' YAHYA AFRIDI, J:--- The petitioners seek the Constitutional jurisdiction of this Court, praying that; "Declaring the decisions/orders of respondent No,4 dated 15-5-2009 without reference to Administrative approval dated 20-2-2009' regarding the bifurcation and division of funds of Women and Children Park amounting to Rs,21.584 million for three projects, as illegal, unlawful, in violation of Local Government Ordinance, 2001, without any authority, based on mala fides and rest upon ulterior motives, and as such, could not undo the unanimous resolution of the Local Government dated 31-5-2008. And he be restrained to undo the same as custodian of the amount specified for women and children park. "
2. The present petitioners are members of various Union Councils in District Haripur. They are aggrieved of the illegal actions of misutilization of public funds by the then District Government of Haripur.
3. It all started, when on 6-5-2007, the then Prime Minister of Islamic Republic of Pakistan announced the establishment of Public Park in District Haripur. In pursuance thereof, Rs,21.584 million was allocated for the said project. In fact, the funds were disbursed to the District Government, Haripur in September, 2007. The matter was taken up by the Zilla Council, Haripur in its meeting of 21-5-2008. During the said meeting, it was unanimously resolved as Resolution No,25 ("Resolution"), that Rs,21.584 million shall be utilized for a Women and Children Park in District Haripur ("Park"). Though the Resolution did not specify the exact location where the Park was to be established, yet it was clearly resolved that an area measuring 67 Kanals had been allocated by the District Government. For reasons not very clear, the Park could not be constructed. The District Coordination Officer Haripur ("DCO"), vide impugned order dated 20-2-2009, bifurcated into three, the fund of Rs,24.584 million allocated for the Park, and altered the utilization thereof to 'Public Park' from 'Women and Children Park'. Shortly thereafter, on 7-5-2009, Zilla Nazim Haripur ordered the withdrawal of the said order vide Notification dated 7-5-2009 ordered that:- "NOTIFICATION Since approval of the District Government, Haripur has not been accorded regarding issuance of Administrative Approval referred in DO (P&D)AA/2009 dated 20-2-2009 issued by District Coordination Office, Haripur and as the same is against the spirit of the unanimous resolution adopted by Zilla Council, Haripur in its session held on 31-5-2008. In the absence of such approval, the letter referred to by the D.C.O., Haripur dated 20-2-2009 may be treated as withdrawn. The funds to the tune of Rs,21.584 (M) meant for establishment of Women and Children Park are still lying intact in District Government Account-IV, which are required to use as per resolution of the Zilla Council, dated 31-5-2008.
' SD....
' Yousaf Ayub Khan Zilla Nazim, Haripur."
4. The respondents were put to notice and they submitted their written comments disputing, inter alia, the 'locus standi' of the present petitioners and the assertions made by them in their petition.
5. Valuable arguments of learned counsel for the parties heard and available record thoroughly perused.
6. At the very outset, this Court would like to consider the 'locus standi' of the present petitioners in invoking the constitutional Jurisdiction of this Court. Admittedly the petitioners are elected representatives of Local Councils within the District Haripur and their "grievance" is the illegal miss utilization of public funds allocated and approved for a specific purpose. Moreover, being residents of District Haripur, it is their 'legitimate expectation', if not their 'vested right' , to question the illegal action of the executive, particularly, the miss utilization of public funds specially allocated for a particular public project by the competent local legislative authority. In this regard, the apex Court in Molvi Iqbal Haider v. Capital Development Authority (CDA) (PLD 2006 SC 394) has gone to the extent of declaring that a resident of an area has a fundamental right under Articles 9 and 26 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), to have access to a public park, which has been approved by a competent authority. It was held that; "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 the 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 their 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 pubic exchequer, therefore, taxpayers have a right to inquire from C.D.A. As to how a right of life and liberty can be denied to them".
In a more recent decision, the apex Court in Islamabad F-9. Park's case (PLD 2010 SC 759) issued appropriate directions on a petition filed by a 'member' of the 'Civil Society', who was aggrieved of the illegal approval of a project in a Public Park. Thus, the scope of 'locus standi' of invoking the Constitutional jurisdiction has been extended to even conscious citizens, who are alive to the illegalities and excesses being done by executive authority of the government.
In this regard, this Constitutional Court can even take cognizance of the matters agitated "pro bono publico", and the test for invoking the Constitutional jurisdiction in such matters has been determined by the august Supreme Court in Javed Ibrar Paracha v. Federation of Pakistan (PLD 2004 SC 482) on the touchstone that Firstly the matter is in public interest, and Secondly, that the petitioners aim'for a 'public good' and for the welfare of the 'general public'.
' The matter does not end there. The apex Court has in. Muhammad Sher v. Abdul Karim (PLD 2006 SC 271) gone to the extent of imposing an obligation upon a Constitutional Court 'to act' , when informed about an illegality or excesses being committed by executive authority of the government. It was held that;-- "It is well-settled by now that Article 199 casts an obligation on the High Court to act in aid of law, protect the rights of the citizens within framework of the Constitution against the infringement of law and Constitution by the executive authorities, strike a rational compromise and a fair balance between the rights of the citizens and the actions of the State functionaries, claimed to be in the larger interest of society. This power is conferred on the High Court under the Constitution and is to be exercised subject to constitutional control executive action so as to bring it in conformity- with the law. Whenever the executive acts in violation of. The law, an appropriate order can be granted, which will relieve the citizen of the effects of illegal action. It is an omnibus Article under which relief can be granted 'to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution, illegally or, no in accordance with law, then Article 199 can always be invoked for redress".
Thus, in view of clear enunciation on the issue of 'locus standi' settled by apex Court, this Constitutional Court can even take up the present petition as "Pro bono publico".
However, this would not diminish the 'locus standi' of the present petitioners to seek their legal remedy from this Court. It can safely be said that the petitioners are "aggrieved" persons within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as their fundamental rights under Articles 9 and 26 have been violated, as public funds for the establishment of a public park have been threatened to be misutilized for purpose other than for which they were validly allocated.
7. In regard to the merits of the present petition, it is admitted position that the authority to establish 'recreational and amusement parks' is vested with Zilla Council under section 35 read with Para-D, Entry-K of the Schedule-I provided under N.-W.F.P. Local Government Ordinance 2001.
It is also admitted that the Zilla Council in its Resolution No,5 had validly allocated the funds received from the Prime Minister Secretariat amounting to Rs,21.584 million for the establishment of "women and children park". Though Resolution No,` did not specifically state the location of the Park, however, an area of 59 Kanals had been stated to be allocated for the purpose. Hence, the bifurcation of the said funds, without a valid resolution from the Zilla Council, by the then DCO was blatantly illegally, without lawful and thus void.
8. Mr. Abdur Rashid, HRDO, Haripur, the representative of the respondents present in Court, after seeking instruction, rendered his statement on oath, which is also placed on record as EXPHC-1. The same reads that:-- "Rs,21.584 million released by the Federal Government for Establishment of Public Park in District Haripur, shall be utilized for Establishment of Public Park in Haripur. City as per directives of the Prime Minister of Pakistan in light of the Admin Approval issued on 20-2-2008 as per the instructions received from the Prime Minister's Secretariat Islamabad vide Letter No,Js N/Dev/NA- 19/3483/356/08 dated 6-2008(sic). It is also certified that this amount shall not be utilized for any other commercial activity, shops, restaurant etc. "
9. In view of the clear admitted factual and legal position this IH Court holds and;
(I) Declares and Directs that the total amount of Rs,21.584 million has to be utilized solely for the establishment of the Children and Women Park over an area of 59 kanals in District Haripur, without any bifurcation of the said funds.
(II) Declares and Directs that there will be no commercial activities within the said park, nor any funds be utilized for any other purpose.
(III) Directs that the needful be done within a period of eight months, of the receipt of this judgment, if not earlier, positively.
10. This petition is disposed of in the above terms.