MUHAMMAD NASIR MAHFOOZ, J.--- Through instant writ petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners/ Public at large, prayed as under: "On acceptance of this writ petition, this Hon'ble Court may very graciously:- i) Declare encroachment made in the Melad Park/ children park, Bannu city in shape of shops, rooms, houses, canteen, quarters etc as illegal void ab initio in contravention of the verdicts of the superior Courts and thereby directing the respondents to efficaciously remove the same by restoring the previous status of the said park. ii) Direct the respondents not to sublet Melak Park Bannu city, to auction, for holding of any type of fare (Maila), circus, zoo as the said park is deemed and considered as a spiritual place by Muslims of Bannu City, as "Eid-e Melad-un-Nabi (Peace be upon him) is arranged conducted and celebrated officially at this place and similarly the said melad park is also a central point of meeting for the procession of "Muharram- ul-Haram" by the Ahle Tashee, and for the said reasons its anme has been declared as such i.e. Melad park, Bannu city . iii) Refrain the respondents from cutting all Sheesham trees inside the Melad Park Bannu city . iv) Direct the respective respondents to initiate both civil and criminal proceedings against all those who have caused damage to the public ex chequer. v) Direct the Municipal authorities to remove all the installations, machineries, Dodging cars, Hawayee Bera, which have created noise, nuisance and violated the easement rights of the nearby houses due to which any misshape could occur and thereby guarding the said park by Chowkidar of Municipal Committee Bannu. vi) Restore the previous position and status of the said park and by making opening its old entrance gate on its western side which has been blocked by boundary wall now. vii) Interim relief in the shape of a direction to the local administration to unlock the said part for children' s of the vicinity and to prohibit the local administration not to auction the said park till final disposal of the instant writ petition."
2. This writ petition being pro bono publico form the petitioners have filed an application under order 1 Rule 8 of the Civil Procedure Code (Act V of 1908). It is averred in the writ petition that this park was created during the British regime, with the name of Garriston Park and since then the Muslims inhabitants of the area using this park as a celebrating place on the eve of Eid-e-Melad-un-Nabi, officially and also for processions of Ahle-Tashee, during Moharram-ul-Haram. As this park is used since long for spiritual processions of Muslims, therefore, its name has been changed to Melad Park, Bannu city. Unfortunately, due to price hike of the property, as well as due to political interference, and nepotism, the Municipal authorities auctions by encroaching into the park constructed shops, quarters and have given it on rent. The said park was given to contractor, for Mela, Zoo, circus and play land etc, but due to some illegal activities, the said contract was cancelled. It is the only park of densely populated Bannu city, which is deteriorating day by day. Hence, the instant petition is being filed as public interest litigation.
3. Respondent No.5 and private respondents No.11 to 13 submitted their comments and written reply , wherein they raised certain legal and factual objection s. Respondent No.5 admitted in the comments that Bannu city being thickly populated area there is need of new parks and Govt. is trying hard to renovate the existing facilities within the limited resources and has removed a lot of encroachment and sufficient areas have been cleared.
Moreover, many other steps are being taken to increase beautification of Bannu City.
4. In written comments by the Tehsil Municipal Administrator , Bannu it is admitted that Municipal Committee, Bannu auctioned park for lease of one year collecting fee for play land for recreation of children and as source of income in the pattern of other parks in the country , but said contract was cancelled, due to some illegal activities by the contractor . In addition to construction of large water park, shows, theater and circus are being held in the Park.
Reliance was also place by the private respondents on judgment passed by this Court in WP No. 147-B of 2013, decided on 27.02.2014, wherein similar issue was raised and it was held as under: "12. In view of the above, this petition is allowed in the following terms: i. The respondents are directed not to allocate the lady park or part of the lady park for any other purpose, except entertainment and recreation of the inhabitants of area. Any allotment order in favour of respondent No.7 is declared as illegal, without lawful authority , void ab-initio. ii. The computer welfare center shall be converted into a welfare and beneficial building for the usage of the visitors of the park and shall not be utilized for residential purpose. iii. The Tehsil Municipal officer and district coordination officer/ Deputy commissioner are directed to open the main gate of the park for the ladies and children of vicinity for entertainment purposes. iv. The Deputy Commissioner and TMO shall take steps for development and maintenance of the building and garden in the park for providing entertainment to the public (ladies and children) of the locality of Bannu in discharge of their duties under the law. The income of the shops constructed in the precinct of the park shall be spent on beautification and development of the park. They shall submit an annual improvement and development report, each year to the Additional registrar of this Court regarding the maintenance and position of the park."
5. We have heard learned counsel for the petitioners in the nature of public interest litigation and pro bono publico as well as learned counsel for respondents and learned A.A.G for of ficial respondents.
6. Private respondents have submitted agreement/ rent deeds executed between them and the local administration besides site plan of the park alongwith photographs showing shops and wash rooms constructed in the park area.
7. Article 26 of the Constitution of Islamic Republic of Pakistan provides right of access to place of public entertainment or resort, not intended for religious purposes only as basic fundamental right and no discrimination against any citizen on the ground mentioned therein. Every citizen has right to invoke constitutional provision, whenever a question of interest of public at large is involved. According to Article 199 (2) of the constitution right to move a High Court for the enforcement of any of the fundamental right conferred by Chapter 1 of Part- II shall not be abridged. Right of petitioners to invoke constitutional jurisdiction of this Court under Article 199 of the constitution is guaranteed and whenever a Court arrive at the conclusion that certain public places are being misused by people with connivance of Govt. officials this Court has exercised its jurisdiction and has given adequate relief for the enforcement of such right.
8. In the instant case a public place is being used for the purpose other than for which it was created and being a public place any other activity is beyond the scope of relevant law and thus encroachment upon valuable right of their citizen. The contention raised in the comments and written reply, that Parks consists of play land is belied by the photographs placed on record. Learned counsel for petitioners have submitted that garbage dump is placed in the park and all the area within the park is never used as playing area for the children even none of the children can be seen in the photograph playing in the Park, which amply proves allegation of the petitioners to be correct.
9. It such like matters Hon'ble supreme Court of Pakistan in several cases ordered restoration of public parks in its true and original form for which these were created/ established and removal of encroachment has been ordered. Reference is made to case titled Ardeshir Cowasjee and 10 others Vs Karachi Building control authority (KMC), Karachi and 4 others (1999 SCMR 2883), wherein it is held that: "12. In our view, the appellants have the right to use the Park with all amenities as was envisaged under the approved K.D.A. Scheme No.5. The use of the Park involves enjoyment of life which is covered by the word life employed in Article 9 of the Constitution as interpreted by this Court in the above quoted extract from the judgment in the case of Ms. Shehla Zia and others v. WAPDA (supra). The appellants, therefore, have the right to ensure that the official respondents do not grant approval of a plan in respect of the Plot which may be violative of the provision of the Order and the Regulations and which may impinge on their right of enjoyment of life.
The same view has been taken by the august Supreme Court in case titled "Whalid Saeed Vs Shamim Rizvan and others ( 2003 SCMR 1505 ), by holding that: "The next ground of the learned counsel for the petitioner that respondent No. 1 is estopped from her conduct is neither here nor there. It is the responsibility and duty of the functionaries of the L.D.A. to ensure that the Rules and Regulations made by it are implemented by the people in letter and spirit. If they are violated it is the duty of the of ficers concerned to take strict action against them under the law .
The argument of the learned counsel for the petitioner that other commercial activities are going on around the area, as such the petitioner's case cannot be singled out is also without any substance. He has relied upon the case of Multiline Associates v. Ardeshir Cowasjee and others (1995 SCMR 362). The petitioner cannot justify his illegal venture by saying that similar other illegal activitie s are going on. If this plea is accepted the result would be disastrous and dacoits/thieves would justify their actions simply by saying that other dacoits/thieves having committed similar acts have not been punished. Even otherwise the area under dispute is purely a residential one and such-like activities cannot be permitted so as to destroy its atmosphere."
The Hon'ble Supreme in case titled "Ghulam Habib Jadoon Vs Karachi Watch and care society and 3 others", (2004 SCMR 91 1) also held as under: "3. Mr. Akhlaq Ahmed Siddiqui, learned Advocate-on-Record for the petitioner contends that the respondent No. 1 had no locus standi to file the petition and action, if any, against the petitioner could be taken only by the respondent No.2. This case has the characteristics of public interest litigation and the respondent No. 1, in fact, is probono publico, as such, had locus standi to file the petition and High Court had the jurisdiction to entertain the matter . Reliance is placed on the case reported as Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 ".
The apex Court in other judgment rendered in case titled "Asadullah Mangi and others Vs Pakistan International Airlines Corporation and others' (2005 SCMR 445 ), held that: "The object of the proceeding initiat ed under Article 199 of the Constitution of Islamic Republic of Pakistan, is the enforcement of a right and not the establishment of legal right and therefore the right of the incumbent concerned which he seeks to enforce must not only be clear and complete but simplicitor. There must be an actual infringement of the right. If any authority is required, reference can be made "Kand aswamy and others v. The Deputy Registrar of Cooperative Societies, Coimbatore and another AIR 1954 Madras 348". We may mention here that "a vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised, but are the peculiar characteristics of those rights. "Zaman Cement Company (Pvt.) Ltd. v.
Central Board of Revenue 2002 SCMR 312".
In the recent judgment the august Supreme Court in case titled "Cutting of Trees for Canal Widening Project, Lahore, in the matter of suomoto case No.25 of 2009, ( 2011 SCMR 1743 ), it is held that: "35. The case in hand, if examined, in the light of the Doctrine of Public Trust as explained by the academics and construed by the Courts including the Pakistan Supreme Court leads to an inescapable conclusion that the green belt around both sides of the Canal is a Public Trust resource; that it cannot be converted into private use or any other use other than a public purpose; that widening of the road as proposed is a public purpose; that a minimum area is being affected and the remaining green belt/public park is much larger; that the same has been recommended by the Mediation Committee to be declared as Heritage Park and the recommendations of the said Committee have been accepted by the Province of Punjab in totality . In these circumstances, the Doctrine of Public Trust cannot be said to have been compromised."
10. As regard construction of shops, which are stated to be on rent to private respondents No.11 to 13, no relevant law was stated by the learned A.A.G or their counsel to substantiate that construction of shops was done in accordance with law. The purpose, for constructing properties for commercial purpose in the public place has got no sanctity in the eyes of law. A vested right that is inherent for the common citizen cannot be taken away by few individuals for fulfilling their personal needs. Whether such like shops are necessarily required and whether area, which is meant for park, can a commercial activity be allowed, which is apparent that construction of shops was done for unlawful purpose. Instant writ petition is pending for last four years and during all this period respondents have been given full opportunity to defend the case, but except for the facts as mentioned above, no other substantial documentary evidence has been placed on file to justify commercial activity in public place like park. Record reveals that list of allottees are eight (8) in number, wherein eight (8) number of shops shown to be on rent including one of auto-mechanic and copies from the register of receipt of rent is also placed on record with the comments, but no record, whatsoever, has been placed on file to show that whether rent is being deposited in the govt. treasury or utilized by the respondents according to their own whims and caprices. We do not feel any difficulty to hold that presumption under Article 129(g) of the Constitution be drawn that the shops and the rent received from shops is not deposited in the govt. treasury and this fact speaks volume of mishandling and misuse of the public property . We would like to appreciate efforts of petitioners that they have been helpful in bringing to light such like activities of the respondents. The existence of play land in the park is not established on record.
11. We would, therefore, hold that instant petition being for the interest of public at large, must be allowed and any construction in the shape of shops, house/ quarters and canteens, is not only in contravention of judgment of Hon'ble Supreme Court of Pakistan, but is also in violation of constitution, laws, rules and regulations provided for the purpose.
12. Respondents are directed to demolish the shops, which is commercial activity and will be added to the part of the park or if at all, it should be utilized for Zoo and other playing areas. Petitioners have also prayed that certain religious activities also take place in the park and therefore, it is named as Melad Park, but the same could not be allowed in the public park, which is only meant for the use of recreational activities for young and children.
In case any trees are grown in the park area the same shall be protected and preserved.
13. The judgment passed by this Court in writ petition mentioned above is partly applicable to the present case, as mentioned in the Para No.(i) and (iii), which is common to the instant petition as well.
14. Instant writ petition is, therefore, allowed and decided accordingly. However, respondents are directed to implement this judgment within a period of one month and restore, status of Park by demolishing the shops in the park area. It is directed that the petitioners and any other person shall not use the premises of park for any other purpose except playing area for children. Respondents shall not allow any activity of general nature or in nature of religious congregation as well and shall provide any other place like town hall etc for any religious congregation as it would severely damage the play land and other area of the park. Decided accordingly .