SHAUKAT AZIZ SIDDIQUI, J. --- Through this Single Judgment Writ Petition Nos, 2315, 2314 of 2008, 2181/2009 and 468/2018 are being disposed of as questions raised and issues agitated through all these petitions are same.
2. Petitioners invoked the Constitutional jurisdiction of this Court by way of filing their respective writ petitions with the following prayers:-- W.P. No, 2315/2008: "In the above circumstances, it is, therefore, respectfully prayed that the Petitioner has legal right to use the access approach road to the Petrol Pump from Islamabad Highway granted by the Respondents' authority and the Respondents may be directed to act in accordance with law and any proposed act of bulldozing the access approach road from Islamabad Highway to the Petitioner's Petrol Pump without giving opportunity to defend or in violation of law or implementing any order of executive authorities including the act of cancellation of permission is against the principle of audi-alteram-partem is illegal and ineffective.
Further any other relief which may deems fit and proper may also be passed in favour of the Petitioner and against the Respondents in the best interest of justice."
W.P. No, 2314/2008: "It is, therefore, most respectfully prayed that the Writ Petition may kindly be allowed, the proposed! action on the part of respondents, implied or express, may kindly be declared as illegal and void, an appropriate order restraining the respondents from withdrawing the permission granted to the petitioner to use the approach road, and also restraining them from their proposed act of bulldozing the access/approach road, cutting or blocking the same in any manner whatsoever, or interfering in the approach road in any manner, particularly restraining the staff of respondent No, 4 from interfering in the smooth running of business of the Petitioner, restricting them from harassing or threatening the Petitioner otherwise than due course of law.
Any other relief which this honourable Court in the given circumstances deems fit and proper may also be granted."
W.P. No, 2181/2009: "In these circumstances, it is very respectfully prayed that this honourable Court may very graciously issue an appropriate writ to the effect:-
(a) The respondents' act to demolish the monument erected in accordance to the approved building plans as an unlawful act;
(b) The respondents threat to remove the same without a written order or notice is an act without lawful authority.
(c) Any requisite relief the Honourable Court may find justifiable in the given circumstances.
W.P. No, 486/2018: "Based on the foregoing, it is very respectfully prayed that the Honourable Court may very graciously be pleased to set aside the letter bearing No, CDA/PLW-UP (157)/2008/4343, dated 03.11.2008 issued by the then Director Planning CDA being illegal, mala fide and unconstitutional.
It is further prayed that the decisions taken by the CDA Board on 03.04.2010 and 05.04.2010 and endorsed in a subsequent.
Board meeting held on 24.12.2014 regarding the withdrawal/cancellation of permission granted to the petitioner for building of approach road from his petrol pump/CNG station to Islamabad Highway may also be declared as illegal, unwarranted, capricious and Constitutional.
Any other relief. this Honourable Court deems fit and just in the circumstances of the case."
3. Brief facts relevant for disposal of titled petitions are that pursuant to advertisements given by the Respondent authority regarding invitation of application from interested parties for the installation of Petrol Pumps/CNG Stations on different roads of Islamabad Capital Territory including the Islamabad Highway, published in daily Jang dated 10.05.2006, Petitioners (Muhammad Siddique Khokhar and Abdul Rehman Abbasi) applied for NOC regarding installation of Petrol Pumps/CNG Stations. After fulfilment of lengthy formalities, Applications of the Petitioners were allowed and CDA issued permissions letters dated 10.05.2006 and 23.06.2007 to. the Petitioners/Abdul Rehman Abbasi and Muhammad Siddiqui Khokhar, respectively, the said purpose, subject to payment of conversion fee. Thereafter, Petitioners for betterment of their business, requested the Respondent Authority for grant of access from Islamabad Highway through letters dated 23.07.2007 and 23.06.2007, respectively, which request was allowed by the CDA vide letters dated 14.11.2007 and 03.01.2008, whereafter, Petitioners completed the installation activity of Petrol Pumps/CNG Station and started running their business strictly in accordance with the law and rules. However, after few months Respondent No, 4 visited the site with heavy machinery and directed the Petitioners to close the access road from Islamabad Highway to the Petrol/CNG Stations but on the hue and cry of the Petitioners they left the site and while going back they threatened that in case the approach road is not closed in a day time they will come again and would not listen to any request in this behalf. Respondents also directed for removal of the structural monument installed alongside the Islamabad Highway erected for identification of the location of CNG station to the commuters of Islamabad Highway despite the fact that installation of structural monument was approved through the building plans.
4. Learned Counsel for the Petitioners contended that the impugned decision has been taken by the CDA Board in its meetings held on 03.04.2010 and 05.04.2010 which were endorsed by Board's subsequent meeting held on 24.12.2014, whereas, it is not understandable that before taking the decisions by the Board and then by Director Urban Planning no opportunity of hearing was granted to the Petitioners rather said decisions were not communicated to the Petitioner and even no notice in this regard was previously issued to them. Learned Counsel further submitted that CDA itself earlier granted permissions for building an approach road to the Islamabad Highway after completion of all formalities which created a right in favour of the Petitioners which could not have been disturbed through arbitrary and colorable exercise of the power by the public functionary through impugned decisions which are in violation of principle of audi alter= partem. Learned Counsel added that the reasons given by the Director Urban Planning in his letter dated 03.11.2008 and the subsequent decisions of the Board that these decisions have been taken due to law and order situation in Islamabad, is not sustainable in the eye of law as even in such a situation CDA could not have distributed the accrued rights of the Petitioners as the Islamabad Highway is a thoroughfare and access to it cannot be denied by the Respondents. Learned Counsel contended that the impugned decisions are taken in gross violation of precious rights of the Petitioners and are in contradiction to the Articles 3, 4, 9, 10-A and 18 of the Constitution of Islamic Republic of Pakistan, as same disturbed the right to trade and business of the Petitioners. Learned Counsel further contended that in the presence of injunction order any adverse action against the Petitioners is an attempt to flout the orders of this Court falling within the ambit of contempt of Court proceedings. Learned Counsel further added that mala fide of the Respondents is evident from the fact that they have never produced order in writing prior to filing of comments in these cases as in that case the Petitioners would have challenged the same promptly. Learned Counsel lastly contended that the Respondents being public functionaries have failed to act fairly, justly judiciously and strictly in accordance with law as they cannot be allowed to act according to their wishes and sweet will Learned Counsel for Petitioners in unison stated that petitioners have not done anything illegal whatsoever, as the permission for making approach to the Islamabad Expressway was granted by the Respondent Authority itself communicated through letters dated 14th November, 2007 and 27.02.2008 and impugned decisions later on taken by them have no legal backing after investment of millions of rupees by the Petitioners in their businesses. Moreover, the contemplated action on the part of Respondents will halt the free access of motorists and buses from the main highway to get the facility of CNG/Petrol Filling Station.
5. On the other hand, learned Counsel for Respondents contended that the Petitioners M. Siddique Khokhar and Abdul Rehman Abbasi applied for grant of NOC for installation of Petrol Pump/CNG Station at Mouza Gangal, Islamabad Highway, Islamabad in May, 2006, case was processed by the Authority and NOC in this regard was issued vide letters dated 31.07.2006 and 10.10.2006, respectively. Whereafter, CDA granted permission to them for direct access/approach from Islamabad Highway to the site of their Petrol Pump/CNG Station on 27.07.2007 and 14.11.2007, respectively on certain terms and conditions including the condition that the access from the Islamabad Highway is purely on temporary basis and shall be withdrawn as and when required by the Authority and now due to Security/Law and Order situation in the country and in order to avoid traffic hazards on the Islamabad Highway, CDA has decided to withdraw/cancel all such permissions granted for direct access from Islamabad Highway, whereas, service road can be used for access to the Petrol Pump/CNG Stations. Respondents further submitted that CDA Board through S.R.O. No, 576(I)/2015 laid down that CDA has been pleased to notify with immediate effect that till further orders Right of way will be allowed to the. Petrol Pumps/CNG Stations from nearest highway where no CDA Service Road is available, whereas in cases where Service Road is available the right of way will be allowed upto CDA Service Road, which decision was also conveyed to the Petitioners. Learned Counsel prayed for dismissal of these writ petitions as being without any force.
6. I have heard the learned Counsel for parties and have also perused the available record.
7. It is an admitted fact that the permission regarding access road from Islamabad Highway to Petrol Pumps/CNG Stations was not part of the advertisement given by the Respondent Authority and same was granted on the request of the Petitioners but that too with the condition that same is purely on temporary basis and shall be withdrawn as and when required by the Authority. Now, the Respondent Authority has decided that due to present Security/Law and Order situation in the country especially in the Federal Capital and traffic hazards on the Islamabad Highway, permissions granted for direct access from Islamabad Highway are to be withdrawn and cancelled thus in the light of terms and conditions of the NOC Petitioners stopped by their own conduct and are bound to accept the decision taken by the authority without any objection or reluctance. For ready reference relevant portion of the terms and conditions of the NOC for grant of access from Islamabad Highway is reproduced here in below:-- "The access (52 feet wide approach with 36 feet wide metalled road) from the Islamabad Highway is purely on temporary basis and shall be withdrawn as and when required by the Authority" (underlining provided).
8. During the course of proceedings Respondents also produced before the Court the minutes of 19th CDA Board meeting held on January 9th, 2015, in which it was categorically decided that only those Petrol Pumps/CNG Stations shall be allowed Right of Way from the nearest Highway where no CDA Service Road is available, whereas, where Service Road is available the Right of Way shall be allowed upto that Service Road only After that S.R.O. No, 576(1)/2015 was also issued by the CDA in this regard. Relevant portion of above-said minutes of the meeting for convenience is given as under:-- "DECISION: "The Board discussed the proposal in detail and considered the view of DDG (Finance) and Cost Accountant who were also present in the meeting. After detailed discussion Board approved following ROW charges:-- Sr.
No.Category Rate/Amount
1. Petrol Pump/CNG Stations/Amenities.0.5% of market value upto a maximum of Rs. 50,000,1- per month.
2. Housing Societies upto 400 KanalsRs. 266,000/- per month.
3. Housing Societies from 401 to 800 Kanals.Rs. 562,000/- per month.
4. Housing societies with 801 + KanalsRs. 800,000/- per month.
The Right of Way will allowed to the nearest highway where no CDA Service Road is available. In case where Service Road is available the ROW will be allowed upto CDA Service Road. This will also be applicable on cases already approved.(Underlining provided).
Perusal of the above, clearly depicts that a uniform policy, already formulated by the CDA, was in field regarding provision of access from the main Highway according to which Petitioners were not entitled for access from the main Highway as CDA Service Road is available to the Petitioners'
Petrol Pump/CNG Stations, hence, the conduct of the officials who processed the case of the Petitioners for grant of permission regarding access road from Islamabad Highway is highly doubtful and the permission in this regard also becomes illegal and unlawful as being violative of CDA's own policy which does not create a vested right in favour of Petitioners as no perpetual right can be gained on basis of an illegal order and principle of locus poenitentiae is not attracted to any such order thus Petitioners have no locus standi to challenge the revocation order later on passed by the CDA authorities. Guidance in this regard can be sought from the case-law reported as Muhammad Siddiq through L.Rs. v. Punjab Service Tribunal, Lahore (2007 SCM R 318) and (2000 SCM R 907) Abdul Haque Indhar v. Province of Sindh. Besides, it is now well-settled that Constitutional jurisdiction of this Court is discretionary in nature and cannot be exercised to perpetuate any ill-gotten gains as it has been held in PLD 1973 SC 230 Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others.
9. Moreover, it is also settled law that the authority that has a power to make an order also has the power to undo it. In case reported in PLD 1992 SC 207 The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalauddin the Hon'ble apex Court has held that under Section 21 of the General Clauses Act, the authority which can pass an order is entitled to vary, amend, add to or 'to rescind that order.
10. The upshot of the above discussion is that in the presence of uniform policy of non-provision of direct access from the main highway to the Petrol Pumps/CNG Stations where CDA Service Road was available, Petitioners were in no way entitled for direct access from the main Islamabad Highway, therefore, acceptance of requests of the Petitioners in this regard by the Respondents was against their own rules and regulations. In the initial advertisement it was nowhere provided that direct access from expresswa y shall be available, moving of application by the Petitioners subsequently, for the direct access itself establishes this fact. If area of every commercial activity is granted direct access from "expressway" instead of service road, then very purpose of former to maintain traffic flow shall badly be interrupted besides adding to risks of accidents. Respondents' act of granting access from the Islamabad Highway to the Petrol Pumps/CNG Stations of Petitioners appears to be business convenience instead of larger interest of public-atlarge using "expresswa y". Petitioners and concerned officials of the Respondent authority for lucrative benefits, with mala fide intentions and for ulterior motives gained undue advantage, which has no backing of law. Petitioners have failed to establish their vested right vis-a-vis the access road from Islamabad Highway to their Petrol Pumps/CNG Stations, therefore, no question of its infringement arises warranting interference by this Court in its Constitutional jurisdiction. Resultantly, titled petitions have no force and the same stands dismissed. CDA is directed to restore the green belt status of the area, as existed before construction of access road. And where service road required to be provided, immediate steps be taken to do so.
11. These are the reasons for short order dated 22.05.2018, observations recorded above shall from part of order dated 22.05.2018, reproduced herein-below:-- "For the reasons to be recorded later on, instant Writ Petition alongwith, Writ Petition Nos, 2314/2008, 2181/2009, and 486/2018 are dismissed, with the declaration that no right of access can be granted directly from Islamabad Expressway for any commercial activity i,e, Petrol Pumps, CNG Stations, Hotels, Marquees, Wedding Halls etc. and there is no right created in favour of the petitioners, as permission accorded in this regard was temporary in nature and besides the law.
Even otherwise, any permission granted by the Civic Body on account of non-availability of service road, was nothing, but to open ROC (Right of Corruption) instead of ROW (Right of Way).
2. Since service road is already available in front of the petrol pump and CNG station of the Petitioners and 04 others, therefore, direct access from Expressway, cannot be protected, accordingly. Civic Body is directed to restore the green belt status of the area, as was existed before.
3. This Court is of the view that even this temporary permission accorded was result of collusiveness, irrelevant considerations, deceptive approach and engineered fraud by the officials of CDA and beneficiaries, therefore, Chairman CDA is directed to hold a preliminary inquiry and if need be refer the matter to NAB/FIA for probe and inquiry."