IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mr. Justice Nadeem Akhtar

Mr. Justice Fahim Ahmed Siddiqui

C. P. No. D - 1412 of 2017

Muhammad Aqil Asim and 02 others..………...…………………..Petitioners

Versus

Cantonment Board Clifton…………………………..…………….Respondent

Date of hearing : 22.03.2017

Mr. Atiqu-ur-Rehman Khan, advocate for the petitioners

Mr. Sohail H.K.Rana, advocate for respondent

Rao Nadeem Ahmed, Law Officer, Clifton Cantonment Board

M. Sajjad Haider, CEO, Clifton

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: The petitioners are sportsmen and they are chieftain of the registered sports clubs concerning different field games. All the sports bodies, which they represent are functioning within Punjab Colony and in their proximate, there is a playground known as ‘Muhammadan Football Ground’, which is used by sportsmen of the area.

2. It is the case of the petitioners that the respondent, who is responsible for providing municipal services to the area, has started some construction activities within the only playground of the vicinity. The petitioners also alleged that the respondent is responsible for permitting dumping of construction material and machinery within the said ground. The petitioners claimed that the respondent had disfigured the said playground and now it is unbecoming for the sports activities.

3. After notice, the respondent filed their comments denying all the allegations. The respondent explained that the said playground is handed over to the Government of Sindh on their request for the purpose of a yard for the construction of ‘subway’ at Submarine Chorangi. According to them, the playground is given for short span of time and after completion of the construction work, the same will be restored to its original position. The respondent denied the allegation of any construction within the said playground by them.

4. The Cantonment Executive Officer, Clifton Cantonment Board, is present along with his counsel in the court. He also filed comments on behalf of his department and also raised certain legal objections regarding the instant petition. According to him, the construction work was not started by the respondent but by the Government of Sindh. He also submitted that the petitioners are required to issue notice under Section 273 of the Cantonment Act, 1924 while the alternate remedy is also available to the petitioner. In his comments, he submitted that the petition is filed depending on incorrect facts and without associating the Government of Sindh as a party, no relief can be granted in this petition. The comments further speak about the construction of underpass Submarine Chorangi distracted by the Government of Sindh. It is also mentioned in the comments that the respondent has allowed the request of local authorities to use the said playground for dumping construction material and machinery for a limited period. As per comments, the sports activities will not be stopped but the same are hindered for the time being. It is mentioned in the comments that the respondent has taken an undertaking on 'Stamp Paper' from the Project Director of Submarine Underpass as well as Local Government Department.

5. We have heard the arguments advanced and have gone through the available material. The contentions of the learned counsel for the petitioners are that the whole of the playground has been disfigured and destroyed. According to him, the respondent has either raised or allowed to build a boundary wall bifurcating the entire ground, where no sport will be continued. He submits that the petitioners apprehend that the entire playground will be encroached upon, which will completely cease the sports activities.

6. The learned counsel for the respondent submits that the sports activities are not stopped and a portion of the ground is given to the local government for construction of the underpass. He contends that the playground will not be allowed to be encroached upon by anyone and the respondent is not doing any construction work or bifurcating the said playground. When the learned counsel for the respondent and CEO were confronted with the photograph annexed with the petition, they said that the erection of boundary wall is being done by the contractor or project director, not by the respondent. However, they frankly admitted that the sport is not possible in the present position of the ground.

7. The respondent has disclosed that the name of the said playground is Muhammadan Football Ground, which is situated in a populous and built-up area of the town. It provides an opportunity for sports and recreational activity to a significant number of population. In the evening time, playing football, cricket and hockey is a delight not only for those young men who are engaged in sports in the said ground but also for passive spectators. There is already a scarcity of open spaces and playgrounds in Karachi as such depriving our children and young men from a grand gridiron is not acceptable. It is amounting to snatch a thrilling delight from the life of our youngsters. It is the duty of the state to provide them unhindered opportunity of recreation and games otherwise they will turn to other things instead of sports. We do not allow respondent or anybody else on any account for any period that a playground will be turned to some other use.

8. The presently available parks and playgrounds in the towns of Sindh are required to be protected as they are necessary for physical fitness and continuity of the modern urban life. The existence of all these parks and playgrounds and other public amenities are a right in favour of the inhabitants of the locality and it is their just demand that these facilities should not be converted to any other use or even build any structure upon them contrary to the purpose for which they are earmarked. The Courts in Pakistan have already recognized such rights of the people in a teaming number of cases having a history of several decades. In this respect, reference may be made to judgment reported as Mian Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223). The dictum of the judgment of Mian Fazal Din (supra) was followed and reiterated in the subsequent judgments reported as Saeen Muhammad and two others v. The Government of Punjab and three others (PLD 1979 Lahore 79), Muhammad Sharif and others v. Muzaffar Iqbal and others (1983 CLC 3091) and Dr Abdul Rauf and others v. Shaikh Muhammad Iqbal and others (1991 SCMR 483).

9. Our superior courts have further extended this initially recognized private right of the protection of parks and playgrounds of the inhabitants of a locality, which is now evolved into fundamental right emanating from Article 9 of the Constitution of Islamic Republic of Pakistan i.e. the right to life. In this respect reliance, may be taken from the case reported as Moulvi Iqbal Haider v. Capital Development Authority and others (PLD 2006 SC 394) wherein the Hon’ble Supreme Court held as:

"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."

As a sequel to the above discussion, we are of the considered view that the respondent has no right to allow the destruction of Muhammadan Football Ground situated within the proximation of Punjab Colony, Chandio Village, Gabol Colony and P & T Colony by permitting to use the same for dumping of building and construction material and machinery, erecting bifurcating wall and/or collecting garbage or debris therein. The said playground is meant for the purpose of sports and it cannot be used for any other purpose permanently or temporarily which may hinder the sports activities. We direct the respondent to stop all the unwarranted activities within the said playground and remove all the construction material, machineries and structure from the said playground and resume its possession within three days. We further direct the respondent to restore Muhammadan Football Ground to its original position and to restore the sports activities as it was continued in the past. The instant petition is allowed in the above terms with no order as to cost.

JUDGE