' MRS. AYESHA A. MALIK J.--- Through this petition, the Petitioner seeks a declaration that the construction of a shopping mall, in fortress stadium called Fortress Square Shopping Mall (FSSM) on the basis of Project Agreement dated 27-10-2007 and Lease Agreement dated 27-10-2007 is illegal and in violation of the law (Impugned Transaction).
2. The petitioner is a journalist. The respondents Nos.5, 11 and 13 are the company and its Directors, who are developing the FSSM. The respondent No,4 is the Fortress Stadium Management, who has executed the Project Agreement and the Lease Agreement with the respondent No,5. The respondent No,12 is a consulting agent engaged by the respondent No,5. Report and parawise comments have been filed, by all the respondents.
3 The petitioner has instituted this writ petition in public interest.
' It is his case that he resides in Lahore, Cantt. And that he is an investigative reporter and a well- known journalist. The petitioner came across information with respect to the construction of a shopping mall under the name of FSSM. The construction is taking place on land owned by the Government of Pakistan for which the respondent No,4, Fortress Stadium Management has entered into a long term lease agreement with the respondent No,5, which tantamounts to sale of government land. Learned counsel for the petitioner has argued that the land of the FSSM is Class A-I land which can only be used for specific purposes as stipulated in the Cantonment Land Administration Rules, 1937. A shopping mall is not contemplated as the permissive use of the land, therefore, the Impugned Transaction is illegal and against the mandate of the law. Learned counsel also argued that the Government respondent No,1 gets no revenue in this transaction as the respondent No,4 has without lawful authority sold government land without an approval.
Learned counsel argued that the petitioner having a legitimate interest relating to the national exchequer wrote several letters to the respondent No,4 to question the authority on the basis of which they had sold government land through the Impugned Transaction, however no response was forthcoming.
4. Learned D.A.-G. On behalf of the respondent No,1 raised an objection on the maintainability of this petition and stated that the land belongs to the Government of Pakistan. The Government of Pakistan has allowed this land to be used and managed by the military authority and the petitioner has no cause of action. Learned D.A.-G. Stated that the Government in terms of its policies has allowed the military authority to utilize the land of the fortress stadium, as they deemed appropriate. In this regard, he referred to two polices dated 2-4-2008 and 29-11-2009. He stated that in terms of these policies, no illegality has been made out and the utilization of the Class A-I land is not in contravention of any law or policy.
5. Syed Shahab Qutab and Mr. Sameer Khosa, learned counsel for the respondents Nos.5, 11 and 13 raised objections on the maintainability of the instant writ petition. It is their case that the instant petition has been filed in public interest, however, it does not meet with the standards laid down by the Superior Courts with respect to public interest litigation. The learned counsel argued that the petitioner is not an aggrieved party and the petitioner has not been deprived of any of his fundamental rights with the construction of the shopping mall. Learned counsel argued that no public wrong has been committed and the petitioner has failed to make out a case of public importance. Learned counsel argued that the instant petition is hit by laches because as per the petitioner's own contention the Project Agreement and the Lease Agreement were executed in the years 2007 yet the instant petition is being instituted in the year 2014, after seven years. Learned counsel further argued that the petitioner has not come to this Court with clean hands and has not been able to show his bona fide as the construction of the shopping mall has been under way over the last several years and this fact has not been hidden from the public-at-large. However, the petitioner has come to this Court at this late stage, right before the completion of the project and its opening, simply to harass the respondents. He stated that this is the mala fide of the petitioner.
Learned counsel further argued that the mala fide of the petitioner is also evident from the fact that this is not the only commercial venture in the fortress stadium as there are many other commercial ventures, which have been carrying on their business in the fortress stadium for a long time and the petitioner never objected against any of them but has targeted the instant respondents and the FSSM through this petition. Learned counsel argued that the petitioner claims to be an investigative reporter and a journalist but he cannot use this Court or public interest litigation for the purposes of a fishing expedition where he is trying to dig out information for no useful purpose. Learned counsel have stated that the petitioner has not been able to explain what interest or right of the public at large is affected by the construction of FSSM and how it is detrimental to the general public. Learned counsel argued that in order for this Court to entertain this petition, in public interest a genuine public wrong or public injury must be involved. The petitioner must be an aggrieved person such that he has suffered a legal wrong or his right has been infringed on the basis of which he seeks indulgence of this Court. Leaned counsel argued that it is important for the petitioner to explain the delay in approaching this Court and in such cases the principle of laches plays a vital role and has to be considered by this Court because it goes to the bona fide of the public interest pleaded before the Court. Learned counsel argued that in fact this is a self-serving petition, which the petitioner has instituted and there is no public interest or public wrong involved. Furthermore, they have argued that the land belongs to the Government of Pakistan, who has no objection to the manner in which the land is being used and the management exercised by the respondent No,4. Hence they stated that the instant petition is liable to be dismissed being not maintainable. Reliance is placed upon the cases titled "Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary Wo Law, Islamabad and others" (PLD 2013 SC 413), "Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others" (2012 SCMR 455), "Dossani Travels (Pvt.) Ltd. And others v. Messrs Travels Shop (Pvt.) Ltd. And others" (PLD 2014 SC 1), "Nawab Raunaq Ali and others v. Chief Settlement Commissioner and others" (PLD 1973 SC 236) and "Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam. International Airport, Karachi and others" (1998 SCMR 2268).
6. In rebuttal, learned counsel, for the petitioner on the question of maintainability has stated that the instant petition is maintainable because the petitioner is a resident of Cantt. And therefore, he is affected by any construction undertaken within the Fortress Stadium. Learned counsel argued that the petitioner has not targeted FSSM specifically but has drawn attention to the fact that this building where the FSSM is being constructed was the headquarters of the 114 Brigade hence it cannot be converted into some commercial project. It was a functional military building whereas the other projects within the Fortress Stadium have been built on land/open space and therefore do not have the same significance. Learned counsel argued that the matter is of public importance because the land belongs to Government of Pakistan and if the land is to be leased out or used by the respondents Nos.5, 11 and 13 then the benefit of such lease, that is the rental amount, should be deposited in the Government treasury. In this case, the rent amount is going to the respondent No,4 and a meager amount is going to the Government of Pakistan and it is the private respondents, who are making a huge profit at the expense of the Government. Learned counsel argued that public outrage is, also not a requirement for public interest cases. In this case it is public property and the petitioner is aggrieved if the national exchequer is deprived of amounts due to it. Learned counsel argued that this is a case of a continuing wrong, hence the issue of laches does not arise and the petitioner in his capacity as a citizen of Pakistan has uncovered this illegal deal for which he has impugned the transaction being contrary to the law. He has placed reliance on the cases titled "Mian Ansar Abbas Bhatti v. Muneeb Hayat Bhatti and 5 others" (2004 YLR 979), "Jani and others v. Abdul Haq and others" (1989 MLD 141), "Khurram Khan, Advocate v. Government of Punjab through Chief Secretary and 6 others" (PLD 2009 Lahore 22), "Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others"
(1999 SCMR 2883) and re: Suo Motu Case No,10 of 2009 decided on 26th October, 2009" (2010 SCMR 885).
7. Mr. Ahmer Bilal Sufi Advocate on behalf of respondent No,4 argued that the land in question is in the ownership of Government of Pakistan. However, it is managed by the Quarter Master General.
The said land is not administered under the Cantonment Act but through a legitimate chain of command and control of military authorities. The Fortress Stadium Management was constituted to manage the land entrusted to it by the Quarter Master General. Learned counsel stated that the Impugned Transaction comprising of the Project Agreement and Lease Agreement have been executed by the Fortress Stadium Management and countersigned by Chairman Fortress Stadium, who also is a serving Brigadier of the Armed Forces, therefore, the Impugned Transaction is strictly in accordance with law. He further argued that the land in question has been put to use as per the policy of the Ministry of Defence and the respondent No,1 and as such its use cannot be questioned by this Court. He further stated that the land has not been sold out but has been leased out to the respondent No,5 with the approval, of HQ 4 Corps.
8. Heard the learned counsel for the parties and have gone through the record available on the file.
9. The basic issue before this Court is the maintainability of this petition. The petitioner requires this Court to declare the Impugned Transaction as being illegal, unlawful and discriminatory. The Impugned Transaction comprises of a Project Agreement dated 27-10-2007 and Lease Agreement a dated 27-10-2007. These Agreements have been executed between the respondents Nos.4 and 5.
Pursuant to these Agreements, the respondent No,5 commenced the FSSM Project. It is primarily a large shopping mall which has been under construction for some time and now complete. The grievance of the petitioner is that the land on which the mall is built is Class A-I land which cannot be used for the purposes of commercial shops and a mall of this kind. The petitioner is also aggrieved by the fact that the land has been leased out by the respondent No,4 which is not the competent authority and instead the respondent No,1 being the Federal Government was competent to lease out this land as they are owners of the land and any revenue generated on the basis of the lease amount should go to the national exchequer. The petitioner is aggrieved by the fact that a very small amount is going to the national exchequer and instead a major portion of the rental income and profit is going to the respondent No,5.
10. Learned counsel for the respondent No,5 have objected to the locus standi of the petitioner on the ground that he is not an aggrieved person. Article 199 or the Constitution of Islamic Republic of Pakistan, ,1973 (Constitution) requires that a petition be instituted by an aggrieved person. The basic objection here is that this is litigation in public interest where the petitioner has to meet the criteria for instituting his case in public interest. To satisfy the requirements of an "aggrieved person" in public interest litigation under Article 199 of the Constitution, the petitioner needs to disclose a personal interest in the performance of legal duty owed to him which if not performed would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise. Reliance is placed on 1999 SCMR 2883 (supra). It has also been stated that to establish locus standi in the context of public interest litigation, the petitioner would have to show that he belongs to class of affected persons who are unable to access the Court for the protection of their rights. Reliance is placed on 2012 SCMR 455 (supra). In this case, the petitioner claims that he is an aggrieved because he is. Resident of Cantt. And he has sufficient interest in the matter, hence he falls within the definition of an aggrieved person. Sufficient interest as per the judgment cited at 1999 SCMR 2883 (supra) means any legal interest which can include civic, environment, cultural interests and it is the gravity of the issue which should be taken into consideration, such that the more serious the issue at stake the less significance will be attached to arguments based on the applicant's alleged lack of standing. The basic contention of the petitioner is that even though the property has been stated to be leased out, the long term lease means and suggests that the land has been sold by the respondent No,4. This ground and claim based on 'sufficient interest' has been dispelled and objected to by the respondent No,1 and the respondent No,4, who have categorically stated that the land belongs to the respondent No,1 and the land has not been sold to the respondent No,5 or any other person. The land has been given on lease to the respondent No,5 vide the Lease Agreement. Therefore, I find that there is no force in the argument that this Court should consider along term lease as a sale in favour of the respondent No,5. The petitioner also claims 'sufficient interest' on the ground that he is a resident of Cantt. And is concerned by the manner in which the land is used. The respondent No,1 has shown that it is their discretion to hand over the land to the respondent No,4 and further it is their discretion to decide what portion of the lease amount they want to retain. The respondent No,1 has also stated that it has no objection to the FSSM being constructed on the land and that it had no objection to the Project Agreement or the Lease Agreement. The record shows that the land in question was never allocated for any public purpose or for any public use. It was given to the military authorities. Hence no right or interest of the petitioner or the public-at-large is involved or has been infringed.
' The public has not been denied access to the land and no harm is being caused to the public at large by the construction of the FSSM. There is no wrong, being caused to the public. The petitioner states that his claim is in public interest to ensure that the public money is paid to the government exchequer. The petitioner has relied upon the case titled "Raja Mujahid Muzaffar and others v.
Federation of Pakistan and others" (2012 SCMR 1651) to urge the point that since it is a matter of public money and public resource, hence every citizen is an aggrieved person. However, I am of the opinion that this is not a case of public money or public resource. In this case, the owner of the land being the respondent No,1 handed over the land of the Fortress Stadium to the military authorities to use as they deemed appropriate. The military authorities through the Fortress Stadium Management have been managing the property within the fortress stadium, where different commercial activities have been undertaken and exist even today. In fact the public-at-large has benefited from these commercial activities and there 'has been no objection to any of the commercial activities or its management by the respondent No,4 by the petitioner. Furthermore, during the course of arguments, the learned counsel for the petitioner stated that the petitioner does not seek demolition of the FSSM but prays that public money i,e, the lease amounts be deposited with the respondent No,
1. I am of the opinion that the petitioner is not an `aggrieved party' and has no 'sufficient interest' because the respondent No,1 owes no duty to the petitioner on this issue nor is there any obligation on the respondent No,1 under any law that it has to receive all the rental income from its property. The respondent No,1 as owner of the land has categorically stated that they have given the land to the military for its use and that they have no objection to the Project Agreement or the Lease Agreement on the FSSM. Hence the petitioner cannot claim a right or interest that he was not entitled to. The larger public interest is not adversely affected.
Under the circumstances, the petitioner has failed to establish that he is all aggrieved person for the purpose of public interest litigation.
11. It is also seen that as per the petitioner's own contention, the Agreements were signed in the year 2007 and today the OSSM is almost at completion. A period of seven years has gone by in which the petitioner did nothing. Now the petitioner has questioned the use of the land through the instant petition. I am of the opinion that the question of laches is relevant in this case because it does go to the bona fides of the petitioner. The land has been in the use of the respondent No,5 since 2007. The construction is almost complete yet at no point did the petitioner approach this Court. This delay of seven years to bring the case to the Court without any explanation of the delay makes the question of laches relevant as it is directly related to the public interest pleaded by the petitioner. The land around the Fortress Stadium has been used and managed by the respondent No,4 for a very long time. The decision of the respondent No,4 for use of land around the Fortress Stadium has never been questioned or objected to by the petitioner. Similarly, the entire area, around the Fortress Stadium is busy with different commercial activities: These have been going on for a long time and the petitioner has never objected to the manner in which the land has been used or authority which has allowed the land to be used in this manner. He has also never objected the loss of revenue being caused by the respondent No,1 for the land around the Fortress Stadium.
Hence his specific objection levied against the FSSM after seven years shows that there is no bona fide public interest involved in this petition. The issue raised before this Court cannot be seen in isolation to one specific project and the fact that the petitioner has no objection with any other activity within the Fortress Stadium or to the management and the authority of the respondent No,4 leads me to the conclusion that the petitioner is not an aggrieved person for the purpose of the instant petition and that the petition is hit by laches for which no explanation has been rendered by the petitioner.
12. ' Under the circumstances, this petition is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.