This single judgment shall dispose of Writ Petitions Nos, 5245 and 4792 of 2007, as questions of fact and law involved in these petitions are common.
2. Backdrop of the controversy in its narrow compass is that Co-operative Model Town Society, through its management invited expression of interest, for a joint venture or on lease basis, for establishment of a project at the promises of society, for marketing fresh farm produce and other ancillary food items. The project comprises of land measuring 70 Kanals with proposed covered/constructed area of 100,000 Sq. ft and the provision of parking space, for 300 to 400 vehicles. Three companies responded to advertisement and submitted their proposals.
Respondent No, 1, found proposal of Respondent No, 3 reasonable, resultantly put the proposal, before its general meeting, scheduled for 30.4.2006. General house approved lease of land to Respondent No, 3 for a period of 33 years at a rate of Rs, 3 Lacs per Kanal per annum with annual increase @ no. The petitioners with one Naushaba Muddassar invoked extraordinary constitutional jurisdiction of this Court through W.P. No, 4006/2006, and assailed the expression of interest cited in local press and also the decision by general house in its meeting dated 30.4.2006. Writ Petition was held as premature and was disposed of vide order/judgment dated 14.11.2006 (announced on (1.12.2006) with certain observations. Respondents No, 1 and 2 through filing ICA No, 388 of 2006, challenged the order of learned Judge in Chamber, which met the fate of dismissal through order dated 27.12.2006. Respondents No, 1 and 2 subsequently moved to Respondent No, 7 (LDA) for approval of revised layout plan. Respondent No, 7 though a public notice cited in daily Nawa-i- Waqat in its print dated 2.2.2007, invited objections from public at large and also from the members of Respondent No,
1. The petitioners filed objections in response to public notice. The Authority (LDA), in its meeting dated 17.2.2007, acceded to the request of Respondent No, 1, approved the revised plan and conveyed the decision through letter dated 19.5.2007. Respondents No, 1 and 2 entered into lease agreement with Respondent No, 3 on 07.5.2007. The petitioners have now assailed the lease agreement as well as the approval of the plan, through this constitutional petition.
3. Learned counsel for the petitioners has drawn my attention to order dated 14.11.2007 passed in W.P. No, 4006/2006, whereby according to learned counsel, it was observed that the land designated as fruit garden in the master plan cannot be proposed for another use, without amending master plan; decision taken in meeting dated 30.4.2006 pertains to transfer of suit land but the decision is silent with regard to change in the master plan; commercialization envisages conversion of plot from "residential" to "commercial" but the bye-laws do not permit conversion of public amenity plot to commercial use; sanction. of Town Municipal Administration is essential requirement for affecting change in master plan and that after amendment/approval/sanction the petitioners (herein) can always challenge such decision. Learned counsel after referring to above observations, has contended that Respondents No, 1 and 2 have leased out the plot without adhering to and complying with the observations of this Court. He added that the impugned act of the respondents is, not only illegal but also amounts to contempt of Court. It was contended that the respondents; on the basis of agenda (Item No, 5) of the meeting dated 30.4.2006, wrongly claim that amendment in master plan was approved by general house. It was for that reason that respondents had not claimed before learned Single Judge in earlier petition that plan had already been amended. Further submitted that the amendment can only be affected, if it is approved by 2/3rd majority in a general meeting, while impugned approval is by a simple majority. Learned Counsel has emphasized that-bye-laws of the society nowhere provide for amendment in the master, plan, absence of such provision is meaningful that existing plan.is so accurate that it does not require amendment. Learned counsel added that sanction/approval for amendment, vests with Town Municipal Administration (TMA) and not with LDA (Respondent No, 7), as envisaged in Section 54-A(d) of Punjab Local Government Ordinance, 2001. Learned counsel submitted that Respondent No, 7 has approved the amendment in the master plan, under Punjab Private Site Development Scheme (Regulation) Rules, 2005. He went on to argue that Rules, 2005 are applicable to a new society, or the society which intends to develop, a new scheme but these rules, do not apply to a developed society. Learned counsel has attacked the vires of Rules, 2005, on the grounds that Governor has no power-or authority to frame rules and authority vests with Government. Further, the rules have not previously been notified. Cases of Khawaja Ahmad Hassan vs. Government of Punjab and others (PLD 2004 SC 694) and Haji Mushtaq Ahmad Khan and .2 others vs. Government of N.W.F.P. and 2 others (PLD 2000 Pesh. 73) are referred to contend that the rules, which have been framed without prior inviting these objections from the public, have no legal sanctity. Learned counsel contended that public amenity area/land, could not be converted into commercial use. Conversion of public amenity plot is an offence under LDA Laws. Learned counsel supported his contentions by referring to the ,cases of Moulvi Iqbal Haider vs. Capital Development Authority and others (PLD 2006 SC 394), Ardeshir Cowasjee and 10 others vs. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883) and Muhammad Yousaf and others v. Mst. Najma Bibi and others (PLD 2006 SC 512). While referring to the case of Ardeshir Cowasjee'and 9 others vs. Karachi Development Authority through Director General and 3 others (2007 CLC 668), it was contended that even a school cannot be established at the premises, which are. reserved for a public park. Learned counsel in response to the various objections of respondent, has contended that non-filing of appeal against the order of authority (LDA) and non- availment of the remedy before Registrar, (where similar issue is already pending) and refraining from agitating the matter under Environmental Protection Act is due to the reason that various fora under different statutes though provide remedy to the petitioners but the same is not adequate as the same is not available at single forum. Additionally, the conversion of amenity plot for different use is infringement of fundamental rights of the petitioners. Cases of Sharnsuddin vs. Ghulam Kind and others (1994 SCMR 2006) and Muhammad Yousaf and 15' others vs. Province of Punjab through Secretary, Local Government and 6 others (2003 CLC 576) were referred to contend that the impugned 'acts, which violate the fundamental rights of the petitioner, are amenable to challenge in extraordinary constitutional jurisdiction of this Court Learned counsel has summed up his arguments by submitting that the order of learned Judge in Chamber passed in W.P. No, 4005/2006, whereby certain conditions for conversion of use of plot were observed by Court as essential requirements, was not interfered by the learned Division Bench of this Court; Learned Division Bench dismissed the ICA, without notice to the petitioners, reason being that no order adverse to the interest of the petitioner was Made.
4. Mr. Rafay Ahrnad Khan, learned counsel for the petitioner in connected Petition No, 4792 of 2007 has adopted the line of arguments of Mr. Bilal Minto Advocate. He added that by virtue of Punjab Local Government Ordinance, 2001, LDA Act, 1975 has been repealed through implication. He supported the contention by making reference to the cases of Malik Mir Hassan and another 61 The State (PLD 1969 Lah. 786), Muhammad Arif vs. Muhammad Kawshar Ali (PLD 1969 SC 435) and Mumtaz Ali-Khan Rajban and another us. Federation of Pakistan and others (PLD 2001 SC 169). It was then contended that Punjab Private Site Development Scheme (Regulations) Rules, 2005 ' are inconsistent with parent legislation i,e, Punjab Local Government Ordinance, 2001 and as such the provision has no legal force. Further the rules are in complete oblivion of dictum of law laid down by Hon'ble Supreme Court of Pakistan in the case of Khawaja ,Ahmad Hassan vs. Government of Punjab (PLD 2004 SC 694). Learned counsel has then contended that doctrine of public trust imposes a restraint on LDA to grant approval for conversion of land reserved for amenities to another purpose. Cases of Muhammad Ismail and others vs. Province of Punjab through Secretary Irrigation and 2 others (PLD 1977 Lah. 226) and Khan Faizullah Khan vs. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another (PLD 1974 SC 291) were referred to support the contention that Rules 2005 do not apply retrospectively. Learned counsel lastly contended that the impugned act of Respondent No, 7 besides being mala fide, is violative of Section 12 of Punjab Environmental Protection Act.
5. Mr. Wasim Sajjad, Senior Advocate, learned counsel for Respondent No, 3, has drawn my attention to para 14 of the judgment of this Court dated 14.11.2006, where issue regarding mode and method of general meeting dated 30.4.2006 and its vires came up for consideration. It was found that dispute of society and members, come, within the purview of Section 70-A of Co-operative Societies Act, 1925, which provides alternate remedy. Learned Court declined to enter into this aspect of controversy, leaving the petitioners to invoke relevant provisions under the Act, 1925, to seek redressal of their grievance. Learned counsel submitted with vehemence that validity of meeting and decision taken in the meeting, cannot be agitated in the instant petition once again.
Learned counsel thereafter referred para 21 of the judgment and submitted that amendment in the master plan, sanction for change of land use and environmental impact assessment from Government Agency under Pakistan Environmental Protection Act, 1997, were held available when such actions are taken or after grant of sanction, as the case may be. The petition was held being pre-mature. It was also submitted that the above order of learned Judge in Chamber was assailed in appeal (ICA No, 388 ,of 2001), whereby the learned Division Bench of this Court through order dated 27.12.2006 has held that the impugned 'order of the learned Judge in Chamber, had not wised any prejudice to the appellants. Learned Division Bench observed that mere reference to certain laws, considering generally the process that a standard case may undergo, does not amount to placing conditions. Learned counsel submitted that no direction was given in judgment dated 14.11.2006 to act or not to act in a particular way. It was also submitted that no direction is in the field nor any provision of law had been violated, in entering into lease agreement with Respondents No, 1 & 2. Respondent No, 3 is an intentional chain and is known for providing fresh farm, item for health conscious citizens. Learned counsel summed up his arguments by contending that the environmental impact assessment will be obtained at the relevant time and an undertaking to that effect has also been placed on record.
6. Mr. Munir Ahmad Bhatti, Advocate representing respondent society, has submitted that in the judgment dated 14.11.2006, certain parameters were laid down, which the Respondents Nos, 1 and 2 have followed. Amendment in the master plan was approval in general meeting held on 30.4.2006, as per item 5 of the agenda. Approval for amending the master plan was acceded by the concerned authority (Respondent No, 7) and a formal approval in this respect was conveyed through letter dated 19.5.2007 and accordingly amended master plan has been placed on the record of the society. Registrar through letter dated 17.1.2007 approved the minutes of the meting with specific reference to leasing of plot in question to multi-national company/Respondent No, 3.
He went on the argue that plot as leased out in accordance with law and in the best interest of the members of the society. The petitioners have not challenged the order of authority in appeal under Rules 2005 (ibid). Learned counsel further submitted that according to bye-law No, 5(c) of the society, the society can lease, its property to generate funds. Reference to bye-law 40(a)(x) was made to contend that after approval of Register, the decision taken by managing committee and general body has attained finality. Learned counsel has contended that the petitioner in W.P. No, 4792/07 is not a member of the society and as such he has not locus standi to file this petition.
Additionally, he does not come within the definition of an aggrieved person. It was urged that the plot in question remained under threat of illegal possession. Recently some trespassers, claimed this property as graveyard and after tremendous efforts of society, the trespassers failed in their illegal designs. He submitted at the end of his arguments that lease agreement is highly beneficial to society and its members so much so that out of this transaction, the society will earn Rs, 156,42,0005.70, which amount shall be utilized for the uplift of Society.
7. Mr. Iftikhar Ahmad Mian, Advocate, learned counsel for Respondent No, 2 has submitted that in the past, open land of the society remained under continuous threat. He quoted various instances when the society was deprived of its valuable land. Land specified for fruit garden was taken over by LDA and blocks L, M, N, P, Q and R were established under the name and style of Model Town Extension. Linear Park of Model Town Society has recently been taken over by PHA and the dispute with regard to plot of co-operative store having 11/4 share of employees of Society, at prime location has not yet been resolved, which the Government of Punjab has handed over to private concern for the construction of I.T. Tower. The property, subject-matter of this petition, remained under threat of dispossession of land grabbers and Government bodies have also made attempts for acquisition of land. The plot due to unauthorized dumping of garbage is a constant source of pollution. The Managing Committee and thereafter the general house, in this background, opted to lease out the property, in the best interest of its members. Learned counsel has drawn attention to the master plan, whereupon the property in dispute exists as "open space and not a fruit garden as claimed by the petitioners. Learned counsel has explained that area for fruit garden (orchard) was taken over by LDA in 1976 and fruit garden was converted into residential site. Blocks L.M, N, P, Q, and R of Model Town Extension Scheme-were developed by LDA which are now in occupation of owners of residential houses and also of commercial centers. A few decades ago (during early seventies), the society made extension by developing block-J and K and extending block, C, D, G & H on green areas. The notification of take over of society's land in the year 1976, was challenged in W.P. No, 644/1976, which was disposed of, as a result of compromise between the LDA and the Society.
Learned counsel has submitted further that open space can be used for commercial purpose, more so when the Registrar and the Authority (LDA) have accorded sanction in this respect. It was also submitted that according to Section 1(2), the provisions of the Punjab Local Government Ordinance, 2001, apply to whole of the Province except the Cantonment property i,e, land/notified as Cantonment land under Cantonment Act, 1924. He added that according to Section 191 of Ordinance, 2001, rules for carrying out the purpose of Ordinance, 2001, could be made with regard to matters, which are specified in Part-I of the Fifth Schedule. It was contended that' Local Government Regulations of Site Development Schemes are Mentioned at Serial _No 9. Part-I. of 5th Schedule. While referring to Sections 13 and 14 of the LDA. Act, 1975, it was contended that as per sub-section (5) of Section 13, no plan of development scheme can be prepared by any person or local body or Government agency within the area. except with the concurrence of the Authority. It was explained that Respondent No, 1 has Applied to the Authority for modification of so here within the contemplation of Section 14, by invoking the provisions of sub-section (5) of Section 13 (ibid).
Learned counsel has submitted that according to Rule 3 of the Punjab Private Sites Development Schemes (Regulation) Rules, 2005, an application by a developer for sanction of the scheme, which falls in the area of City District Government, Lahore. lies to LDA and any modification in sanctioned scheme is permissible in a manner and according 'to the procedure, which is prescribed for sanction of law scheme, under Rules, 2005 (ibid). Learned counsel submitted with vehemence that according to the above referred provision of law the sanction/modification of the master plan of the respondent society is subject to the approval of LDA and not by the Town Municipal Administration. Learned counsel went on to argue that authority comprises of various functionaries including Town Nazims. The Nazim of Gulberg Town in that capacity is also a member of Authority, who has also accorded the approval. He added that a similar application was also filed with TMA Giilberg like the One moved before Respondent No,
7. LDA proceeded with the matter, being competent forum to entertain the application. .TMA Gulberg Town, considered that application is not competent before it, decided not to proceed in the matter. Learned counsel went to argue that jurisdiction of TMA, extends in the matters, which neither fall under LDA nor under the cantonment area. The respondents sought impugned approval, by invoking Rules, 2005 and the. petitioners through, filling objections without raising issue of jurisdiction, have conceded to the jurisdiction of LDA under Rules. The petitioners have neither challenged Rules, 2005 in earlier petition. nor these Rules have been challenged in the main petition. Rules, 2005 cannot be challenged through application. Learned counsel, responding to the objection of the petitioners that in the absence of any specific bye-law, land cannot be converted for a different use,-has submitted that there is no prohibition for conversion of use of property. He added that when bye-laws are silent with regard to a matter then such matter is governed tinder general law. Case of Rehmat Petroleum Service through Proprietor vs. Public at Large and 28 others (PLD 2006 Lah. 339), was referred to support this contention.
8. Additional Advocate General, Punjab, has contested the application filed under. Order I, Rule 10 CPC, for impleading `Government of Punjab as respondent. He has submitted that the petitioners being objectors, were aware of the impugned approval by LDA under Punjab Private Site Development Schemes (Regulation) Rules, 2005. These Rules were not challenged before .LDA, or in the instant petition. Perusal of grounds raised in the petition and the prayer in the petition, reflect that Rules remained unchallenged throughout. Vires of legislation cannot be assailed through filing of petition under Order I, Rule 10 CPC.
9. Heard learned counsel for the parties and record perused.
10. The petitioners had in the earlier constitutional petition (W.P. No, 4006/2006) challenged the resolution, minutes and conduct of meeting dated 30.4.2006. It was observed by this Court in its judgment dated 14.11.2006 that dispute between the society and members, comes within the purview of Section 70-A of the Co-operative Societies Act, 1925, which provides alternative remedy.
The Court refused to enter into this controversy and left the field open for the petitioners to invoke jurisdiction under Act, 1925. The petitioners (herein) have not availed A the remedy under the Act, 1925, they cannot re-open this issue once again, by moving repetitive petitions on the same subject. Additionally the matter is already pending before Registrar in a petition under provisions of Section 54 of the Cooperatives Societies Act, 1925, filed by Mrs. Naila Najam on the same subject.
11.Reference to certain laws and the process that a standard case may undergo in an identical situation, finds mention in judgment dated 14.11.2006. While deciding appeal (ICA No, 388 of 2006) it was observed by learned Division Bench of this Court, in its order dated 27.12.2006 that the reference to a process does not amount to imposition of condition, nor it amounts to a direction to act or not to act in a particular manner. The reading of judgment of learned Judge in Chamber, conjunctively with order of the learned Appellate Bench, reflects that there is no specific direction to Respondents No, 1 and 2 to proceed in a particular manner, in leasing the plot to Respondent No, 3 for commercial use. The petitioner stance that the instant petition has been filed to seek implementation of direction of decision dated 14.11.2006, has no substance.
12.Adverting to the question of legality and propriety of impugned approval of LDA, the permission has been accorded by the Authority (Respondent No, 7) for conversion of open plot/area for commercial use. The petitioners have addressed two fold arguments to assail the approval of authority, Namely that plot was a fruit garden/public amenity plot, which cannot be converted for commercial use and secondly such approval can be accorded by Town Municipal Administration. The plot in question is shown, as open space in the master plan, which is a paramount document. A fruit garden as existed in the original plan finds its description, in layout plan of Model Town by Mr. Knem Chand, the then Secretary Model Town Society Limited, printed in the Punjab Central Press Anarkali, Lahore in the month of January, 1941, as under:- "A fruit garden almost 6 miles in length and some 350 feet in widest will encircle the main town.
The fruit garden will be connected with the central garden by 4 strips of lawns which could be used as playground for children. Along the fruit garden there will be a nice 75 feet wide road which will have a 15 feet wide footpath on the garden side. This footpath will be unbroken for long distance and will have a canal running on its garden side. It will be an ideal footpath for persons who are fond of walking. (The sections of roads of different width are shown separately on the plan in the top right hand corner)."
13.The area comprising 6 miles in length and 350 feet in width, remained un-utilized since 1976.
Land measuring 4894 Kanals of the society was acquired by LDA under Section 26 of LDA Act, 1975 for development and implementation of Model Town Extension Scheme and a notification (No, LAC 11/504) under Section 4 of Punjab Acquisition of Land (Housing) Act, 1973 was notified in official gazette. The land under existing Model Town Society measuring 1546 acres and excluded, original notice dated 21.1.1976 under Section 18 of LDA Act, 1975 was amended and accordingly notified through Notification No, SB238/7001. The acquisition of land of the Respondent No, 1 by LDA, was challenged in W.P. No, 644 of 1976. The dispute regarding acquisition of land of Respondent No, 1, was settled through agreement, executed and signed on 6.2.1980. Consequently Model Town Extension Scheme of LDA was established and now blocks L, M, N, P, Q and R exist, whereupon residential housing scheme of LDA has been raised. LDA has handed over the possession of the plots to the allottees while construction of houses, flats and commercial cites had already been accomplished. The area reserved for fruit garden had been utilized for scheme of LDA as far back as in, 1976. The fruit garden according to above description, never existed. The plot in dispute has different dimensions from the proposed scheme of fruit garden. It is a triangular plot, its width from one side is just 22 feet, while it is 467 feet wide on the other side. The question whether the disputed open plot is an amenity plot as defined in the of Bye-laws of the society or an open space not reserved for fruit garden is not to be resolved by this Court. I am not inclined to enter into this issue because it is a factual controversy and its resolution lies in appropriate forum constituted under the law. Writ jurisdiction, which provides summary procedure, is not meant to resolve these issues.
14. The petitioners have challenged the jurisdiction of the Authority to grant the impugned approval. The order passed in excess of jurisdiction is always amenable to challenge, in writ jurisdiction. The objection of the petitioners that the approval or modification in the master plan can only be sought from the Town Municipal Administration, Gulberg and the impugned approval of the LDA, being without jurisdiction, has no legal sanctity, is not convincing. The approval and sanction of a scheme, which falls within the area of City District Government, Lahore vests with LDA, according to Rule 3 of Punjab Private Sites Development Schemes (Regulation) Rules, 2005.
According to Rule 12 (ibid) a modification in the sanctioned scheme has to be made by observing the procedure prescribed for the sanction of the new scheme. Section 13(5) of the LDA Act, 1975 is relevant, which is reproduced hereunder: "13. Preparation of Scheme.--(1) The Authority shall, in such form and in such manner as may be prescribed, prepare schemes for the area or any part thereof.
(2) ...................................................................
(3) ...................................................................
(4) ...................................................................
(5)No planning or development scheme shall be prepared by any person or local body or Government agency within the area except with the concurrent of the authority."
15. The planning of a scheme within the 'City District Government of Lahore, requires concurrence/approval of the Authority and any modification in an existing scheme. according to the provisions of Section 14 of the LDA Act, 1975 vests with the Authority. Section 38 of the LDA Act further provides for approval from the Authority for conversion of the property to a different use or purpose other than one provided under a. scheme. The provisions of LDA Act, 1975, as per Section 46, prevail over other laws. LDA Act, 1975 has' thus over riding impact in respect of -any inconsistent provision in Punjab Local ' Government Ordinance, 2001. Respondents No, 1 and 2 have approached the right forum (Respondents No, 7) for the approval/ conversion of the use of their property.
16. Reverting to the order passed by the authority, the order of the authority was passed after calling objections from the public and also from the members of the society. The petitioners had contested the grant of impugned approval, through filing objections. The petitioners have submitted to the jurisdiction of Authority, which I have already held appropriate forum to resolve the controversy. The impugned decision is assailable in appeal under rule 14 of Rules 2005 (ibid) before Secretary, Government of the Punjab, Local Government and Rural Development department.
17.In para 21 of judgment dated 14.11.2006 passed in W.P. No, 4006/2006, it was observed that the objections of the petitioners can be adjudicated upon in fora vested with the jurisdiction under law to decide such matter. The petitioners have not approached the forum of appeal, against the approval of conversion by. authority (conveyed through letter dated 19.5.2007). No appeal to challenge approval of agenda item 5 of general meeting dated 17.1.2007, by the Registrar, has been filed: These actions have been held by this court, in earlier petition, justiciable separately under Cooperative Societies Act, 1925 and Punjab Local 'Government Ordinance, 2001. These actions can be challenged before this in its extra ordinary constitutional jurisdiction, when the hierarchy of respective departments is exhausted. This has not been done in the instant case. Extra ordinary Constitutional jurisdiction cannot be stretched, on the ground that assailing the matters in different fora is inconvenient. Mere convenience is no ground to deprive a forum from its jurisdiction, which the relevant statute has provided. The remedy of constitutional petition is available, when the remedy in the hierarchy of the department, is exhausted.
18.Adverting to the question, which the petitioners had raised subsequently, through filing C.M. No, 1472/2007. The application has been filed with prayer to implead the Government of Punjab as respondent on the ground that vires of Punjab Private Site Development Schemes (Regulation)
Rules, 2005 is now being assailed. The petitioners have flied objections before Authority in response to public notice. The petitioners were Conscious and aware of the fact that impugned approval was being sought and Authority was approached, by invoking Rules, 2005, The petitioners have not challenged those rules in main petition. The .vises and validity of rules has 'been questioned in reply to application for vacation of injunctive order. Application was filed for impleadment of Government of Punjab without. resorting to seek E amendment in Chain petition. Legality of Rules, cannot be assailed in ancillary/collateral proceedings. 'Mores when these rules are on statute book, duly notified and published in the official gazette, at' the time, when the petitioners invoked the constitutional of .this Court. Further the objections before LDA were filed without objecting to the validity and legality of the rules.
19. For the foregoing, viewing the case of the petitioners from any angle, these petitions have no merit and the same. are accordingly dismissed on tore question of maintainability, with pending application. No order as to costs.