' SYED HASAN AZHAR RIZVI, J.---Petitioner, claiming himself to be a resident of Flat in Phase-V, Defence Housing Authority, Karachi, has challenged through this Constitutional Petition a registered Agreement No,7615 executed between respondents Nos.2 and 6 for construction of Shopping Plaza/Cinema and from changing the status of amenity --plot bearing No,214-A, Khayaban-e- Shaheen, Phase-VIII, Sector-B, DHA, Karachi as the same is against the public policy and does not have sanction of law.
2. According to the learned counsel for, the petitioner respondent No,2 is a society established for the welfare of armed force officers. Three fold objectives of the society are to act for the welfare of personnel of armed forces, establishment of residential society and lastly to conserve land and setup housing schemes on land purchased from Federal/Provincial Governments/private sectors to develop area according to master plan. As per Clause-10(3) of the master lease, the respondent No,2 is responsible for earmarking areas reserved for public amenities, specifying its usage before approval of Master Plan and after approval of Master Plan respondent No,3 has no right to change purpose of use of public amenities without approval of respondent No,3. He further contended that respondent No,6 is an entertainment company and has acquired Plot No,214 A, Kh-e-Shaheen, Phase-VIII, DHA, Karachi in connivance with the officials of the respondent No,2 in illegal manner, in which respondent No,2 subdivided Plot No,214 reserved for Sports Complex in Master Plan and had changed purpose of subdivided amenity plot to commercial one by allowing construction of cinema cum shopping mall cum roof top restaurant.
3. Learned counsel for the petitioner contended that respondent No,2 initially marked Plot No,214 admeasuring 40,000 square yards for the purpose of construction of a sports complex to be utilized by the general public for recreational activities and the said plot was meant for amenity to be provided free of cost to general public but respondents Nos.2 and 6, clandestinely entered into a MOU for the bifurcation of the original plot and proposed for the construction of a Commercial Venture to include cinema; shopping mall and roof top restaurant, which have to be run on commercial basis. Respondent No,2 according to the learned counsel for the petitioner subdivided original plot into two plots bearing. No,214-A measuring 2800 square yards and Plot No,214 measuring 37000 square yards vide demarcation letter dated 19-5-2011 and the possession of the subdivided Plot No,214-A has already been handed over on 19-5-2011 to respondent No,6 and in pursuance of demarcation letter boundary pillars have been erected by the respondent No,6. He further contended that besides 2800 square yards area another 1200 square yards area from space of reserved for parking of Sports Complex in the basement of Commercial Venture have already been allotted to the petitioner without any legal authority.
4. It is further urged by the learned counsel for the petitioner that area is densely populated, residents of the area and vicinity have already suffering from traffic jams and if the demised premises is allowed to be used in a commercial manners this will adversely affect the residents of the locality, as the usage with enhanced traffic/parking congestion, air pollution, privacy, increase in crime, nuisance and other civil problems will occur. Learned counsel for the petitioner argued that citizen's fundamental rights to live as enshrined in Articles 8, 9, 14, 23, 24 and 25 of the Constitution of Islamic Republic of Pakistan are being and will further be violated.
5. It is further contended by the learned counsel for the petitioner that the act of the respondents tainted with mala fide and depriving general public from amenities, which are to be provided to them free of cost. Respondents have no atithority to change the purpose of amenity plot, which was originally meant for the construction of Sports Complex to be utilized and used by the general public but the respondent No,2 without any authority converted the amenity plot to commercial plot.
6. He also argued that respondent No,2 entered into a Rent Agreement with the respondent No,6 in violation of Public procurement Rules and open bidding was not carried out and as such caused loss to - public exchequer. He also contended that by letter dated 23-8-1975 an area of 1543.85 acres have been devolved upon the respondent No,2 for amenity purposes viz. Construction of schools, mosques, parks and playgrounds for the benefit of general public and by entering into Rent Agreement with respondent No,6 for commercial purposes respondent No,2 has committed glaring illegality.
7. Learned counsel for the petitioner has referred to Article-9 of the Pakistan Defence Officers Housing Authority Order, 1980 whereby powers, duties and functions of Executive Board of Defence Housing Authority are mentioned. He has also referred to Article 5(3) of the Pakistan Defence Officers Housing Authority Order, 1980 whereby Executive Board shall exercise all administrative, executive and financial powers and do all acts and things which may be exercised or done by the Authority. Learned counsel has placed reliance upon 2009 CLC 1199 passed by the Divisional Bench of this Court. Learned counsel further contended that the respondent No,2 converted amenity plot and entered into an agreement with the respondent No,6 for purely commercial activities without approval of the Executive Board. He has also referred to Article 3(d) of the Building Control and Town Planning Regulations; 2011 of Pakistan Defence Officers Housing Authority, Karachi and in accordance with the definition of amenity plot "A plot allocated exclusively for the purpose, of amenity uses, such as government officers, health, welfare, education, worship places, burial grounds, parking and recreational areas. He further submitted that recreational areas are not defined in the aforementioned Regulation.
8. Learned counsel for the petitioner has also referred following. Regulations of the Karachi Building and Town Planning Regulations, 2002;-- ' Regulation 2-7 "Amenity Plot" means a plot allocated exclusively for the purpoce of amenity uses as defined in Chapter 19 of these Regulations, such as Government uses in. 19-2.21 Health- and Welfare uses in 19-2.2.2, Education uses in 19-2.2.3, Assembly Uses in 19-2.2.4., Religious uses in 19- 2.2.5, Parks and Play grounds in 19-2.2.7, Burial grounds in 19-2.2.8, Transportation right-of-way in 19-2.2.9, parking in 19-2.2.10 and Recreational Areas in 19-2.2.12.
' 19.2.2.12 Aquatic Recreational Areas; Sea coast, lakes, rivers, ponds, water falls, boating basins, marine promenade, marine clubs, yachting clubs. Urban uses - Non residentiary.
' 19.2.2.4 Assembly Uses; includes all land used for libraries, cinemas, theaters, concert halls, planetaria, aquaria (if outside of zoo), non-sportive clubs, exhibition halls, and exhibition grounds and others. With the exception of exhibition grounds, open areas of these- facilities will be limited by their actual operational needs.
' 19.2.2.8 PLAY GROUNDS
(a) All open spaces designated for all indoor or outdoor sports activities of all types whether fully developed or not; and
(b) All structures serving sports activities, like sports complex, gymnasia, swimming pools, stadium, race-courses, sports clubs of all kinds, whether they are part of an open space designated for sports activities or are independent structures.
9. Learned counsel for the petitioner has referred to Regulation 100 of the Building Control and Town Planning Regulations 2011, which is as under:-- "Change of Land Use Amenity Plot. No amenity plot reserved for the specific purpose shall be converted or utilized for any other purpose."
10. Learned counsel for the petitioner has referred to the following clauses of Lease Deed dated 11- 11-'1975:-- ' Clause-2 WHEREAS the Lessor has agreed to permit and authorized the Lessees to enter upon the land hereby demised for the purpose of developing it and constructing buildings thereon in the manner with terms and conditions hereinafter appearing.
' Clause-2(c) The reservation of suitable plots or portions of land for public amenities, such as Parks, Play Grounds, Schools, Mosques, Dispensaries, Hospitals etc., according to the standard that may be prescribed by the Lessor.
' Clause-3 The plan submitted by the Lessees for residential, commercial and other plots reserved for municipal services amenities and public utilities such as Schools, Mosques, Playing fields and a community owned Club has been approved by the Lessor.
' Clause-4 As the plan (layout) has been approved by the Lessor the Lessees shall cause a detailed scheme (hereinafter referred to as the Scheme) for the development of the said area to be prepared under the supervision of qualified engineers and/or other qualified agencies approved by the Lessor for this purpose. The scheme shall provide for the following measures, namely:- (a)
(b)
(c) ..
(d)
(e) .
(0 ------
(g) Allotting land for parks, pay grounds, and other open spaces for the benefit of the inhabitants;
(h) The construction of buildings in the plots reserved for public amenities; ' Clause-10(3) PLOTS RESERVED FOR PUBLIC AMENITIES:-
(a) the Lessees shall cause to be erected and completed in and upon the plots reserved for public amenities the buildings the erection of which has been provided for in the Scheme referred to in these presents and shall not without the previous consent in writing of the Lessor erect or suffer to be erected on any such plot or part thereof any building other than those required under the Scheme. On the due completion of the said buildings, the Lessees shall be entitled to the lease of the said plot on which these buildings stand for a term of. 99 years commencing from 23rd August, 1975 and ending on 22nd August, 2074 A.D. On such terms and conditions as may be laid down by the Lessor.
(b) Any plot which is or which may from time to time fall vacant or become in the opinion of the Military Estates Officer available for disposal either due to a default of the Lessees, a sub-lessee or a lessee or by operation of law or otherwise, shall be disposed of in accordance with the provisions of sub-clause (a) of this clause.
' Clause-17 And the Lessees do hereby covenant with the Lessor:--
(a) ..
(b) Not to make any alteration in the plan or elevation of the dwelling houses to be erected thereon without such consent as hereafter mentioned nor to use the same or permit the same to be used for any, purpose other than that of dwelling houses.
(c) To erect at their/his own cost and finish fit for habitation/use on the premises hereby demised buildings for amenities and dwelling houses together with all necessary out-houses and other appurtenances in accordance with a plan or plans for each allotted plot to be approved in writing by the Cantonment Board under the provisions of the Cantonments Act, 1924..
11. It is further contended by the learned counsel for the petitioner that no previous consent was taken from the lessor by the respondent No,2..Learned counsel for the petitioner further submitted that Article 3 of the Pakistan Defence Officers Housing Authority Order, 1980 has overriding effect over other laws. He further contended that master lease of the area of Phase-VIII was prepared in 2002. He further contended that according to the clause 17(d) of the Lease Deed DHA has no authority to approve building plan which is authority of the Cantonment Board. He also contended that Article 24(7)(8) provide that:- "Article 24(7) All taxes, fees, rates and cases imposed or levied in the existing Cantonment immediately before the commencement of this Order shall continue to be imposed or levied in the Karachi Cantonment and the Clifton Cantonment until abolished or altered in accordance with the provisions of the Act.
(8) All rules and bye-laws made under the Act and in force in the existing Cantonment immediately before the commencement of this Order shall continue to be in force in the Karachi Cantonment and the Clifton Cantonment until they are repealed, amended or modified in accordance with the provisions of the Act.
12. It is contended by the learned counsel for the petitioner that the construction made by the respondent No,6 is illegal and unlawful. He further contended that one type of amenity plot cannot be changed to other type of amenity plot. Learned counsel for the petitioner has further submitted that there are private recreation by a particular person for his own use as farm house, this commercial or recreation and public recreation where general public has free access. According to the learned counsel for the petitioner there is no transparency in awarding contract/ allotment of the part of amenity plot to respondent No,6 for commercial use. He urged that in case of allotment for commercial recreation which is mentioned in the lease that land shall be granted through public auction in transparent manner. He further submitted that the subject plot of land has been illegally allotted from portion of an amenity plot to respondent No,6 to give favour and benefit to a particular person and not a single word of joint adventure has been found in the MOU/alleged Tenancy. Agreement.
13. Mr. Kh. Shamsul Islam learned counsel for the respondent No,6 submitted that it is not the case of public interest litigation rather personal interest litigation. He argued that the petitioner is non- entity and approached to this Court with unclean hands, for ulterior motives in order to harass and blackmail respondent No,6: Petitioner is not residing at the given address, he is neither owner nor tenant of the flat mentioned in the title of the petition. Flat mentioned in the title of the petition is owned by one Nisar Ahmed Shaikh, who is residing with his family in that flat. Petitioner is not member in any of the category of DHA and is resident of Dastagir Society F.B. Area Karachi Petitioner is the purchase Manager. Of M/s Shaheen Construction Company, who are the competitors as well as rivals of the respondent No,6 and the husband of Proprietor of Messrs Shaheen Construction Company has filed a Constitutional Petition No,1631 of 2012 against one of the Director of the respondent No,6 for registration of the F.I.R. He submitted that tenancy agreement was between respondent No,6 and Pakistan Defence Officers Housing Authority, Karachi, which was exeeuted and registered on 14-4-2011. Almost 80% of the construction works on the subject plot has already been completed and- after almost thirteen months from - execution and registration of aforesaid tenancy agreement present petition has been malafidely filed by the petitioner on 31-3-2012 and by misleading this Court petitioner has obtained prohibitory order. He further submitted that principle of laches is fully applicable in the present case as the petitioner has approached to this Court after thirteen months from execution of registered tenancy agreement for thirty years when almost 80% construction of the project was completed, therefore, present petition is liable to be dismissed. To support his contention learned Counsel has referred to PLD 2003 SC 132 and PLD 2007 SC 472. Learned counsel further submitted that photographs and drawings of the subject property' at different stages of construction have already been annexed along with comments/reply of the respondent No,6 and from which it is manifestly clear that petitioner has illegally trying to harass and blackmail to the respondent No,6 by filing the present petition.
14. Learned counsel for the respondent No,6 further contended that all amenities and utilities are being provided in Phase-VIII of DHA, Karachi by DFIA alone without help of any other agency including Clifton Cantonment Board and DHA is not a cantonment area as clarified, by the Pakistan Cantonment Property Rules 1957, which have been framed by the Federal Government. He has further contended that the Cantonment Board 'Clifton has not at all provided any amenity and facilities in the entire DHA area of Phase-VIII, no metal roads have been constructed by cantonment board and even no parks have been constructed or maintained by the Cantonment Board, on the contrary all such works are being done and facilities are being provided exclusively by the DHA. He further submitted that respondent No,6 is simply a tenant of respondent No,2, respondent No,2 only allowed the respondent No,6 to use subject plot for, constructing the state of art recreational facility/theatre with all ancillary, and mandatory facilities and amenities, besides, the respondent No,6 is also constructing parking space at their own costs and at the end and expiry of the lease, the respondent No,6 has to return back the same without any compensation and shall hand over the entire constructed project to the DHA/respondent No,2. It is categorically argued by the learned counsel for the respondent No,6 that the subject plot is neither allotted to respondent No,6 nor same was acquired by respondent No,6 from respondent No,2/DHA, DHA/ respondent No,2 has given subject plot to respondent No,6 purely on lease through registered agreement on built, operate and transfer (BOT) basis without transferring any ownership right to the respondent No,6. He submitted that the respondent No,6 without any financial assistance from' any DFI or bank has invested more than Rs,40 crores from its own resources and completed 80% of the project but the petitioner has filed the petition in order to harass and blackmail the respondent No,6. Neither any law has been violated by the DHA/respondent No,2 while entering into registered lease/tenancy agreement with the respondent No,6 nor any nuisance has been created by the respondent No,6.
15. With regard to the violation of P.P.R.A. Rules learned counsel for the respondent No,6 argued that since inception in all phases of DHA all the plots of like nature, subject matter of present petition as well as other amenity plots submitted their proposal to the DHA/respondent No,2 and the Executive Board of DHA in terms of DHA Order, 1980 made approval of the same. Learned counsel for the respondent No,6 has referred to Rule 42 of the P.P.R.A. Rules; which provides that the procuring agency may utilize certain alternative methods of procurement of goods, service and works (other than open competitive bidding) and then sets forth four different types of methods, which may be permissible and in Clause "C" of Rule 42, which itself deals with direct construction. In the present case tenancy agreement between DHA/respondent No,2 and respondent No,6 is on BOT basis.
Learned counsel for the respondent No,6 categorically admitted in his arguments that subject plot was neither allotted nor was acquired by the respondent No,6 therefore, there is no violation of P.P.R.A. Rules.
16. Mr. Khalid Javed Khan learned counsel for the respondent No,2 submitted that DHA is the statutory- body and is governed by the provisions of President's Order No,7 of 1980 (which is equivalent to an 'Act' in terms of Article 270A of the Constitution of -Pakistan, 1973), Pakistan Defence Officers Housing Authority was constituted an Authority. Provisions of lease deed of 1975 as well as 2002 are to be construed in harmony with the provision of the President's Order No,7 of 1980 and in the evident of any conflict the provisions of the latter would prevail. According to the learned Counsel, subject matter of the present petition, is fully covered by Article 9(2)(ii) of President's Order. No,7 of 1980 as well as Clause 10(3)(a) of the Lease Deed 2002. Learned counsel for the respondent No,2 has urged that under regulation 100 of the Building Control and. Town Planning Regulations, 2011 framed by DHA, the 'purpose' referred to is 'amenity' and not different natures of amenities within the predominant purpose which remain the same i,e,, amenity, once plot is earmarked as amenity plot, it shall always remain amenity and that purpose cannot be changed.
Thus, while the nature of specific activities within the range of different amenities may change, the dominant purpose of amenity can never be changed. Distinction is to be made in the nature of user within the dominant purpose and the dominant purpose itself, which is defined and meaning in Black's Law dictionary "an objective, goal or end". According to the learned counsel there has been no change of dominant purpose for which subject land was alloAd and the plot remains Salt Mujahid v. Federation dedicated to amenity purpose. He has relied upon the case of Muhammad Alamgir Amjad v. MDA reported in 2004 CLC 964.
17. Learned Counsel for the respondent No,2/DHA contended that Plot Nos.214/214-A, Kh-e-Shaheen, Phase-VIII, DHA, Karachi, the subject matter of the present- petition is part of lease deed dated 21- 2-2002 comprising of about 42,429 square yards meant for 'amenity purposes'. Said plot was earmarked for 'sports complex' in the master plan and DHA Plan to develop sports and other recreational and leisure facilities for public on this plot. Thus stadium, swimming pool, squash complex etc., are developed on about 36.354 square yards. However, keeping in view the changing nature of recreational and sporting activities, DHA felt that the sport complex should also include indoor games and multiplex theatre which is now a major source of recreation for children and teenagers. Thus, in order to provider fore better recreational facilities to this age group, DHA has decided to earmark about 2800 square yards for recreational facilities such as indoor skating, games, theatre, auditorium, food courts and parking space for the visitors. For that purpose Plot No,214-A was carved out of Plot No,214. Learned counsel further submitted that there will be no shopping plaza/mall or other commercial activities on that plot, which is evident from the layout plan and approved building plan already submitted by the DHA along with reply. Learned counsel further contended that the amenity plots in DHA cannot be leased out to any party and the DHA itself does not have huge financial resources or expertise to develop the sporting/recreational complex itself, it has caused such projects to be developed by third parties, for that purpose without allotting of that plot to any party DHA entered into a registered tenancy agreement with the respondent No,6 for a period of thirty years, which is extendable on the same terms and conditions for further two consecutive terms of 10 years each except fresh rent to be agreed mutually related to market rental value at that time. He further submitted that Plot No,214-A was and remains dedicated to amenity purpose i,e, recreational and sporting activities for members of the public. There has' neither been any change of purpose of land nor violation of any provisions of President's Order No,7 of 1980 or the Lease Deed.
18. Learned counsel for the respondent .No,2 submitted that in Article 3(d) of the Building Control land Town Planning Regulations, 2011 of DHA in the meaning of amenity plot recreational area are also included, which has to be given contemporaneous meaning and the rule of contemporaneity exposition may be invoked while interpreting the meaning of such term/clauses. The concept of recreation-has evolved with passage of time. It is undeniable fact that in contemporary society indoor games and multiplex theatre provide .a major source of recreational activities for young and teenage persons in particular. This rule of interpretation is also being applied while construing the clauses of the Lease Deed. He has relied upon the case of Senior Electric Inspector v.
Laxminarayan, AIR 1962 SC 159 and Amrelli Steels (Pvt). Ltd., v. F.O.P. 2004 PTD 2930. Learned Counsel for the respondent No,2 further submitted that amenities like schools, hospitals, sporting facilities, parks, zoo etc., do not lose their recreational/amenity character merely because those charged for.
Amenities can only maintain standard, if those are managed on the basis of viable economic principles. There is a clear difference between amenity and charity.
19. Learned counsel for the respondent No,2 urged that Public Procurement Rules are not applicable in the present case as the DHA was acting as land owner while entering into tenancy agreement with respondent No,6 in respect of Plot No,214-A. Cost of development of the project is to be borne by the respondent No,6 and not by DHA from its own, therefore, that is not a case of "public procurement" within the meaning of Rule 2-K of Public Procurement Rules 2004. It was also contended by the learned counsel for the respondent No2 that Clifton Cantonment Board is only providing municipal services in different phases of DHA, Karachi but Phase-VIII of DHA has not been handed over to Clifton Cantonment Board as yet. Municipal facilities in Phase-VIII of. DHA, Karachi, where subject plot situates, has been done by DHA itself and Cantonment Board Clifton has nothing to do with the title or user of Plot No,214-A. He has relied upon the case of DHA v. DCIT, reported in 2010 PTD 2552, Province of Punjab v. Market Committee 2011 SCMR 1856 and Pakistan v.
Province of Punjab PLD 1975 SC 37.
20. Learned counsel for the respondent No,2 while distinguishing the reported judgment in the case of Morris Tanveer v. FOP reported in 2009 CLC 1199 submitted that in that case the petitioner was seeking relief in respect of Lease Deed of amenity plot for school and Division Bench of this Court has held that the petitioner was not entitled to the relief. This ratio decedent of the case which has no relevance to the present case and it was observed that by way of obiter dictum, that the amenity plot was to be developed by DHA itself. He submitted that observation, though obiter, is contrary to the plain language of Clause 10(3) (a) of the Lease Deed as well as Article 9 of. P.O. 7 of 1980. He further argued that unlike the present case where the M.E.O. Fully adopted and supported the submission of DHA, while in the case of Morris Tanveer (Supra) the respondent No,3/MEO was against DHA/ respondent No,2. The effect of the judgment would be that either DHA should develop all amenities on the land vested in it including hospitals, schools, recreational areas etc.; itself but these cannot be developed by third parties. He submitted that, this interpretation is completely out of touch with the contemporary realities as it would have very odd consequences that while in the rest of the city ' schools, hospitals, recreational area etc., could be developed by third parties but in DHA areas either DHA builds the same or there would be none of these amenities. He further contended that there are certain amenities such as roads, sewerage, pavements, public toilets etc., which have to be developed by the local authorities alone as no private party has any incentive to do so, there are other amenities such as schools, hospitals, recreational areas etc., which could be better or at least equally well managed' by the private parties. The philosophy of State control of all activities of life belongs to a bygone era and has no contemporary relevance.
He submitted that judgment in Morris Tanveer is otherwise per incuriam as the provision of P.O. 7 of 1980 were completely ignored by the learned bench and the Appeal against said judgment is pending before the apex Court thus the observations in that case being obiter are otherwise not binding on this Court. Secondly being a per incuriam judgments, it has no binding effect on this Court. He has placed reliance upon APNS v. FOP reported in PLD 2004 SC 600 and Sh. Muhammad Rafique Goreja v. Islamic Republic of Pakistan 2006 SCMR 1317.
21. Learned counsel for the respondent No,2 has next contended that the petitioner is an employee of Messrs Shaheen Construction Company, a contractor of DHA, which has been filing cases after cases against DHA directly as well as in the name of others in order to exert pressure on respondent No,2/DHA, therefore, petitioner has approached to this Court with unclean hands and present petition has been filed for extraneous considerations and amounts to abuse of the process of the law, hence petitioner is not entitled to any discretionary relief by this Court. He has relied upon Dr. Ayesha Sabir v. Fida ul Haq 2010 SCMR 1811.
22. Mr. Ashraf Ali Butt learned counsel appealing for respondents Nos.3, 4 and 5 and Mr. Irshad Ali Kehar learned Deputy Attorney General appearing for respondent No,1 have adopted the arguments advanced by the learned counsel for the respondent No,2.
23. In rebuttal to the arguments of the learned counsel for the respondents, learned counsel for the petitioner has submitted written synopsis and further argued that with regard to the maintainability of the petition on the ground of locus standi of the petitioner is devoid of substance for the obvious reasons as respondents Nos.2 and 6 -did not plead in their pleadings that the present petition has been filed at the behest of Messrs Shaheen Construction Company and further no material to that effect has been provided. He also contended that by Article 12 of President's Order No,7 of 1980 schemes, projects, works have to be for public purposes. All schemes, projects and works undertaken by or on behalf of the Authority under this Order shall be deemed to be schemes, projects and works for public purposes and DHA being statutory body run by public money, hence any illegal, mala fide and discriminatory action taken by the Authority contrary to law can be questioned by any citizen in general and any resident in particular. It was argued by the learned counsel for the petitioner that petitioner is resident of DHA Karachi and one of the pre- qualified contractors of the DHA. Counsel for the petitioner has referred to photocopy of verification certificate of NADRA available at page-69 with the Memo of petition, which shows the address of the petitioner is the same that has been mentioned in the title of the present Petition. Learned counsel for the petitioner urged that the counsel for the respondents have tried to mislead the Court while arguing that no commercial activities-would be carried out on Plot No,214-A. He submitted that Clause-7 of the Tenancy Agreement provides for sub-letting of the property and moreover, nothing has been mentioned regarding recreation activities in the said tenancy agreement. Learned counsel for the petitioner submitted that the Tenancy Agreement executed between the parties only is for commercial activities as clauses 8.1, 8.7, 9.7, 9.8 and 9.9 of the said Tenancy Agreement elaborating the real intend and scope of the Tenancy Agreement. Learned counsel for the petitioner submitted that there 'are 10-12 clubs, already situated in DHA, Karachi, which are providing recreational activities in the locality and therefore, there is no reason that recreation activities are acquired in the locality. He further submitted that the arguments of the respondents counsel that purely for amenity purpose tenancy agreement was executed is patently false and is an attempt to distort the real facts and to present the concocted image to suit its nefarious designs. Learned counsel further submitted that the respondents with mala fide intention are taking false pleas to provide recreation activities in the subject amenity plot while it is established from the contents of the Tenancy Agreement and by exclusive conduct of the respondents that they intend to start purely commercial activities in the subject plot, illegally carved out by respondent No,2 and was given to respondent No,4 without any advertisement/publication of bid and calling objections from general public before entering into Tenancy Agreement. Learned counsel for the petitioner argued that DHA/respondent No,2 and respondent No,6 are the real culprits, who have illegally and unauthorizedly entered into tenancy agreement and have wrongly interpreting the laws and the rules. It is also contended by the learned counsel for the petitioner that the learned counsel for the respondents in his arguments submitted that at the expiry of the tenancy agreement respondent No,6 shall hand over the building, free of cost to respondent No,2/DHA, which is contrary to clause 8.12 of the Tenancy Agreement, which provides that respondent No,6 shall hand over the building with reasonable and adequate compensation. Learned counsel further submitted that arguments of the learned counsel for .The respondent No,6 that huge investment have been made by the respondent No,6 does not absolve respondent No,6 from repercussion of illegal acts on the pretext of huge investment. He has placed reliance upon 1999 SCMR 2883 and. PLD 2000 SC 394.
24. Learned counsel for the petitioner further submitted that respondent No,2/DHA has filed a certificate along with Tenancy Agreement in order to prove its ownership. Learned counsel for the petitioner submitted that if it is assumed that DHA has power to rent out a portion of amenity plot even then on the basis of a mere certificate legal requirement cannot be overcome. A complete mechanism has been provided in the President's Order No,7 of 1980, which is binding on DHA and all acts are supposed to be done in accordance with the mechanism provided under the President Order No,7 of 1980. With regard to the arguments of the learned Counsel for the respondents that Plot No,214-A exists from inception of the scheme in the Order, 2002, learned counsel for the petitioner submitted that this argument is contrary to the categorical statement made by respondent No,2 in para-5 of the Counter Affidavit in the present petition.
25. Learned counsel for the petitioner urged while replying to the point raised by the learned counsel for the respondent No,2 that the lease and other instruments- are' to be construed in harmony with the President's Order No,7 of 1980 and in case of conflict, statutory provisions would prevail. Learned counsel for the petitioner has pointed out that as per Article 2(q) of President's Order No,7 of 1980, specified area has been defined which clearly. Authorizes DHA to specify areas of land acquired by or leased to the Society in any manner before the commencement of this order and includes any land that may be acquired by or leased to the Authority after such commencement of the President's Order No,7 of 1980. He has also referred to Article 9(2)(vii) of the President's Order No,7 of 1980 whereby the Executive Board can deal with the land vested in DHA.
Learned counsel further argued that DHA has limited scope of planning and development of land or housing project and it cannot undertake functions beyond the said limited scope prescribed by the DHA Order so also rules and regulations cannot be made beyond the scope/purpose of President's Order 'No,7 of 1980, therefore, according to the learned Counsel actions of DHA changing purpose of amenity plot from one type of amenity to another, alteration in master plan and approved building plan are without lawful authority. He further submitted that admittedly Plot No,214, out of which Plot No,214-A has been illegally carved out by DHA/respondent No,2 is/was reserved for sports complex, therefore, construction of the commercial area under the garb of constructing multiplex theatre and recreational area is patently illegal, void ab initio. He further submitted that as per Master Plan of the area, Plot No,214-A is not in existence and the DHA/respondent No,2 under the law has to develop the area of Plot No,214 in accordance with, the master plan as provided in the President's Order No,7 of 1980 and any change in the master plan cannot be made except with the prior approval of MEO, which has not been obtained in the present case therefore, entire exercise is void ab initio. He urged that DHA/respondent No,2 has no authority and has no jurisdiction to rent out an amenity plot to a third party and at the most subject to fulfilling legal requirement, the authority can procure services of contractors for construction in accordance with PPRA Rules, He also submitted that the entire exercise of, entering into tenancy agreement by the respondent No,2 and respondent No,6 and their subsequent actions have been conducted in clandestine manners and those have caused huge monetary losses to the public exchequer. Learned counsel has placed reliance upon, '1999 SCMR 2883, PLD 2006 SC 394, .PLD 2010 SC 759 and PLD 2002 Lahore 290.
26. We have heard the learned counsel for the parties, perused the material available on record and the case-law cited at the bar.
27; There is no dispute that the subject plot was meant for amenity purposes and respondent No,2 earmarked the same for sports complex in the master plan and also planned to develop others recreational and leisure facilities for public on this plot. The respondent No,2 in order to meet the changing nature and provide for better recreational and sporting activities, decided that the sport complex should also include indoor games and multiplex theatre which is now a major source of recreation for children and teenagers. As such, Plot No,214A was carved out of Plot No,214.
28. The myth of the arguments of the learned counsel for the petitioner is that the change in the master plan that there is no, concept of recreation, it is only a pure commercial activity. It was argued that the respondents with mala, fide intention taking false plea for 'recreation activities on the amenity plot while it is proved by the conduct of the respondents that agreement of tenancy has been created to start commercial activities just to facilitate the respondent No,6. The petitioner's case is that as per master plan Plot No,214-A was not in existence and respondent No,2 has to develop specified area in accordance with the master plan as provided in the Order 1980.
Learned counsel for the petitioner submitted that any change in the master plan cannot be made except prior approval of the MEO which has not been obtained in the instant case therefore entire exercise is void ab initio. It was further stated that the respondent No,2.Has no jurisdiction to rent out an amenity plot to a third party and at most subject to fulfilling legal requirements, the authority can procure services of a contractor for construction in accordance with PPRA Rules. It was also argued that the entire exercise has been conducted in clandestine mariners and if the respondent No,2 followed PPRA Rules for disposal of carved out land, for developing alleged recreational facilities, it must have fetched much higher revenue as compared to the present tenancy agreement and due to not following transparent procedure, huge monetary loss has been caused to the public exchequer. As regards the question of laches, Mr. Malik Naeem Iqbal strenuously contended that a constitutional petition involving violation of PPRA Rules and infringement of fundamental rights of the citizens could not be thrown out, on the ground of delay in filing the same and heavily relied on the observations made in the cases reported in 1999 SCMR 2883 and PLD 2000 Sc.
394.
29. Learned counsel for the respondents Nos.2 and 6 attacked the maintainability of the present petition and stated that petitioner 'has no locus standi to file the present petition as the petitioner is not at all resident at the given address. They submitted that petitioner is the purchase manager of Messrs Shaheen Construction Co:, who are the competitors as well as rivals of the respondent No,6 and filed many false and baseless cases against the respondents Nos.2 and 6 only to harass them.
The respondent No,6 has already invested approximately Rs,40 crores-and almost 80% of the construction work has already been completed. He submitted- that it is elementary principle of law that the law is for the wakeful person and not for slumbers, therefore, the principles of ladies is fully' applicable in this case, as the petitioner approached this Court after almost 13 months from the start of construction and as such he is not entitled for any judicial indulgence through this petition.
He, made reference to the number of cases and stated that this Court as well as Hor'ble apex Court held, that question of laches is to be examined on equitable principles and with reference to the facts of each case and laches of several years can be overlooked if the facts of the case and dictates of justice so warrant or the ladies of a few months may be fatal to a Constitutional petition.
30. The proposition could hardly be disputed that the principal A object behind all legal formalities is to safeguard the paramount interest of justice. It is necessary to bear in mind that a public interest litigation is usually entertained by Court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest.' The real purpose of entertaining such application is the vindicating of the rule of law, effective access of justice to the economically weaker class and meaningful realization of the fundamental B rights. The directions and commands issued by the Courts of law in the public interest litigation are for the betterment of the society at large and not for benefiting any individual. But if the court finds that in the garb of Public Interest Litigation actually an individual's interest is sought to be carried out or protected, it would be the bounden duty of the Court not to entertain such petition as otherwise the very purpose of innovation of public interest litigation will be frustrated. It is in fact litigation in which- a person. Belong to competitor group is knocked the door of this Court to achieve his/their own goal under the garb of writ jurisdiction and not brings an action on behalf of the down-trodden masses for the redressal of their grievance.
31. The next issue which requires consideration is whether constitutional petition filed by the petitioner was hit by laches and is liable to be dismissed on this ground. It may be observed that laches per se is not a bar to the constitutional jurisdiction and a question of delay in filing would have to be examined with reference to the facts of each case it was finally concluded that laches of several years could be overlooked if the facts of the case and dictates of justice so warranted or laches of few months may be fatal. It is a settled proposition that the delay defeats equities or equity aids the vigilant and not the indolent. Relaying on the above maxim this Court as well as apex Court of the country have refused to come to the aid of a party who had not been diligent, vigilant and acted in a prudent manner. The petitioner being fully aware of raising of construction.
Of the recreational area by respondent No,6 did not immediately approach this Court by way of constitutional petition and allowed a period of nearly 13 months to lapse before approaching the Court during which period the construction was continuously in progress and was completed in accordance with the plan. The inaction of the petitioner for a period of 13 months would certainly lead to a presumption that he had not only agreed to the construction of the recreational area but had induced the respondent No,6 and all other persons concerned that they had no objection to the construction thereof. Additionally, the petitioner relied on the cases did not lead to a presumption either that the aggrieved persons had surrendered their rights which according to them were violated by the construction of the recreational area or given an inducement or understanding to the respondents No,6 and all other concerned persons that they had accepted the raising of the recreational area as a result of which we find that the facts in the case in hand are totally different and the delay of 13 months could not be overlooked or ignored in the absence of satisfactory and plausible explanation.
31. The conduct of the petitioner is also not be able that admittedly the petitioner was fully aware of the availability of Plot No,214-A for amenity i,e, recreational purposes, he being in construction business working for the rival company of the respondent No,6, had every right to challenge the tenancy rights granted to "respondent No,6 at the initial stage, but he deliberately chooses not to do so only to cause huge colossal loss to the respondent No,6 by filing present petition when the work is about to complete. In the peculiar circumstances of this Vi case when the respondent No,2 itself does not have the resources or expertise to develop the sporting/recreational complex; it has caused such projects to be developed by third parties and for that purpose it entered into a tenancy agreement with respondent No,6, we think that petitioner has no case in his favour.
Moreover, the plot remains dedicated to amenity purposes i,e, recreational and sporting activities for members of the public and has neither been any change of purpose of land nor violation of any provision of P.O. 07 of 1980 or the lease deed.
33. For the foregoing facts, reasons and discussion, the petitioner has failed to make out a case for grant of relief prayed for in the petition and therefore we dismiss this petition along with listed applications. The interim order passed on 6-4-2012 is hereby vacated.