MASUD ABID NAQVI, J: Brief facts of the case are that the petitioner is Secretary of Gulshan-e-Ravi Football Club, ("Club") which is affiliated and registered with District Football Association, Lahore, Punjab Football Federation and Pakistan Football Federation. It was established in 1981-82 and registered with the District Football Association, Lahore whereafter in Block-E Gulshan-e-Ravi, Lahore a playground was allocated by the Lahore Development Authority ("LDA") and since then the Club is operational and managing sports activities in the area. It is pertinent to mention here that in 1988-89 and 1994-95 the Club remained Champion of Lahore District. Now the respondents No.3 & 4 have started to allow, permit and allocate the playground to various private persons for marriage ceremonies, political functions and social activities which are causing damage to the playground and degradation to the environment in the area. The petitioner and other inhabitants of the locality have time and again requested the respondent No.3, Parks & Horticulture Authority
(PHA) to take action against this illegal and irregular use of the playground but nothing has been done so for. The PHA continues to permit the misuse of the playground as venue of marriages and substitute of marriage hall on receiving a petty sum of Rs.3,000/- and Rs.5,000/-.
2. Learned counsel for the petitioner submits that if the said practice of PHA is not checked, the ground will be completely ruined to the loss of sports, sportsmen and youth of the locality. Further submits that under Articles 32 & 38 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") read with Section 39(i) and Section 54(1) h(ix) of Punjab Local Government Ordinance, 2010, the respondents are duty bound to promote, provide, manage, operate, maintain and improve the infrastructure and services including parks and playgrounds. Adds that holding of ceremonies/function at the park causes inconvenience to the players / members of the club and the general public contrary to the fundamental right guaranteed under Article 26 of the Constitution. Prays that this petition may be allowed and respondents be directed to discontinue the practice of allotment of playground to public. Relies on Suo Motu Case No.10 of 2009 (2010 SCMR 885), Human Rights Cases Nos.4668-2006, 1111-2007 and 15283-2010 (P.L.D. 2010 Supreme Court 759) and Moulvi Iqbal Haider Vs Capital Development Authority and others (P.L.D. 2006 Supreme Court 394) to submit that amenities cannot be taken away through the change of land use or otherwise to the disadvantage of the public.
3. Conversely, learned counsel for the respondents has conceded that the PHA allows and permits the grounds and parks to be used for various purposes and according to the Policy adopted by the PHA, on the request of residential inhabitants of the locality. Further submits that the whole of Gulshan-e-Ravi Park spreads over an area of 8 Acres and is not being used only as playground.
The residents request and obtain permission for functions and marriage ceremonies on day to day basis. The permission for religious ceremonies is also granted according to the Government policy for facilitation of the public. The authority provides this facility to common masses in the public interest. Authority takes security amount from the applicants and in case of damage to the park, the Authority restores the park from the security amount. The field staff of the Authority looks after and maintains the parks efficiently in the best interest of Authority and public. Further submits that there are notified parks where public functions are not allowed. In the case in hand, PHA is acting in accordance with Parks and Horticulture Act, 2012. Adds that case law cited by the learned counsel for the petitioner is not applicable in this case which is distinguishable. Holding of public functions at the park in question is not a permanent conversion or alteration thereof. Therefore, prayer made by the petitioner is not tenable. Prays for dismissal of this petition.
4. I have heard the arguments of both the parties and perused the record.
5. According to section 2 of the Parks and Horticulture Authority Act, 2012 ("Act") "public park" includes a park or space reserved for use as a public park and notified by the government as a public park. If any person intends to use a public park for any purpose other than the normal use as the park, he shall make an application to the Authority. If the intended use affects the rights of the neighbors or residents of the area in general, the Authority shall invite objections from them and decide the objections before taking a decision. According to section 10(3) the authority shall not grant permission if the intended use affects the rights of the neighbors or residents of the area to the free and uninterrupted use of the roads abutting the public park, or results in the conversion of the public park into any other thing or changes the general outlook of the locality. However, authority can grant permission of using a public park for provision of food, playing facilities, sale of plants, horticulture equipment or books or such other purpose on payment of fees if the said permission does not adversely affect the general outlook of the public park. To facilitate understanding of the location of the playground in dispute, a reduced image of the entire park annexed with the PHA's reply is given below:
6. It is clear from the map of the site that northern side of the park is reserved as a football ground and is being so used by the public at large whereas rest of the park is lying vacant for the use of other recreational activities. The entire park is not being solely used for playing football. According to policy of the PHA, the area other than the football ground is permitted for use by the public though subject to resolution of objections, if any, filed by the local inhabitants. If the objections, so filed, are found justified, PHA, is bound under the policy to decline the request made.
7. The dispute raised in the present petition relates to the land owned by the people of Pakistan. The legal title thereof may vest in the Government, but such title does not confer unbridled right in the Government or the Local Authority to exercise the same against the public interest or the laws applicable therefore. In an identical matter reported as Shehri-CBE through General Secretary and 15 others Vs Lahore Development Authority through Chairman and 6 others ( PLD 2012 Lahore 362) this Court held as under: "The existence of park and playgrounds are an integral and necessary part of the modern urban life, and their existence creates a right in favour of the inhabitants of the locality who can demand that such park/playground be not converted to any other use or be built upon. Such right has been recognized by the Courts in Pakistan for more than four decades. In this behalf, reference may be made to judgments reported as Mian Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223 which dictum of law was followed and reiterated in the subsequent judgments including PLD 1979 Lahore 79 (Saeen Muhammad and 2 others v. the Government of Punjab and 3 others), 1983 CLC 3091 (Muhammad Sharif and others v. Muzaffar Iqbal and others), 1991 SCMR 483 (Dr. Abdul Rauf and others v. Sh. Muhammad Iqbal and others).
With the passage of time what had initially been recognized as private right of the inhabitants' of the locality to claim that park/playground shall not be converted evolved into fundamental right emanating from Article 9 of the Constitution of Islamic Republic of Pakistan i.e. the right to life. In the above, the honourable Supreme Court of Pakistan in the judgment reported as Iqbal Haider v.
Capital Development Authority (PLD 2006 SC 394) and others held as follows: "Admittedly a public park, if is earmarked in a housing scheme, creates a right amongst the public and that right includes their entry in the park without any obstacle, being fundamental right enshrined in Article 26 read with Article 9 of the Constitution."
The afore-noted citations support the proposition that playgrounds are required to be maintained for public access and use and the same are not for running a business or trade etc. PHA is obliged to itself develop and maintain public parks and playing fields and is not allowed to violate the Laws or Regulation by awarding lease/license to private parties for the purpose, not permitted by law. It is important to note here that statutory authorities like PHA are bound to discharge their functions strictly in accordance with law, otherwise the inaction being contrary to law shall not be sustainable.
8. This petition also involves the question of Public importance with reference to enforcement of fundamental rights. I subscribe to the principle laid down in aforementioned precedents wherein it has been held that in the matters of public importance it is to be seen by a court of law whether the authority which is granting permission has acted legally, fairly, transparently, judiciously and above board. Without inviting, considering and deciding the objections from the general public, such like places cannot be used for any other purpose by PHA. The area under discussion having been reserved in the sanctioned scheme for a Public Park, its illegal diversion from that object is not permissible under the Act. Financial gain by a local authority at the cost of public welfare has never been considered as a legitimate purpose, how laudable be the objective. Conversion of Public Park into a commercial park by the PHA violates the fundamental rights enshrined in the Constitution of Pakistan.
9. It is to be noted here that park in question is not being leased out, allotted or permanently converted into commercial area rather it is being allowed for temporary use by public on their request after paying a nominal fee for holding different ceremonies under the policy. However, orphans, widows and low paid retired/serving government servants are granted free bookings. In a city, marriage halls are not easily accessible to a citizen having limited financial resources.
Similarly, social or other recreational activities as permissible under the law are also part of routine life but inflated charges of ceremonial halls make this facility unaffordable for low paid citizens.
Therefore, parks are the only option left for them to organize ceremonies.
It is also commonly seen that whenever marriage ceremonies/functions are arranged in parks, leftover foodstuff and other waste piles up and turn into stinking garbage. This type of atmosphere is not only unpleasant and unhygienic rather it is detrimental to the health, and safety of local park visitors. Therefore, immediate removal of waste from the parks as soon as private functions conclude is obligatory duty of the concerned department.
10. The research has shown that natural environment can have various benefits such as reducing anxiety and promoting developmental skills. Behaviors are affected by the environment in which they occur, a growing number of studies have focused on how these naturalized play environments affect children as well as adults developmentally. Playing activities are natural part of life that begins in infancy and continues throughout childhood, adolescence and adulthood. It is critical part of healthy human development. Similar to proper nutrition and adequate sleep, play is believed to have many health benefits, from physical fitness to cognitive development to emotional well-beings. Therefore, playground safety standards are based on reasonable expectations for preventing accidents and injuries. Play is essential for children's emotional, cognitive, social, physical and educational development. The play environment can support these diverse needs in different ways. In developed countries, the growing concern of parents and outdoor play researchers over the loss of interaction between children and nature has pushed the world toward creating play environments that are based most on natural events than manufactured equipment. Technology and urbanization are limiting children's access to natural environments. Therefore, health friendly environment in parks must be maintained.
Apart from their aesthetic beauty, Parks are generally established for sustenance of physical and mental health of the local inhabitants or general public. Therefore, in my view parks must be used for their specified purposes.
11. In view of the above discussion, this petition is partly allowed to the extent that football ground situated at the northern side of the park, as highlighted in the aforementioned map, shall be used only for playing football by all the inhabitants of the vicinity, exclusively, which shall be maintained by the PHA. However, rest of the park shall remain at the disposal of the PHA for holding public functions etc, without compromising convenience, safety and welfare of the inhabitants of the area. PHA is also directed to strictly act in accordance with the provisions of the Parks and Horticulture Act, 2012 in order to permit ceremonial use of the park in question as per the declared policy. It is also held that PHA is duty bound to maintain the entire park particularly the portion(s) allotted for functions. I also expect that provincial government may take steps to provide suitable solutions to the problem highlighted by the petitioner as this practice is being followed widely.
Steps are required to be taken to provide parks to the public specially the youth in order to address health hazards being faced by our society.