' SH. AZMAT SAEED, J.--- This constitutional petition calls into question advertisement, dated 14-2- 2006 issued by respondent No,2, the Special General Meeting of respondent No,1 Society purportedly held on 30-4-2006 and the decision to lease the open space of respondent No,1 Society to respondent No,3 for the establishment of a cash and carrying outlet.
2. Brief facts necessary for the adjudication of this constitutional petition are that the petitioners are members of respondent No,1 which is a Cooperative Society registered under the Cooperative Societies Act, 1925. The petitioners are also residents of "Model Town", a residential housing scheme managed by the Society. The respondent No,2 is the President of the Society. It appears from the record that an advertisement was issued by respondent No,2 in the local press on 14-2-2006 inviting expression of interest for a joint venture or on lease basis for the establishment of an outlet for marketing a fresh farm produce and other non-food items "on prime commercial land" of respondent No,1 Society. International cash and carry stores and international wholesale warehousing networks were invited for the establishment of the said outlet with an area of at least 1,00,000 sq. Ft. And a parking space for 300 to 400 vehicles. It was also stated in the said advertisement that joint venture companies with foreign participation would be given preference.
Apparently respondent No,3 and two other concerns submitted their proposals. The said proposal of respondent No,3 was apparently found acceptable. Whereafter a Special General Meeting of the Society was called for 30th of April, 2006 and allegedly a decision was taken to lease out 80 Kanals of land of the Society to respondent No,3 for a period of 33 years at the rate of Rs,3.5 lac per Kanal per annum. It is the aforesaid advertisement and the decision allegedly taken at the Special General Meeting of 30th of April, 2006 which has been challenged before this Court through the instant constitutional petition.
3. The learned counsel for the parties have been heard and the record appended with this petition has been perused.
4. It is contended by the learned counsel for the petitioners that the society was created in 1930's for the primary purpose of establishing a garden city for the benefit of its members. Pursuant thereto a tract of land was acquired and a housing scheme known as Model Town established. The said housing scheme, it is contended, consisted primarily of plots for the construction of housing units along with commercial areas for serving the inhabitants/residents of the Society. As originally conceived the said housing society was bounded on all four sides by an area reserved for fruit gardens. The land in question where the proposed outlet is to be constructed by respondent No,3, as per the original master plan of the society, forms part of the area designated for a fruit garden. It is contended by the learned counsel for the petitioners that such an area which is an open public space reserved for a garden cannot be allowed to be converted to be used for a commercial purpose that too by raising a mammoth concrete construction of over 100,000 sq. Ft. Thereupon more so as a wholesale market. It is the case of the petitioners that this would destroy the entire society by degrading its environment and turning the exclusive residential area into a wholesale commercial market. The vehicular traffic necessary to supply the said wholesale outlet and of its consumers would choke the residential streets adding to pollution and inconvenience to the residents. This would also infringe upon the right to life guaranteed to the petitioners under Article 19 of the Constitution of Islamic Republic of Pakistan, 1973. It is further contended that as a matter of public policy a public amenity plot can in no event be used for any other purpose. Hence, the proposed project is even otherwise illegal. Adds that without prejudice to the above the master plan of the society has not been amended till date where the land in question is still designated as a garden, therefore, respondent No,3 cannot establish its wholesale commercial outlet in violation of the said master plan. It is further contended that the said project is not for the benefit of the residents of the society as per-designated commercial areas already exist within the Society for serving the needs of its inhabitants. The learned counsel contends that despite its obvious environmental impact no permission or consent has been taken in accordance with provisions of the Pakistan Environmental Protection Act, 1997.
5. The learned counsel for the petitioner further contends that it is even otherwise the scheme of the law that public amenity plots should not be used or converted to any other purpose and in the residential schemes and areas surrounding the Society which has governed by separate laws such a conversion would be a criminal act.
6. The learned counsel adds that the entire exercise purported to have been undertaken by the respondents Nos.1 and 2 is mala fide. It is contended that the expression of interest was invited by respondent No,2 without approval, sanction or permission of the members of the Society. The advertisement in its very nature, it is contended, was tailor made so as to benefit respondent No,3 to the exclusion of any other concern. Furthermore, the consideration of the proposed lease amount is ridiculously low and not in consonance with the market prices. It is further contended that the alleged Special General Meeting was conducted in violation of the by-laws and the law applicable thereto and was, therefore, nullity in the eye of law. Even otherwise, it is contended, the decision allegedly taken in the Special General Meeting of 30th of April, 2006 was based upon the assumption that the land in question has been commercialized. The said assumption is factually and legally incorrect as the plot neither has been nor could have been commercialized. Adds that the requisite material information was not provided to the members at the said meeting and in fact deliberate concealment of facts and misrepresentation was made. In support of his contentions the learned counsel for the petitioner has placed reliance on the judgments reported as Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512, Nasim, U.C. Allah Bachayo Shore v. The State 2004 YLR 2077, Zohra and 5 others v. The Government of Sindh, Health Department through its Secretary, Sindh Secretariat, Karachi and another PLD 1996 Kar. 1, Messrs Canal Breeze Cooperative Housing Society Limited v. Agricultural and Transport Development Corporation (Pvt.) Limited 2000 SCM R 506 and New Garden Town Welfare Society (Registered) through President v. Lahore Development Authority and 2 others 2001 CLC 1589.
7. The learned counsel for respondents Nos.1 and 2 have controverted the contentions raised on behalf of the petitioners. It is contended on behalf of the said respondents that the petitioners are all related and connected inter se and live at a distance of 3 to 5 Kms. From the proposed project, hence, have no locus standi to file the present constitutional petition. It is further contended that this constitutional petition is not maintainable as the petitioners have an alternative remedy under section 70-A of the Cooperative Societies Act, 1925 for agitating their grievance, if any, against the Society. It is further contended that no doubt originally in 1930's the land wherein the plot in question is situated was designated as a fruit garden but at no point of time such a fruit garden was ever planted or grown. With the flux of time the present plot was in fact being used as a garbage dump and as a temporary abroad by gypsies and under constant threats of permanent encroachment. It is further contended that the original master plan has since undergone drastic and dramatic changes and substantial part of the area originally reserved for the fruit garden has already been converted for use for residential purposes and houses have been built thereupon with the plot in question being the only remaining area. It is added that even the size of the plots as originally conceived have been reduced necessitated by the growth of population and change in circumstances. It is further contended that the part of the land originally owned by the society over a period of , time has been handed over to the Lahore Development Authority where a scheme commonly known as "Model Town Extension Scheme" has been established by the said authority. It is further contended that the Supreme authority of the respondent Society in all matters pertaining thereto vests in its general body of members who in the meeting of 30th of April, 2006 keeping the aforesaid facts in view, in the larger interest of the society have decided to convert this empty waste land for a beneficial purpose to the advantage of the members of the society.
8. It is further contended that the petition is mala fide and is motivated by disagreements between the members flowing out of the elections of the society. It is added that the proposed project is not in any manner detrimental to the environment or quality of live of the members of the Society especially as the green areas already existing in the society are of a larger proportion than any other scheme in the city of Lahore including Defence Housing Authority, Garden Town, Faisal Town and Johar Town. The learned counsel adds that the land in question vests in the Society and its members who have a right guaranteed under the constitution to deal with the same and no restriction thereupon can be imposed which is not warranted by law. Even otherwise it is contended that the petition is premature.
9. The learned counsel for respondent No,3 has further added that the said respondent is a responsible international Joint Venture Company which is bringing in a vast amount of foreign investment into the country, large number of jobs will be created and ultimate benefit would flow to the members of the society and public-at-large by providing consumers items including hygienic food stuff of good quality, at competitive prices. Adds that such commercial ventures should not be allowed to be subverted at the whims of few individuals on grounds unsupported by law. The learned counsel has vehemently argued that the petitioners have no personal interest in the matter beyond their grievance against respondent No,2 and such a grouse should not be allowed to stand in the way of progress and development nor should the petitioners be permitted to create an environment which is hostile to foreign investment which may find alternative havens outside Pakistan.
10. The learned counsel for the applicants in C.M. No,1094 who are also members of the respondent No,1 Society has supported the case of respondents Nos.1 to 3 and has further contended that 1930's master plan has no relevance as time and events have overtaken the same and law must be interpreted in a manner so as to cater for, conform to and deal with changing ground realities resulting from development and growth. In support of their contentions the learned counsel have placed reliance on the judgments reported as Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512, Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority, Karachi and 4 others 1999 SCM R 2883 and New Garden Town Welfare Society (Registered) through President v. Lahore Development Authority and 2 others 2001 CLC 1589.
11. Khawaja Muhammad Afzal, Advocate, Counsel for the City District Government entered appearance on Court's call. He has contended that the present constitutional petition is premature as no construction in furtherance of the implementation of the proposed project is legally possible without sanctions and approvals from the Authorities under the Punjab Local Government Ordinance, 2001. It is submitted that proposed project envisages a change in land use for which permission must be obtained from the Town Municipal Administration concerned in terms of section 54-A of the Punjab Local Government Ordinance, 2001 and sanction for proposed plan must also be obtained. Neither of the two events have as yet taken place. In fact no application in this behalf has been filed.
12. The learned counsel for the petitioner in rebuttal has contended that the land in question is admittedly a plot reserved for a garden and any change in use thereof would not only be illegal but would also offend against the fundamental rights of the petitioners as guaranteed under Article 19 of the Constitution of Islamic Republic of Pakistan, 1973. Such fundamental right is based on public policy and, therefore, there can be no question of waiver or estoppel merely because such fruit garden does not exist at the site. It is further contended that even otherwise it was the responsibility of respondents Nos. I and 2 to establish and grow the said fruit garden who cannot now be allowed to take advantage of their own omissions and failures in this behalf.
13. The learned counsel for respondents Nos.1 and 2 and the learned counsel for respondent No,3 have controverted the contentions raised on behalf of the learned counsel for the City District Government to the effect that sanctions and permissions are required from the Town Municipal Administration concerned and has further contended in the alternative that section 54-A of the Punjab Local Government Ordinance, 2001 applies only to cases where the land use has been determined by the Town Municipal Administration and not by a Private Cooperative Society like respondent No, 1.
14. The petitioners have, inter ilia, raised issue about the mode, and method of the conduct of the Special General Meeting held on 30th of April, 2006 and the vires thereof. The grievance of the petitioners in this behalf squarely falls within the ambit of a dispute between the Society and its Members and comes within the purview of section 70-A of the Cooperative Societies Act, 1925 which provides alternative remedy. This Court is not persuaded to enter into this aspect of the controversy i,e, as to whether the meeting held and the decisions arrived thereat were in violation of the by-laws of the society and the provisions of the Cooperative Societies Act, 1925 or the rules framed thereunder. In this behalf the petitioners are free to invoke the jurisdiction under the said Act for redressal of their grievances.
15. During the course of the proceedings in the instant case the respondents laid great emphasis on the fact that the proposed project involved a large amount of direct foreign investment which needs to be encouraged and facilitated least it take flight and find another abode. Similarly it was also stressed very vehemently that the proposed project constitutes economic growth and will bring financial benefit to the country, city and the locality. In this behalf, suffice it to say that no doubt foreign investment is to be encouraged but foreign investors are not above the law and must conform to the laws of the land and must necessarily also exhibit sensitivity to the rights and privileges to the inhabitants of the area. The learned counsel for the petitioner has rightly drawn the distinction between growth and development. The two concepts are not synonymous and all growth must be measured against the collateral damage accrued thereby. Even otherwise, growth for the sake of growth is the ideology of a cancer cell.
16. However, it is a common ground between the parties that the land whereupon the project is proposed to be constructed, as per the admitted master plan which is on the record , is designated as a fruit garden. The conversion thereof for any other use would require an amendment in the master plan which admittedly has not been effected by the Society or its Members. The decisions allegedly arrived at in the meeting held on 30th of April, 2006 deals only with the question of transfer of rights in the property and not with the change in the master plan. Respondents Nos.1 and 2 have not placed any material on record to establish that in fact the master plan of the Society has been changed or amended in accordance with law. The reference to some alleged commercialization of the land in question is wholly misconceived. No by-law of the Society has been pointed out which permits or even envisages conversion of a public amenity plot (in the instant case a public garden) into a commercial area. No commercialization policy permitting. To such conversion has been brought forward in this behalf. The commercialization envisages the conversion of a plot from a residential to a commercial use which obviously is inapplicable to the instant case.
'Needless to say that in other Schemes in Lahore which surrounded the Model Town in all directions and were prepared and executed by the Lahore Development Authority or Government of the Punjab the conversion of a public amenity plot for any other purpose is not only prohibited but is also a criminal offence under the Disposal of Land by Development Authority (Regulation) Act, 1998.
Even prior to the enforcement of the aforesaid enactment of 1998 public parks and open spaces and other amenity plots could not be converted to be used for any other purpose. And any action of an Authority or the Government in this regard would be illegal. Reference in this behalf may be made to the judgments reported as Ahmad Javed Shah v. Lahore Development authority 1996 CLC 748; Masih Ullah Khan and 3 others v. Lahore Development Authority through Director-General and 4 others 1994 M LD 603; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 and New Garden Town Welfare Society (Registered) through President v. Lahore Development Authority and 2 others 2001 CLC 1589.
17. The contention of the, learned counsel for the respondents that no fruit garden was ever planted on the land in question, therefore, the same has lost its status, cannot be accepted. The said land was in the control of the respondent No,1 Society which was under an obligation to plant, grow and maintain the fruit garden at the site and it cannot now turn around and take advantage of its own omissions and failures. Master plans cannot be amended through neglect.
18. The Punjab Local Government Ordinance, 2001 in view of section 1 subsection (2) thereof applies to the whole of the Province of the Punjab other than areas notified as Cantonments under the Cantonments Act, 1924 or the Cantonments Ordinance. It is an admitted fact between the parties that Model Town does not form part of Cantonment and is situated in the Province of the Punjab, hence the said Ordinance of 2001 obviously applies to the said area including the land where the proposed project is to be constructed. Section 54-A of the said Ordinance deals with the functions and powers of the Town Municipal Administration and section 54(d) reads as follows:-- "54-A(d) exercise control over land use, land sub-division, land development and zoning by public and private sectors for any purpose, including agriculture, industry, commerce, markets shopping and other employment centres, residential recreation, parks, entertainment, passenger and transport freight and transit stations within the framework of the spatial and Master Plan for the City District."
19. A perusal of the aforesaid provision of law makes it clear and obvious that the Town Municipal Administration concerned exercises power and control over land use and land development and zoning private and public sectors for any purpose including by establishing commerce, markets etc. The proposed project envisages a dramatic and drastic change in land use which could only legally be possible after requisite sanction has been, obtained from the concerned Town Municipal Administration.
20. The proposed enterprise prima facie appears to be a "project" as defined by section (xxv) of Pakistan Environmental Protection Act, 1997 and no construction can commence until an initial environmental examination has been made and environmental impact assessment has been obtained from the concerned Government Agency in terms of section 12 of the aforesaid Act of 1997,
21. In short before the proposed project can be undertaken the master plan of the society would require to be amended by the society itself in accordance with its by-laws and the Cooperative Societies Act, 1925 and rules framed thereunder and thereafter the requisite permission and sanction would require to be obtained from the concerned Town Municipal Administration regarding change in the land use. Both actions are obviously justiciable separately under the Cooperative Societies Act, 1925 and the Punjab Local Government Ordinance, 2001 and also perhaps before the Courts including this Court. Furthermore, an environmental impact assessment would have to be obtained from the concerned Government Agency specified under the Pakistan Environmental Protection Act, 1997 which action too is justiciable. Examining the grievance of the petitioner in the above perspective the contention of the counsel for respondents Nos.1 and 2 as well as of the counsel for the City District Government that the instant constitutional petition is perhaps premature is not without foundation. The decision by the Special General Meeting which is disputed at best pertains to the transfer of rights in property and not a change in the master plan.
If and when the master plan is amended and approval and sanction for change of land use is granted by the concerned Town Municipal Administration the petitioners can always challenge the said decisions at which point of time all the objections of the petitioners can be adjudicated upon in the fora vested with the jurisdiction under the law to decide such matters.
Disposed of with the above observations.
Petition decided accordingly.