MUHAMMAD ANWAR KHAN KASI, J.---The petitioners are the residents of AJK Co-operative Housing Society and have approached this Court in the form of a public- interest litigation with the grievance that deviation from the approved layout plan of the society and conversion of open public spaces into residential/commercial plots is absolutely illegal and the negation of their natural rights.
2. It is the case of the petitioners that the respondent-Society had launched a Housing Scheme which was approved by CDA (respondent No,4) and according to its approved layout plan; the respondents 1 and 2 are under legal obligation to provide all the basic amenities and utilities like open spaces, green areas, public parks, graveyards, school/ college plots, dispensary and STP etc. To all the residents of the Housing Scheme. The petitioners have given the following details of the violations of the plan and illegal utilization of plots, reserved for specific public purposes:--
(i) The first area is the one reserved for public parks in G-15/1 which has been converted by the respondent Nos.1 and 2 into residential plots.
(ii) The second area relates to Schools/colleges adjacent to the Jamia Mosque G-15 Markaz, which have been specified in the layout plan but these areas/plots have been converted into commercial plots.
(iii) The third area is reserved for Library in G-15 Markaz which has also been converted into commercial/residential plots.
(iv) The fourth area is specified in the original layout plan for Health Centre in G-15 Markaz but the respondents Nos.1 and 2 have converted it into commercial plot.
(v) The fifth area is reserved for Sewerage Treatment Plan (STP) in G-15/1, but the residents of the society were deprived from this facility by converting the area into residential plots.
3. It is also alleged that the open area reserved for graveyard in G-15/4 has also not been demarcated which is creating difficulties for the residents of the society. It is contended that the society has received cost of land along with full development charges from its members and, therefore, non-provision of all the amenities is illegal while the violation of CDA Building Bye-laws by erecting five storey buildings have created inconvenience among the general residents of the society.
4. Learned counsel for the petitioners relied upon a case-law titled as "Residents' Welfare Society, Sector G-13 Islamabad through President v. Federal Government Employees' Housing Foundation through Director General and another" reported in (2010 CLC 1663 Lahore), wherein it was held that the land specified for specified purposes cannot be used for any other purpose to multiply revenue for the Housing Society and open spaces are the common property of the.
Residents and a heritage for the posterity. It was further held that constitutional jurisdiction can be invoked where the authority acts in a manner altogether unwarranted by law and in such cases alternate remedies need not be exhausted before approaching the court under Article 199 of the Constitution.
5. The petition was vehemently contested by the respondents 1 and 2 through written comments whereby maintainability of the petition was challenged on the ground of pendency of a civil suit before the Civil Court on the same cause of action between the same parties. It was further submitted that factual controversies are involved in the petition which cannot be decided under the writ jurisdiction and since there is no violation of the approved plan, writ petition cannot proceed further and the petitioners are liable to be proceeded under section 476 read with section 195(b), Cr.P.C. For submitting false evidence.
6. On merits, it is submitted that every action has been taken according to approved layout plan and not a signal plot has been converted into commercial or allotted to any, other member.
7. On the other hand, the CDA i,e, respondent No,4, through report and parawise comments dated 7-9-2011 admitted that some changes have been made by the society at some points and the open space/public parks have been changed with residential plots while size of school plot has been reduced and replaced with commercial plots.
8. It was also admitted that the areas reserved for Library and Health Centre in the approved plan have been changed with commercial plots and the Sanitary Treatment Plant (STP) has been shifted to some other site replacing the approved site with residential plots.
9. It is verified by the CDA that 56 kanal land, allocated for graveyard in approved layout plan of the scheme, has not been demarcated/developed at site and graveyard is readily not available for the residents of the society while the development period of the schem is valid up to 13-5-2011. The respondent CDA, however, mentioned that the society has submitted the revised layout plan incorporating the above mentioned changes which is under process in CDA and observations were conveyed to the society vide letter dated 17-3-2011.
10. The respondent No,4 in the same report also stated that on the complaint of some residents, the issues were conveyed and discussed with the society in a meeting in CDA on 5-5-2011 and the society had committed to redress grievances of the complainants. According to para wise comments of CDA, the society was again advised on 29-6-2011 to redress the grievance of the complainant and submit compliance report to CDA but said report is still awaited. In para 10 of parawise comments, it is verified by CDA that Society had made deviations from the approved layout plan, however, revised layout plan of Scheme, incorporating the said changes, has been submitted by Society which is under process.
11. The CDA also verified that land used, prior to approval of the authority, is illegal. The respondent CDA also placed on record a copy of letter dated 29-6-2011 written by the Director Housing Society to the respondent Society whereby following issues were conveyed to the Society with the direction to submit compliance report within 15 days:--
(a) Non-availability of graveyard
(8) Non-construction of Sewerage Treatment Plant (STPA)
(c) Construction of Ground+ 5 Storey Commercial Plazas in G/15 Markaz
(d) Creation of Commercial Plots in school site in G-15 Markaz
(e) Conversion of Amenities Plots like Health Centre, Post Office, Telephone and Telegraph, Guest House in G-15 Markaz, into Commercial.
Astonishingly CDA took a summersault by submitting additional reply on 29-2-2012 through which it was prayed that writ petition may be dismissed. The reply is reproduced as below:-- "The respondent No,4, CDA under the direction of this Honorable Court has reviewed Jammu and Kashmir Cooperative Housing Scheme in Sector G-15/F-15, Zone-II, Islamabad and to submit that:- Layout plan of the housing scheme named "Khayban-eKashmir-I" over an area measuring 3482.62 kanals was approved by CDA vide letter No,CDA/PLW-UP(90)/JKCHS/93/1284 dated 25-4- 2002 (Annex-I) and NOC was issued vide Letter No,CDA-LD-UP-(90)/JKCHS/93/3847 dated 13-5- 2004 (Annex-II) M/s Jammu and Kashmir Cooperative Housing Society submitted another scheme over an area measuring 991.86 Kanals which has been approved in principally vide letter No, CDA- PLD-HS(90)/JKCHS/Phase11/2012/252 dated 9-3-2011 (Annex-HI). The two schemes are adjocent and share the public amenities. The land use plans have been approved in accordance with the Planning standards provided for Residential, Educational, Open spaces and Amenity plots etc. Under the circumstances, it is most respectively prayed that the Writ Petition may kindly be dismissed".
12. According to additional reply, which was not asked for, it is stated by Mr. Ashiq Ali Ghori, Director (Housing Societies) Planning Wing, CDA that CDA under the direction of this Court reviewed "Jammu and Kashmir Co-operative Housing Scheme". However, no such direction of this court is available on record and Mr. Aashiq Ali Ghori, Director (Housing Societies) seems to have given a wrong statement to mislead the court which amounts to contempt of court and he is directed to be careful in future regarding statements in the courts.
13. Heard and record perused.
14. It is admitted by the respondent CDA that the society has made changes without approval of the CDA and till the expiry of Scheme development period i.e 13-5-2011, the graveyard was not developed/ provided and STP was shifted in violation of approved plan. The meeting of CDA with the respondent society and issuance of letters for redressal of grievances is sufficient to establish that violations to approved layout plan were committed. As far as additional reply of the CDA is concerned, it is shocking that the said reply is a sheer attempt to mislead and misguide the court because it states nothing about the revised layout plan of the existing scheme and only states that the Jammu and Kashmir Cooperative Housing Society submitted another Scheme over an area measuring 991.86-Kanal which has been approved in principle.
15. The reply clarifies the position that the layout plan is regarding a new scheme which has got nothing to do with the previous layout plan of the approved scheme over an area 3482.62-Kanal regarding which it had been admitted by CDA that deviations and violations were made and it was also verified that graveyard over an area of 56-Kanal has not yet been demarcated/developed.
16. Record and report of CDA verify the facts that the respondent-Society within the prescribed period i,e, up to 13-5-2011 had not completed/developed the Scheme and had made changes and also converted open parks into plots and reduced the size of school plot without any prior approval of the Society. As far as revised approved layout plan is concerned, it has got nothing to do with the present scheme because it is about another scheme over an area measuring 991.86-Kanal which was approved by CDA vide Letter No,CDA-PLWHS (90)/JKCHS-Phase-II/2010/252, dated 9-3-2011.
17. The CDA, under the Rules, was under obligation to take an action against the defaulter Society for not completing/developing the scheme within time and for violation of the approved plans.
There is no cavil to the proposition that land specified for a particular purpose cannot be used for any other purpose.
18. The Chairman, CDA is, therefore, directed to initiate legal actions against the Societies for completing/developing the schemes within time. The Chairman would also take actions against the Director, Housing. Societies sand other concerned staff for not taking action against the defaulter society. Record also reflects that complaints of aggrieved persons are not properly dealt with and after issuance of letters to the Societies; no follow-up is taken by the concerned staff. The Chairman CDA should evolve a policy where the genuine complaints of the people are properly dealt with and be followed till some positive results because the state functionaries are under obligation to listen to the complaints regarding their functions and to resolve them in accordance with law.
19. As far as objection regarding the pendency of civil suit is concerned, the same loses force in the present situation because where there is a clear violation of rules and where authority acts in a manner altogether unwarranted by law, the remedies provided under the law need not be exhausted before having recourse to the constitutional jurisdiction of this Court. It is also obvious that housing schemes are announced and people are attracted in the name of facilities and utility areas i,e, Parks, open spaces and topography etc. And, therefore, the residents cannot be deprived of these facilities by the societies due to greed for money.
20. In view of above discussion, the petition is allowed and the respondents are directed to act strictly in accordance with approved layout plan dated 25-4-2002 of the Jammu and Kashmir Housing Society. The respondent No,2 CDA shall ensure the development of Housing Scheme in accordance with said approved layout plan and any violation shall be dealt with under the CDA rules by the respondent CDA. No orders as to costs.