' FAISAL ARAB, J.--- The petitioner is a resident of Zamzama Street, DHA, Karachi. Across the road where he lives, there is a 3600 square yards of land said to be an amenity plot. It was originally described as "DHA Park" meant for the residents of the area but subsequently it was merged with a commercial Plot bearing No, Zam-1, Zamzama Commercial area, Phase-V measuring 8000 square yards. Plot Zam-1 with which "DHA Park" is said to have been merged is owned by respondent No,4 and a building known as "Mall Square" has been constructed thereon. The case of the petitioner is that in connivance with the functionaries of respondents Nos.2 and 3, the respondent No,4 managed to usurp the entire plot of "DHA Park" by illegally getting it merged with Plot No, Zam-1 admeasuring 8000 square yards thereby enhancing the area of Plot Zam-1 to 11600 square yard and that too for free i,e, by paying any consideration at all and now construction is being raised thereon.
2. The background of the controversy is that on 17-7-1987, the respondent No,4 under a written agreement with respondent No,3 contracted to purchase a commercial Plot Zam-1 admeasuring 8000 square yards at the rate of Rs,4,825/- per square yard. Under clause 1 of the agreement, the total sale consideration was worked out to be Rs,38,600,000/-. This amount was payable in six quarterly instalments. In clause 2 of the agreement it was stipulated that out of total area of the plot, 70% i,e, 5600 square yards shall only be utilized for construction purposes and the remaining 30% i,e, 2400 square yards shall be utilized for providing amenities such as roads, parks, sidewalks, etc. On 16-9-1998 C-lease was executed which was duly registered in favour of respondent No,4. In the C-lease as well, the total area of the Plot Zam-1 is shown as 8000 square yards.
3. The petitioner has pointed out that in the Schedule to the C-Lease dated 16-9-1998 it is clearly mentioned that to the west of Plot Zam-1 there is "DHA Park". He then referred to Annexure-D to the petition dated 21-2-1998 i,e, the site plan of the plot. This reflects that adjacent to Plot Zam-1 there is 3600 square yards plot described as "DHA Park". He then pointed out to a Revised Provisional site plan filed as Annexure-E to the petition which is dated 14-5-2003 wherein in contradiction to earlier site plan the park is described as "Recreational Facility Center". He then referred to Annexure-F to the petition. This is Revised Provisional site plan dated 14-5-2003 wherein the plot admeasuring 3600 square yards, earlier described as "DHA Park" is shown as "Recreational Facility Centre" has been merged with Plot. No,Zam-1 thereby increasing the areas of Plot Zam-1 from 8,000 square yard to 11,600 square yards.
4. The petitioner contended that thus in a very surreptitious manner, 3600 square yards' plot reserved for park for the residents of the area described as "DHA Park" was annexed with Plot No,Zam-1 and now construction on it has also been started by respondent No,4. The petitioner then referred to the counter-affidavit filed by the Chief Executive of respondent No,4, wherein he has falsely described the area of Plot Zam-1 to be 11600 square yards though the sale agreement dated 17-7-1987 as well as the original registered C-Lease dated 16-9-1998 clearly mentions its area to be 8000 square yards only. Petitioner's counsel then pointed out that in paragraph 6 of the counter- affidavit, respondent No,4 has tried to justify its claim to this 3600 square yards plot meant for park on the ground that the site plan shows the area of the plot is 11600 square yards out of which 3600 square yards have been earmarked for amenities such as play facility and leisure activities for the children/residents of the area. According to the petitioner this claim of respondent No,4 proceeds on the assumption that the area of Plot No,Zam-1 was originally 11600 square yards and to its west there never has been an area reserved for DHA Park, which claim is contrary to the initial title documents dated 17-7-1987 and 16-9-1998.
5. The petitioner then referred to the amendments made to the C-Lease on 14-12-2005 to the effect that the area of Plot Zam-1 was enhanced from 8000 square yards to 11600 square yards and this was done by annexing 3600 square yards of "DHA Park" with Plot Zam-1. He then referred to the boundaries of plot Zam-1 after execution of the Amended C-Lease which shows that on the west there is 40 feet wide 13th Zamzama Street whereas in the schedule to the original C-Lease dated 16-9-1998 between plot Zam-1 and 40 feet 13th Zamzama Street, the DHA park clearly exists to its west. He submitted that in this manner the western boundaries of Zam-1 plot were extended beyond "DHA Park" upto the 13th Zamzama Street completely obliterating the plot of "DHA Park". The petitioner then referred to para-wise comments of respondent No,2 (Cantonment Board), wherein it is mentioned that approval of the building plans on Plot Zam-1 was for 8000 square yards and not 11600 square yards. He then contended that for the first time in the master plan of 2004 that the plot meant for "DHA Park" was not shown though in the earlier master plan it was shown as "DHA Park". According to the petitioner, in this manner after 2003 the plot measuring 3600 square yards meant for park for the residents of the area was allowed to be annexed with Plot Zam-1 admeasuring 8000 square yards thereby fraudulently increasing its area to 11600 and all this was done without consideration and in blatant disregard of the applicable law.
6. The petitioner then referred to the Indenture of Lease dated 11-1-1975 executed by the President of Pakistan in favour of the then Pakistan Defence Officers Cooperative Housing Society Limited i,e, the predecessor-in-interest of respondent No,3 whereby 3520 acres of land on Korangi Road and Gizri area was leased out for 99 years and it was clearly stipulated in the said Indenture of Lease that out of. 3520 acres, 1584 acres would be used for residential plots and 352 acres for commercial plots for which price was to be paid by Pakistan Defence Officers Cooperative Housing Authority Limited and for the remaining 1584 acres no price was to be charged as the same were given solely to be utilized for amenities such as roads, parks, hospitals, mosques, playgrounds and other amenities as such area is not to be allotted for any other purpose. Thus no price for the land allocated for amenities was charged by the Government of Pakistan from respondent No,3's predecessor-in-interest. The petitioner further contended that when DHA was given land for amenity purposes, the DHA park being itself an amenity, cannot be leased out at any cost but in the present case it has been fraudulently done for free. Not only the land meant for DHA park was annexed with a commercial plot but the manner it was annexed i,e, neither it was converted into commercial nor any price was charged but simply the amenity plot meant for park which even otherwise could not have been sold was allowed to be transferred for free and annexed with a commercial plot for the sole benefit of a private entity i,e, respondent No,4. The petitioner also referred to Clauses 3(a) and 17(d) of the mother lease dated 11-11-1975 which stipulate as follows:-- -
(3) PLOTS RESERVED FOR PUBLIC AMENITIES "3(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 erected or suffer to be erected on any such plot or part thereof any building other than these 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.
17(d) To erect at their this 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 he Cantonment Board under the provisions of the Cantonments Act, 1924."
7. The petitioner then referred to a letter dated 27-5-2003 issued from the office of Ministry of Defence, Government of Pakistan, wherein it was pointed out that 73 amenity plots have been allotted for various purposes to different persons by respondent No,3 in violation. Of Indenture of Lease without taking prior written consent of the Government. The petitioner contended that respondent No,3 violated the terms and conditions of the mother lease by allowing merger of an amenity plot with a commercial plot and that too for free'. He then referred to the minutes of the Executive Board's meeting 2 of 1995 held on 6-5-1995. Item 37 of the said minutes deals with the plot in question wherein too it is mentioned that respondent No,4 has requested that it be allowed to raise construction for, recreational purpose on 3488 square yards i,e, on plot earmarked for "DHA Park". It is also mentioned in Item 37 of the minutes of the meeting that the area of Zam-1 plot is 8000 square yards and the request for merger made in the said meeting was not allowed yet amended lease was executed on 14-12-2005 and the land meant for "DHA . Park" was annexed to Plot Zam-I. He then referred to the minutes sheet containing a hand written note showing that the area earmarked as park in the said plan is not part of the Plot Zam-1 leased out to respondent No,4.
He also referred to letter dated 15-7-2003 written by Military Estate Office Karachi Circle, Karachi to the Assistant Law Officer, DHA which states as follows:-- "Extra land measuring 3600 sq.Yards allotted by DHA to M/s Mall Developers is shown as "Park" in the existing lease of the allottee. Please clarify under what rules "park is allotted to the public."
' In letter No,K-15/PDSO/9660/19 dated 22-7-2003 written by Military Estate Officer to DHA states as under:- "The Agreement between the DHA and party without involving lease of land of the area.On which park is developed the existing proposal is for execution of amending deed by incorporating the area of park into the existing lease. This office has already raised certain observations on lease of land/amending deed vide this office letter No, K-15/PDSO/9660/18, dated 19-7-2003:"
' Letter dated 21-11-1999 of Director Planning, Pakistan Defence Officers Housing Authority to Mall Developers where it is stated as under:--- "Revised submission drawing submitted by you are returned unactioned because commercial activities have been proposed by you which is not permitted.
' It is further added that this portion was to be developed into park for recreational purpose as per agreement dated 17th July, 87, but no effects have been made by you."
' Relevant portion of letter dated 18th October, 2002 of Secretary DHA to Mall Developers is reproduced as under;--- "b. The proposed recreational facilities on the subject plot will not be used for commercial purpose."
' Letter dated 2nd July, 2007 of Additional Director, Pakistan Defence Officers Housing Authority to Mall Developers states as under:--- "Our letter No, DHA/TP&BC/SSI/WL-13475, dated 30th June, 2007, is hereby cancelled. The status of land and its utilization needs to be clarified vide agreement dated 17th July, 1987, concluded between DHA and Messrs Mall Developers, the land at west of subjects plot is to be utilized as a leisure park for the benefit of the residents.
8. On the other, Mr. Mushtaq A. Memon, learned counsel for respondent No,4 in rebuttal argued that in reality the actual area of Zam-1 plot was 14600 square yards which is mentioned in paragraph 7 of the judgment of the Supreme Court in C.P.L.As. Nos.297-K of 1996 and 298-K of 1996 decided on 2-12-1996. Paragraphs 7 and 10 of the judgment are reproduced as under:--- "7According to the learned counsel, the area of the plot is 14,600 sq.Yards out of which 3,800 sq.Yards are reserved for recreational purpose and 2800 sq.Yards for parking outside the building on ground floor and 5,600 sq.Yards for parking for residents on mezzanine floor. There are 118 flats"
10. The other objection was about the access to recreational area through the mezzanine floor, Although recreational area does not belong to the respondents, access has been given from the mezzanine floor, which according to the petitioner is very narrow.
9. Mr. Mushtaq Memon also referred to the report of the Official Assignee filed in C.P. No,D-1192 of 1995 wherein Official Assignee has described the plot as recreation center. He submitted that in the master plan issued on 20-8-1973 the entire plot was shown as commercial. He submitted that under clause 3 of the Agreement dated 17-7-1987 it was the obligation of respondent No,4 to develop the park and, therefore, it was a part of the leased plot and was never amenity plot and when Agreement is read with the revised site plan dated 14-6-2003 and amended C-lease dated 14-12-2005 the total area of the plot comes to 11600 square yards. He submitted that the documents of Military Estate and Cantonment relied upon by the petitioner filed as Annexures S-I to S-12 are disputed documents and even otherwise said plot has been described as recreational plot and not amenity plot. Mr. Mushtaq Memon next submitted that without recording evidence in the matter; the claim of the petitioner cannot be decided as disputed questions of facts are involved in this case. In support of his contentions, he relied upon the cases reported in 2001 SCMR 493, PLD 2001 SC 149 and 2012 SCM R 455. He submitted that two Civil Suits Nos. 673 of 2012 and 1466 of 2012 were pending. He referred to paragraph 4 of the Plaint in Suit No,1594 of 1988 wherein following pleas have been taken:- "4. That in the month of July, 1988 the plaintiffs and some of the persons mentioned in Annexure-A came to know from the public advertisements in daily Jang Karachi, published by the defendant and also from other media that the defendant is raising and constructing 13 storeyed commercial building with shops on the ground floor and flats on other floors on Plot No, ZAM-1, in Zamzama Boulevard, measuring 16,000 sq.Yards.
' That the plot No,ZAM-1, measuring 16,000 sq.Yards situated in Zamzama Area, Phase-V, Defence Housing Authority, Clifton, Karachi, is located just adjacent to residential area, where the residential premises of the plaintiffs and the other residents of the Zamzama area are situated."
' Mr. Mushtaq A. Memon submitted that in the above paragraphs of the plaint it is mentioned that the area of Zam-1 plot is 16000 square yards and not 8000 square yards.
10. Mr. Khawaja Shamsul Islam, learned counsel for respondent No,3 argued that the residents of the area filed C.P. No,1192 of 1995 against respondent No,4 which was decided and the petitioner was also a resident of building who filed the said petition, hence the principle of implied res judicata applies in this petition and the same is liable to be dismissed. He then argued that this petition was filed in the year 2011 and hence also suffers from lathes and the information expressed by the Officer of Military Estate Office and Cantonment Board in letters filed as Annexures S-1 to S-12 cannot bind the Authority as these are at best personal impressions and opinions of the officers and do not have any force of law.
11. The petitioner in rebuttal contended that he was never a party in any civil suit that been referred to by counsel for the respondents nor was resident of the building.
12. From the material that has been placed before us and which is not disputed is the Agreement dated 17-7-1987, wherein the area of Zam-1 plot is shown as 8000 square yards. Its price is also shown as Rs,4,825/- per square yard and when this price is multiplied by 8000 square yards the total sale consideration comes to Rs,3,86,00,000/- and this is the exact price which the respondent No,4 paid. It is also an admitted position that at this particular price Zam-1 plot was purchased and no additional price was paid by respondent No,4 for any additional area. The original title document which is "C- Lease" dated 16-9-1998 also shows that the area of Zam-1 plot is 8000 square yards. The change in the area has been subsequently affected by executing amended lease on 14-12-2005 but that also does not narrate hat additional area has been annexed to Zam-1 Park for any sale consideration. Undisputedly, at the time of sale of Plot No,Zam-1, plot admeasuring 3600 square yards meant for park and described as "DHA Park" existed in the relevant records. There is also no supporting document to show that this amenity plot meant for park was first converted into commercial and then sold. In fact the indenture of lease i,e, the mother lease, on the basis of which the government of Pakistan transferred 3520 acres to respondent No,3 clearly establishes that for the transfer of area for amenity purposes, no price was charged nor such area was to be utilized for any other purpose. Respondent No,4 claims that the area of Zam-1 plot is 11600 square yards and not 8000 square yards but this claim also emanates from amended C-Lease and not from the original lease deed and title documents. As to the reliance of respondent No,4 on the suit proceedings, record of Official Assignee and C.P.L.A. Show that the area of the plot Zam-1 is 14600 square yards. Suffice to state that area in such proceedings was mentioned only on the basis of the pleadings. No finding as to what is the actual areas of Zam-1 plot was in issue in those proceedings as is the case in the present proceedings. Thus the title documents were not scrutinized in that context in such proceedings nor there was such a dispute involved. Even in 8000 square yards land which was leased to respondent No,4 it was stipulated in clause 2 of the agreement dated 17-7-1987 that 70% of the same shall be utilized for construction purpose only, and the remaining 30% was to be utilized for roads, parks, side walks etc. In other words 70% of the 8000 square yards land was only to be utilized for construction and not the entire 8000 square yards. Hence even on 8000 square yards land under the original "C Lease" dated 16-9-1998, construction on 5600 square yards only was to be raised and the remaining 2400 square yards were meant for roads, parks, side walks etc. In the present case not only 8000 square yards of Plot Zam-1 has been over-utilized in violation of clause 2 of the agreement dated 17-7-1987 but the area of park land has been illegally annexed to Zam-1 plot. Through subsequent unlawful amendment made to the title documents, the area of Zam-1 plot was enhanced from 8000 square yards to 11600 square yards.
13. In view of the undisputed original title documents, we find that there is no difficulty in reaching the conclusion that the actual area of Zam-1 plot which was leased to respondent No,4 was 8000 square yards only and no more. It has also come on record that the petitioner filed present petition after noticing construction activity on DHA Park in 2011 and hence it clod not suffer from lathes. No document is shown to establish that the petitioner was a party to any proceedings and identical issue was involved so as to attract the principle of res judicata. The bye-laws of respondent No,2 specifically provide that even for conversion of residential plot into commercial it requires certain steps to be taken under Bye-Laws 125 and 126 of the Cantonment Board Clifton (Building) Bye- Laws, 2007 but in the present case the amenity plot meant purely for A park was annexed with a commercial plot and that too without any consideration when such conversion is not permissible under any circumstances. In C.P. No,D-2585 of 2009 decided by this Court on 18-1-2014 with regard to conversion of residential plot into commercial it was held as follows:--- "We have examined the By-laws 125 and 126 of the Cantonment Board Clifton (Building) By-Laws, 2007 which are reproduced as under:--- "125. Change of land use of residential plots.--- (1) No residential plot shall be converted into any other use except with the approval of the Federal Government, MPG or the City District Government, Karachi (CDGK) after the recommendations of the Board.
(2) The applicant shall apply and pay necessary fee to the Board for change of land use of the plot with full justification, which shall examine the case in the light of the planning of the area and forward it to the Federal Government for consideration.
(3) The Board shall also issue a public notice for the change of land use of the plots in accordance with the provisions of these Bye-laws and the expenses shall be borne by the applicant.
(4) The Board shall give due consideration to the objections from the public before the final decision.
(5) The applicant shall pay the prescribed fees and other charges to Board.
(6) Final NOC of change of land use shall be issued by the Board, after approval of the Federal Government.
(7) Residential plot within a residential neighbourhood can be allowed to be used for education purpose by the Board after inviting public objection from neighbourhood.
126. Commercialization of plots.--- Conversion of residential plot into commercial shall be allowed only according to a uniform commercialization policy formulated and revised from time to time with the approval of the Federal Government through notification on the basis of comprehensive study of various urban areas under pressure for commercialization. Individual plots outside the policy will not be considered for commercialization."
8. Under the Bye-Laws 125 and 126 of the Cantonment Board Clifton (Building) Bye-Laws, 2007, a residential plot cannot be converted into any other use except with the approval of the Federal Government, MPG() and City District Government and that too after recommendation of the Cantonment Board are received in this behalf. This means that the Cantonment Board has to first decide whether residential property is to be allowed to be converted into commercial or not. Once recommendations in favour of commercialization are made then such recommendations are to be forwarded for approval to the Federal Government, MPGO and City District Government. In this regard, the provisions of the Bye-laws 125 and 126 of the Cantonment Board Clifton (Building) Bye- Laws, 2007 are to be strictly followed. The Bye-Law 126 has overriding effect over the bye-law 125 which provides conversion of residential plot into commercial can only be allowed according to a uniform commercialization policy that is formulated with the approval of the Federal Government through a Notification on the basis of comprehensive study of various urban areas that are under consideration for commercialization. It is specifically mentioned in the Bye-Law 126 that individual plots will not be considered for commercialization. Thus the Bye-law 126 has overriding effect over the Bye-law 125. In absence of a uniform commercialization policy, commercialization of a residential property cannot be considered. Once it is formulated only then recommendations could be made and only then the provisions of Bye-law 125 could come into play. Earlier orders passed from time to time in this case were obviously subject to final decision of the Court. In the orders dated 29-11-2010, 10-1-2011 and 28-1-2011 on which much reliance has been placed by Mr. Kamal Azfar; it is clearly mentioned, more particularly in the order dated 10-1-2011, that public hearing that was to take place by Cantonment Board shall be subject to final decision of this case.
9. It goes without saying that orders that are passed from time to time in a pending matter are always subject to final decision in the case and in the present case, recognking this principle, the Court has itself passed orders on 10-1-2011 whereby, the orders with regard to calling objections from the public were made subject to final order in this case. Hence no absolute or conclusive decision to start the process of commercialization was given but the same was conditional upon final decision in, the case.
10. We are of the view that commercialization can only take place after decision is made by the Cantonment Board and in this regard formulation off a uniform commercialization policy is a prerequisite as provided under Bye-law No,126. In absence of such policy no direction can be given to the Cantonment Beard to commercialize the properties of the petitioners. Request of the petitioners could, at best, be only a material for consideration by the concerned authorities when they decide to chalk out a uniform commercialization policy in future under the provisions of Bye- law No,126 but under no specific provisions of law the Court can compel the concerned authorities to start the process of commercialization. The proceedings under Bye-law No,125 are subject to the provisions of Bye-law No,126.
This case is not even of conversion of residential plot into commercial. Hence the entire exercise of annexing the amenity plot meant for park with commercial plot Zam-1 is illegal, without any lawful authority and is, therefore, of no legal effect. The respondents Nos.1 to 3 are directed to take appropriate action for retrieving the plot originally meant for "DHA Park", remove any constructions that have so far been raised thereon and restore it as a park for the common use of the residents of the area.
13. The above are the reasons of our short order dated 4-12-2013 whereby this petition was allowed.