Right to life has been explained and interpreted by the Superior Courts in a large number of cases. It includes right to livelihood, right to acquire, hold and dispose of property, and right to acquire suitable accommodation, which could not hang on to fancies of individuals in authority, and includes all those aspects of life which go to make a man’s life meaningful, complete and worth living. It Implies the right to food, water, decent environment, education, medical care and shelter. A fundamental right cannot be snatched away or walved off pursuant to any agreement. This Court, In the case of Moulvi Iqbal Haider v. Federation of Pakistan (PLD 2006 SC 394) dealt with a somewhat similar transaction as under: –
“17. It has been noted that deal between respondents Nos.1 and 2 has not been made in a transparent manner…… Essentially, when a party makes investment, may be meager one, It would make money by granting licences, franchise, etc. for which it will enter into agreements with local and International parties and the burden of the same ultimately is to be borne by the general public, in terms of tickets, amusement fee etc…….. 20. At this juncture, to unfold the mala fides on the part of respondent No.1 l.e. C.D.A., it is to be noted that in the publication, neither specification of the areas of Jubiicc Park Markaz F-7 was mentioned, on which Mini Golf Course was to be developed nor the period for which the lease was intended to be given. Inasmuch as, it was not disclosed in the publication that what is the reserved lease money fixed by the C.D.A. because in absence of such information, the genuine bidder could not offer bid accurately except those bidders who have the blessings of the authority competent to accommodate any one of them out of way. It is also important to be kept in mind that volume of the lease money depends upon the area of the land, as we are of the opinion that if C.D.A. had disclosed In publication that an area of 5.05 acres is available for the purpose of development of Mini Golf Course, there was every possibility of fetching much higher lease money, than one, on which It has been given to respondent No.2. We are told that the plot is situated in the commercial area of Markaz F-7, where the prices of the property are extremely on a high side but with ulterior intentions, this important Information was concealed.
21. Be that as it may, out of both the pre-qualified Interested parties, D M/s. Family Entertainment Centre offered 2.5 million (Rs.25 lacs) per annum for the subject matter, whereas respondent No.2 offered Rs.6 lacs per annum rent for the subject matter for a period of at least 15 years, with 25% Increase on every three years. It is stated that the C.D.A. evaluated both the offers and rejected the one quoted by M/s. Family Entertainment Centre, as It has failed to secure requisite points obtained by respondent No.2, as such respondent No.2 was called upon to increase/match the bid up to Rs.2.5 million. However, the report of evaluation committed is not available to ascertain as to whether it was carried out Independently or otherwise. Thus it is held that in such like situation, C.D.A. if at all was interested to lease out the Public Park, instead of developing the same, may have Invited fresh proposals instead of calling upon respondent No.2 to enhance the lease money because in granting contracts for the purpose of fetching money to support the public exchequer, the competent authority had an obligation to adopt such devices on the basis of which more money could be procured as it has been held in Captain-PQ Chemical Industries (Pvt.) Ltd. v. A.W. Brothers (2004 SCMR 1956). C.D.A. seems to be Interested to grant lease of Jubilee Park to respondent No.2, as it is evident from preceding narration of facts. The negotiation with respondent No.2 culminated in its success because of its agreeing to match the bid to the extent of Rs.2.5 million, which was however, subject to extending him extraordinary benefit in formulating the conditions of agreement, two of them are most important, which may be referred to from the conditions reproduced herein above 1.e. being Nos. 4 & 5, which, later on, became part of the lease agreement dated 4th June, 2005 as Conditions No.14 and 15. These concessions were allowed to respondent No.2 contrary to the restriction Imposed advertisement published on 14th August, 2004 namely, no in the heavy civil structure will be allowed, open and soft landscaping will be done, whereas contrary to it, respondent No.2 has been allowed to construct arcs of 1000 sq. yards besides 1500 sq. yards for family and children activities and eating court, which is impossible unless a concrete flooring is made. It is also to be seen that nothing was mentioned in the publication in respect of concession expected to be available to successful bidders In terms of period of lease, the area, as it has been pointed out herein above, the period of completion of “project and commencing date for the purpose of making payment of lease money l.e. after a period of about 20 months, etc.
22. It is an unfortunate aspect of the case that prime land situated in one of the most posh area of the capital city has been leased out in a most opaque manner, causing colossal loss to the public exchequer for which C.D.A. had no authority, as discussed above……..
23. Thus, in view of above discussion, It is held that the mala fides of respondent No.1 In concluding the transaction with respondent No.2 are abundantly apparent on record. This Court in the case of Government of West Pakistan v. Begum Agha Abdul Kharim Shorash Kashmiri (PLD 1969 SC 14) has held that mala fide is to be proved on record. This view has been reiterated by this Court in the case of Ahmad Hassan v. Government of Punjab (2005 SCMR 186). Therefore, applying the test laid down in these judgments on the facts of the present case, we are inclined to hold that in view of the admitted facts on record, mala fides on the part of respondent No.1 In granting lease to respondent No.2 are apparent, thus, the lease agreement dated 4th June, 2005 is not transparent.”
21.3233. For the foregoing reasons, It is held and directed
as under: –
(a) Clause (iv) of regulation 4(1)A of the Regulation is declared to be Inconsistent with sections 12 and 13 read with section 2(a) & () and consequently the JVA entered with MPCHS is rendered inoperative and Ineffective qua CDA.
(b) The CDA Board is directed to takeover the project and complete the same in accordance with the provisions of the Ordinance.
(c) The Chairman CDA shall ensure Implementation of the
above direction and submit compliance report within a period of one month from the date of this judgment.
(d) MPCHS will, however, be at liberty to pursue the remedy for recovery of any amount spent on the project in accordance with law.
CHIEF JUSTICE
JUDGE
Islamabad
Announced In Court on 15.04.2011.
C.J.
APPROVED FOR REPORTING
(Concluded)
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