' On 14-4-2006, we had passed the following order in Civil Petition No,522-L of 2006:-- "For detailed reasons to be recorded, this petition is allowed and leave granted to examine the questions to be mentioned in the said detailed order.
' Till the appeal, arising out of this petition is heard and decided, the operation of the impugned order, dated 9-3-2006 passed by a learned Division Bench of the Lahore High Court in I.C.A. No,45 of 2006 is suspended and shall so remain as a result whereof the order dated 23-2-2006 passed by a learned Single Bench of the Lahore High Court in Civil Miscellaneous No,2 of 2006 in Writ Petition No,1226 of 2006 shall stand restored and revived.
' It is, however, clarified that the suspension of the operation of the above mentioned impugned order shall not affect the constitution of any Bench by the learned Chief Justice of the Lahore High Court for hearing the above-mentioned Writ Petition No,1226 of 2006."
2 Hereunder are the said reasons.
3. The matter relates to about 50 Kanals of open space known as `Doongi Ground' which according to the petitioners, had been used by the public, for the last over half a century i,e, ever since the establishment of the Gulberg Scheme of Lahore, as a health and recreational park; as a play ground for sports such as cricket, hockey and football; as a regular cricket ground approved by the Pakistan Board of Cricket Control which proved as a nursery for test cricketers having produced eminent cricketers who played for Pakistan, and finally as a play ground for the children especially those studying in the adjoining schools such as the Saint Mary's School and the School, now College, For Special Children.
4. As per the petitioners, the misfortune of this piece of land was that it was located on M.M. Alam Road of Gulberg which had, in the recent past, become the hub of the poshest of eating places in the city of Lahore as a result whereof the same had acquired an undescribable value, monetary and otherwise and had thus, become an irresistible target. It was submitted that the market value of one Kanal of land in the vicinity was around a hundred million Rupees i,e, about 10 crore rupees and that even according to the most modest of estimates, the total value of the land in question would not be less than 2000 to 2500 million Rupees.
5. It appears from the record and from the submissions made by either side before the learned High Court as also before this Court that the Government of Punjab had decided to bring the said piece of land under construction by building a Cinema Hall and a Shopping Complex thereon. It further transpires that a company known as the Punjab Entertainment Company Limited (hereinafter called the 'said Company') was incorporated under the Companies Ordinance of 1984,; the said piece of land was transferred by the Chief Minister of Punjab to the said Company and that the Government of Punjab had also decided to grant about 1500 million Rupees to the said company for constructing the said cinema and the said shopping complex.
6. According to the petitioners, they came to know of the said decision of the said Government when the structure being raised on the said site became visible whereupon they immediately approached the Lahore High Court complaining against the same through Writ Petition No,1226 of 2006. The said petition was accompanied, inter alia, by an application bearing C.M. No,2 of 2006 praying for grant of interim relief restraining the respondents from raising any construction on the site in question pending disposal of the said writ petition.
7. After hearing all the parties, including the learned Advocate-General for Punjab, a learned Single Bench of the Lahore High Court, through its order, dated 23-2-2006, admitted the said petition to regular hearing as "complicated questions of law" arose in the matter which required to be settled and while doing so, it had been directed that "in view of the urgency of the matter the petition may be listed for hearing in the first week of April, 2006" i,e, within about six weeks. For detailed reasons given, it had been further ordered that, in the meantime, status quo, in every respect, be maintained vis-a-vis the construction of the project in question.
8. The Government of Punjab and some of its departments could not find it possible for them to wait for these six weeks and not being able to resist investing public money in a project which was sub judice, filed an Intra-Court Appeal bearing I.C.A. No,45 of 2006 in the same learned High Court praying that the above-mentioned order, dated 23-2-2006 which had only admitted a petition to regular hearing and had only directed maintenance of status quo meanwhile i,e, for six weeks, be set aside.
9. Through the impugned order dated 9-3-2006, a learned Division Bench of the Lahore High Court, admitted the said I.C.A. To regular hearing and suspended the operation of the above-mentioned order of the learned Single Bench dated 23-2-2006 which obviously meant suspension of even the order admitting the said writ petition to regular hearing and which also perhaps meant that the said writ petition could not be heard any further during the pendency of the said I.C.A.
10. Although, as has been mentioned above, the learned Single Bench had only admitted the said writ petition to regular hearing to settle the question arising therefrom and the final decision was still to come, yet the learned I.C.A. Bench recommended to the Honourable Chief Justice that since a different view had been taken by another learned Single Bench in some earlier writ petition on the subject, a Larger Bench be constituted for the hearing of the writ petition in question. We are informed that a Full Bench had since been constituted by the Honourable Chief Justice of the Lahore High Court for hearing the said writ petition which Bench comprises of the two Honourable Members of the learned I.C.A. Bench and one more Honourable Judge.
11. Before proceeding any further, it may be mentioned that the learned Advocate Supreme Court for the petitioners expressed serious reservations about this aspect of the matter especially the allegedly unprecedented manner in which the case in question had been taken off the list of the Honourable Judge who was seized of the same. It was submitted that the judicial power, conferred on a High Court, vested in each Honourable Judge of that Court; that no learned Judge including the Honourable Chief Justice was possessed of any judicial power superior to that of another learned Judge, that no law, including the High Court Rules, empowered any learned Judge or even a Larger Bench including the learned Chief Justice to withdraw a matter pending before a Bench and to entrust the same to another similar or even a Larger Bench as such an exercise could seriously comprise the judicial independence enjoyed by each learned Judge and could even lead to judicial chaos and anarchy. It was added that entrustment of cases to different Bench was a ministerial act to be performed by a Deputy Registrar or some such officer of the Court and thereafter it was only a Judge seized of such a matter who could part with the same himself and none had the authority to take the same away from him. It was mentioned that the Honourable Chief Justice of a High Court had the power only to make the roster and that also as a delegatee of the other Honourable Judges through the Rules framed by the High Court which comprised of one Honourable Chief Justice and all other Judges of that Court.
12. Be that as it may, since this issue was never raised before the High Court and since now a Bench has been constituted to hear the writ petition and the petitioners would have opportunities to raise the said issue before the competent forum in the first instance, therefore, we consider it neither necessary nor even appropriate to go into the said question in these proceedings, at least at this stage.
13. On the legal plane, it was argued on the strength of the provisions of section 3 of the Law Reforms Ordinance, 1972, especially the provisions contained in subsection (3) thereof and also on the strength of a number of precedent cases cited before us that no IntraCourt Appeal was competent against an interim order and that in the circumstances, the impugned order was an order without jurisdiction. It was, however, submitted on behalf of the respondents that the said order had the trappings of a final order and an I.C.A. Was thus maintainable against the same. The learned Single Bench had mentioned in its order in question that whatever had been mentioned in the said order was only tentative in nature and that complicated questions of law arose in the matter which required to be settled.
14. The questions, whether in the said circumstances, an Intra-Court Appeal was or was not competent and the same requires examination.
15. It was also contended that the order in question of the learned Single Bench dated 23-2-2006 which had been suspended by the learned I.C.A. Bench had only admitted the writ petition to regular hearing directing its fixation for final hearing within six weeks and had till then restrained the respondents from raising any further construction on the disputed site. It was submitted that not a word had been mentioned in the impugned appellate order about the non-existence of prima facie case or the balance of convenience not being in favor of writ petitioners or there being no possibility of accrual of any irreparable loss which could have militated against the admission of the writ petition or the grant of interim relief. It was added that likewise not a word had been said by the le.Arned Appellate Bench of the High Court as to how the land in question could never be found to be a public amenity area and why it was advisable to permit the respondents to continue to invest millions of public Rupees in a project whose fate hung in a balance being sub judice and what were the compelling reasons on account of which the respondents could not hold their hands even for six weeks to await the outcome of the litigation about the matter in question.
16. It was next argued that one had heard of pre-emptor getting sunk on account of the principal of 'Sinker' but never of a petition sinking especially when an application stood already filed seeking deletion of the 5th writ petitioner.
17. The next question which would thus warrant examination would be whether in the absence of a finding regarding existence of a prima facie case or about the balance of convenience or accrual of irreparable loss of tons of public money, the interim injunction in question could be recalled/suspended.
18. Prior to the enactment of the Lahore Development Authority Act No,XXX of 1975, housing schemes could be prepared by the Government or its agencies under Chapter IV of the Town Improvement Act of 1922. It was under section 3 of this Act of 1922 that Lahore Improvement Trust had been created for "improvement and expansion" of the city of Lahore which Trust then prepared different schemes for housing purposes which included the scheme in question known as the Gulberg of Lahore.
19. Preparation of such-like schemes was a serious and a solemn business. It was only after going through the prescribed exercise which was fairly detailed and cumbersome that a scheme had to be framed where after a notice about the preparation of the same was to be prepared by the Trust under section 36 of the said Act which was then required to be published in the official Gazette for three consecutive weeks besides causing publication thereof in the newspapers inviting objections thereto. Views of and clearance from the Municipal Committee and the District Health Officer was also required to be obtained and examined. And it was after considering public objections and the representations of the said authorities and after hearing such persons as wished to be heard in person. That the Trust was either to abandon such a scheme or to apply to the Government seeking its sanction thereto.
20. When such an application was submitted by the Trust to the Provincial Government seeking its sanction the Trust was again required under section 40 of the said Act to cause publication of the said fact in the official Gazette for two consecutive weeks besides causing its publication in the Newspapers. And it was after examining all aspects of the scheme so framed that the Provincial Government could sanction it which was then to be notified under section 42 of the Act of 1922 which Notification was then conclusive proof that such a scheme had been duly framed and sanctioned.
21. This was the kind of sanctity attached to such a scheme.
22. The provisions of section 14 of the L.D. Act of 1975 permitted the Authority to amend the schemes but only in the manner prescribed for preparation thereof and the manner of preparing a scheme was given in section 13 thereof which included notification of such a scheme after it had been prepared and sanctioned meaning thereby that any amendment to an existing scheme had also to be notified and according to section 2(41) of the West Pakistan General Clauses Act, Notification meant notification published in the official Gazette.
23. Besides the plots carved out for residential purposes, it was submitted on behalf of the petitioners, that the law required a housing scheme to reserve areas for open spaces, for hospitals; for schools; for markets and shops and even for graveyards and that the land in question was an area left out in the Gulberg scheme as a park, a play ground and an open space which had been used as such for over half a century i,e, ever since the conception of the said scheme and could not be converted to any other use without amending the same in accordance with law which scheme had, however, never been amended for the purpose and that in the circumstances, construction of a cinema and a shopping complex at the site in question was illegal and could not be allowed in law.
24. It was added that the respondents especially the L.D.A. Was intentionally withholding the original scheme of Gulberg and not even supplying copies of it on demand so that they could play around with the open areas available in the said scheme for their ulterior and extraneous motives.
25. Controverting the submissions of the learned Advocate Supreme Court for the petitioners regarding the status of the land in question. Mr. S.M. Zafar, the learned Senior Advocate Supreme Court for the respondent Government submitted that the piece of land in question was not a park; that it was never meant to provide any amenities to the public; that people might well have used the same for sports etc. Or as a play ground or even as a park but it was never meant to be used as such; that it was only "A piece of unutilized non-functional vacant land" which was at one point in time "used for storage of flood and runaway water" and that since the incidence of rain in the city had become miniminal and since sewerage facilities had also been provided in the area, therefore, the said piece of land was no longer required for the purpose, therefore, the Government had decided to construct a cinema and a shopping plaza thereon.
26. The answer to this all important and crucial question lay in the scheme as framed and then sanctioned by the Government for Gulberg and a mere look at the said scheme could have resolved the issue. But from the Single Bench order, dated 23-2-2006, it appeared that the respondents, including the L.D.A. Had elected not to produce the said scheme before the High Court despite orders for the purpose.
27. We once again asked Mr. S.M. Zafar, Senior Advocate Supreme Court for the Government to show us the said scheme so that the matter could be settled but his answer was that:-- "I myself wanted to see this scheme and asked for it more than once but I was informed that no such scheme was available."
He added that since he did not represent the L.D.A. And since the said Gulberg Scheme now vested in the L.D.A. Therefore, we may ask the L.D.A to produce the same before us.
28. Confronted with this situation, we asked Mr. Qamar-uz-Zaman the learned Advocate Supreme Court for the L.D.A. To make the said scheme available to us and gave him time for the purpose. He returned to state that no such scheme was available anywhere because the same had got destroyed in some floods in the year 1978.
29. We were shocked to hear this and were appalled to find that an important scheme like Gulberg was being run and managed without the basic document creating and regulating the same. It was like governing a country at the whims of the rulers on the pretext that the Constitution had got destroyed and was not available. The learned Legal Adviser, however, produced a torn rag before us which was said to be a `Musaavi' saying that this was all that was available with the L.D.A.
Needless to mention that this `Musaavi' pertained to the Revenue Record and was hardly a substitute, in law, for the sanctioned scheme. To this, the reaction of the learned Advocate Supreme Court for the petitioners was that the scheme in question was being intentionally withheld from the people and even from the Courts for ulterior motives otherwise it was not believable that such an important document would not be available with the Government or the L.D.A. As one had never heard of a flood in Lahore which had destroyed all record of every Government department in the Province including that of the Government Printing Press and of all the Newspapers in which this scheme would have been published more than once in obedience to the above-mentioned mandatory provisions of the Town Improvement Act of 1922.
30. The question is, could the concerned authorities be permitted to play around with Gulberg Scheme on the pretext of non-availability of the scheme? Since it is the respondents who wished to put a piece of land which had been preserved and used as an open space for over half a century, to a different use, the onus lay on the said authorities to establish that such a use was permitted by law. The question could thus also be whether a mere plea of non-availability of the said basic document could ever be considered a sufficient discharge of the said burden and a further question would be as to why adverse inferences should not be drawn against the respondents in the said matter on account of their said conduct?
31. Referring to the provisions of section 5 of the Disposal of land by Development Authorities (Regulation) Act No,XII of 1998, it was argued that there was a complete and absolute prohibition on converting a Public Utility area or a Public Amenity plot to any other use and that the contravention of the said prohibition was an offence in terms of section 6 thereof which was punishable with imprisonment up to one year or with fine which could extend up to Rs,1,000 per day from the date of such a conversion till the default continued, or with both. It was added that since the respondents could not offer any proof and were, according to their own admission, not possessed of any evidence that the plot in question was not a public utility area or a public amenity park, therefore, all concerned were guilty of the commission of the said offence and were liable to be prosecuted and punished for the same.
32. These questions need to be answered.
33. Emphasis was next laid by the learned Advocate Supreme Court for the petitioners on the transfer of the said piece of land to the said company for the said purpose. It was submitted that by virtue of the provisions of section 47 of the L.D.A. Act of 1975, all functions and powers relating to all such schemes including Gulberg, together with all properties and assets etc. Pertaining to the same, had got vested in the Lahore Development Authority whereafter, as per section 6(3)(iv) of the said Act, the said assets and properties could be sold, leased out, exchanged or otherwise disposed of only by the said Authority and even a licence or concession in respect thereof could not be granted by any one except the Lahore Development Authority which according to the provisions of section 4 of the said Act consisted of the members named therein with Zila Nazim of Lahore as its Chairman.
34. It was argued that even on the said score, the entire action was illegal because it was never the case of the respondents that the land in question had ever been sold or,leased out or even a licence or concession in respect thereof had been granted to the said company by the L.D.A. The case of the respondents before the High Court, in this connection was, that it was the Chief Minister of Punjab, who on a summary submitted to him for the purpose, had leased out the said land to the said company for a period of 25 years.
35. Was this then a legal and a valid transfer/entrustment of the said property vesting in the L.D.A.
To the said company?
36. It was next complained that the building in question which was intended to be a huge complex was being constructed at the site without the sanctioning of its plans by the competent authority.
The plea of the respondents was that construction of Government buildings did not require sanctioning of their building plans. The question is whether there was any law exempting Government building from the operation of the said legal requirement and question would also be whether a building constructed by the said company which was an independent legal entity having been incorporated as such under the Companies Ordinance of 1984, could be said to be a Government building?
37. It was submitted that the complex in question which involved construction of a huge building with an initial estimated cost of Rs,1500 million; which involved use of roads in a residential locality by a large number of additional persons and vehicles visiting the said plaza and which also involved a change of land use, fell within the purview of a 'Project' as defined by section 2(xxxv) of the Pakistan Environmental Protection Act No,XXXIV of 1997 and in view of the provisions of section 12 of the said Act of 1997, the very commencement of its construction without filing an initial environmental examination with the Federal Agency and without its approval regarding the environmental impact assessm ent, was grossly illegal and was even a culpable offence under the said Act. This issue also requires examination.
38. It was next argued that the respondent Government had entered into a contract with a foreign company by the name of IMAX for the supply of equipment for the cinema in question and that this contract worth about Twenty-five crores in Pakistani currency had been entered into with the said foreign supplier/company in violation of the law, the rules and the policy on the subject and also in violation of all' norms of transparency and good governance as no advertisement or notice had ever been issued in the national or international press inviting tenders, bids and offers with respect to the same and the deal had been finalized in secrecy and in a clandestine manner.
39. The matter needs consideration.
40. Serious reservations had been expressed by the petitioners even about the reasonableness and the lack of bona fides regarding the conception of the project in question. As has been noticed above, the land on which the said project was being constructed was worth around 2500 million rupees. It is on record that the initial estimate of the project in question was 1500 million Rupees which would of course be subject to escalation and inflation. It was submitted that more than 4000 million Rupees of public money were thus being dumped to produce a Cinema Hall and a shopping complex on the pretext of showing educational movies to the children which movies the children could watch and were watching on Discovery Channel and such-like other educational channels of the T.V. Every day; that there was hardly a household in the city which did not have a television and further that there was also no birth of shopping plazas in the city or even in Gulberg.
It was added that a cinema of the kind was available in a neighboring country and the per person ticket to watch a movie in the said cinema was around Rs:4,000 (four thousand Pakistani Rupees).
It was contended that in a country like ours where thousands were giving away their precious lives yearning for a bed in a hospital or a single dose of live-saving drugs and 'where millions were getting afflicted with deadly diseases on account of non-availability of clean drinking water, it did not behove the Government to be involved in building luxurious three dimensional movies theatres and expensive shopping malls for the rich and the famous and that also by j investing millions from the hard-earned money of the public. We were asked whether such a use of public money could never be condoned as a reasonable exercise of executive power. We need to answer it.
41. Grave apprehensions and reservations had also been expressed by the petitioners about the manner in which the said company had been created; the allegedly surreptitious manner in which a contract had been settled by the Government with a foreign company; the manner in which an invaluable piece of land which even otherwise was a public amenity area had been transferred to it and the manner in which hundreds of millions of rupees of the public were transferred to the said company which was then directed to owh the above-mentioned foreign contract entered by the government and to produce a cinema hall and a shopping complex on the site in question. It was submitted that the said company, according to its Memorandum and Articles of Association, was a company formed by Twelve persons, each one of them contributing "(A sum not exceeding Rs,1000 Rupees one thousand only) with a "Paid up capital of Rs,1100 (Rupees eleven hundred only)" whereafter the "Equity of the Company" was to be provided by the Government in the form of fifty laks shares of Rs,100 each amounting to Rs, One Hundred and fifty million only: It was added that only because ten of the said twelve sponsors happened to be public servants posted with the Government of Punjab could not ever mean that the said was a company sponsored, floated, formed or owned by the Government. It was further submitted that nothing precluded these Twelve, in law, from amending or altering the Memorandum or the Articles of Association, that these ten public servant sponsors were even otherwise guilty of misconduct having involved themselves in a trade/business as they had failed to show any permission, in law, allowing them to indulge in such an activity; that even if the Government of Punjab thought that it had accomplished all other tasks and discharged all its other all important obligations and had now nothing better to do than running cinemas, theaters and shops then it could have directly gone into the said business instead of entrusting millions of public money to a company which was an entity in itself independent of all Governmental checks including the control of the authorities established by the Constitution to audit public aecoun; s.
42. Mr. S.M. Zafar, the learned Senior Advocate Supreme Court attempted to put these apprehensions at peace by submitting that the said company was a State/Government-owned company; that its Memorandum and Article of Association prohibited its Sponsors/Directors to change the same; that it was a global trend all over the world to achieve governmental objectives by setting up companies which was a more efficient and effective mode of securing the said objects as these companies, not being Government departments, were free of bureaucratic red- tapism and controls; that the company in question was to sovereign and was subject to governmental controls and that the public money entrusted to it was safe.
43. Be that as it may, the matter requires deeper examination.
44. The learned Advocate Supreme Court for the petitioners, at this juncture, reminded us of an earlier ruler of this Province who, despite being not an elected representatives of the people, had resisted all templations of converting available vacant spaces in the city into residential and commercial complexes and had blessed the people of Lahore with powerful public lungs in the form of Race-Course (now Jilani) Park, Gulshan-e-Iqbal Park, Model Town Park, Iqbal Park (old Minto Park), Jallo Park, Lahore Park, a park adjacent to Pearl-Continental Hotel on the Mall and so on and that thousands of hands rose everyday praying for his noble soul. He also made repeated references to a recent judgment of this Court relating to public amenity area in Islamabad and added that such examples could be a valuable guide and a good food for thought for all concerned.
45. These, inter alia, are then the reasons for the order passed by us on 14-4-2006.
46. We are conscious of the unusual volume and length of this leave-granting order but then the learned Advocates Supreme Court for the parties who assisted us in the matter for more than two days, did not leave us with any other option and while parting with this order we wish to place on record our appreciation of the assistance rendered by them especially the assistance by Mr. S.M.
Zafar, Senior Advocate Supreme Court, Mr. Mansoor All Shah, Advocate Supreme Court and by the learned Advocate-General for Punjab.