2012 C L C 1911
[Balochistan]
Before Qazi Faez Isa, C.J. and Muhammad Noor Meskanzai, J
Dr. SAEEDULLAH JAFFAR and 3 others ----Petitioners
versus
SENIOR SUPERINTENDENT OF POLICE, TRAFFIC, QUETTA and 2 others ----
Respondents
Constitutional Petition No.298 of 2007, decided on 27th October, 2010.
Balochistan Local Government Act (V of 2010) ---
----Ss. 111 & 126 ---Balochistan Local Government Ordinance (XVIII of 2001), S.124(1) ---
Constitution of Pakist an, Arts. 23, 24 & 199 ---Constitutional petition ---Land of old Bus
Stand and additional land acquired for amalgamation therewith for construction thereon a
New Bus Terminal ---Proposal of Municipal Corporation to construct Shopping Complex
containing 786 sh ops and offices & Bus Stand on such land comprising of (1) basement for
parking, (2) ground floor with shops, lifts, staircase for access to other floors and a fully
covered area for Buses, (3) mezzanine floor partly covered with shops, (4) first floor cov ered
with office, (5) second floor fully covered with offices and (6) third floor with restaurant ---
Petitioners' plea was that construction of a multi -storeyed building on such land by
Municipality leaving only a small portion of built up area for use of p roposed Bus Terminal
would tantamount to change amenity use status of such land ---Validity ---Proposed Bus
Terminal was not open to sky and not having ventilation for fumes generated by buses and
for being encircled with shops and buildings had only small openings for entry and exit of
buses ---Leaving such a small portion of built area for use of proposed Bus Terminal would
tantamount to changing Old Bus Stand's amenity status and conversion of public land into
private use ---Public interest for being supre me could not be discarded by public functionaries
by transferring to private persons public land designed for amenity use ---Such land for being
public land and acquired and designed for a public amenity use of new Bus Terminal could
not be permitted to be used for private commercial use by constructing thereon shops, offices
and restaurant for its disposal to private parties ---Entrance and exit of buses from Bus
Terminal would become difficult due to insufficient parking place provided in proposed
Project f or visitors and owners of shops/offices ---Basic planning requirements for designing
of a Bus Terminal had not been met by Municipality nor had taken safeguards against
prevailing risk ---Impugned action of Municipality of converting public land into private use
was violative of S.124(1) of Balochistan Local Government Ordinance, 2001 and Balochistan
Local Government Act, 2010 and the Constitution ---High Court accepted constitutional
petition in circumstances.
Ali Ahmed v. Municipal Committee, Talagang 200 1 SCMR 585 ref.
PLD 2010 SC 759; Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223; Iqbal
Haider v. Capital Development Authority PLD 2006 SC 394; 2010 SCMR 885 and Pervaiz
Oliver v. St. Gabrial School PLD 1999 SC 26 rel.
Muhammad Riaz Ahmed f or Petitioners.
Additional Advocate -General for the State.
H. Shakeel Ahmed, Syed Iqbal Shah, Mujeeb Ahmed Hashmi, for Respondents.
Date of hearing: 15th June, 2010.
JUDGMENT
QAZI FAEZ ISA, C.J. --- The petitioners are permanent residents of Q uetta residing
with their families respectively on Jinnah Road, Parsi Colony, Adalat Road and Ramsay
Road and are aggrieved by the establishment of a Bus Stand in front of the house of the
petitioner No.1 and in the vicinity of the houses of the other peti tioners. The petitioners state
that the said Bus Stand causes parking of a large number of buses, traffic jams, noise, filth,
blockage of passage to their houses, crowding in front of their houses, and many from the
crowd sit right outside the entrances to their homes and use their boundary walls as public
urinals. The Bus Stand also attracts tongas, rickshaws and vendors selling eatables and goods
on pushcarts (rehris). The congestion may also attract criminals who target public places and
increases the ri sk of bomb blasts and explosions.
2. The petitioner No.1 therefore addressed a complaint to the Chief Secretary,
Government of Balochistan, but when he did not receive any reply he approached the
Provincial Ombudsman (Mohtasib), who gave his findings/dec ision dated 3 May, 2007 as
under: ---
"The perusal of record shows that the grievance of the complainant has been redressed
by the traffic authorities by installing the no -parking boards and deputing the traffic
officials for checking of local buses in fr ont of the residence of complainant. Since
reportedly the grievance has been redressed by the agency, therefore, the case is
disposed of as redressed. Parties be informed accordingly."
3. Annex C to the petition is "A Proposal" to address the problem and states: ---
"Quetta city is facing many fold problems; the most important is the traffic congestion
which is getting worse day by day, one of the main reasons is the huge and shabby
local busses, plying on the narrow roads of the interior of the city. Th e second is the
shortage of parking places ---this situation is getting worst day by the day with no
solution insight.
The proposal of building a new local bus terminal at the old place is devoid of reason
and common sense because the roads inside the ci ty especially Jinnah Road which is the main
artery of the city is already over -crowded, with vehicles double parked and which are to
narrow to accommodate buses.
A permanent solution to the problem can be the building of the multi -storey parking
lot at the site of the old local bus terminal, instead of a plaza and a new bus terminal because
already the Baldea Plaza built a few years back is almost fifty per cent (50%) empty.
In the larger public interest local busses should not be allowed into the city beyond
Imdad chowk, from Imdad chowk up to Askari CNG station on which huge colonial
bungalows are situated is the most appropriate place for a modern bus terminal as it is
centrally located and has easy access from all the sides of the city specially wit h the
Chaman Phatak flyover near completion.
Considering the fact that the President of Pakistan is taking interest in the
development of Quetta city the acquiring of the railway land should be no problem.
All the residents of the railway bungalows situa ted on this piece of land can very
easily be accommodated in a single apartment building built on a small part of this
large piece of land, costing just a few crore rupees.
If this futuristic and workable proposal is implemented then Quetta city and its
citizens will see a big change for the better."
The petitioners have sought removal of the, "unlawful Local Bus Stand on the intersection of
Jinnah Road, Ramsay Road and also Adalat Road", and that the respondents, "be directed to
act in accordance with the law" and that "any other appropriate order" may be passed.
4. The Senior Superintendent of Police Traffic, Quetta (respondent No.1) filed reply to
the petition which inter alia stated, that: ---
"The local Bus stand for buses plying on Sariab and Brewery routes was temporarily
shifted from Circular Road to M.A. Jinnah Road/Ramsay Road junction by the orders
of respondent No.2."
And the then District City Nazim (respondent No.2) confirmed what was alleged by the
respondent No. 1 in the following terms: ---
"The local bus stand for buses plying on Sariab and Brewery routes have been shifted
on temporarily basis from Circular Road to M.A. Jinnah Road/Ramsay Road Junction
with the mutual consent of the bus owners. The work in th e old Bus Stand is under
progress."
"Since this is a temporary arrangement and the buses have been allowed to use this
point and possibly the point will be shifted to its original place after completion of the
Bus Terminal, therefore, assertion of the petitioners that unlawfully standing of
Buses, Rehris causing obstruction on roads is not justified."
However, the respondents Nos.1 and 2 did not offer any response/ comments on the aforesaid
Proposal of the petitioners.
5. The plan of the respond ent was to construct a new Bus Terminal on Circular Road on
the site of old Bus Stand, which over a period of time had been encroached upon or was in
occupation of persons whose lease/licence to occupy stood expired. Accordingly, an attempt
was made to rem ove the encroachers / occupiers from the site of the proposed new Bus
Terminal and various interim orders were passed to facilitate their eviction and eventually the
site was cleared. In addition to the land comprising of the old Bus Stand land measuring
31,510 square feet was purchased at a cost of Rupees four million by the Quetta Municipal
Corporation in the year 1996 from the Lahore Diocesan Trust Association for the proposed
new Bus Terminal, to use the words of respondent No.2, "in view of the great d emand of
transporters and the difficulties being experienced by the public." The total area on which the
new Bus Terminal was proposed to be constructed was 55,000 square feet ("Project") of
which 23,490 square feet was land previously owned by the Municip ality and 31,510 square
feet acquired from the Lahore Diocesan Trust Association. The comments filed by the
respondent No.2 state that the work on the Project could not be commenced due to
encroachments. The encroachments were eventually removed / vacated and the site handed
over to the contractor on 18 April, 2009, almost two years after filing of the petition.
6. The design of the Project was revised many times and the Project, that finally
emerged had 786 shops and offices. The Project was described as , "A Commercial Office,
Cum Shops Unit Inter City Covered Bus Terminal Building at Circular Road, Quetta" and
was to comprise of, (1) basement for parking, (2) ground floor with shops, lifts and staircase
for access to other floors and a fully covered area for buses, (3) mezzanine floor partly
covered with shops, (4) first floor fully covered with offices, (5) second floor fully covered
with offices and (6) third floor with restaurant. We were further informed that the approved
cost of the Project in 1999 w as Rs.173 million and that its present cost (as per the
architect/consultant of the Project, noted in order dated 11 November, 2009) had probably
doubled. The contractor of the Project confirmed the doubling of the cost of the Project and
stated that he wa s not prepared to undertake the Project on the old approved rate of .Rs.173
million and would only do so if the rate is enhanced to Rs.360 million (recorded in order
dated 11 November, 1999). The only work that had been undertaken was the clearing of the
site and excavation of a pit; and no construction has been carried out as yet. Accordingly,
vide order dated 11 November, 2009 it was directed that no further construction activity be
carried out until the disposal of the petition and all concerned were dir ected to ensure that no
encroachments are made on the Project site.
7. That when this petition was filed Mr. Maqbool Ahmed Lehri was the District City
Nazim and also the designated Project Director of the Project, and was actively pursuing the
Project. H owever, after the elected term of Mr. Lehri's office was completed and upon
enactment of the Balochistan Local Government (Amendment) Act, 2010 inter alia all
Nazims, including Mr. Lehri, ceased to hold office. The said Amendment further provided
that the Government appointed Administrators would perform the functions of the Nazims
and Local Council. The District Coordination Officer ("DCO") was redesignated as Deputy
Commissioner ("DC") pursuant to the Local Government (Amendment) Ordinance, 2010 and
the p osition taken by the DCO/DC before the Court has been markedly different from that of
Mr. Lehri. According to Mr. Lehri he validly exercised the powers as the Project Director of
the Project and in this regard placed reliance upon a letter of the Deputy Se cretary (Dev),
Local Government, Rural Development and Agrovilles Department, Government of
Balochistan dated 25 May, 1988 which stated as under: ---
"The undersigned is directed to refer to your letter No.1025/PE/QMC, dated 20th
March, 1988, on the subje ct noted above and to convey the approval of the
following: ---
(i) Secretary, Local Government has allowed the Mayor, Quetta Municipal
Corporation who is the Project Director of the Baldia Shopping Complex and Bus
Stand Projects with full administrative and financial powers except approval of
tenders. The cases of approval of tenders will have to be submitted to the Secretary
Local Government.
(ii) The Project Engineer has also accorded with full technical powers for Baldia
Shopping Complex and Bus Stan d Projects."
Mr. Lehri however did not file his letter dated 20 March, 1988, which vas replied to
by the Secretary in the aforesaid letter. The DCO/DC does not agree with Mr. Lehri and
states that the Nazim is the, "Administrative Head of the independen t tier of District
Government while as Project Director he has to be under a certain forum within the district"
and that "projects are designed with all the relevant staff chain of command, financial flow
and inbuilt monitoring mechanism with clear mandate , but here in this case no such system
had been evolved ... and the Project Director [Mr. Lehri] has been running the whole affairs
single handedly without any system of check and balance."
8. Another significant point of difference between Mr. Lehri and the DCO/DC is with
regard to the ability to change the designated land use of the plot. Mr. Lehri maintained
through comments filed in Court on 21 December, 2009, that, "there is no restriction /
prohibition in the Balochistan Local Government Ordinance 1 980 for conversion of purpose
of amenity plot. That City Government has an intention to generate funds for itself as well as
for the project in question which can only be done by constructing multi -storey building."
The DCO/DC however states that, "Bus sta nd comes within the definition of Amenity plot",
but without dilating further.
9. That during the hearing a number of parties, who claimed to have been dispossessed
from the site of the old Bus Stand, sought to be heard and or joined as parties to secure their
entitlement to future grant in lieu of the land/shop /petrol pump/tonga stand held by them at
the site of the old Bus Stand. To resolve the matter as to who was in possession and what was
his status the DCO was appointed by consent, vide order dated 22 February, 2010, to do the
following: ---
(1) "Ascertain the number of occupants who were in occupation and record the
names of such occupants along with the area in their possession.
(2) Determine the status of aforesaid occupants, i.e. whether they were lease
holders, tenants and duration of such lease or tenancy.
(3) All concerned are directed to hand over entire record with regard to this matter
to DCO, who shall thereafter be responsible for the same.
DCO to submit his recommendations with r egard to the aforesaid by or before the
next date of hearing."
On 24 March, 2010 the DCO/DC submitted report and made his recommendations. Since
some of the persons expressed dissatisfaction with the recommendations of the DCO/DC they
were provided with an opportunity to submit written applications for consideration of the
DCO/DC vide order dated 21 April, 2010. The DCO/DC submitted another report on 10
May, 2010 regarding the applications received by him and subject to minor changes, as
mentioned in Anne xure B thereto, maintained the report earlier submitted by him.
10. That accordingly the following questions arise for determination: ---
Firstly, whether the Nazim could act as the Project Director of the Project?
Secondly, whether the amenity sta tus of the plot could be changed, by constructing a
multi -storied building thereon and/or whether leaving only a small portion of the land/built
up area for use of the proposed Bus Terminal was tantamount to changing its amenity/land
use status?
Thirdly , how to attend to those who had vacated or had been evicted from the Bus
Stand land?
Fourthly, what, if any, relief the petitioners are entitled to?
11. Mr. Nasrullah Achakzai, learned Additional Advocate -General ("A.A. -G.") and Syed
Iqbal Shah, Advo cate have supported the comments/statements filed by the DCO/DC.
Learned A.A. -G. has also placed reliance on the case of Ali Ahmed v. Municipal Committee,
Talagang 2001 SCMR 585, wherein the Hon'ble Supreme Court dismissed the appeals filed
against the jud gment of the Lahore High Court. The land in question in the said case was
designated as rafa -i-aam ghair mumkin (thoroughfare for use of the general public) which
was being converted by constructing a private building thereon. It was contended that with
the passage of time the said land had totally lost its utility and could not be utilized for the
designated purpose as it was 5 feet below road level and on the said land stagnant water had
accumulated which emitted obnoxious smell and had become a nuisance -to the residents of
the locality. Mr. Justice Javed Iqbal, speaking for the Supreme Court, held (at page 592)
that:---
"We are, therefore, inclined to hold that the ownership of the land in dispute vests in
the appellants but the characteristics of the property in dispute cannot be changed
which shall remain as "Maqbuza Rafah -i-Aam". The alternate plea as agitated on
behalf of appellants that Municipal Committee may be directed to convert the land in
dispute into a public park seems more plausible and mu st be appreciated. Mr. Ibrahim
Satti, learned Advocate Supreme Court on behalf of the Municipal Committee has
assured that the needful will be done by the Municipal Committee, Talagang. While
accepting the alternate plea and pressing into service the doctr ine of cypress whereby
if the formal or particular purpose cannot be carried out the Court may approve
scheme which is in consonance with the general intention of the donor. Babaik Singh
wanted to serve the public -at-large and by converting the land in dis pute into a public
park the objective could be achieved by utilizing the land for the public -at-large.
In the light of foregoing discussion the Municipal Committee, Talagang is directed
that the land in dispute which has assumed a filthy and ugly look an d has become
threat to human health and is nothing short of a filth depot should only be utilized for
public park without any reflection on the proprietary rights pertaining to the
appellants which in our view would be in the interest of public -at-large. T he needful
be done without loss of time to save the inhabitants of the vicinity from a loathsome
situation. The abovementioned appeals being devoid of merits are dismissed subject
to modification as mentioned hereinabove."
The first question as to wheth er an elected Nazim could act as Project Director of a
project must be answered in the negative. The local body system set up under the Balochistan
Local Government Ordinance, 2001 ("Ordinance") stipulated, that the District Government
"consists of Zila Na zim and District Administration" (section 13). "The Zila Nazim shall head
the District Government and perform such functions and exercise such powers as have been
assigned to him under this Ordinance and he assisted by the District Coordination Officer"
(subsection (1) of section 17) and the functions and powers of the Zila Nazim are mentioned
in section 18 and also requires that he, "maintain administrative and financial discipline in the
District Government". On his part the DCO was required to, "exercise general supervision
over programmes, projects, services, and activities of the District Administration" and was
required "assist the Zila Nazim in accomplishment of administrative and financial discipline"
(section 28). The Nazim was an elected representa tive of the people whereas the DCO a paid
employee heading the officers who carried out their duties respectively assigned to them
under the Ordinance, 2001 and to implement the decisions of the elected representatives. On
13 May, 2010 the Ordinance was re pealed and replaced by the Balochistan Local
Government Act, 2010 ("Act"). However, notwithstanding the repeal of the Ordinance all
actions, et cetera, taken under the Ordinance provided the same were not inconsistent with the
Act "and not in contravention of the prescribed procedure or prejudicial to public interest"
(subsection (2) of section 3) were saved. The Act also re -designated the urban areas of the
City District Government Quetta as Metropolitan Corporation, Quetta and the Nazim as
Mayor. The owne rship of properties attended to by section 107 of the Act and the subject
land came to vest in the Metropolitan Corporation of Quetta.
13. The letter dated 25 May, 1988 (reproduced in paragraph 7 above) is contrary to the
provisions of the Ordinance, and was issued prior to the promulgation of the Ordinance,
therefore no reliance thereon could be placed upon it and Mr. Lehri could not derive any
purported powers as Project Director on the basis of the said letter. In any event to assign the
functions of P roject Director to the Mayor, as mentioned in the said letter, was contrary to
principles of transparency and good governance, and thus also against the public interest. The
said letter refers to "Baldia Shopping Complex" which was constructed, when Mr. Le hri was
the Mayor of Baldia, by demolishing the Fruit and Vegetable Market which had served the
citizens of Quetta for decades. The said letter makes no reference to any law, enabling the
issuance thereof, or the purported power vesting in the Secretary Lo cal Government to issue
the same. In any event the empowerment, if any, of Mr. Lehri as Project Director came to an
end upon the promulgation of Ordinance as the Ordinance did not envisage the grant of such
powers. The duties of a Project Director may be o f a technical nature requiring a specialist to
perform them. Such a person could be from amongst the regular cadre of employees of the
City, on deputation from the government or be specially hired for the job. However, Mr.
Maqbool Ahmed Lehri, who was the Nazim, undertook the work of the Project Director
himself. Mr. Lehri has not claimed to be an expert in the field of designing and constructing
bus terminals or to be an expert town planner or that he held any specialist degree(s) in such
fields, but even if he had the requisite experience or expertise he could not have been
appointed as the Project Director because of the inherent conflict of interest with his office of
Mayor/Nazim. In his capacity as Project Director Mr. Lehri would be undertaking the Pro ject
for the people of the City of Quetta and, therefore, would be accountable to them through the
elected Nazim, namely himself. Moreover, the Project Director would be under the
administrative and or disciplinary control of the DCO, which, in the case of Mr. Lehri acting
as Project Director, presented an anomalous position since elected representatives are
responsible to the people, who elect them. Accordingly, Mr. Lehri was at the same time
acting both as master and servant, which was completely untenabl e, and destructive of the
principles of good governance. For the sake of argument in the event Mr. Lehri was
eminently qualified for the job of the Project Director of the Project, though there is nothing
on record to suggest that he was, and wanted to be considered for such appointment, Mr.
Lehri should have first resigned as the Nizam and only then could he have been considered
for the post, if he met the job criteria. Both Mr. Lehri and the Government of Balochistan
betrayed complete disregard for the pr inciples of transparency, accountability and good
governance. The Project (as will be discussed later) bears testimony to the fact that when
principles of transparency, accountability and good governance are violated it is the people
who pay the price and suffer.
14. The old Bus Stand was, as its very name suggests, for use as a bus stand, and
additional land was acquired for amalgamation therewith, for the construction and use as a
bus terminal. However, the respondent No.2 effectively converted the desi gnated Bus
Terminal into a shopping complex with offices. The ground floor was to be partly covered
with shops and had lifts and staircase for access to other floors and the remaining area, which
was fully covered, was shown for use of buses. The area show n for the use for buses could
not safely be used for buses, given the fact that the design showed that it was
enclosed/encircled with shops and buildings, had only small openings for the entry and exit
of buses, was not open to the sky (as a number of floo rs for shops/offices stood above such
space), and no ventilation was provided for the fumes generated by the buses. Consequently it
is reasonable to presume that the small area designated for use of buses too would have been
allotted for shops/offices. In any case, leaving only a small portion of the land/built up area
for use of the proposed Bus Terminal was tantamount to changing the old Bus Stand's
amenity status and conversion of public land into private use. To add insult to injury, the
public would ha ve had to pay an amount exceeding Rupees 360 million for the construction
of the proposed multi -storeyed building, though it was envisaged that the said cost would
eventually be recovered from the lucky owners of the shops/offices. The project was thus
nothing but a fraud and a scam and apparently promoted to enrich those who were executing
it. The fact that Mr. Lehri was both the Nazim and the Project Director of the Project also
removed any semblance of accountability and transparency and ensured against the
maintenance of administrative and financial discipline and proprietary.
15. That under the pretext of requiring the old Bus Stand land for construction of a new
Bus Terminal a charade was enacted. If the object of the whole exercise was to construct a
multi -storeyed building thereon with shops and offices, there was no justification to
dispossess the existing occupants. Such actions undermine the confidence of the public in
their public representatives and public functionaries. Moreover, by the all to o frequent use of
such tactics a once beautiful and well planned city has been converted into a congested and
polluted one and nearly all public and amenity lands have been put to private and or
commercial use. Quetta has grown exponentially but its citize ns have not been provided with
the requisite facilities and the services. The Sixth Schedule of the Ordinance, required that
trees on public streets be planted, ensure against conversion of land use, provide for proper
regulation of buildings, provide for drainage, sewerage and street lighting, ensure
maintenance of public markets, laying out of public gardens, safeguarding and maintaining
open places, undertaking spatial planning, controlling and regulating traffic, but sadly all
these matters were observe d mostly in the breach. The abject failure of the City District
Government to fulfil its mandate attains criticality when the few remaining public amenity
spaces are sought to be illegally converted by the City Government itself, and to put the land
thus c onverted into private use. Ironically those whose duty was to enforce the provisions of
the Ordinance became its principal violators.
16. Section 124(1) of the Ordinance stipulated, that, "The properties of local government
shall be used only for public purposes", and the very same stipulation is mentioned in section
110 (1) of the Act. Therefore, Mr. Lehri's contention that the Ordinance has no restriction or
prohibition for conversion of an amenity plot to a different use and the City Government, can
resort to constructing a multi -storeyed building thereon clearly contravenes the cited
provisions. The Ordinance also laid down the consequences of the loss of the property by
insertion of Section 126, which provided as under: ---
"126. Loss of property of local government. --- In case of any loss of property of the local
government, the responsibility for such loss shall be fixed by the concerned local
government and the amount of the loss shall be recovered from the defaulting pers on
and a report to this effect shall forthwith be submitted to the concerned council in the meeting
next following."
Probably on account of the cavalier attitude towards the properties of the City
displayed by Mr. Lehri and others at the helm of affair s, the Act in subsection (1) of section
111 now details further the manner in which to attend to such transgressions, as under: ---
"111. Personal Responsibility with regard to loss and waste. --- (1) Every Mayor/Chairman,
official or servant of a Local Co uncil, every member of a Local Council, and every person
charged with the administration and management of the property of a Local Council shall be
personally responsible for any loss or waste, financial or otherwise, of any property
belonging to a Local C ouncil which is a direct consequence of decisions made by him
personally or under his directions in violation of any provisions of this Act or any other law
for the time being in force or which accrues as a result of his negligence or misconduct, and
shall be liable to pay such surcharge as may be determined by the Local Councils Accounts
Committee and such amount shall be recoverable as arrears of land revenue under surcharge
proceedings."
17. The comments filed by Mr. Lehri stating that there is no rest riction or prohibition in
the Ordinance "for conversion of purpose of amenity plot" may further be answered by
referring to the following paragraph from the judgment of the Hon'ble Supreme Court
reported in 2010 SCMR 885 (at page 916 para 49): ---
"The s ubmission on behalf of AWT based on legal title, is founded on private law
concepts of right to property but ignores completely, the notion of public ownership of the
land, stemming from the Constitution. It also overlooks the fiduciary nature of the
respo nsibility of the Government and its functionaries while dealing with valuable assets such
as the playground. Land which is privately owned can be dealt with by the owner in any
manner he chooses. The owner may, therefore, legitimately decide to grant a lea se of the
most valuable land owned by him, in consideration of a 'peppercorn' rent. Or, he may even
decide to make an outright gift of the same on the basis of the unfettered title vested in him.
However, where land is owned publicly, that is by the people of Pakistan, legal title may vest
in the Government, but such title, and the exercise of powers based thereon, are to be
exercised in the public interest, in accordance with the Constitution and the laws framed
thereunder."
18. The paramount importance of the public interest in respect of property rights can also
be gathered from Article 23 of the Constitution, which provision, whilst ensuring that every
citizen shall have the right to acquire, hold and dispose property, envisages restrictions
imposed "i n the public interest". Another important exception to the right to hold property is
when it is required "for a public purpose" (Article 24 (2) of the Constitution) and such land
can be compulsorily acquired "by the authority of law which provides for comp ensation".
Article 24(3)(e)(ii) also makes specific mention of "public facilities and services." These
cited provisions permit compulsory acquisition of private properties for public purpose,
consequently in the Constitution the public interest is supreme. What, however, has been
observed in the instant case is that public functionaries and their then political masters
discarded the public interest and attempted to transfer to private persons public land that was
designated for amenity use. The contention o f Mr. Lehri that the Ordinance does not place
any restriction or prohibition of the conversion and/or transfer of such property is (as has
been stated above) contrary to the provisions of the Ordinance, and even if for arguments
there wasn't such restricti on or prohibition still the land could not be divested with and put to
private commercial use. Mr. Lehri also did not see any contradiction in being both the Nazim
of Quetta and the Project Director of a project of the City. Mr. Lehri's proposition epitomi zes
moral bankruptcy and raises serious doubts about his moral calibre and compass.
19. That the 55,000 square feet of land, of which 23,490 square feet was owned by the
Municipality and 31510 square feet acquired from the Lahore Diocesan Trust Associati on
respectively, having been designated as a public amenity plot or later acquired for a public
amenity, cannot be converted for private commercial use. In the recent Human Rights Cases
Nos.4668 of 2006, 1111 of 2007 and 58283 -G of 2010, judgment whereof i s reported in PLD
2010 Supreme Court 759, the Hon'ble Chief Justice of Pakistan Mr. Iftikhar Muhammad
Chaudhry, held (at page 769), that, "There could not be two opinions in respect of importance
of Master Plan" and, "the Authority is competent to make alt erations in the Master Plan, but
as discussed in Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223), the alteration or
modification of a sanctioned scheme is permissible in the manner prescribed by the relevant
statute" (at page 773D).
The Supreme C ourt followed and quoted from its earlier decision in the case of Iqbal Haider
v. Capital Development Authority (PLD 2006 Supreme Court 394) as under: ---
"... a Public Park, ... creates a right amongst the public and that right includes their
entry in t he Park without any obstacle, being fundamental right enshrined in Article 26 read
with Article 9 of the Constitution. It may be noted that liberty of a person, to have access or
utilize a right available to him, cannot be taken away by converting such fac ility into
commercial one, for the purpose of extending benefit to a third person..." (at pages 776 -
777)."
In the Suo Motu case, judgment whereof is reported in 2010 SCMR 885, the Hon'ble
Supreme Court, exercising powers under Article 184(3) of the Cons titution of Pakistan
intervened to restore 4.958 Acres of playground land; which had been converted and on
which a wholesale centre had been constructed, back to public use. The importance and
significance of the public interest was expressed in the follow ing terms: --
"This Court has repeatedly emphasized the need for State functionaries to act in
furtherance of the public interest. In this respect, they are fiduciaries, ultimately responsible
to their paymasters i.e. the people of Pakistan."
"The peo ple of Pakistan have been blessed with a Constitution and aspire, despite
difficulties, to Constitutional rule. The Constitution, we can say with certainty, is imbued
with an ethos and guiding spirit which underpins it and obliges the organs of the State a nd
their functionaries to act in conformity with such guiding spirit. This ethos is discernible from
the Preamble and certain substantive provisions of the Constitution such as Article 2A,
Article 3 and Chapter 2 Principles of Policy), Part -II of the Const itution."
20. The Project, though promoted under the name and style of new Bus Terminal, is
proposed to be used for construction of shops, offices and restaurant, which will be disposed
of to private parties. The fact that the land is public land and des ignated for an amenity use it
cannot be permitted to be used for private commercial use to construct shops, offices and
restaurants. The observations of the Hon'ble Supreme Court made in the case of Pervaiz
Oliver v. St. Gabrial School PLD 1999 Supreme Co urt 26, are equally relevant to the instant
case, and are reproduced hereunder: ---
"We consider it our bounden duty to observe that many of those in the administration,
politicians and bureaucrats alike, virtually consider public property as their own t o be
appropriated or allocated at their whims or fancies. Nothing is further removed from legal
realities. No public property, big or small, tangible or intangible, can be disposed of except in
accordance with law. Those who transgress, expose themselves t o the severest of penalties
under law, the cardinal principle being, the higher the functionary, the higher the
responsibility and, for the reason, the stricter the punishment."
In the aforesaid case the land that was sought to be transferred to a priva te person
measured 842 square feet. The Apex Court directed that copy of the judgment be sent to the
then Chief Ehtesab Commissioner for action. However, it appears that rather than learning
any lessons the administration, politicians and bureaucrats invol ved in the Project have
become evermore emboldened, which can be gathered from the fact that the area in the
present case is 65 times greater than the land in the Pervaiz Oliver case.
21. That if the Project as envisaged is permitted to be undertaken it would also compound
the problem of congestion and pollution. The Project Summary significantly makes no
mention of the number of people who would daily visit the shops and offices situated within
the Bus Terminal Complex and the number of private vehicles that would bring shoppers and
visitors and which would require parking. The basement provides parking but the shops and
offices are many times the number of the parking spaces, therefore the Project effectively
does not provide any parking for shoppers and visitors, as the number of available parking
spaces would not even be sufficient for the owners of the shops and offices. Resultantly, the
roads surrounding the Bus Terminal Complex would be used for parking, making entrance
and exit of buses from the Bus Terminal difficult, if not impossible. No provision for parking
area for taxis and rickshaws, ticketing counters, waiting areas/waiting rooms for passengers
and places for washing/cleaning buses have been provided. The Project as envisaged also
does not t ake cognizance of the fact that Quetta is situated in a high risk seismic zone. It
therefore appears that basic planning requirements, that one would expect in designing of a
bus terminal, have not been met, nor safeguards taken against prevailing risks.
22. It next needs to be considered how to attend to those who have vacated or been
evicted from the Bus Stand Land. The DCO/DC has submitted reports on.24 March, 2010
and 10 May, 2010 and identified all those who had vacated or been evicted from the land of
the old Bus Stand. It is for the concerned authorities to devise a fair and transparent policy for
co compensating them either by offering money or land in lieu thereof and such
compensation should take into consideration whether the person was a lessee , licensee or
illegal occupant, and offering compensation commensurate with such status. A small portion
of the Bus Terminal land, and provided planning and safety requirements permit, could be
utilized for service of the public purpose for which the land is to be used, by provision of
canteens and shops selling eatables for passengers, et cetera, and some or all of the persons
who have been dispossessed from the land of the old Bus Stand could be accommodated in
this regard. But this would only be permissi ble if such use integrates with and services the
amenity use of the land. It is expected that the respondent No.2 (now Quetta Metropolitan
Corporation) would attend to this matter as soon as is possible. It is however beyond the
scope of the present petiti on to state anything further with regard to the aforesaid persons
who had vacated or had been evicted from the land of the old Bus Stand.
23. That the petitioners are of the view, as expressed in the Proposal attached with the
petition, that, "building a new local bus terminal at the old place is devoid of reason and
common sense because the roads inside the city especially Jinnah Road, which is the main
artery of the city, is already over -crowded, with vehicles double parked and which are too
narrow to a ccommodate buses" and that, "a permanent solution to the problem can be the
building of the multi -story parking lot" at the said location and that the bus terminal be
constructed on the area from Imdad Chowk to Askari CNG station as it would restrict entry
of buses into the city and such place "is the most appropriate place for a modern bus terminal
as it is centrally located and has access from all the sides of the city" appears to have
considerable merit. However, the building of a public car -park would c onstitute a change in
the land use but such conversion, from one public purpose to another, may not be contrary to
the public interest and is envisaged under the Act and could be undertaken after observing the
requisite procedures for change of such and us e. The Proposal of the petitioners therefore
requires serious consideration by the City's planners. Unfortunately, the said Proposal was
not considered despite emanating from distinguished and old citizens of the City and none of
the respondents have offer ed any comments thereon. The apparent lack of interest of the
respondents may also constitute dereliction of duty by the respondents, whose only reason for
existing is to safeguard and promote the public interest, a duty, the enforcement whereof can
be sou ght and redressed by approaching the High Court under Article 199 of the Constitution.
24. Thus, for the foregoing reasons, it is declared and held as under: ---
(1) That the 55,000 square feet of land situated within the boundaries of Circular Road,
Suraj Jang Road and Monsafi Road, of which 23,490 square feet was land owned by the
Quetta Municipality and 31,510 square feet acquired from the Lahore Diocesan Trust
Association, respectively designated as a public amenity plot and acquired for a public
amenity, cannot be converted into private use, and in particular for construction of shops,
offices and restaurants thereon;
(2) That the aforesaid action of converting public land into private use was in violation of
subsection (1) of section 124 of the t hen Balochistan Local Government Ordinance, 2001 and
is also in violation of the Balochistan Local Government Act, 2010 and the Constitution of
Pakistan;
(3) The need/requirement of constructing a bus terminal at the aforesaid land be
considered/re -consi dered by the respondents Nos.1 and 3 and the Quetta Metropolitan
Corporation (the successor -in-interest of respondent No.2) inter alia in the light of the
aforesaid Proposal (as mentioned in paragraph 23 above) and if it is considered that the said
land ca n he better utilized for another public purpose it may be converted to such public
purpose in accordance with the provisions of the Act and after observing the requisite
procedures for change of such land use;
(4) Quetta Metropolitan Corporation, the su ccessor -in-interest of respondent No.2, to
submit for the approval of this Court the action taken pursuant to the direction contained
in sub -paragraph (3) above;
(5) A fair and transparent policy be enacted in respect of all those who had vacated or had
been evicted ("affectees") from the land of the old Bus Stand as mentioned in DCO/DC's
reports submitted on 24th March, 2010 and 10 May, 2010 and the affectees be compensated,
either in monetary terms or by offering land in lieu thereof, taking int o consideration whether
the affectees were lessees, licensees or illegal occupants, and offering compensation
commensurate with such status;
(6) The bus stand on the intersection of Jinnah Road and Ramsay Road be removed when
an alternative thereto has b een found, and till such time effective steps be taken by the
respondents Nos.1, 2 and Quetta Metropolitan Corporation to ensure that minimal nuisance is
caused to the petitioners, including immediately putting in place measures to ensure that the
entrance to the houses of the petitioners are not obstructed and that the boundary walls to
their respective residences are not used as urinals, and the area is kept clear of rehris
and vendors;
(7) The petitioners may submit application(s) for seekin g further orders in case of
delay in carrying out the aforesaid directions.
The petition is allowed in the aforesaid terms but with no order as to costs.
SAK/70/Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.