' SHEZADA MAZHAR, J. --- Through the present writ petition, the petitioner has challenged the letter dated 27.12.2013 issued by Local Government Community Development Department, Government of the Punjab whereby it was held that the access road to any proposed housing scheme does not necessarily have to be from a major road but can be through revenue path or other public roads of lesser width in case there is no other access option.
2. The petitioner claims that respondent No, 4 alongwith his father launched a private housing scheme in the name of "Tasawar City" in the urban area of Khanewal. A marketing office was also established wherein a site plan was also affixed. According to the said site plan total area of the scheme is 62 kanals out of said 62 kanals petitioner and others persons of the Behnama purchased plots of different sizes. After purchase of plots petitioner came to know that the housing scheme of the petitioner is not approved from the competent authority. Therefore an application/complaint was moved against respondent No,
4. During the pendency of complaint, respondent No, 4 and his father submitted application/site plan for only 32 kanals in order to save their land which was to be reserved for public purposes according to the total land i,e, 62 kanals.
Submits that according to Rule 42 of the Punjab Private Housing Scheme & Land Sub-Division Rules, 2010 (Rules 2010) as amended by notification dated 15.08.2012 access road for a scheme comprising of less then 100 Kanals has to be of 40 feet. Further states that under the rules no deviation could be made from the rules and that the impugned letter dated 27.12.2013 has been issued in violation of the Rules 2010, which is liable to be set aside.
3. On the other hand, learned counsel appearing on behalf of respondent No, 4 submits that the application for establishing of Tasawar City Khanewal was made in the year 2012. The petitioner has not purchased any land in the Tasawar City and therefore, he has no locus standi to file the writ petition. Further states that the sale-deed attached as proof of purchase of land in Tasawar City is executed in the year 2006 and that too from the father of the respondent No,
4. Learned counsel further submitted that petitioner has already approached the civil Court for the similar relief and therefore writ petition is not maintainable. In support of this contention, learned counsel for respondent No, 4 has placed on record certified copies of the suits filed by the petitioner.
Learned counsel for respondent No, 4 while relying upon Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others (2006 SCMR 12) and Poepa v. Government of Pakistan and others (2008 CLD 830) submits that this Court cannot resolve the factual controversy while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel further submits that in view of law laid down in Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore (PLD 1996 Supreme Court 246) in presence of alternate remedy jurisdiction under Article 199 of the Constitution cannot be invoked. Learned counsel further submits that petitioner has not disclosed filing of suits before the competent Court therefore, in view of law laid down in Ghulam Rasul v.
Lady Doctor Tauheed Akhtar and others (1991 MLD 1755) and Nadir All v. Secretary, Regional Transport Authoirty, Faisalabad and another (PLD 2006 Lahore 298), the present writ petition is liable to be dismissed.
4. Learned counsel for the TMA submits that the housing scheme was initiated somewhere in the year 2006 without approval of the competent authority and therefore notices were issued to the respondent No, 4 as well as his father. Submits that application for Tasawar City Housing scheme was moved on 05.05.2012 for approval of map of Tasawar City over 32 Kanals of land. TMA issued notices as the proposed map was in violation of the Rules 2010. Submits that earlier to the application for approval of map, father of respondent No, 4 had sold land to different peoples on the basis of Tasawar City Scheme. Submits that in this regard civil suits are also pending between the petitioner and respondent No, 4 wherein TMA is also party to the civil suits. Submits that in the application for approval of Tasawar City initially respondent No, 4 claimed his ownership upto 32 kanals, however, later on stated that he owns 35 kanals and 13 marls. Submits that the petitioner has moved an application/complaint alongwith copy of Fard wherein total land owned by respondent No, 4 is 56 kanals. Submits that there is dispute with regard to the ownership of respondent No,
4. Submits that under Rules 2010 developers cannot own land adjacent to the scheme. Submits that with regard to access road dispute was referred to the Secretary Local Government, which was resolved vide impugned letter. Submits that according to the letter dated 27.12.2013 in case a housing society does not have approach road of 40 feet and has no other option then approval can be given to the housing society even if the approach road is Jess then 40 feet. Submits that respondent No, 4 has started selling plots in the Tasawar City without approval of map from the TMA and said sale has been duly registered/mutated with the revenue department, which is illegal.
5. I have heard the arguments of all the parties concerned and have also gone through the record of the case as well as the record of the TMA.
6. Before dealing with the letter dated 27.12.2013 I would like to deal with certain other issues which come to light while I was going through the record of TMA.
7. From the record it was revealed that Tasawar City Town was initiated before 29.05.2008 as on the said date a notice was issued by the TMA under Section 32 of the Punjab Local Government Ordinance, 2001 wherein respondent No, 4's father namely Tasawar Shah was asked to get approval of the Tasawar City within 7 days. Similar notice was also served on 16.02.2012. It is after the said notice dated 16.02.2012 that respondent No, 4 filed an application for approval of map under Rules 2010 over 32 kanals of land which was transferred to respondent No, 4 by his father through a Tamleek nama dated 17.03.2011. Later on, respondent No, 4 himself submitted that he owns total 35 kanals and 13 marlas in the area. Although a complaint of petitioner is available on the TMA record regarding total ownership of respondent No, 4, however nothing is available on the file whether TMA has made any efforts to get this fact verified from the revenue department. While filing the report and parawise comments nothing has been mentioned by the TMA regarding dispute over the total ownership of respondent No, 4's ownership whereas under Rule 42 (e) of Rules 2010 a developer cannot own property adjacent to the proposed scheme. Rule 42(e) states as under:- a developer does not own additional land in continuation of the land proposed for sub-division;
8. Although verification of ownership was to be done on receipt of application however if that was not done at that time when TMA received complaint, it was necessary upon the TMA to get this fact verified but till date nothing has been done by the TMA. Learned counsel appearing on behalf of TMA has stated that there was an injunctive order from the civil Court and due to which no verification could be made. However on query of this Court, admitted that the same was vacated but the learned counsel failed to mention any specific date of stay order or to mention the date of vacation of stay order.
9. In view of the dispute with regard to ownership of the developer, TMA is required to verify respondent No, 4's ownership of land from the revenue department immediately and then to proceed further with the approval of respondent No, 4's application for approval of map strictly in accordance with Punjab Private Housing Schemes & Land Sub-Division Rules, 2010.
10. Verification of developer's ownership is also necessary in order to ascertain which of the facilities developers is required to provide in the proposed town. Under Rules 2010 different facilities are to be provided in the scheme based upon total area of the scheme.
11. It is the case of the petitioner that as the scheme was initially launched over 62 kanals of land therefore Rules 42 & 43 of the Rules 2010 are applicable on the said scheme and the letter dated 27.12.2013 is in violation of said rules and therefore liable to be set aside.
12. In order to resolve the dispute, it is necessary that Rule 42 & 43 are reproduced hereunder:---
42. Sub-division of a land in area other than in approved scheme. A Town Municipal Administration, a Tehsil Municipal Administration or a Development Authority shall, after verification of ownership documents; entertain an application for sub division of land which is less than one hundred kanals subject to following requirements:
(a) width of access road to land is not less than thirty feet;
(b) land is not prone to flooding;
(c) land is not notified by the Government for acquisition for any public purpose;
(d) land is locked due to the following;
(i) surrounded by an existing built uparea or an approved housing scheme;
(ii) separated from the built up area by physical barriers;
(e) a developer does not own additional land in continuation of the land proposed for sub- division;
(f) road width in a proposed sub division plan shall not be less than thirty "feet;
(g) A developer shall transfer area under road through transfer deed to a Town Municipal Administration, a Tehsil Municipal Administration or a Development Authority.
(h) a developer shall provide internal infrastructure and services; and
(i) a developer shall ensure provision of septic tank in each plot; in case public sewerage system is not available.
43. Additional requirements for sub-division of a land of forty kanals upto one hundred kanal in area other than an approved scheme. A Town Municipal Administration, a Tehsil Municipal Administration or a Development Authority shall, after verification of ownership documents, entertain an application for sub-division of land of forty kanal upto one hundred kanal subject to following requirements in addition to the provisions under rule 41:
(a) a developer shall provide:
(1) five percent of total area of open space;
(ii) not more than one percent of total area for corner shops and or mosque;
(iii) No objection Certificate from the Environment Protection Department;
(b) A developer shall get approval of design and specifications of water supply, sewerage after drainage system, electricity and street light network, road network, solid waste management system, in accordance with these rules from the departments responsible for approval of the same; and
(c) A developer shall transfer area under road and open space through transfer deed to a Town Municipal Administration, a Tehsil Municipal Administration or a Development Authority.
' It is clear from perusal of Rule 42 ibid that whether Tasawar City consists of 32 kanals of land (as mentioned in application dated 5.5.2013) or 35 kanals 13-Marlas, (as accepted by respondent No, 4 in reply to notice) or consitt of 56 kanals of land (as claimed by the petitioner) requirements mentioned in Rule 42 has to be complied with by the developer, respondent No, 4.
13. It is the Rule 43 which, contain additional requirements for a housing scheme, which consists of land over 40-Kanals and upto 100 kanals. Whether respondent No, 4 is required to fulfill requirements of Rule 43 or not depends upon the fact of ownership of respondent No, 4 which exercise TMA shall carry out immediately on receipt of certified copy of this order. In case respondent No, 4 owns 56 kanals of land in the area adjacent to the scheme then the condition mentioned in Rule 43 has to be fulfilled alongwith the requirements of Rule 42 including 42 (a) which requires width of access road not less then 40 feet. Therefore under the Rules 2010, it was required for any developer to have access road of minimum 40 feet. However by the impugned letter this condition has been modified. According to the impugned letter states which states:--- ' Subject:- PUNJAB PRIVATE HOUSING SCHEME 8, LAND SUB-DIVISION RULES. 2010 The undersigned is directed to refer to your letter No, TMA/KWC/1185, dated 24.10.2013 on the subject cited above and to state that case has been examined in the Department in consultation with Urban Unit and to advise you that permission may be granted to the Hyde Park Development for housing scheme as the developer has provided a 40 feet wide access road from the revenue path. It is further clarified that the access road to any proposed housing scheme does not necessarily have to be from a major road, but can be through revenue path or other public roads of lesser width in case there is no other access option. ' the width of the access road can be less then the one mentioned in the Rule 42 (a). This letter is against Rule 58 Rules, 2010 which impose complete ban on all the concerned to relax any rule of Rules 2010. Rules 58 says that:---
58. Relaxation of rules.---No provision of these rules shall be relaxed.
14. The impugned letter dated 27.12.2013 is not only against Rule 42(a) but also in violation of Rule 58 of the Rules 2010. Furthermore the impugned letter amounts to amending the statutory rules through executive order which cannot be done. In this regard reference is made to Yummy Milk Products (Pvt.) Ltd. Through Managing Director v. Government of Punjab and 4 others (1999 CLC 1443 (Lahore), wherein it is held that "statutory rules cannot be modified, supplemented or amended by administrative instructions, letters or circulars" and also Zarai Taraqiati Bank Limited and others v. Said Rehman and others (2013 SCMR 642) wherein the similar view has been affirmed by the Hon'ble Supreme Court of Pakistan.
15. It is relevant to mention here that there is no rule in the Rules 2010, which grant any discretionary powers to the map approving authority or to the Government of Punjab to relax any of the requirements of the Rules 2010. Therefore, the letter dated 27.12.2013 issued by the Section Officer (Establishment) of Local Government & Community Development Department, Government of the Punjab is against the Rules 2010 and is liable to be set aside.
16. Now I shall take up the objection raised by respondent No, 4 with regard to the maintainability of the writ petition as allegedly there involved question of facts.
17. In this regard it is sufficient to state that petitioner had only challenged letter dated 27.12.2013 on the ground that the same is in violation of . Rules 2010. No question of fact is involved in this matter, therefore, the case-, law referred by the learned counsel for respondent No, 4 is not applicable to the case in hand. The writ petition is maintainable.
18. Similarly the claim of respondent No, 4 that against letter dated 27.12.2013 alternate remedy was available. In this regard it is submitted that an action without jurisdiction can be challenged in constitutional jurisdiction. There is no provision in Rules 2010, which grants powers to the Local Government & Community Development Department to relax the conditions mentioned in 2010 Rules. Therefore the letter dated 27.12.2013 is without jurisdiction. Further in Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another (PLD 1966 Supreme Court 639), the Hon'ble Supreme Court of Pakistan has held that:--- "So far as these writs are concerned it is now settled law that to disentitle a person from such an extraordinary relief the alternative remedy available must be a remedy in law; that is a remedium juris and one which is not less convenient, beneficial and effective, if what is sought to be enforced by such and extraordinary remedy is "a legal right . To the performance of a, legal duty" of a public nature.---- ' Thus once it is established that the remedy sought is for the performance of some public duty then relief by way of an extraordinary remedy of this nature is not to be denied merely because some other remedy under the general law is available, unless such alternative remedy can be considered to be equally inexpensive, expeditious, beneficial and efficacious.
' Even in the first case where full redress can be given by an order contemplated under sub-article
(2) of Article 98 if an alternative remedy by the law creating the right or obligation has been prescribed the Court has still to consider whether such a prescribed alternative remedy is equally, inexpensive, expeditious, efficacious and beneficial."
' Similar view has also been taken by this Court in United Business Lines, S.I.E. Gujranwala and another v. Government of Punjab through Secretary, Local Government, Lahore and 5 others (PLD 1997 Lahore 456). The relevant portion of the judgment is reproduced hereunder:---.
"By and large where resolution of some question of law is required to be made, direct approach to the High Court is permissible. The reason is that the person performing functions in connection with the affairs of the Federation/Province are sometimes themselves in need of guidance from superior Courts on questions which they are required to determine. There is preponderance of judicial view that in such cases the party need not be compelled to avail of the other remedies because under the Constitution, the interpretation of law is the responsibility of the superior judiciary."
19. The third objection is with regard to the suppression of facts regarding civil suits. Perusal of the said suits reveals that in none of the suits letter dated 27.12.2013 was challenged. Therefore, this objection is also of no consideration.
20. In view of the above this petition is allowed, the impugned letter dated 27.12.2013 is set aside and respondent TMA is directed to immediately get the verification of respondent No, 4's ownership and then proceed further in this matter strictly in accordance with the Punjab Private Housing Schemes & Land Sub-Division Rules, 2010.
21. A copy of this judgment shall also be sent to the Secretary Local Government and Community Development for strict compliance of 2010 Rules including Rule 42(a) as amended in all private housing schemes. With the above direction, the instant petition stands disposed of.