' SHAUKAT AZIZ SIDDIQUI, J.---Petitioner, Federal Employees Co-operative Housing Society (FECHS), Islamabad invoked the constitutional jurisdiction of this court by way of filing instant writ petition with the following prayer:- In the circumstances, it is humbly prayed that instant writ petition may kindly be accepted and the Letter No, CDA/PLW/ HS-R.P-2-(862)/2/2005/101 dated 27-1-2012 may kindly be declared to be issued without any lawful justification, authority, malafidely, in glare discrimination with the petitioner society, against the natural principle of justice, in the interest of justice.Any other relief which this honorable Court may deem fit and proper in the circumstances of the case may also be awarded."
2. Facts gleaned out from the instant petition are that petitioner having different completed projects at its credit, recently launched a project with the name of "Jinnah Gardens" Phase-I & II, Islamabad where development work is being carried out. The petitioner society having lot of care about the capital city and arrival of dignitaries to Islamabad had desired to make the environment better felt it essential that the gardening is very necessary and without gardening the environment cannot be changed". As some of the societies of Islamabad were accorded permission for gardening and greenery on the land/right of way (ROW) owned by CDA falling in front of those societies. Petitioner also moved application for grant of permission for gardening and beautification of the land, from its own expenditure, the request that was allowed vide Letter No,CDA-PLW/ HS-R.P-2-(862)12005/513, Islamabad, dated 23-5-2011. For sake of convenience, the contents of this letter are reproduced, herein below:-- "No, CDA/PLW-HS-RP-2(862)/20051513. Islamabad, 23 May, 2011 Mr. Tauseef Ahmed, Proprietor, Subject: PLANTATION ON GREEN BELT OF FEDERAL Federal Employees Cooperative Housing Society, Islamabad.
EMPLOYEES CO-OPERATIVE HOUSING SOCIETY, ZONE-V, ISLAMABAD.
Reference: Your letter dated 18-4-2011 regarding the subject Matter.
' The undersigned is directed to inform that your request regarding Plantation and beautification in Jinnah Garden Housing Scheme along green belt of Islamabad Expressway, Zone-V, Islamabad has been examined in the Authority and the same is acceded to."
3. Main grievance of the petitioner is that same Director Housing Societies who conveyed the approval, withdrew the permission, unilaterally vide Letter No,CDA-PLW/HS-R.P-2-(862)/2005/101, dated 27-1-2012. Contents of letter. Of withdrawal of permission are also provided herein below:- 'No,CDA/PLW-HS (RP)2(862)/2005/101. Islamabad, 27 Jan, 2012 ' Lt. Col. CD Nazar Hussain Islam ' President, ' Federal Employees Cooperative Housing Society, 82-West; Muzaffar Chambers,. Blue Area, G-7/F- 7.
' Islamabad.
Subject: WITHDRAWAL OF PERMISSION OF PLANTATION AND BEAUTIFICATION ON GREEN BELT OF ISLAMABAD HIGHWAY, ZONE-5, ISLAMABAD.
The undersigned is directed to inform that a huge cutting of earth and leveling of land has been made in the R.D.W of Islamabad Highway by FECHS without getting approval of beautification plan, whereas the authority had allowed only planation and beautification in Jinnah Garden Housing Scheme. This shows gross violation of the permission granted earlier. Therefore, it has been decided to withdraw the permission of plantation and beautification granted vides this office Letter No, CDA/PLW-HS (RP)2(862)/2005/513 dated 23-5-2011 and refrain from making any change in the R.O.W. Islamabad Highway."
3. Instant writ petition was filed on 8-2-2012 which was fixed before this court on 9-2-2012 and on the said date, following order was passed:-- 'Grievance of the petitioner, Federal Employees Cooperative Housing Society, Islamabad, is that in response to application moved to the Director General, Planning CDA, Islamabad, Director Housing Societies vide letter dated 23, May, 2011accorded approval regarding plantation and beautification, in Jinnah Garden Housing Scheme, along with green belt of Islamabad Expressway, Zone-V, Islamabad, but same has been withdrawn unilaterally, vide letter dated 27-1-2012. Learned counsel for the petitioner submits that it was incumbent upon the CDA to provide an opportunity of hearing to the petitioner and confront it with the violation which it made.
' Let Chairman CDA, Director Housing Societies and Director General Planning, CDA, be called upon in person to appear before this court and explain under which authority of law, Societies working in Islamabad, are allowed to use CDA land for plantation and beautification of the area leading to the Societies. The persons mentioned above are also directed to explain that, is it no municipal work to be performed by CDA and on which consideration same is being awarded to the Societies?"
5. In compliance of the order Chairman CDA, Director Housing Societies, Director Land and Rehabilitation and D.G Law put their appearance, along with learned counsel and on the said date following order was passed.
Mr. Ashiq Ali Ghori, Director Housing, present in the court, when confronted with the preposition that letter dated 23-52011, has been issued under which mandate of law? He submits that on the direction of Member Planning.
' Bare perusal of the letter reveals this fact, that there is no mentioning of any approval or order in writing given by the Member Planning or approval accorded by the Board. Apparently, this is a colourable exercise of the authority which cannot be taken lightly, therefore, Chairman CDA, present in the court is directed to look into the matter personally and probe about the permission/approval accorded, on the verbal direction of Member Planning. It is further directed that Chairman CDA shall submit report in this regard and apprise the court about the mechanism of granting such permission/approval.
' Respondents are also directed to file report and parawise comments to the instant writ petition so as to reach this court within a fortnight, with an advance copy to the learned counsel for petitioner.
' To come up on 2-3-2012.
' On the date so fixed this court observed and issued direction as the report filed by CDA is unsatisfactory and looks result ofcollusiveness between the petitioner and Ashiq Ali Ghori, Director Housing Societies Planning Wing, CDA, Islamabad, who is present in the court and is directed to file complete report containing following information:-
(i) How much land in total has been given to the Society/petitioner for plantation and beautification?
(ii) Length and width of site.
(iii) Nature of land.
(iv) The, site plan at the time of allowing permission and present status.
(v) ' Agreement between CDA and petitioner and limits prescribed in the said agreement.
' To come up on any date in next week.
6. The matter was finally fixed for 8-3-2012, learned counsel for petitioner as well as learned counsel for CDA, were heard at great length.
' The learned counsel for petitioner placed on record two pictures/images which are marked as "Mark-A" and "Mark-B" and submitted that no damage whatsoever has been caused to the CDA land and it is existing as it was at the time of grant of approval, for plantation and beautification.
The activity is being carried out with the purpose of plantation and beautification, as petitioner society has great liking and desire of making the environment conducive and friendly. Learned counsel for petitioner further submits that, once permission for plantation and beautification, vide letter dated 23-5-2011 was accorded, same could not have been withdrawn as "vested right has been accrued in favour of the petitioner to beautify the land and carry out the campaign of planation in front of the society land". The learned counsel for petitioner adds that impugned order of withdrawal has resulted into grave miscarriage of justice which is liable to be struck down.
6. Conversely, learned counsel for respondent rebutted the arguments of learned counsel for petitioner and placed on file latest pictures/images of the disputed site which petitioner took for the purpose of planation and beautification. These pictures are also taken on file as "Mark-C" to "Mark-C-34", view of google earth as "Mark-C-35" and Housing Society Plan "Mark-C-36". Learned counsel for CDA submits that, after obtaining permission for the purpose of, plantation and beautification, petitioner society usurped land measuring 300 (three hundred) kanals on the main Islamabad High Way and changed the entire nature of the land. Learned counsel further submits that, through heavy machinery deployed by the petitioner, huge loss has been caused to state land and the two pictures produced before the court are with the purpose to cheat and deceive, as according to learned counsel same are much prior to the latest situation which even otherwise cover hardly an area of 15 to 20 Kanals. The learned counsel for CDA adds that, no vested right whatsoever was accrued in favour of petitioner, as admittedly land is owned by the CDA and to grant permission to plant the trees under no stretch of imagination bring any right to use the land for any purpose.
8. I have heard, learned counsel for the parties, gone through the contents of writ petition reply filed by the CDA and appreciated the record brought on the file by both the parties.
9. It is being observed with great concern that conduct of CDA authorities with regard to state owned land is highly callous, dubious and insensitive. The land measuring 300 kanals situated at the prime location of Islamabad, High way could not have been changed to present status, without the collusiveness of CDA functionaries. I failed to understand that for what purpose CDA has created the Enforcement Department, as even after the withdrawal of permission and till the order is being dictated, development activity at the site is on Incidentally, I myself passed in front of this site, while on my way to ancestral house and witnessed the development activity, even today i,e, 17-3-2012.
10. This court is fully conscious of the fact that private societies are operating within the ICT quite in number and most of them, by exercising their lucrative influence upon the CDA Officials, playing havoc and utilizing the state land over which societies have no right, whatsoever. As order dated 2- 3-2012, indicates five questions were put to CDA, but unfortunately, answer to these has not been found in the reply. This is nothing but a colourable exercise of the authority and sorry state of affairs. I must say that responsibility to protect the state land has been left to the courts only as CDA in connivance with the criminals and "land mafia" always found napping in performance of its duties.
11. Executive functionaries being custodian of State land are bound to protect it from invasions, misuse and encroachments and if they fail to A perform their duty, plain presumption would be that they were privy to such criminal acts. There is no mechanism through which so called permission of planation and beautification are accorded. How much of land is handed over to societies and in which condition? What are the prescribed limits? Answer to these is not available with CDA and left for this court to enquire and educate the CDA functionaries. Allegiance to Pakistan, obedience to the Constitution and troth to Institution of Judiciary is above all considerations, as for this pride we Judges took oath.
12. I have no hesitation in observing that such type of devices is adopted to open the gate of corruption and instant matter is crude 'example of the same. I must say that, without probing questions asked by this court, the CDA Officials were not willing to disclose that how much land, petitioner society converting to its own use, as CDA officials were fully aware that they remained silent spectator for about 07 months, in which period, the nature of entire land was changed. The polluted acts and stinking approach gave courage to land grabbers, to make claim that "the vested right accrued in their favour" as is the stance of petitioner. The august Supreme Court through different milestone pronouncements, bravely protected the state owned properties, saved thousands of million from the hawks, despite the fact that person on the helm of affairs were found benign and courteous towards criminals. Judgments referred herein below will remain lightship on the issue even in the times to come. Jubilee Park Case (PLD 2006 SC 394), Ardeshir Cowasjee case (1999 SCMR 2883, Shehla Zia case (PLD 1994 SC 693), Parner Oilver case (PLD 1999 SC 26) and judgment from Lahore High Court, Manzoor Bhatti cases (PLD 2002 Lah. 412) also relevant on the issue.
13. In my humble estimation, acts of the officials of the petitioner's society constitute criminal offences, including offence of "criminal breach of trust" as even if permission for planation and beautification is considered as lawful even then state owned land was entrusted to petitioner society as trustee, which societies management misappropriated and converted the same into its own use. I do not agree with the learned counsel for petitioner that any vested right was accrued in favour of petitioner as ill-gotten gains, dishonest intent, fraudulent transactions and deceitful means create no right. Learned counsel for petitioner failed to point out that which fundamental right of the petitioner has been infringed, as this court can exercise its jurisdiction only to enforce the right and not to create it. In this regard guidance has been sought from the dictum of court of apex laid in the case of "Faiz Buksh and others v. Deputy Commissioner and others reported as 2006 SCMR page 219, operative part is reproduced as under:- "We have also adverted to the contention of learned Advocate Supreme Court that it is a case of infringement of fundamental rights by a powerful institution of the Government by whom the lands in question were usurped without getting the same acquisitioned and by following the prescribed procedure and without any compensation. We are mindful of the fact that under constitutional jurisdiction the High Court is fully empowered for enforcement of the fundamental rights but it must be satisfied with such allegations which are well founded, without any bias and based on concrete evidence. It may he kept in view that the main object of the provisions as contained in Article 199 of the Constitution is the enforcement of the rights and not the establishment of the legal rights and such view of the matter, the petitioners who seeks to enforce such legal rights must be specific, precise, clear and unambiguous and besides that there must be an actual infringement of the rights so asserted."
14. It appears that in the instant matter. Director Housing Societies was constrained to withdraw the permission for plantation and beautification, when things went out of his control. The mannerism in which petitioner demonstrated, left no other impression that, firstly permission was obtained through cryptic approach, nature of land changed through might and keeping alive the activity with arrogance. Petitioner approached this court with unclean hands therefore, no discretion can be exercised in its favour.
' In view of above, instant Writ Petition, being devoid of any merit is dismissed.
15. The Chairman CDA is directed to ensure that CDA must perform its municipal functions and all the societies who have been granted permission for planation and beautification be called upon to enter into an agreement with CDA, in which at least following details must reflect:- ' Location of the society and land owned by it ' Status, kind and measurement of land, being sought for plantation. To what extent, permission is accorded. Existing site plan and proposed site plan to be the part of the agreement.
' Images of land to be allowed for plantation and beautification.
' NOC from the authority under the (Islamabad Preservation and Land Scape) Ordinance, 1966.
' Undertaking from the society that permission for plantation and beautification shall not create any right in its favour.
' No construction to be allowed over piece of land in the name of beautification.
' Consideration against which such permission is accorded.
16. The Chairman CDA is also directed to bring into motion, the idle looking Enforcement Department and recover every inch of land, on which petitioner society made encroachments and do not, allow, the petitioner society to carry out any activity in the name of plantation and beautification. And proceed against all culprits from CDA and petitioner society. Needful must be done within fortnight and compliance report in this regard may be submitted before the Registrar of this court, for perusal and issuance of further direction, if required.
' Copy of this judgment shall be transmitted to the Chairman, CDA forthwith. 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.