' MRS. ASHRAF JAHAN, J.--- By this judgment, we propose to dispose of Constitutional Petition No.D- 1159 of 2005 filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution").
2. The brief facts giving rise to the present petition are that the petitioner Mrs. Farah Hamayun Shehzad Baloch is transferee of Apartment No. GF-I Building No. 26, Sea View Township, Phase V Extension, Pakistan Defence Officers Housing Authority, Karachi. According to her case as per master plan of Sea View Township all the buildings/apartments have an open area in front of them shown as Garden. The respondent No. 2 had constructed a school in the name of Junior Model School Sea Breeze, Sea View Township Karachi on an open plot earmarked for this purpose.
Subsequently, they have also erected a wall around the garden land (hereinafter referred to as disputed plot) adjacent to the said school which is meant for the garden in front of the Building No. 26, where the petitioner owns her apartment at the ground floor, and now started further construction of building over it for extension of their above named school. The petitioner and other inhabitants of the area protested for the said new construction over the disputed plot which is reserved for the garden in the original scheme of the Sea View Township. But the respondent did not stop and continued the construction work, which necessitated institution of this petition with the following prayer:--- "(A) Declare that the construction/extension of School Building over the land reserved for garden in the Sea View Housing Scheme, Phase V Ex. Defence Housing Authority, Karachi in front of Building No.26 Sea View Township, Phase V, Defence Housing Authority, Karachi by die respondent No. 2 is illegal and without lawful authority.
(B) Direct the respondent No.4 to carry out and perform his statutory duties to restrain the respondent No.2 from erecting unauthorized and illegal construction, extension of School Building over the land meant for Garden, situated in front of Building No. 26 in the Sea View Housing Project, Phase V, Ext. Defence Housing Authority, Karachi.
(C) Direct the respondent No.2 to remove the structure construction for extension of School Building raised over the plot of land in front of Building No.26 Sea View Township, Phase V, Defence Housing Authority, Karachi.
(D) Any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case, may be granted."
3. All the respondents have been served with the notice of this petition, but only the respondents Nos.2 and 3 have chosen to file their comments to this petition. The respondent No.2 in their counter-affidavit have denied the case of petitioner and urged that the petitioner has not got mutated her property with the respondent No.2/DHA, therefore she is not member of the authority, and thus she has no cause of action against them. In fact as per Conveyance Deed she had purchased the property during the year 2003 whereas the boundary wall over the disputed plot was constructed in the year 1999. Since the respondent No.2/authority has power to plan its leased area as per the requirement, therefore, the disputed plot was earmarked for School playground and boundary wall was constructed thereon in the year 1999 to which none of the residents had raised any objection. In support of their case respondent No.2 placed on record photo-copy of Lease dated 17-11-1975 executed between President of Pakistan (lessor) and Pakistan Defence Officers Cooperative Housing Society Ltd. Karachi (lessee) for the entire area of the Plots Nos.SVA-1 and SVA-2 Beach Avenue, Defence Housing Area, measuring 110 Acres (commonly known as Sea View Township). They have emphasized that Sea View Township was planned, on the said area leaving open spaces between various buildings for the utilization and development of the area; based on the terms and conditions of the main lease the authority always had the right without obtaining any consent or making any compensation to the lessee, to utilize the open spaces as per their requirement. Therefore, in such circumstances the respondent No.2/authority has not violated the terms and conditions of main lease and B-Lease executed between sub-lessees and the Defence Housing Authority. The dispute is only due to the ignorance of the petitioner about terms and conditions of the main lease as well as the lease executed between Pakistan Defence Housing Authority and the previous owner whose property had been purchased by the petitioner.
4. The respondent No.3 have also filed parawise comments wherein preliminary legal objection has been taken that the petition is not maintainable against them as they have no concern with the present dispute, therefore, it is liable to be dismissed with cost. It is further averred that the dispute between the parties can be resolved through evidence and the petitioner can get her dispute resolved through civil suit on original side.
5. We have heard arguments of learned counsel for the respective parties and have perused the case record. It is contended by learned counsel for petitioner that the petitioner is owner of Apartment No. GF-I Building No. 26, Sea View Township, Phase V Extension, Pakistan Defence Officers Housing Authority, Karachi. The master plan of Sea View Township available on record reveals that there is open space in front of all blocks of buildings of Sea View Township Scheme including Block No.26 having ground floor apartment of the petitioner. It is vehemently urged that front. 1976 up to 2005 the disputed plot was preserved and used as open garden space for the use of all the residents of Township but in the middle of 2005 the respondent No. 2 unilaterally, without authorization, illegally and unlawfully encroached upon it and decided to construct 4 rooms, 2 at ground floor and 2 rooms at 1st floor for extension of Junior Model Sea Breeze School, therefore, the present petition is filed. He further contended that as per order dated 9-9-2005 Nazir was appointed to ascertain this factual position and such report is available on record, to which no objections have been raised by the other side, while restraining orders have been passed by the Court which continues till date, therefore, further illegal construction could not take place. It is also argued by the learned counsel for petitioner that though the respondent No.2 has placed on record Site Plan, Lease Deed dated 11-11-1975, Part Plan of Master Plan, B-Lease of Apartment No.GF-1 on Plot No.26, Presidential Order No.7 of 1980 and the Construction bye-laws made by the Defence Housing Authority, but none of the above documents had given any legal right to the respondent No.2 to use the disputed plot illegally or to restrain the petitioner from its use or challenging their illegal action. Further such acts of respondent No.2 are in violation of Articles 4, 9 and 25 of the Constitution of Pakistan and the petitioner has every right to enjoy the disputed plot in front of her building as provided in the master plan of Sea View Township Phase v, Extension, Karachi. It is further contended that though the establishment of Educational Institution is a laudable object but it cannot be established at the altar of another novel purpose for which the plot was originally reserved. In the end it is submitted that it is well-recognized universal principle that amenity plots meant as garden/green area or playing area reserved in any Township Scheme cannot be converted for any other use except for which it is reserved, therefore, the petition may be allowed as prayed.
6. On the other hand it is contended by learned counsel for respondent No.2 that the disputed plot was kept as an open area for future utilization in the interests of residents and not for garden purpose or green area. Therefore, it was decided by their Executive Board to use the same as playground for the students of Junior Model School Sea Breeze. This decision was taken in the year 1995 and the construction was completed in 1999 and since then it is being used as school playground and the said playground has a cemented floor and a boundary wall of 4'-5' height around it with an entrance gate; there is also a stage of 12' height wall for back drops and paintings of sceneries for annual functions; library comprising of 2 + 2 rooms were to be constructed and the construction work was started on a limited space towards the western end of playground within the boundary wall to facilitate its use as students library.
7. It is further contended by the learned counsel for respondent No,2 that the petition is not maintainable in the present form as the petitioner has asserted that the disputed plot reserved for the park is being converted for another purpose, though the same is being used as playground since 1999, therefore, the matter needs evidence and cannot be decided through this constitutional petition having disputed facts. It is pointed out that the petitioner is purchaser of lease hold rights through sale-deed and the "B-Lease" which provide as per para 5(vi) that the Authority have the right and is entitled without obtaining any consent from or making any compensation to the Lessees to utilize any of the land adjoining, opposite or near to the apartment or the motor garage as per its requirement, therefore, the Lessee cannot raise any objection or demand any compensation from the Authority for the use of land adjoining, adjacent or near to the Apartment or motor garage. Thus, the petitioner has no cause of action against the DHA in using the open space for playground.
8. Learned counsel has also stressed that the petitioner's failure to file rejoinder affidavit to the DHA counter-affidavits filed from time to time in the present case clearly shows that she has nothing to say in rebuttal and it is a serious omission on the part of the petitioner. In the end he also submitted that the contents of Article 9 of Presidential Order 7 of 1980 reported in PLD 1981 Central; Statutes 33 are also attracted in this case and in view of above DHA can undertake any work in pursuance of any scheme or project. Therefore the petition is liable to be dismissed with cost in favour of the DHA.
9. We have considered the arguments advanced before us and have perused the case record.
10. The crucial point for consideration before us is to see as to whether the disputed plot is reserved as garden or play area for the residents of Sea view Township, if so, whether the respondent No,2 was competent to convert this space into school playground or to raise any construction over it?
11. To examine this aspect we have to begin with the original lease placed on record by the respondent No,2 and the layout plans which have been placed on record from time to time. It will be seen that as per layout plan there is specific provision of school plot which is surrounded by Block 14 towards the West, 26 towards the East, 15 towards the South and 25 towards the North.
Whereas the disputed plot is shown as open plot reserved for park. Apart from it, it is evident from the layout plan that there are number of other reserved open plots in the forms of parks to facilitate the residents of the area for their recreation and entertainment purposes. Similar is the position of the disputed plot which is at a much distance away from the school plot having road in between the two plots. Even the garages separately built for the residents of the apartments of each block are visible between school plot and disputed plot towards its western side. Thus from no stretch of imagination it can be said that the disputed plot in front of Block 26 and towards south eastern side of school plot is meant for the use of school management, which they can utilize for their own exclusive purpose as school playground or to raise any construction over it contrary to the Township Scheme. If the arguments on behalf of the respondent No,2 laying their exclusive claim over the disputed plot are accepted then in like manner other open plots meant for garden or recreation facilities of the residents of other blocks in the township can also be deprived of their open plots in front of Blocks 23, 24, 32, 52 etc. Which are located in similar position and direction.
Another fact which belies the claim of the respondent No,2 over the disputed plot is that in case it was meant for the exclusive use as school playground then there was no need for providing such a huge open space and road in between the two plots/buildings, where a building for garages is also constructed. Instead they could have been accommodated over another open plot surrounded by Block Nos. 3, 4, 15 and 14, which appears to be more nearer to the school building.
12. In civilized societies everywhere in the world, civic facilities meant for the benefit of public at large are to be consciously guarded to protect the interest of the residents of the area and the public at large. Rather, it is the bounden duty of the respondents Nos.2 and 3 to check that no unauthorized or illegal construction is raised over any piece of land in the scheme which under the layout plan is meant for any other particular purpose/amenity purpose. Even when the amenity use Of a plot is to be changed for the benefit of the public at large then the procedure prescribed by law for this purpose is to be adhered to; objections are to be invited before change of use and due opportunity of hearing is to be given to the residents of the area who are likely to be adversely affected. Reliance in this regard is placed upon the case of Irian Merchant and others v. Federation of Pakistan through Ministry of Environmental Protection and others (2013 CLC 853), wherein it has been held that for bringing any changes in the master plan, public hearing was to be given, particularly to all those who would likely to be affected by such act. Admittedly in the present case no such efforts had been made by the respondent No,2. It will be relevant to mention that in the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi and others (1999 SCM R 2883) similar principle has been laid down and it has been held that KDA was not authodzed to change the use of any ainenity plot without inviting objections and such conversion was illegal and contrary to the layout plan of the Karachi Development Scheme of the area. In the above citation it has also been observed that the right to use of the park involves enjoyment of life which is covered by the word life employed in Article 9 of the Constitution as 'interpreted by the Hon'ble Supreme Court in the case of Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693). Thus in the light of above case-law it would suffice to hold that the respondent No,2 without adopting the proper procedure cannot deprive the residents of the vicinity from the use of disputed plot in the name of school playground.
13. It is spelt out from the facts of the present petition that under the scheme of Sea View Township, surrounded by 4 blocks open plots have been left in between for the purpose of small parks for recreation facilities to the residents of the area, which in our humble view cannot be snatched even with the connivance of owner of the project scheme as seems to be the position in the present case. When we see this aspect of the case in more broader prospective qua materialistic approach which seems to be the order of the day, tomorrow the respondent No,2 in connivance with other respondents, with the object of generating more funds may come up with the novel idea of building some new blocks of apartments over all other similar open plots in between the four blocks of the Township Scheme. Since the existing school has been shown to have been constructed specifically over the open plot in between Blocks Nos.14, 15, 26 and 25 reserved for school, as per the sketch produced before us by the respondent No, 2 which is not a disputed document therefore, we will refrain from making any further comment, towards the functioning of the school in a purely residential area.
14. So far as the arguments of respondent No,2 in respect of Clause 5(vi) of B-Lease are concerned it will be relevant to note that such general term of lease will not override the interest/benefit of the residents of the area over the amenity plot of park meant for their use and facility, as its, applicability is only confined to land adjoining, opposite or near to the apartment or the motor garage and not to the areas like disputed plot, specifically provided under the Sea view Township Scheme. Further, it is important to mention here that in the present petition even if the disputed plot is being used as school playground then also the respondent No,2 have failed to show, any justification for proposed construction of rooms over it in the name of library or changing rooms etc, or depriving the petitioner and the other residents from its use by construction of boundary walls. Similarly, the case of respondent No,2 that Executive Board had decided to use the disputed plot as school playground has no force as no such document has been placed on record which could show that when and under whose authority such unilateral decision was taken or got implemented.
15. It has been argued by the learned counsel for respondent No,2 that no rejoinder to their reply has been filed by the petitioner which reflects that she has nothing to rebut in defence. In this regard it is observed that mere non-filing of rejoinder will not change the factual and legal controversy. Even otherwise it is not a simple factual dispute between two parties but an issue of public importance relating to amenity plot is involved in this petition. In a case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of general public against government functionaries, who have failed to perform their duties relating to the welfare of the public. Therefore this argument has no force in the circumstances of the case.
16. At this juncture we have to also examine, whether in the given facts and circumstances of the case, any of the fundamental rights of the petitioner guaranteed under the Constitution have been violated? Besides, Article 9 which deals with right to life, as discussed in the case of Shehla Zia (supra), Article 26 of the Constitution providing for nondiscrimination amongst the citizens for access to places of public entertainment or resort is relevant. In the instant case conversion of disputed plot into school playground/Library thus amounts to denial of these fundamental rights guaranteed to the petitioner and other citizens of Pakistan. Reliance in this regard is placed upon the case of Moulvi lqbal Haider v. Capital Development Authority and others (PLD 2006 SC 394), wherein it has been held that conversion of public park into a commercial park by the Capital Development Authority was in violation of fundamental rights enshrined in Article 26 of the Constitution.
17. Admitted present position at site is that the school is being run in a residential area; the disputed plot which was originally meant for park has been surrounded by the walls and has cemented, floor, which is contrary to the original Seaview Township Scheme. In such circumstances, relying upon the case-law referred above, we allow this petition, direct the respondent No,2 subject to what is stated below, to demolish all the illegal construction over the disputed plot and restore it to its original position of park/garden, meant for the use of residents of the area within a period of six months from today. However at the same time it is observed that since the school is also situated nearby, therefore, if the parties think it appropriate in order to facilitate the school children some mutual arrangement may be made for use of disputed plot for school children and residents of the area jointly for which purpose a proper meeting of DHA officials and the residents of Building No,26 must be summoned. If at least two thirds of the said residents or three quarters of the residents present and attending the meeting (whichever is less) agree, then such arrangement may be given effect to notwithstanding any objection or dispute with regard thereto by the remaining residents. Such arrangement may include continuation of the existing position/shape of the disputed plot or such modification as may be agreed upon. However, such arrangement, if any, must be arrived at within four months from today, failing which the demolition exercise required to be carried out as above must be completed within the timeframe stipulated.