1. ' MUNIB AHMAD KHAN, J.--- After different order, some defendants were struck off or debarred from filing of written statement while some of the defendants were deleted and there remain only one contesting defendant i.e, Major (Retd) Nawazish Ali, who is being represented. The learned counsel for the defendant No,1 has left itself to the decision of the Court without involving it into controversy.
2. ' Learned counsel for the parties per consensus, vide order dated 9-9-2004, have agreed on the following issue; ' "The point in controversy appears to be very short and simple as to whether an amenity plot meant for particular purpose such as Park can be used for another amenity purpose such as construction of a hospital and whether the authority is competent to grant permission for such conversion".
3. ' There is no controversy in respect to location of plot, its measurement or nature of its use.
4. ' The only question is whether the said amenity plot of park can be used for another amenity, such as hospital or not?
5. ' At the very outset Mr. Muhammad Zahid Khan, learned counsel for the plaintiff has stated that for the sake of public interest to some extent but without prejudice to his stand in the suit, he will have no objection if the proposed hospital on the amenity plot is used for charitable purpose but Mr. Mian Mushtaq Ahmed, learned counsel for the defendant and the defendant himself have stated that they cannot agree to that as the said plot has been purchased by defendant for hospital and irrespective of the fee/amount, which may be charged by the hospital, it will fall within the definition of amenity.
6. ' In the circumstances, Mr. Zahid Khan has argued as follows: ' That the amenity plot earmarked for park cannot be used as hospital, as the very purpose of recreation will fail and even hospital will create congestion in all respect and cannot be termed as amenity and cannot be compared- with the park.
7. ' He has further argued that amenity plots are being allotted free of cost and are maintained by the concerned authorities or bodies but herein the case, amenity plot has been sold out and same has been in possession of a private person. He has further argued that firstly, plot cannot be converted for other amenity purpose and secondly, the concerned authority has exceeded its power and same is in violation of law an rules of KDA as well as to M.L.O-34, and the CDGK has itself termed the conversion of the plot from park to hospital as illegal and certain measures have been taken through its letters dated 6-2-2003 and 8-9-2003, submitted with the suit.
8. ' Learned counsel has gone arguing that land in PECHS was allotted by the President of Pakistan to PECHS for housing purpose and an appropriate lay out plan was prepared. In the said lay out plan, which has been filed with the pleadings, the plot in question is marked as park, the said small park was named as Children Park for the children of the vicinity. The said lay out plan cannot be amended or revised until written permission is granted by KDA under Order 5 of 1957, keeping in view of Articles 40 and 52-A. He has further submitted that in terms of clause II(2) of the terms and conditions of "Licence Agreement" granted by the President of Pakistan to PECHS no plot can be converted for the purposes other than the purpose it was approved. He has also pointed out clause VI (3) of, the Licence Agreement with the caption "plots reserved for public amenities" which prohibits change of use of plot other than the purpose it was earmarked and contrary to the approved scheme, until approved by the authority i.e, KDA. He has further submitted that there is no allotment letter in the name of defendant nor in the name of its predecessor nor there can be any allotment of an amenity plot and this shows that defendant and concerned authorities have done something contrary to law. He has also pointed out that any alleged approval, obtained by the Defendant, is contrary to the KDA's Order and even if Ministry of Works has approved any conversion on misrepresentation then it is invalid, as cannot be justified in any respect and amenity plot cannot be converted into any other use. He has pointed out letters of CDGK, which are annexed with the Plaint as Anx P-1 to Anx P-3. In all these letters the CDGK has shown its anger and issued instruction for stoppage of any construction on the plot. Learned counsel has also referred M.L.O.34, issued on 30-9-1977 which reads as follows: ' "All plots which were reserved for roads, hospitals, schools, colleges, libraries, play grounds, gardens, parks, community centres, mosque, grave yards or such other amenity/community purposes but were subsequently unauthorizedly or by political manoeuveres converted into residential or commercial plots and on which no construction has been made are hereby cancelled and the plots so cancelled shall be resumed by the authority in which the plots initially vested and the amounts, if any, paid by the allottees shall be refunded under the 'formal rules".
9. ' He has further submitted that conversion of the plot is contrary to the wishes of the people in the vicinity, who obtained their plots, having in mind location of park-in the vicinity. He has also referred Zoning Regulations of 1972 and has pointed out Schedule "A" item "F" which direct that the plot will be used to the purpose for which it was allotted.
10. ' Mr. Zahid Khan has also referred Black's Law Dictionary and pointed out meaning of amenity. He has also referred 1999 SCM R 2883 (Ardeshir Cowasji v. KBCA and others).
11. ' To the objection under section 70 of the Co-operative Societies Act, the learned counsel for the plaintiff has submitted that no relief has been asked for, against the Society and even otherwise mala fide of the society was involved in the A conversion of the plot, therefore, any notice under section 70 was not necessary. He has relied upon PLD 1987 Kar 676, PLD 2000 Kar 168, 1987 CLC 1266 and PLD 1985 Kar 481, which are on the above point and any contention of Mr. Zahid Khan is correct to that extent.
12. ' On the other hand Mian Mushtaq Ahmed, learned counsel for the defendant has stated that, firstly, there was a plot of about 1100 sq yds and since it was rocky, therefore, PECHS, on its request got it converted from park to hospital on 23-6-1973 and thereafter divided the said plot in two portions.
13. The plot in dispute was allotted to Moula Bux Jamali and its adjacent plot to another person Dr. Khawaja Fazal Ahmed, on which building has been constructed long before and no objection has been raised notwithstanding the fact, that the said plot was also an amenity plot. It is further argued that plot in dispute was converted in 1973 and after a lapse of about 30 years this suit has been filed, hence, it is hopelessly time barred action and suffered even from laches. He has further argued that without prejudice to above, Article 40 of the KDA Order is applicable to individual plots and not to amenity plot, while Article 52-A is meant for amenity plots but that too is not applicable to the plot in question as it was introduced in 1974 while the plot was converted on 23-6-1973. He has further submitted that there was no Zonal Plan in PECHS as envisaged under Article 40 of the KDA Order, therefore, Article 40 will not apply. He has further stated that the plot in question was converted in accordance with clause II(2) of the Licence Agreement of Society and was duly approved by KDA by its letter dated 3rd July, 1973 whereby no objection was given. He has further pointed out a letter dated 23-9-1986 whereby on another amenity plot allotted to Dr. Khawaja Fazal Ahmed, construction was approved by KBCA. He has also referred clause VIII(b) of Licence Agreement, according to which any open space for recreation purpose will be transferred by Licensee (PECHS) to local authority but herein the case after conversion of the plot, it was neither necessary nor was done.
14. ' Learned counsel has referred certain other Annexures, annexed with the counter affidavit to CMA No,6624 of 2003 and has referred a letter of Ministry of Housing and Works dated 25th March, 1977 whereby the Government initiated action under MLO 34. Issued on 20-9-1977 against the conversion of disputed plot on the complaint of other allottees of PECHS and as a result the plot was cancelled. The said cancellation was challenged in CP No,D-868 of 1984 and by order dated 22-11-1990, this Court set aside the cancellation order with the following directions: "(b) The Administrator, after hearing the petitioners and all other interested parties, will decide the question whether petitioner case was covered by recommendation of the inquiry committee and whether any action is warranted keeping in view the facts of the case and principle of natural justice and then finally took a decision about cancellation of the plot".
15. ' In pursuance to the directions in the above CP, objections were invited through newspapers and after dealing with these objections, a letter dated 10th June 1999 was issued by Section Officer, Sindh Co-operative Housing Authority, whereby Dr. Moula Bux Jamali (the predecessor of Defendant) was asked to pay Rs,75 per square yard and thereafter required formalities were to be completed under the Bye-laws and Rules of the Society. The Learned counsel has also referred a letter dated 13-2-1995 singed by Section Officer housing and Works Division. Government of Pakistan to PECHS,, in which besides regularization of plot for hospital even permission for running a school has been allowed. On the issue of applicability of Article 40 of KDA Order to individual plots only and Article 52-A to amenity plots. Learned counsel has referred 1998 M LD 1818 at 1826-A and 1828 (Ardeshir Cowasji v. Clifton Cantonment Board), 2001 SCM R 279 (Syed Ali Asghar v. Creator Builders) and 2003 CLC 627 (Sh. Muhammad Naseem v. Al Murtaza Society). He has also argued that MLO-34 is to be read with MLO-89, issued on 18-7-1979 which has reconstituted MLO-34 and has taken out amenity plots out of the purview of cancellation. He has further submitted that issue of conversion of plot pertains to the year 1973 and plaintiffs by their long silence have given acquiescence and now after 30 years it is a closed chapter. He has further stated that another part of the plot in question has already been constructed and being utilized and same has not been objected to. According to him, all the authorities i.e, KDA, PECHS and KBCA have not pointed out any irregularity rather they have verified the authenticity of the documents and legality of actions taken towards conversion of the plot and approval of building plan.
16. ' In rebuttal, Mr. Zahid Khan has requested for perusal of letter dated 13-2-1995 referred to, by the defendant and pointed out the contents of the said letter, which are reproduced as follows: ' "I am directed to refer to your letter No, PECHS/47/8597/95 dated 12-1-1995 on the above noted subject and to convey this Ministry approval to regularization of Amenity (Hospital) Plot No,2, Block No,2 Measuring 520 Sq. Yds., PECHS Karachi in favour of Dr. M.B. Jamali as recommended.
17. ' Keeping in view the society's recommendation, the allottee is allowed to utilize the amenity plot for School purpose for the welfare of the residents of PECHS Karachi.
18. ' The plot would not be utilized other than amenity purpose i.e, on commercial basis".
19. ' He has further pointed that the said letter contains date as 13-2-1995, while Article 52-A was inserted in KDA Order 5 of 1957 in 1974 hence without prejudice to other objections that regularization of the allotment was contrary to Article 52-A of KDA Order and is of no legal effect, the plot cannot be utilized on commercial basis. He has further submitted that residential plots were acquired by public long ago, keeping in view the lay out plan of PECHS, , therefore, any conversion cannot be allowed which prejudice the interest of residents. He has further submitted that after decision in CP No,868 of 1984, the Housing Authority took up the matter incorrectly as neither it had any authority to allw conversion of park plot to hospital nor on fixed rate .Of Rs,75 per sq yd for amenity plot. He has further submitted that even if the plot of any category is sold then each and every person has right to bid for the same, as the defendant?s predecessor has no special right to be considered for such extraordinary concession and even contrary to the rights of general public.
20. ' To decide the above controversy, arising out of proposed issue, the meaning of word "Amenity" is necessary. According to Black's Law Dictionary, Sixth Edition, "amenity" is defined as follows: ' "In the law of easements, an "amenity" consists in restraining the owner from doing that on his property which, but for the grant or covenant, he might otherwise lawfully have done. Sometimes called a "negative easement" as distinguished from that class of easements, which compel the owner to suffer something to be done on his property by another".
21. ' The word "Amenity", as has been used in KDA Law as well as in KBCA Building Regulations and its meaning coming out of Agreement to License of PECHS, means recreation plots for benefit and enjoyments of the residents of the vicinity. These amenity plots are being controlled by the local body or the concern cooperative society. The plots of amenity are meant for to provide sigh of relief from congested atmosphere and to release additional burden which could be, when construction is allowed on the amenity plots. In the instant case, admittedly, the plot was allotted for amenity purpose- but according to defendant, it was converted from Park to Hospital, while plaintiff has stressed that neither the park can be converted into hospital as latter is not an amenity and specifically when the defendant is even not ready to provide a charitable hospital but a commercial hospital and further conversion of the park to hospital is contrary to Article 52-A of KDA Order, which is reproduced as follows: "....................... 52-A.(2) No amenity plot, reserved for the purpose mentioned in subsection (1), shall be converted to or utilized for any other purpose".
22. ' That the above provisions under Article 52-A was introduced in 1994, while Article 52-A itself was incorporated on 11- 12-1974, while the case of the defendant is that the conversion of the plot from Park to Hospital was effected on 23-6-1973. The plot originally was 1103 sq yds, which was converted into road, leading to Government Modern School for Girls and two hospital sites were also created;: one was allotted to Dr. Khawaja Fazal Ahmed who completed construction in the year 1977. The second hospital plot measuring 520 sq. Yds. Was allotted to Dr. Moula Bux Jamali on 23-8-1973. In the above circumstances. Article 52-A of the KDA Order 5 of 1957 does not effect the conversion. It is on record that in the matter PECHS, no zonal scheme as required under Article 40 of the KDA Order was planned and according to authority of this Court 1998 M LD 1818. Article 40 of KDA Order is applicable to individual plots while Article 52-A deals with amenity plot. For the convenience the relevant para from the said authority is reproduced: ' "It is significant to note that in clause (4) of Article 40 the word "may" and in Article 52-A the word "Shall" have been used. The words in common use are to be given their natural plain, ordinary and commonly understood meaning, unless the statute requires otherwise. As a rule the words of a statute are not to be given "forced", strained or subtle meaning. The difference between Articles 40 and 52-A is clear. The former is in respect of plots of individual, while the latter is for amenity plots.
23. It is true that under certain circumstances the words "may" and "shall" are interchangeable, but this depends upon the Legislature's intent to be gathered from the statute itself. We are of the view that the word "may" used in clause (4) of Article 40, under the circumstances, cannot be treated as "shall".
24. ' In the instant case, allotment, after conversion of the plot, was made on 23-8-1974, therefore.
25. Article 52-A introduced on 11-12-1974 itself is not applicable. Under the License Agreement KDA is authority and any change or conversion in the use of a plot can be effected with the approval of the said authority. Although the plot was not regularized till 1995 but by letter dated 13-2-1995 by the Housing and Works Division, Government of Pakistan, the plot was regularized and the KBCA has approved the construction plan after scrutinizing all the relevant documents in this respect.
26. The learned counsel for the plaintiff has challenged the conversion of the plot but without keeping in mind, law of limitation as the conversion was effected in 1973 and adjacent portion of amenity plot was constructed in 1979. Learned counsel has insisted that conversion was not in accordance with Article 40 or 52-A but keeping in view the date of conversion as well authority of this Court ibid. Both the Articles are not applicable nor they do effect retrospectively. The conversion of the plot has been effected in terms of clause 11(2) of the Licence Agreement which was approved by the Ministry of Works as well as by KDA, PECHS and KBCA have supported the case of defendant by stating that no irregularity or illegality has been caused in conversion of amenity plot from Park to Hospital and the same was on the recommendation of PECHS, which was acted upon by Ministry of Words and KDA far back. In the instant case, the plaintiff has failed to convince in respect of point of limitation as to why they remained silent in the past 30 years while a portion of amenity plot was constructed before their eyes. Anyhow, the issue involved in the suit in respect of the grant of permission for conversion pertains to the years 1973, when the plot was converted, there was no specific restriction in respect to prohibition or change of use from one particular purpose to another particular purpose. The cancellation of plot under MLO-34 issued on 30-9-1977 is also of no use,, as that MLO-34 was reconstituted by MLO-89 on 18-7-1979. Wherein it was specifically mentioned that MLO-34 will not apply to the conversion of amenity plots. The authority relied upon by learned counsel for the defendant i.e, 2001 SCM R 279 (Syed Ali Asghar and 3 others v. Creators Builders and 3 others), which specifically laid down as follows: ' "It be noted that even under KDA Order, 1957 and Building Control Regulations, the competent authority is invested with power to grant permission for change in use of the plots for the benefits of the people therefore, it could not be said that there is absolute bar to the grant of such permission. In the instant 'case such permission has been granted by the Government of Pakistan, Ministry of Housing and Works and it has not been shown that such permission was not in the benefit of the people. The counsel for the petitioners has not brought evidence to show that the required approval and NOCs were not duly obtained by the respondents. Mere fact that it has been alleged by the petitioners that approval and NOC were unlawfully obtained would not make the same to be unlawful or without jurisdiction in absence of legal and valid material on record considering that under Article 129 of the Qanun-e- Shahadat the legal presumption would be that the judicial and official acts have been regularly performed".
27. ' The above authority also is on the point that there is no absolute bar to grant of permission for change in use of plot. The another authority i.e, 2003 CLC 627(Sh Muhammad Naseem and others v. Al- Murtaza Society and others) also lay down that when the necessary permission is accorded by the concerned authority then it cannot be disturbed.
28. ' On the point of limitation, this Court has also decided that cause to be initiated within a reasonable time and j unreasonable delay will amount to acquiescence, as reflected in the Authority of this Court in 1998 M LD 1818, specifically lay down as follows: ' "Art. 40-Civil Procedure Code (V of 1908) O.IV R. 1- Constitution of Pakistan (1973), Art 199-Law Reforms Ordinance (XII of 1972) S.3-Acquiescence- Institution of suit/Constitutional' petition after more than 7 years of accruing of cause of action- Effect-Such conduct would amount to acquiescence- Proceedings of 7 years back could not be challenged through suit or Constitutional Petition after such lapse".
29. ' The law in respect to limitation cannot be stretched to unlimited length, the limitations, under the law have been provided not only to restrict right after certain period but on the other hand, J discourage litigation after lapse of time and to provide permanency in respect to rights of people for their properties. The. Presumption under the limitation law is that if a claimant does not press his claim within the time prescribed then it will be presumed that either the claimant waived this right or was not interested, being indolent has acquiesced to the other party's claim. Law J of limitation is called law of peace, as it provides certainty to the rights of holders/ claimants if they remained unquestioned for a longer period surpassing thereby limitation provided under the law.
30. ' In the circumstances of the case, it appear that the concerned authorities were competent to grant permission for conversion of plot from Park to Hospital at the relevant time in 1973 but there remains another question as to whether the hospital constructed on amenity plot can function commercially or not. In this respect, the letter of regularization dated 13-2-1995 issued by Government of Pakistan. Housing and Works Division is very relevant, which has already been reproduced earlier and relevant para 3 is again copied.
31. ' "The plot would not be utilized other than amenity purpose i.e, on commercial basis".
32. ' According to above letter regularization of amenity (Hospital) is allowed. In the second para of letter use of the plot has also been allowed for school purpose but for the welfare of the residents.
33. Paragraph 3 prohibits use of plot for any purpose other than amenity i.e, on commercial basis. The said letter has been strongly relied upon by defendant himself, keeping in view the language of the said letter, I decide that the plot in question was basically an amenity plot, which has been converted from one amenity to another amenity in 1973 and cannot be challenged * after 30 years but it will remain for welfare of the residents and will not be utilized on commercial basis, therefore, the hospital which may be constructed on that plot will be for the welfare of the residents of the vicinity and will not be allowed to run on commercial basis.
34. ' With these observations, the Suit stands disposed of.