1. MUHAMMAD SAYEED AKHTAR. J.~ Contends, inter alia, that Doongi Ground situated in Gulberg-ll, Lahore had been earmarked as Park in the Town Planning Scheme and the Master Plan in 1951. The residents of the vicinity have been using the same as Public Park/Playground for the last 55 years.
2. The same is being converted into a Theatre, a Shopping Mall and a Bowling Alleys. Learned counsel urged that neither the L.D.A. (Lahore Development Authority) nor the PHA. (Parks and Horticulture Authority created under Section 4 of the Punjab Development of Cities Act, 1976) nor the Government of Punjab has the authority to modify the Scheme converting the Park into building area much less transfer the said Park/Playground to a Company for setting up a Theater and a Shopping Mall. He further, urged that there was no provision of law under which the said Park could be transferred to a Company. Under Sections 4 and 5 of the Disposal of Land by Development Authorities (Regulation) Act, 1998 there was a prohibition against the conversion of a public amenity plot to any other use. Learned counsel maintained that the construction plan was not submitted to L.D.A, for approval nor. The. No-objection certificate was obtained from the concerned Environmental Planning Agency as required by Section-Ill Regulation 3 of the L.D.A. Building Regulations, 1984 now known as Building Regulations, 2005.' Environmental Impact Assessment was neither made nor filed as required by Section 12 of the Pakistan Environmental Protection Act, 1997.
3. He argued that the Park/Playground was the breathing lungs for the people of the locality and they could not be deprived of the good quality life. Reliance was placed on Mian Fazal Din Vs. Lahore Improvement Trust, Lahore and another (PLD 1969 S.C.223), Abdul Razak Vs, Karachi Building Control Authority and others (PLD 1994 S.C. 512), Ms. Shehla Zia and others Vs. Wapda (PLD 1994 S.C.
4. 693), New Garden Town Welfare Society (Registered) through President Vs. Lahore Development Authority and 2 others (2001 CLC 1589) and Muhammad Niaz Malik and others Vs. Province of Punjab and others (2002 CLC 696). Learned counsel argued that the Park/Playground was also used for saying Eid Prayers and was receptacle of the rain water, in the absence of which the Gulberg will be inundated during "Moonsoon" season. Certain photographs have been placed on record. Learned counsel had placed on record a copy of "Mission Statement" of P.H.A. Obtained from the website of P H A. Revealing the aims and objects to make Lahore clean, bright and green, It was also contended that Business Rules of Government do not permit a commercial activity of running a Theatre or a Shopping Arcade.
2. Conversely the learned Advocate General raised a preliminary objection that petitioner No. 5 had earlier filed W.P.No. 11417/2005 which was disposed of with an observation that disputed questions of fact were involved, the petitioner, if so advised, may approach the Civil Court of competent jurisdiction. He submitted that successive petitions on the same subject matter are not maintainable. The principle of res judicata will be applicable. Filing of the earlier W.P. No. 11417/2005 was concealed by the petitioner and his learned counsel, no plausible explanation has been given by them, It the application of the petitioner No. 5 for striking out his name is accepted it will change the entire complexion of the case and the "Working of this Court. No affidavit has been filed by the other petitioners regarding associating petitioner No. 5 with them. Serious note should be taken of the same as it will entail serious consequences. He prayed that this should be decided as a preliminary issue. On merits he submitted that primary purpose of the IMAX Theater is educating the public-at-large. The IMAX Corporation is one of the world's leading entertainment companies and is world's best cinematic large format presentation developer with IMAX 2D and 3D Technology Screen that are upto eight storeys and 120 feet wide, In the original scheme land in question was a space left open for future planning. He maintained that the project was being raised in the Public interest. The petition has been filed after much delay through a Society that is not even resident of Lahore, It smacks mala fides of the petitioners. The reason given for delay in filing the petition is unavailable as the work at the site has been going on for several months. About three storeys were being reserved for parking of 800 to 1000 vehicles, The respondent Company was controlled by the Government and no private interests were involved, It was further urged that the project was being set up only on a part of the plot. About 60-kanals will still remain open and can be used by the residents of the locality, however, he was unable to make statement to this effect. The respondent Company has spent a large sum of money on raising structure at the site which is permanent in nature and cannot be demolished at this stage. Learned Advocate General also placed on record a copy of the summary dated 6.11.2004 for the Chief Minister seeking his approval for transfer of land to the Company. Reliance was placed on Abdul Waheed Qureshi Vs. Municipal Committee Lalamoosa and 3 others (2004 YLR 1206), Pir Bakhsh Represented by His Legal heirs and others Vs. The Chairman Allotment Committee and other (PLD 1987 SC 145) and Municipal Committee, Rawalpindi through the Secretary Municipal Committee Rawalpindi Vs. Raja Muhammad Sarwar Khan (1968 SCMR 816). Taimoor Azmat Usman, M.D. Of the Company/respondent No. 2 appeared and submitted that the project was purely under the control of the Government of Punjab. The Company had received Rs 800-million grant-in-aid. The total cost of the project was between Rs.
5. 1300-million to Rs. 1500-million and the Company expects to receive more money from the Government of Punjab. He stated that under the Articles of Association no dividends can be issued in favour of the shareholders.
6. Shabir Ahmad, Director General, P.H.A. Appeared and stated that the Park in question stood transferred to P.H.A vide notification dated 17.11.1998 issued by the L. D.A. P.H.A. Was constituted vide notification dated September 21, 1998. The Government of Punjab had issued directions to it (P.H.A) under Section 16 of the Punjab Development of Cities Act, 1976 and the P.H.A. Is bound to follow the same. Instructions were issued by the Chief Minister and in view of the same the possession of the Park was handed over to the Company vide letter dated 11.2.2005.
7. The Director Town Planning was directed to produce the original scheme of Gulberg-ll, Lahore. The same was not produced-alleging that it was not available. However, he produced the original plan, wherein site has been mapped out as "open ground." The 'open ground' shows petals/leaves on it.
8. When questioned he stated that it donates grassy ground. The plan was in dilapidated condition, it was seen and returned.
9. Learned counsel for L.D.A, adopted the arguments of the learned Advocate General. However, he stated that the Disposal of Land by the Development Authorities (Regulation) Ordinance, 1998 prohibiting the conversion of public amenity plots to any other use came into force on 1st of December, 1998, whereas, the Park already stood transferred to P.H.A. On 17.11.1998. Learned counsel for P.H.A. Has also adopted the arguments of the learned Advocate General.
3. The facts are admitted. Complicated questions of law arise from the above submissions. The legal issues raised are to be settled. This petition is admitted to regular hearing, In view of the urgency of the matter the petition may be relisted for hearing in the first week of April, 20Q6.' The respondents may file the written statement, if they wish to do so. "
10. C.M.No. 1/2006 The dispensation sought for is allowed. C.M. Stands disposed of.
11. Town Planning Scheme/Development Scheme for Gulberg-ll, Lahore was prepared by Lahore Improvement Trust under Chapter-IV of Town Improvement Act, 1922. In the plan there are two open spaces. In-between the two there is a metalled road otherewise they are adjacent. One parcel of the open space has been specified as 'open ground'. No name has been given to the other portion: Petals/leaves have been shown on it. As per the copy of the plan attached with the parawise comments by L.D.A! It has been coloured as green areas. The other part is also shown as green area and also bears petals/leaves on it. After creation of L.D.A under Lahore Development Authority Act, 1975 the above-mentioned open space/green area vested in jjbD. A. All Parks, Green Verges, Central Medians, Roundabouts.
12. Baradaries, Monuments, and Fountains owned or controlled by the L.D.A, alongwith sports complex were transferred vide notification dated 17.11.1998 to P.H.A. An authority constituted under Section 4 of the Punjab Development of Cities Act, 1976. The Chief Minister vide order dated 22.12.2004 approved the proposal for handing over the site to respondent Company and the possession of the land in question was transferred to the Company vide letter dated 11.2.2005. The summary submitted to the Chief Minister shows that the land measuring 44 kanals, 7 marlas and 77 square feet has been leased out to the respondent Entertainment Company for a period of 25 years at a monthly rent of Rs. 2.25 lac for establishment of a Theater and Shopping Arcade. A question arises whether the land earmarked as "open ground" in the Town Plainnmg Scheme Master Plan can be transferred to the respondent Entertainment Company for construction of a Theatre and Shopping Arcade. This point first arose in the case of Mian Fazal Din Vs. Lahore improvement Trust and another (PLD 1969 SC 223). The Hon'ble Supreme Court observed as under:- "This principle governing an appeal cannot be invoked in the present case, particularly since the abandonment of a privilege , or facility undertaken to be provided by the Improvement Trust cannot but have prejudicially affected the residents of the locality who had come to live therein not only on the expectation but on the representation contained in the scheme, as sanctioned by the Government, that such a facility would be provided. The deprivation of such a facility would, in our opinion, confer a sufficiently valuable right upon the residents of the scheme to enable them to maintain an application for enforcing the Trust to discharge its obligation of executing the Scheme as sanctioned by the Government."
13. Similar question arose in the case of Saeen Muhammad and 2 others i/s. Government of the Punjab and 3 others (PLD 1979 Lahore 67). In this case in the Town Planning Scheme the portion which was coloured green was reserved as open space. Years went by, permission was sought from the Corporation to convert the open space into building site, the same was declined.- The Government ultimately allowed the necessary relaxation. The same was challenged and it was held that the power was lacking. The said order was upheld by the Hon'ble Supreme Court in the case of Dr. Abdul Rauf and others Vs. Sh. Muhammad Iqbal and others (1991 SCMR 483). In the similar situation this Court in the case reported as Muhammad Sharif, etc. Vs. Muzafar Iqbal, etc. (NLR 1983 Civil! 428) while relying upon the above- mentioned cases held that the purchasers who purchase the plots in the scheme ,to live there with clear indication that they would use disputed land as Park, which lies near their residences, had right to object tc setting-up construction which was not permissible to be raised.
14. In the case of Sri Balaji Park Residents Welfare Association v. Visakhapatnam Urban Development Authority, ILR (2001) 2 AP 445, a case from Indian jurisdiction, the learned Division. Bench observed as under:- "(1) 'A park provides for some lung space, It is well- settled that community need hospitals, sports and recreational activity. Parks and wetlands are meant for maintaining the ecological balance.
15. The park and the community centre in question were handed to the 2nd respondent and it being a local authority was duty bound to maintain the same properly.
(2) The Development Act envisages preparation of Master Plan in terms of the provisions of a statute. A Master Plan consists of various zones, In the Master Plan, the user of each zone is specified. The stages for development of each zone area also specified. Such Master Plans and- Zonal Development Plans are prepared for planned development. They are also prepared keeping in view the larger public interest. Air and groundwater co/ne within the purview of the Doctrine of Public Trust. No person far less an authority, which is a creature of the statute, would be permitted to violate' the provisions of the Act under which it had been created.
(3) In this view of the matter, we are of the opinion that the action taken by the respondent- corporation must be held to be nullity being ultra vitas the provisions of the Act and the Layout Rules, 1970 as it has been exceeded its jurisdiction."
16. In this case the Park had been converted into plots which were allotted to different persons.
17. In another case the Corporation of City of Banglore granted lease of a plot which was reserved for public or semi public purpose in the development plan for the purpose of building a theatre in order to impart training to the artists, It was held that since the plot was reserved for a public or semi public purpose under the development plan, the lease for a theater could not be upheld since this was in violation of the purpose for which the site had been earmarked, It could not be described an educational, cultural or religious institution. See H. Kashinath and others Vs, State of Kamantaka and others (AIR 1995 S.C. 2510). In the instant case it has nowhere been stated that the Theater would be open to the public on a nominal cost, It appears that the same would be out of reach of the vast majority of the residents of the Town.
18. In the case of Dr. G.N.Khajuha and others Vs. Delhi Development Authority and others (1995) 5 S.C.C.
19. 762 it was held that the land reserved for residential colony allotted for nursery school amounted to misuse of power and illegal. It was not open to the Development Agency to carve out any place meant for a Park for nursery school, It was observed as under:-- "We therefore hold that the land which was allotted to Respondent 2 was part of a park. We further hold that it was hot open to the DDA to carve out any space meant for park for a nursery school.
20. We are bf the considered \view that the allotment in favour of Respondent 2 was misuse of power, for reasons which need not be adverted, It is, therefore, a fit case, according to us, where the allotment in favour of Respondent 2 should be cancelled and we order accordingly. The fact that respondent No. 2 has put up some structure stated to be permanent by his counsel is not relevant, as the same had been done on a plot of land allotted to it in contravention of law. (underlining is mine)
21. The above observation would meet the argument of the learned Advocate General stating that a large amount has already been spent on the construction, which- has attained the shape of permanence.
2. A portion of land reserved in the development plan for public utility, disposing of such land for such like purpose is anathema, object of its is establishment is not in public interest, In the case of Abdul Razak Vs. Karachi Building Control Authority and others (supra) it was stated as under:-- "It may be stated that in spite of presence of the above unambiguous Article in the Order the successive Provincial Governments overlooked the above Article and converted amenity plots into commercial or residential plots and thereby denied to the residents of Karachi inter alia parks and play grounds which contributed towards environmental pollution in the city. A tendency has also developed to convert the use of a residential plot into commercial or instead of constructing residential units in the form of bungalows to erect flats.
22. Similarly in case of Ms. Shehla Zia and others. Vs. Wapda (supra) our Hon'able apex Court observed that the citizens of the country were entitled to a good quality life. The expression life was not defined in the constitution. "However, wide meaning should be given to it to enable a man not only to sustain life but to enjoy it." The expression life in terms of Article 9 of the Constitution is so wide that the danger and encroachment complained of would impinge fundamental rights of a citizen, The attempt of the Court should be to expand the reach and ambit to this right rather than give it a narrow meaning. Indian Supreme Court has also made similar observations. See Kartar Singh V.
23. State of Punjab (1994) 3 S.C.C. 569, Pathurama V. State of Kerala (AIR 1978 SC 77.1), Consumer Education and Research Centre V. Union of India (AIR 1995 SC 922) and MC Mehta V. Kamal Nath (AIR 2000 SC 1997). The fact that an open space has been used by the pubic so long (for the last 55 years) as a park/Playground/open ground and in such a manner that the L.D.A must have been aware that the public believed on the presentation contained in the Scheme that the same had been earmarked so and has then no steps to disabuse them of that belief, is evidence from which a Court can safely infer that it is a Park/Playground. Aesthetic use and pristine glory cannot be permitted to be eroded by private, commercial or any other use unless it is in public interest. The disturbance of environment is hazardous to life and health and therefore, it must be protected.
24. Thoughtless development can cause avoidable harm to the environment and also can deprive people of their right to good quality life. State has an obligation to ensure to the citizens decent standard of life and full enjoyment of leisure. Depriving the citizens of the same would amount to taking away their lives by slow and gradual process of robbing them of all their qualities and graces. See Sankar, Banerjee V. Durgapur Project (AIR 1988 Cal 136).
25. Article 38 of the Constitution of Islamic Republic of Pakistan, 1973 which pertains to the Principles of Policy states that "the State shall; (a) secure the well-being of the people, irrespective of sex, caste, creed, or race, by raising their standard of living... " (b) "provide all citizens, within the available resources of the country facilities for work and adequate livelihood with reasonable rest, and leisure,: The Principals of Policy are known as directive Principles. They have been described instruments of instructions which are issued to the State. They are instructions to the legislature and the executive. Whoever captures power will not free to do what he likes with it, he will have to respect these directive Principles. He cannot ignore them. Articles 37 of the Constitution also mandates the State to accord social justice to all the member of the Society in all factsof human activity. The directive Principle of Policy enjoin the State to promote the welfare of the people. Any disturbance of environment is hazardous to life and health and therefore, it must be protected.
3. Section 4 of Disposal of Land by Development Authorities (Regulation) Act, 1998 lays down the manner in which the land in Housing Schemes can be disposed of Section 5 of the same Act reads as under:- "Conversion.-No public utility area or public amenity plot in a housing scheme shall be converted to any other use."
26. The argument of the learned counsel for LDA was that the Park in question was transferred to P.H.A.
27. Vide notification dated 17.11.1998, whereas, the said Act came into force or 1st December, 1998. The contention of the learned counsel is devoid of force, Section 1(2) of the said Act of 1998 state that it shall come into force at once and shall be deemed to have taken effect on the day the Disposal of Land by Development Authorities (Regulation) Ordinance, 1998 (XVIH of 1998) stands repealed under Article 128(2) of the Constitution. The said Ordinance came into force on 19.8.1998. The argument of the learned counsel for L.D.A, does not hold water, In view of the clear Statutory prohibition the public utility plot could not converted to any other use.
4. The stand of the respondents is that the land in question was earmarked as 'open space' in the Development plan. As observed above that the plan was produced in which it has been earmarked as 'open ground'. The Director Town Planning admitted that the drawing of petals/leaves on the plan denote it as green area. If the stand of the respondents is accepted that it was an 'open space' the irresistible conclusion is that the same has not been transferred to P.H.A. As the notification dated 17.11.1998 pertains to Parks, Green Verges, Central Medians' Roundabouts, Baradaries, Monuments, Fountains owned or controlled by the L.D.A. The land in question being 'open ground' is still the property of L.D.A, and cannot be transferred to respondent Company in view of prohibition contained in Section 5 of Act of 1998. No resolution of Lahore Development Authority for transfer of the land to P.H.A. Has been placed on the record. The transfer of the same by Chief Minister is not backed by any provision of law. Assuming that it stood transferred to P.H.A. It again being the land of Development Authority could not be transferred under Section 5 of the Disposal of Land by Development Authorities (Regulation) Act, 1998 as the P.HA. (established under Development of Cities Act, 1976) falls within the definition of Section 2(2) of the Disposal of Land by Development Authorities (Regulation) Act, 1998. There is nothing on the record to show that the matter was placed before the Parks and Horticulture Authority for transfer of the site to the respondent Company. P.H.A. Is not bound to follow the invalid and illegal directions issued.
28. By the Government of Punjab under Section 16 of the Punjab Development of Cities Act, 1976. Even otherwise the Mission Statement of P.H.A. Placed on record by the learned counsel for the petitioner reveals that "the main object behind the creation of P.H.A. Was to make Lahore clean and beautiful" and not to transfer any public utility area to other persons.
5. Learned Advocate General has placed on record a copy of the summary submitted to the Chief Minister for construction of IMAX Theater and Shopping Arcade in Lahore. The comments of the Member (Colonies), B. O.R. Punjab, Lahore were called for which read as under: - "The Colonies Department, Government of the Punjab or Board of Revenue come in picture only in cases where the land in question is "State land" or is Provincial Government land. This is not so in the present case and as per Board of Revenue's record, this land, commonly known as 'Dongi'- Ground, M.M. Alam Road, Gulberg, Lahore is a part of the Gulberg Scheme, a project initially executed by the defunct Lahore Improvement Trust and now within the jurisdiction and control of Lahore Development Authority in-this matter (in addition tot the views of HUD and PHE Department i.e. The Administrative Department of L.D.A, and P.H.A) and then place the proposal before the Chief Minister for . His approval/orders."
29. The comments submitted by Ikhlaq Ahmad Tarar, D.G., L.D.A, state that:- "After the creation of Parks and Horticulture Authority under Sections 3 & 4 of the Punjab Development of Cities Act, 1976 (Annex-iv) all green verges, parks, grounds, open spaces etc. Owned or controlled by L.D.A, including the subject site of the Gulberg Scheme were transferred to said Authority on 17.11.1998. Since then the control and management of the subject site is with the P.H.A. And its further disposal is to be decided by the P.H.A. And not by L.D.A.
30. Approval of building plan of the proposed IMAX Theatre and Shopping Arcade, however, falls in the ambit of building control of L.D.A, under the L.D.A. Building Regulation, 1984. The concerned quarters may approach L.D.A, at the appropriate time."
31. The Chief Minister proceeded to transfer the land in question to respondent Entertainment Company despite the advice of Member Board of Revenue (Colonies), It is thus clear that the land in question is not the State Land and the Chief Minister had no authority whatsoever of transferring the same to the respondent Company, It appears that the matter was proceeded in haste and in haphazard manner without having recourse to the proper legal advice. The prohibition in the Disposal of Land by Development Authorities (Regulation) Act, 1998 is absolute.
6. There is another aspect of the matter that Section III (Submission of Plans) of the L.D.A. Building Regulations, 1984 now known as Building Regulations, 2005 requires that subject to the provisions of Pakistan Environmental Protection Ordinance/Act and. Regulations '.Framed hereunder every application shall be accompanied by a no objection certificate from the concerned Environmental Agency, which has not been done in the instant case. Despite the comments of the D.G. L.D.A, that approval of the Building Plan of the proposed IMAX Theater and Shopping Mall falls in the ambit of Building Control of L.D.A, under the L.D.A. Building Regulations, 1984 no plan was submitted to it. The submissions of the learned Advocate General was that for the last 150 years no plan regarding the Government buildings has been submitted to the Development Agency, In the first place respondent No. 2 is not Government, it is a Company. Secondly the learned counsel for L.D.A, admitted that there is no exemption under the Building Regulations.
32. In the end I would like to quote para-3 of The Johannesburg Declaration on Sustainable Development made on 4th September, 2002. The same reads as under:-- "At the beginning of this Summit, the children of the world spoke to us in a simple yet clear voice that the future belongs to them and accordingly challenged all of us to ensure that through our actions they will inherit a world free of the indignity and indecency occasioned by poverty, environmental degradation and patterns of unsustainable development."
33. Green belts are the pollutants sinks. They are meant for contamination of air pollution in the human environment specially in the urban areas. They (green belts) as a measure of abatement of pollution substantially reduce the pollution and hazard. Apart from acting as pollutants sinks green belts could also be beneficial in areas of aesthetic improvement, habitats for birds and animals; Green Areas are considered as lung spaces and can be effective in absorbing air pollutants, It is our duty that we handover to the future generations a pollution free environment and not to kill them through slow poisoning. The Green Areas/Open Spaces cannot be allowed to be killed.
34. Laches are not the same thing as limitation, It is no ground for non-suiting the petitioner if the equalities are not against him. Constitutional petition cannot be dismissed on the ground of laches without examining the dictates of justice. The claim. Of each party in addition to examination of law and jurisdictional points are involved in the case. See Ardeshir Cawashee, Karachi and 4 others Vs. Messrs Multiline Associates, Karachi and 2 others (PLD 1993 Karachi 237). The others points raised shall be dealt with at the time of final disposal of the main petition, In my view the petitioners have made out a prima facie case. The residents of the locality who have come to live there and have used the space as Park/Open Ground for the last 55 years have the legitimate expectancy that it will remain so and they will not be deprived of the same. The balance of convenience also lies in their favour. They shall also suffer irreparable loss if the structure which is at initial stage, is allowed to be completed.
7. For what has been stated above this application is allowed and the respondents are directed to.
35. Maintain status quo in every respect.