Haji M. Rafi Siddqqui, learned Advocate, Supreme Court, is appointed as Local Commissioner to inspect the site in presence of both the parties. The appellant will pay a sum of Rs,15,000 (Rupees fifteen thousand) only, as cost to Haji M. Rafi Siddiqui, Local Commissioner.
' By consent adjourned to 15-9-2008."
' The said petition was fixed on 15-9-2008 and the following order was passed:--- "In this case, Local Commissioner has submitted his report. Mr. M. Jafar Hashmi, learned counsel for the respondents submits that he has not received the copy of the report, as such is not in a position to argue the matter and requests for time to file the reply to the Local Commissioner's report. Adjourned to 7-10-2008.
' Thereafter the case was fixed on 7-10-2008 and the following order was passed:--- "Mian Muhammad Hanif, Advocate Supreme Court undertakes to file reply within fortnight. By consent adjourned to 27-10-2008."
' The order dated 27-10-2008 depicts that Advocate-on-Record of the respondents handed over copy of concise statement to petitioner on 25-10-2008 which was received by the counsel of the petitioner on 27-10-2008 and the case was adjourned. Thereafter the petition was fixed before this Court on 18-11-2008 and 2-12-2008 and the following orders were passed respectively:-- ' Order dated 18-11-2008 "Mian Muhammad Hanif, learned counsel for C.D.A. Requests for time to produce Original/unamended Master Plan of Sector 1-8 as well as amended Plan. Adjourned to 2-12-2008.
' Notice be issued in Cr.M.A. No,432 of 2008 for impleadment of party to the petitioner as well as the respondents."
' Order dated 2-12-2008 "Mian Muhammad Hanif, learned Advocate Supreme Court has placed on record original copy of map of 1991. Whereas so far as the plot in question is concerned clear open space has been shown in front of it. He requests for time as Director (Town Planning), C.D.A. Has proceeded to perform Hajj and is not available. By consent adjourned to a date in office during the last week of January, 2009."
2. Learned counsel for the petitioners submits as under:--
(1) That respondents had committed contempt of this Court as depicted by mere perusing the contents of the concise statement filed by them before this Court.
(ii) The respondents have no lawful authority to change the master plan without adopting proper procedure prescribed under the provisions of C.D.A. Ordinance and regulations framed thereunder.
In support of his contention he relied upon Moulvi Iqbal Haider's case PLD 2006 SC 394.
(iii) The respondents had given undertaking before this Court that green area adjacent to the house of the petitioner as shown in the Master Plan would not be disturbed in any manner whatsoever and would remain as such.
(iv) On the basis of the undertaking of the respondents, the appeal of the petitioner was disposed of.
(v) The petitioner had sent a letter dated 28-5-2008 and letter dated 7-6-2008 for the implementation of the order of this Court.
(vi) The respondents did not respond to the afore-said letters and had violated the order of this Court.
(vii) The Local Commissioner has already submitted report which reveals that the respondents had committed contempt of this Court.
(viii)Respondent No,1 had created plots over the land reserved for green area in violation of the provisions of C.D.A. Ordinance, 1960 and regulations framed thereunder to favour their own high officers of the C.D.A., namely Brig. Nusratullah, Ex-Member Planning and Design, Mr. Kamran Qureshi, Member Finance, Mr. Shaukat Mehmand, Ex-Member Administration and Brig. (R) Syed Ghulam Akbar Bukhari, Ex-Member Engineering, without inviting applications from the public at large or from all the employees of the C.D.A..
(ix) The action of the respondents is not only violation of the provisions of the C.D.A. Ordinance and Rules and Regulations framed thereunder but the action of the respondents is also hit by fundamental rights i,e, Articles 9, 14 and 15 of the Constitution.
(x) The respondents, mentioned above, have been allotted plots in question for a petty amount whereas the same are worth of crores of rupees which is not in accordance with law. It is inalienable right of every citizen by virtue of Article 4 of the Constitution.
3. Learned counsel for the respondents submits that respondents had not violated the order of this Court. The respondents had also filed objections with regard to the report of the Local Commissioner. The petitioner approached the respondents to purchase the land of the respondents adjacent to the house of the petitioner. The area adjacent to the house of the petitioner had not been disturbed till date. The matter was placed before the Board of the C.D.A. In its meeting held on 28-10-2008 with regard to the implementation of the order of this Court. The Board had taken a decision on 28-10-2008 which is as follows:--- "The Board decided that Environment Wing to establish a public park on that site. The development and maintenance of the plots is to be one by the Environment Wing of C.D.A. With the cooperation of residents of Society of the area."
4. He further urges that petitioner has not approached this Court with clean hands as the petitioner wants to grab and utilize the land owned by the C.D.A. As is evident from the contents of the application submitted by the petitioner to the respondents which is to the following effect:--- "That in order to grab the unutilized land owned by the C.D.A., the petitioner Mr. Khalid Rashid applied to C.D.A. For grant of permission for development of waste land into green are adjacent to H. No,27, Street No,39, Sector 1-8/2. The subject of the application submitted by the petitioner is reproduced below; ' Please find enclosed pictorial representation of the waste land adjacent to my house. As per C.D.A.'s master plan sewerage pipelines are passing through waste land now turned into shrubs and wild growth, abode for wild bears etc. ' The land in question as such cannot be used for any other purpose except to be developed as green area.
' Sir, I am willing to undertake the project developing the waste land into green area at my cost and kind cooperation of C.D.A."
5. The learned counsel of the private respondents submits that private respondents had not committed contempt of this Court as evident from the contents of the order of this Court dated 15- 4-2008.
6. The learned counsel for the petitioner in rebuttal submits that respondents had no lawful authority to convert green belt into park and had no lawful authority to change the master plan.
The petitioner had not submitted an application before the respondents to purchase the area in question which is adjacent to his house.
7. We have given our anxious consideration to the contentions of the learned counsel of the parties and also perused the record. It is pertinent to mention here that the appeal was disposed of on 15- 4-2008 in the aforesaid terms mentioned hereinabove. Contentions which have been raised before us by the learned counsel of petitioner on merits with regard to change of the master plan or creation of plots in open area east of Plots Nos.22, 24, 25 and 26 have no force which can be relevant to resolve the controversy between the parties at the time of deciding the main Civil Appeal No,1637 of 2007. The question before us is of to examine whether respondents have violated their undertaking which was made before this Court on 15-4-2008? It is better and proper to highlight principles qua initiation of contempt proceedings or not as under:---
(i) That the proceedings cannot be initiated at the desire of a litigant party.
(ii) The Court has to be satisfied as to whether act of respondents comes within the mischief of law or otherwise amounting to interference with the administration of justice.
(iii) The very purpose of initiating contempt proceedings is always vindication of dignity and honour of the Court or that of the justice of administration.
(iv) That once undertaking given to the Court by a party or on his behalf of his counsel it becomes bound to fulfil the same on the ground that undertaking has exactly the same force as an order made or in injunction issued by a Court as law laid down by Full Bench of the Lahore High Court headed by Sardar Muhammad Iqbal, C.J (as his Lordship then was) in Mst. Kishwar Sultan Jehan Begum's case PLD 1976 Lah.580 and Khyber Zaman's case 2005 SCMR 235.
(v) This Court is not bound to start contempt proceedings unless it is shown that the alleged contemnor acted recklessly and with the open motive to show his disrespect to the authority of the Court.
(vi) Instead of starting such proceedings, this Court preferred to adopt the principle of "Afwoo" as recognized by Muslim Jurisprudence. See Shah Alam Khan's case PLD 1993 SC 297.
(vii) Contempt is always between the contemnor and the Court. See Sarfraz Hussain's case 2005 YLR 337. This question of law has also been considered by Calcutta High Court in Tarit Kanti Biswas' case AIR 1918 Ca1.988.
' Order dated 15-4-2008 has already been reproduced hereinabove... Which was passed on the undertaking of the counsel of the respondents and Attorney General for Pakistan. The said order was considered in the meeting of the Board of Directors of C.D.A. Held on 28-10-2008. The decision has already been reproduced hereinabove. The manner in which the order was discussed in the meeting in para 7.4 is reproduced herein below:-- "Director Urban Planning, explained to the Board that Sewerage trunk line was laid diagonally when the area in Sector 1-8 was unplanned. However, in the years 1996-1997 utilization of land in Sector 1- 8 was approved along with re-routing of trunk sewer line, space thus became available has been utilized for planning/adjustment of plots as per ground situation. At the time of existence of trunk sewer line, permission was issued to Col. Khalid Rashid, allottee of Plot No,27, St.39, Sector 1-8/2 for beautification of C.D.A. Land on temporary basis liable to be withdrawn as and when desired by the authority. By virtue of this temporary permission the allottee has approached the Supreme Court of Pakistan about the creation of plots in open area of east of Plots Nos.22, 24, 25 and 26 have also been adjusted towards west keeping in view the ground situation. The orders of the Supreme Court of Pakistan are as under: ' He explained that in pursuance of the Court decision, Col. Khalid Rashid, has approached the authority to keep the area green on east of Plot No,27, St.39, Sector 1-8/2, whereas as per plan previously this area was waste land because of trunk sewer line and row is a planned plot.
' He further explained that Col. Khalid Rashid has served a fresh notice that he is going to file contempt of Court against C.D.A. For non-compliance with the orders of Supreme Court of Pakistan.
' He further explained that in case the area on east of Plot No,27 is to be converted into green, C.D.A.
Has to sacrifice two plots (unallotted) measuring '60 x 90'. He placed the following options before the Board for decision:
(i) If there is binding on C.D.A. As per decision of the Supreme Court of Pakistan to convert the area adjacent to Plot No,27 into green on permanent basis, then two plots numbered 25 and 26 have to be eliminated from the plan.
(ii) If the Court decision may be interpreted as "It means the issuance of permission for beautification of the same land till the land is utilized by C.D.A.", then permission for beautification may be issued which would be purely temporary and liable to be withdrawn whenever required by C.D.A.."
' Mere reading the manner in which the order was considered in the meeting of the Board of C.D.A.
Is contemptuous. It is settled principle that everybody is bound to obey the command of the Constitution in view of Article 5(2) of the Constitution as law laid down by this Court in Ch. Zahur Illahi's case PLD 1975 SC 383. The public functionaries are also duty bound to act in accordance with law in view of Article 4 read with Articles 189 and 190 of the Constitution. Laws are made not to make them merely on the statute book which are framed time to time but act upon them, which is in consonance with the Holy Qur'an as enshrined in Surah Baqra. The afore-said proposition of law is also supported by the following judgments:---
(i) Karachi Development Authority's case PLD 1969 SC 430,
(ii) Capt.(Retd.) Abdul Qayyum's case PLD 1992 SC 184.
' The ratio of the afore-said cases is as follows:--- "that a judgment of the Supreme Court, a right declared thereunder, cannot be overridden or nullified by an executive order, a rule or a dispensation short of legislative will."
' The question of law has been examined by this Court in Messrs Nishat Mills Limited v. Government of Pakistan and others 1989 CLC 1692 and laid down the following principle:--- "Before concluding, I would like to mention that the manner in which the Central Board of Revenue has flouted the law declared by the Supreme Court, leaves much to be desired, under Article 5(2) of the Pakistan Constitution, 1973, obedience to the Constitution and the law is the inviolable obligation of every citizen and every other person resident in Pakistan. I am not aware that the departments of the State are exempt from which obligation. Since under Article 189 of the Constitution, the law declared by the Supreme Court of Pakistan is binding on all Courts in Pakistan and under Article 190 of the Constitution, all executive and judicial authorities throughout Pakistan are bound to act in aid of the Supreme Court, one would assume that all organs of the State are duty bound to act in aid of the law declared by the Supreme Court and not flout it. One would expect that the Central Board of Revenue, with its full-fledged legal cell, is aware of all laws declared by the superior Courts of Pakistan relating to the subjects within their jurisdiction and does not ignore these declaration when framing or amending the law, rules, and notifications on the subject."
' The afore-said minutes of the meeting dated 28-10-2008 clearly depict that the respondents have prima facie committed contempt of this Court which is not in consonance with the judgments of this Court as mention herein above. In fact it is clearly in derogation of the judgment of this Court which tantamounts to interference in the judgment of this Court and falls within the scope of contempt of Court. It is settled principle of law that the judgment of this Court could not be modified/ erased as law laid down by this Court in Imtiaz Ali's case 2001 SCMR 832. Non- observance of the orders of the superior Courts would create a chaos which brings a situation to minimize the State concept of sovereign Islamic State minus a strong and independent judiciary is unimaginable if the judiciary of the country is stripped off, its power, the country would cease to exist as free nation as laws laid by this Court in Tariq Aziz's case 2000 SCMR 751.
8. We are constrained to observe after perusing the minutes of the meeting of the respondents dated 28-10-2008 reproduced hereinabove. However, Board in its decision dated 28-10-2008 reproduced hereinabove that Environment Wing to establish a public park on that site.
9. Adverting to the case in hand after perusing the concise statement filed by the respondents and the decision of the C. D. A. Board dated 28-10-2008 we find that a case for taking action against the respondents for contempt of Court is not made out for the following two reasons:---
(i) Civil Appeal No,1637 of 2008 was not decided on merits but it was decided in view of the undertaking of the respondents as is depicted from the order of the Court dated 15-4-2008.
(ii) The decision of the Board of the C.D.A. Dated 28-10-2008 as mentioned hereinabove does not seem to be in violative of the order of this Court dated 15-4-2008.
10. We are not inclined to proceed against the respondents as law laid down by this Court in Safia Bibi case PLD 1982 SC 247. After perusing the application mentioned herein above of the petitioner we are not inclined to exercise our discretion in favour of the petitioner as law laid down by this Court in Rana Muhammad Arshad's case 1998 SCMR 1462.
11. In view of what has been discussed Criminal Original Petition has no merits and the same is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.