This judgment shall dispose of W.P. No, 14611/2002 (Begum Khurshida Shorish etc. vs. Province of the Punjab etc.) and W.P. No, 20096/2002 (Lawyer Welfare Trust vs. Province of the Punjab etc.) as the issue raised in both the petitions is common i,e, the petitioners have challenged the project of Respondent No, 3, purported to have been approved by Respondent No, 5, for establishing a Food Street (as alleged in the petition) or a sit out cafe (as contended by the respondents), on the service road in front of premises of 24 to 26-Shahrah-e-Quaid-e-Azam, Lahore.
2. In the written statement file by Respondents Nos, 3 and 4, the stand taken is that no food street of the kind, as established in Gowalmandi, is in contemplation, that no road would be blocked, no structural changes are in offing, no kiosks or stalls would be permitted and that " out of the total width of the road only extreme site with WAPDA street light poles is being used as a sit out area only for late evening, and as such no business or office hours or privacy of any residence shall be hampered in any manner. The existing food shops namely. Bundu Khan and Salt & Pepper lay/spread chairs and tales on the road at night in a haphazard manner. The same shall be restricted to a defined strip in an organized manner. Merely paving the road, improving the landscape of the site is obviously beneficial and advantageous to the petitioners...........
3. Respondent No, 5 (District Nazim) has defended the impugned action and adopted the stand taken by Respondents Nos, 2 to 4. In the written reply filed by the said respondent, it was added as under:-- Nowhere in the world, the Government is obliged to provide 24 hours free parking on both sides of the road to private business community or residents. However, they will not be restrained from parking their vehicles at the above said place. Since no structural changes are being brought about in the existing plan, therefore, the traffic will not be interrupted. The offices close at 4.00 p.m. and the business centers close at 8.00 p.m. whereas the activities at sit-out area would commence after 8.00 p.m
4. Learned counsel for the petitioners in W.P. No, 14611/2002 (Begum Khurshida Shorish etc. vs. Province of the Punjab etc.). Mr. Muhammad Saleem Sehgol, Advocate, in support of this petition, made detailed submissions and filed written arguments as well. His submissions, precisely, are as under:--
(i) That the decision to establish a sit out cafe on a service read of Shahrah-e-Quaid-e-Azam, Lahore opposite to the Lahore High Court Lahore is a camouflage to establish a food street which is not permissible on a public lane.
(ii) That Respondents Nos, 2 to 5 have failed to discharge their functions to close the restaurant being run by Respondents Nos, 6 and 7 which have been allowed to carry on their business in sheer violation of The Pakistan Hotels and Restaurants Act, 1976. It was further submitted that the act of converting a public street into a sit out cafe is an attempt to provide benefit to the Restaurants being run by Respondents Nos, 6 and 7.
(iii)That the proposed cafe is likely to be a traffic hazard as is evident from a wireless message a copy of which was placed on record as annexure-D.
(iv)That the Eastern Federal Union challenged the impugned action in WP No, 14052/2002 which was disposed of on the assurance given by Respondents Nos, 2 to 4 that no food street shall be established at the site in question but notwithstanding this undertaking, the food street is being converted into a sit out cafe/restaurant.
(v)That the site in question is a public street meant only for the collective use of the public and cannot be, put to any other use. The decision to establish it, therefore, is violative of Articles 4, 9, 14, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. In support of the submission, he relied ott Government of West Pakistan and another vs. Begum Agha Abdul Karim Shorish Kashmir'
(PLD 1969 SC 14), Mehram Ali and others vs. Federation of Pakistan and others (PLD 1998 SC 1445), Ch. Manzoor Elahi vs. Federation of Pakistan etc. (PLD 1975 SC 66) and LA. Sherwani and others vs. Government of Pakistan etc. (1991 SCMR 1041).
(vi)That the site in question admittedly is a public street within the meaning of item 84 to the Sixth Schedule of the Punjab Local Government Ordinance, 2001 and Respondent No, 5, instead of discharging its duties to maintain the street, is converting it into a cafe, which cannot be countenanced in law. Relied on Manzoor Bhatti vs. Executive Officer Cantonment Board Multan etc. (PLD 2002 Lahore 412;
(vii) That the respondent executive authorities though have a discretion within the domain of their lawful authority, yet the said discretion has to be structured. In support of the submissions, he relied on Chairman Regional Transport Authority Rawalipindi vs. Pakistan Mutual Insurance Limited etc. (PLD 1991 SC 14), Muhammad Iqbal Khokhar and 3 others vs. The Government of the Punjab and 2 others (PLD 1991 SC 35) and M/s. Gadoon Textile Mills etc vs. WAPDA etc. (1997 SCMR 641).
5. Learned counsel for the respondents vehemently defended the impugned decision of the respondent authorities. In addition to the written statement made by respondents, written arguments were also placed on record on behalf of Respondents Nos, 2 to 4 in which, it has been contended, that the street in question is situated in a commercial area; that the establishment of a sit out cafe would not affect the right of privacy or easement of the petitioners that two restaurants are already functioning at the site for the last many years and no issue was raised by them, therefore, this petition is patently hit by lathes. It was further added that two restaurants functioning have not violated by provision of the Pakistan Hotels and Restaurants Act, 1976 as those do not fulfill the minimum prescribed criteria for registration under the afore-referred Act. In support of the submissions, reliance was placed on Mst. Tahira Almas and another vs. Islamic Republic of Pakistan etc. (PLD 2002 SC 830). Zafar IQbal vs. Agricultural Development Bank of Pakistan and 3 others (2002 CLD 417), Malik Ahrnad Saeed 'vs. Pakistan Water & Power Development Authority (2002 CLC 1198) and Gulzar and another vs. The State (2002 SCMR 362).
6. I have heard learned counsel for the parties and have given anxious consideration to the issues raised.
7. Petitioner No, 1 in WP No, 14611/2002 is a resident of 24- Shahrah-e-Quaid-e-Azam, Lahore and near her house is Petitioner No, 2's shop on the ground floor of 26 Shahrah-e-Quaid-e-Azam. In fornt of their places of residence and business, is a service road having 70 feet width and 597 feet length. Between the service lane and the main Shahrah-e-Quaid-eAzam, Lahore, is a foot path/pavement. The respondent Parks & Horticulture Authority intends to establish a sit out cafe on what it describes as the "non-motorable" part of the service road adjacent to the footpath, to be used by the two already existing Restuarants. As claimed by the respondent authorities, only a part of the service road would be used for the sit out cafe i,e, "out of the total width of the road only extreme site with WAPDA street light poles is being used as a sit out area only for late evening and as such no business or office hours or privacy of any residence shall be hampered in any manner #TS##"Admittedly, the service road is a public street and is being maintained by the local authority i,e, the District Nazim Lahore. The maintenance of public roads is one of the onerous functions of the local authority. The Punjab Local Government Ordinance, 2001 and the rules framed thereunder lay down the duties of a local authority with regard to their maintenance, their development, their drainage their electrification, the water and other related matters, Items 84 to 87 in the Sixth Schedule attached to the Punjab Local Government Ordinance, 2001 are relatable to those functions of the local authority. All public streets, path-ways connected with it and their appurtenances vest in the local authority. There is substance in the contention of Mr. Saleem Sahgal, petitioner's learned counsel, that a public street is meant for the collective use of the public and it cannot be put to any other use. No one has a right to stall, fence, launch a project and create abstraction or make encroachment of any kind on a public street. The local authority, with which vests the function to maintain it, does not become the owner of the site or soil over which the street exists. In Municipal Board vs. Mahadeoji (AIR 1965 SC j.147), this aspect was highlighted as under:-- " As we have indicated earlier, the inference that the side lands are also included in the public way is drawn easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street The right to use a public street, free from any encroachment, trespass or nuisance is a public right.
This right cannot be interfered with and no portion of it can be let out for a commercial purpose.
And the argument that only on non-mortorable part of the service road the cafe would be established is a travesty of facts as electric polls on both ends of the said portion of service road would not make it non-motorable or non-serviceable. This even otherwise is no valid reason to narrow down a public street. Similar argument was repelled in M. Butchamma vs. Venkateswarao (AIR 1969 Andh Para 136), wherein it was observed as under: As we have said, the right of the public to pass and repass extends over every inch of the street and the defendant cannot in any manner restrict the right and compel the plaintiff to confine herself to a part of the street of the choice of the defendant".
8. The service lane inclusive of the pathway, being a public street, every member of the public has a right to pass and travel over it. The public have a right over the whole width and length of the street and every inch of the same. The residents of a property adjacent to such a public street have a right to access to such a street. And this right has two dimensions. It originates as a private right but as members of the public the right to use a public street becomes a public right. Any act, order or project, which is likely to affect this public right, merits interference in the Constitutional jurisdiction of this Court.
9. The impugned project was neither formulated nor formally approved by the local authority as provided in the Punjab Local Government Ordinance, 2001 and the rules framed thereunder. No resolution of the District Government has been placed on record to indicate that the said project was lawfully approved. Even if the City Government wanted to approve such a project it could not have done so, as it would have been violative of the said Ordinance and the rules framed thereunder.
10.It was argued on behalf of the respondents that the impugned action is part of projects prepared, designed and floated by the Parks & Horticulture Authority to beautify Lahore. But should it be permitted to go beyond the parameters of its lawful authority in its zeal to beautify the city?
The Parks & Horticulture Authority was established in terms of Notification No, SO (P)-4/98 dated 21.9.1998 issued by the Housing, Urban Development and Public Health Engineering Department.
Government of the Punjab, under Sections 3 and 4 of The Punjab Development of Cities Act, 1976.
The powers and functions of an authority established under the afore referred provision .are provided in Section 7 of the afore-referred Act. Sub-section(ix) of Section '7' of the said Act, inter alia, includes "sell, lease, exchange or otherwise dispose of any property vested in it". The public street is neither owned nor vested in the said authority. It is only the local authority established under the Punjab Local Government Ordinance, 2001 which, under the law, is vested with the authority to carry out projects relating to Public Street. This legal position is even being conceded by Respondent No, 2 (Lahore Development Authority), in its written reply submitted wherein it has specifically been admitted that "it is submitted that the control of Shahrah-e-Quaid-e-Azam Lahore has been transferred to M.C.L. (now the City Government) vide Gazette Notification dated 15.11.2000". Interestingly, even functions of the Parks & Horticulture Authority have also been explained in the same reply and it has been admitted that "....moreover, administrative control and ownership of Parks and Green Belts has been transferred to Parks and Horticulture Authority. In this way, the Parks & Horticulture Authority develops and controls the Parks as well as green belts within its jurisdiction". This service lane is neither part of the any green belt nor any park over which the Parks & Horticulture Authority could lawfully allow any commercial enterprises. Thus the very act of establishing the cafe on a public street, which is vested in the City Government, is without any lawful authority.
11.A word about the aesthetic aspect. The project in hand is one of the several projects undertaken by Respondent No, 3 to beautify Lahore. This project however, strikes a discordant note. The argument being canvassed in its defence is that "a sit out cafe is a world vide concept i,e, Europe and South East Asia", Well, it is an enlightened approach to learn from abroad what is good in any field i,e, scientific, educational, architectural, aesthetic or cultural. But while doing so, we have to keep in mind the objective conditions and empirical realities of our own setting. In the context of the issue in hand, we have to bear in view, the climate, the public hypigene, and on top of it, the locale, where the project is sought to be established. It is right in front of the Lahore High Court building. I cannot recall such a sit out cafe on a service road in front of a Superior Court building anywhere i,e, in front of the Royal Courts of England or of the Supreme Court building Washington D.C. is the circumstances alluded to in the preceding lines, it would be an affornt to the people's aesthetic sense to say that such a sit out cafe, to be built by encroachment, would add to the beauty of the city.
12. The issue raised in these petitions have another dimension. The impugned project has the potential of being both a private and public nuisance. To establish a sit out cafe on a portion of the service lane of a thoroughfare (Shahrah-e-Quaid-e-Azam Lahore), besides obstructing the way of pedestrians and residents of the area would be a place where food and drinks would be served in open, exposed to the dust and to the injurious smoke of the vehicles passing nearby as also of the vehicles which would be parked on the service lane in the event of establishment of such a "sit out cafe". Cars Motorcycles, Vans, and Rickshaws would be parked on the service lane as there is no other parking space around. This parking would not only be a cause of annoyance for the residents but also for those who would like to use the service road for the purpose for which such roads are provided. An activity, which causes obstruction or injury to the right of entry to such service lane/road or causes inconvenience or discomfort is injurious to health, would be a nuisance. "A public nuisance" as defined in Black Law Dictionary,"is one which affects an indefinite number of persons, or all the residents of a particular locality, or all people coming within the extent of its range or operation, although the extent of the annoyance of damage inflicted upon individuals may be unequal " The distinction between private and public nuisance has been spelt out in Blacks Law Dictionary, as under:-- Therefore, although the ground of distinction between public and private nuisance is still the injury to the community at large or, the other hand, to a single individual, it is evident that the same thing or act may constitute a public nuisance and at the same time a private nuisance. A mixed nuisance is of the kind last described, that is, it is one which is both public and private in its effects, public because it injuries many persons or all the community, and private in that it also produces special injuries to private rights".
"Public Nuisance" is an offence under Section 268 of the Pakistan Penal Code. It reads as under: "268. Public nuisance. A person is guilty of a public nuisance who does not act or is guilty of an illegal omission which causes may common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right".
A "public nuisance" could be of various types. In the context, of the instant case an interference with the use of a public street resulting in annoyance to public would constitute a "public nuisance". As rightly observed, "the Public is entitled to the use of the full width of the public street, however wide it may be. Whoever appropriates any part of the street by building over it infringes the right of the public quo ad the part built over. The act must necessarily cause obstruction to persons who may have occasion to use their public right over the part encroached upon. Where the owners of houses or shops occupied by the applicants have built certain platforms in front of them to enable the shopkeepers to sit on them for selling their goods and the platforms cause any common injury, danger or annoyance to the public or to the people in general, the person who built the platforms are guilty of an act which ex hypothesi amounts to a public nuisance" (page 804, Vol. 1 of the commentary on the Pakistan Penal Code by Shaukat Mahmood). An individual has a right to pass along a public street, Prime facie, the proposed activity falls within the ambit of what is described as "anticipatory nuisance". The argument that proposed project would be a "sit out cafe" and not a food 1. street, is of no avail because on account of the location the effect and consequence in either case would be the same.
13. For what has been discussed above both the writ petitions, mentioned in para 1 above, are allowed, the impugned action of the respondent Parks & Horticulture Authority, for establishing a Food Street/Sit Out Cafe, is declared to be without authority, with no order as to costs.
14.Before parting with the judgment, I would like to place on record my profound appreciation for the hard work and assistance rendered by learned counsel for the parties particularly. Mr. M.
Saleem Sahgal, Advocate.