10/4/2020 P L D 2002 Lahore 412

P L D 2002 Lahore 412

Before Mrs. Fakhar-un-Nisa Khokhar, J

MANZOOR BHATTI---Petitioner

Versus

EXECUTIVE OFFICER, CANTONMENT BOARD, MULTAN and another---

Respondents

Writ Petition No.723 of 2002, heard on 31st January, 2002.

(a) Cantonments Act (1111 of 1924)-------S. 116---Constitution of Pakistan (1973),

Part II [Arts.7 to 40] & Art. 199---Constitutional petition---Public interest litigation---
Fundamental rights---Maintenance of park in Cantonment area---Dispute between the
parties was that the Cantonment Authorities intended to convert existing public park
into a shopping centre and the petitioner being a citizen resisted the act of the
Authorities---Plea raised by the Cantonment Executive Officer was that the children
park was in dilapidated condition, therefore, the Authorities had decided to convert the
same into shopping centre-- Validity---Executive Officer or any elected representative
was not empowered by law to convert any place which was meant for public purpose
and was used as such---Inhabitants/citizens of the locality, where public park existed in
the documents for public purpose, could not be deprived from their fundamental rights
ensured by the Constitution for enjoying recreation from children park, gardens and
green belts meant for public purpose and established for the interest of public at large--
-Plea raised by the Executive Officer proved his misconduct in discharge of his duties
and obligations to keep the park green, flourishing with flowers and installations of
play things for children---If the Executive Officer did not part with his duties,
safeguarding the existence of the park, the green belts and gardens made for public
purposes, then the officer was negligent aid could be proceeded against for
misconduct---Executive Officer, in the present case, was under the duty to restore the
park to its original form, beautify the same providing paths flower and grass in the
park--Act of the Authorities using place of the park for the purpose other than that of
the park was without lawful authority, result of highhandedness and the same was set
aside---High Court directed the Authorities to remove all sorts of material on the
children park, fill up the dug ground, beautify the children park by growing green
belts, flowers and affixation of pathing for children---Petition wds allowed in
circumstances.

(b) Words and phrases-------"Misconduct"---Meaning---Any authorised person who

neglects his duties towards public purpose is guilty of misconduct.

Sikandar Javed for Petitioner. Muhammad Ali Gillani with Respondent No A.

Muhamamd Sarwar Bhatti, A.A. -G. (on Court's Call).

Date of hearing: 31st January, 2002.

JUDGMENT

Respondent No.2 being unnecessary has been struck down since the petitioner stands
aggrieved by the order of the Executive Officer, Cantonment Board, - Multan Cantt.
who is present in person before this Court.
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2. The chequered history of the instant writ petition is that a recreation park was
situated in front of Old Market Opal Shaheed Road, Multan Cann. since old times,
there were recreations and the children used to play there and public at large used to
come and sit there but due to the negligee on behalf of the administration of
Cantonment Board this park's position was dilapidated. Now the administration of
Cantonment Board without any lawful authority has dug out this children park in order
to build commercial shops and prior to this the same administration has converted the
green belts into commercial shops and in this way the inhabitants of the area have been
deprived from jogging and park facilities green belts and gardens and-this park also
existed before partition for children therefore, it can never be converted into
commercial plazas. The inhabitants of the area objected and the news also came -in the
newspaper but the respondents are obdurate, therefore, they have deprived the
inhabitants of the area from their fundamental rights of recreation.

3. Learned Assistant Advocate-General present on Court's call was directed to establish

contact with the respondent No.l to appear in person before this Court. Respondent
No.l Manad Masud, Executive Officer, Cantonment Board, Multan Cantt. appeared
alongwith his learned counsel. He submitted before this Court that this park existed in
the papers and it had been also present on the spot as a children park but from a long
time this park has been neglected, before, the people have started lodging their bull
carts and all sorts of junk material over there, therefore, the Administrator Executive
Officer, Cantonment Board, Multan Cantt. has decided to build temporary shed shops
on this children park as the Old Market Opal Shaheed Road is about to be pull down in
order to build new market and the shop keepers of this market have been given
temporary sheds at the children park. He further stated that shopkeepers in the Old
Market Opal Shaheed Road, Multan Cantt. have also filed some writ petitions that this
market should not be demolished, therefore, this action has been taken in order to
accommodate, those shopkeeRers whose shops are being demolished in order to re-
construct the market.

4. Learned counsel for the respondent No. l filed reply. He submitted in his reply that
Cantonment Board, Multan owns an old fruit vegetable .and meat market situated at
Opal Shaheed Road, Sadar Bazar, Multan Cantt. This market was more than one
century old and is in ruinous and dilapidated condition and most of the area and shops
have turned into ruins and are lying vacant and there are only a few shopkeepers, who
are running their business by occupying the old shops. The Cantonment Board with the
approval of higher authorities planned to construct new fruit, vegetable and meat
market by demolishing the old one, design of which has already been approved and in
this connection the sitting tenants were served with notices to vacate the site for
demolishing and removing the super structure to start with the new construction but the
sitting tenants resisted and filed Writ Petition No. 12344 of 2000, which stands
disposed of by the High Court on 5-12-2000 and Writ Petition No.782 of 2001, which
is still pending. Besides all the other demands one of the .demands of the shopkeepers
is to provide substitute place of their business to shift the shops from the old market
during the construction work. He further submitted that the plot existing in front of the
old market was selected for temporary construction by the representative of the
shopkeepers and further it was lying in a very bad condition and was being used
unauthorisedly by the inhabitants of the locality by parking Rehries etc. It was existing
in a very poor and bad condition without any grass and other facilities as the proposal
of the construction of said market the said place i.e. the site for construction of
temporary shops could not be developed due to the construction work, "It is in the
mind of the authority to develop the said place in a Green Belt/Children Park. after the
completion of the construction work on the old market site". In this way the
construction work started is purely of temporary nature for the settlement of the
existing sitting tenants in the old market on their own demand. No permanent
construction work has been planned to be raised on this site. In paragraph 2 of the
reply they have admitted that park is recorded as "Children Park" but practically /it has
ceased to be used as children park being situated in the centre of commercial area. It is
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rather being used as Parking Area by Rehris/rikshaws and vendors and the Cantonment
Board is fully conscious of its responsibilities and is already developing Green Belts
adjacent to the old market which is being demolished for construction of a new market.

5. I have heard the learned counsel of the petitioner as well as respondent and perused
the report and have also heard the Executive Officer, Cantonment Hoard, Multan. The
sorry state of affairs in this case is that the Executive Officer, Cantonment Board,
Multan is admitting that the children park exists in the papers, it was being used as
children park in the past but due to his negligence it is, now in a very bad condition
and used for Rahris and rickshaws. This statement carries a bad name to his office as
Executive Officer, Cantonment Board, Multan and shows their discreet arbitrary
decision of conversion of green belts of children park into commercial shops. The
Executive Officer or any Nazim, who is an elected representative; in no way is
empowered by law to convert .any place, which is meant for public purpose, which is
used for public purpose, which exists in the documents for public purpose and can in
no way and in any manner deprive the inhabitants/citizens of that locality from their
fundamental rights ensured by the Constitution of Islamic Republic of Pakistan for
enjoying recreation from children park gardens and green belts meant for public
purpose and established for the interest of public at large. The report reduced into
writing and statement of the Executive Officer that children park is. in a dilapidated
condition proves his misconduct in discharge of his duties and obligations to keep the
green flourishing with flowers and installations of play things for children and if he
does not part with his duties safeguarding the existence of this park the green belts and
gardens made for public purposes, he is negligent and can be proceeded for
misconduct.

6. The learned A.A.-G. present on Court's call has also agreed that settled proposition
of law is that any park or land earmarked for the public purpose cannot be converted to
the use of same for any type of commercial purposes. This is totally absurd proposition
that in order to give substitute place the children park is offered to them, while as
argued by learned counsel for the petitioner market has got ample land to be offered for
temporary substitution to the shopkeepers whose shops are being demolished. It is in
no way acceptable by any sane mind that in a highhanded way the children park, which
is neglected by the authorities, be offered as substitute land for temporary
accommodation of the sitting tenants.

7. As earlier observed, any authorised person who neglects his duties towards public
purpose is guilty of misconduct. So far as other writ petitions filed by sitting tenants of
the market is concerned, no one of the sitting tenants have demanded that they be given
substitute place of shops on the children. park, therefore, the action taken by the
Administrator/Executive Officer, Cantonment Board, Multan is exclusively his own
action and he. has acted without lawful authority while depriving the public at large
from its amenities. If the park was in a poor condition he was under the duty to restore
it to its original form beautify the same by affixing pathing flowers and grass in the
park but he has not done so, therefore, the instant writ petition is accepted, action for
giving the plot as substituted service to the sitting tenants is hereby declared to have
been passed without lawful authority and as a result of highhandedness for usurption of
the recreation right of the citizens safeguarded by the Constitution of Islamic Republic
of Pakistan.

7-A. Since it is public interest litigation a direction is given to the respondent No. l to
remove all sorts of material on the children park, fill up the dug ground with soil,
restore the boundary of children park forthwith, beautify the children park through
growing green belts, flowers and affixation of pathing for children within one month
from 31-1-2002,

8. In case of their failure any inhabitant of the area is allowed to bring into the notice
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of this Court the- failure of the respondent to comply with the direction passed by this
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Court. No order as to costs.

Q.M.H./M.A.K./M-1023/L Petition allowed.

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10/4/2020 P L D 2002 Lahore 412

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