' FAHIM AHMED SIDDIQUI, J.--Petitioners are residents of Bantwa Memon Cooperative Housing Society (hereinafter mentioned as 'the Society') and the occupants/owners of Plots Nos, 402 and 403 admeasuring about 120 sq. Yds., each." They are residing in the immediate neighbourhood of a park plot, which is declared as an amenity to plot and marked as Park as reflected in the layout plan of the society by KDA vide No, Deh/C/74//21 dated 02.01.1976. All of a sudden, the petitioners saw encroachment activities on the piece of land allocated to Park. Afterwards, they came to know that the respondents have shifted the Park and started plotting in the land / plot reserved for Park.
2. The background of the controversy is that the status of land/plot in question remained as an amenity plot earmarked for Park. Subsequently, it was observed by the residents of the locality including the petitioners that some area of the park was being encroached upon by some persons.
It appears to the petitioners that the respondents are in league with the encroachers as the construction was being carried out in the broad daylight. Later on, plotting was done in the entire area reserved for Park. The park was never developed by the concerned authorities since the establishment of the aforesaid society. Although the petitioners and other residents offered to develop the park at their own expenses but the respondents did not take positive steps towards the same. As the activities of encroachment continued, the petitioners approached this court through the instant petition.
3. The petition was admitted for hearing and notices were issued to respondents. It is revealed from the record that the notices were served upon the respondents saved to respondent Nos, 6 and 10.
The process server made three attempts but he found the office of respondent No, 6 closed while respondent No,10 refused to take notice. It is revealed from the report of the process server that copies of notice were affixed there. It is also available in the record that some of the residents also filed applications as intervenors but later on they did not pursue the same which were dismissed for non-prosecution. The respondent No, 10 also appeared and filed objections dated 20.01.2014 and on the same date respondent No, 1 filed counter affidavit both were taken on record. It is pertinent to mention that after filing objections through her counsel, the respondent No, 10 neither filed a counter affidavit nor preferred to pursue the matter. Although, respondent No, 6 did not appear in the proceedings but from the above circumstances, it appears that he was well aware of the instant petition.
4. We have heard Mr. Muhammad Imran Ameer, learned counsel for the petitioners, Mr. Ali Azad Saleem, learned counsel for respondents Nos, 1 and 2 and the learned AAG Sindh and examined the entire material available on record thoroughly.
5. The learned counsel for the petitioner submitted that the amenity plot of Park has been shifted by the official respondents as well as respondent No, 6 to a distant place, which is amounting to deprive the residents of the neighbourhood of a very important amenity. He submitted that the procedure for transfer of amenity plot was sot followed and no notice to the residents was given.
According to him, the residents of the society approached the respondents when they saw the encroachment activities on the piece of land reserved for Park but they did not pay heed to it, and later they were informed that the Park is shifted elsewhere. He contended that the amenity plot of Park cannot be used for residential or commercial purposes nor the respondents can convert the same for any such purpose.
6. On the other hand, the learned counsel for respondents Nos, 1 and 2 submitted that the conversion was done on the request of society. According to him, the letter of society for conversion was processed and sent Master Plan Department, from where approval of conversion was obtained. However, in response to a query, he admitted that the conversion of amenity plot for Park is not legal.
7. It is pertinent to mention that vide order dated 31-05-2013, this court has appointed Nazir of this court as Commissioner to visit the subject site, inspect the same and furnish report. The said Commissioner visited the society in presence of the parties and reported that Mr. Najamuddin Qureshi, Assistant Director SBCA pointed out that there was a children's park admeauring 816 sq.
Yds., which has been shifted to another place of the society, wherein seven plots wiz 405/A, 405/B, 405/C, 405/D, 405/E, 405/F and 405/G have been created of different sizes. It is also revealed in the report that amongst .The subplots presently one plot bearing No, 405/F is constructed ground plus two floors.
8. In the instant petition, the main adversaries are the official respondents especially respondents 1 to 3, as they are responsible for any change in the master plan regarding the disputed plot. The counter affidavit filed by Mr. Muhammad Bux Qasmi, Deputy Director Liaquatabad Town, SBCA (respondent No, 1) describing the whole story regarding the disputed plot. Apparently, the counter affidavit filed by respondent No, 1 was limited to the disputed construction but it is admitted in the said counter affidavit that previously KDA has issued a layout plan in 1976 wherein plot in question was shown as park, but subsequently on 28.06.2007, MPGO of KMC (then KDA) issued revised layout plan in which plot in question was shown as residential and divided in seven plots.
9. On 10.11.2016, Mr. S. Nishat Ali, Deputy Director, MPD, SBCA filed a statement. The said statement is reproduced as under:- "It is most respectfully submitted in compliance the order of the honourable court that the revised layout plan of Bantwa Cooperative Housing Society on Survey No, 214, 216 was approved vide No, Deh/C-57/1974/UD:293/L Dated 28-06-2007 by MPD with approval of EDO, MPGO, CDGK.
' The said society has submitted the revised layout plan with the point of view that during daytime (working hours) the only ladies are living in their houses and scrupulous people are misusing the park. This is very uncomfortable situation for ladies.
' In the light of the above stated position the said children park was shifted (re-silted) to the plot reserved for playground in the same vicinity and playground was shifted at place reserved (unspecified) for open a space and OHT, and residential plots were created at children park site.
The land use percentage is under limit as per KBTPR-2002 (amended up to date) as per clause No, 20-4."
From the above statement, it becomes an admitted position that the said piece of land/plot is an amenity plot reserved for Park. It was converted under several residential plots on the pretext that it caused annoyance to the womenfolk of the neighbourhood.
10. We have gone through the original approved layout plan and the revised layout plan provided by the respondent No,
1. From the layout plans, it is clear that the said society is comprising of two blocks which are separated by survey No, 215 regarding which Mr. S. Nishat Ali, Deputy Director present in the court intimated that it is still an open space. In the revised plan, the Park is shown to be shifted from the southern side of the society to the northern side where already amenity plots of the school, OHT and open space are situated. After shifting the park, there will be no amenity plot left for the residents of southern side of the society.
11. It is also pertinent to mention that the learned counsel for the SBCA (respondents Nos, 1 and 2) as well as Mr. S. Nishat Ali, Deputy Director (Urban Design) frankly admitted that the conversion of amenity plot of Park into residential plots is not lawful and they consented that in this respect they would follow the directions of this court and those seven individual, whom the plots allotted in the amenity plot of Park, will be compensated/accommodated in other open space available. Officials of SBCA present in the court also assured that the directions of this court will be complied in letters and spirit within six weeks.
12. The paramount object of modern town planning is to ensure maximum comforts for the residents of the human settlements by providing maximum amenities and facilities. Development of any housing scheme does not mean simply levelling the contour of land and plotting of different sizes, but it also involves arrangements for water supply, electricity, gas, sewerage lines, streets, roads, schools, playgrounds, mosques and Parks. The authorities responsible for the establishment, development and maintenance of an urban scheme are entrusted with the work to achieve these objectives. Amenities and facilities once provided cannot be taken away as it is amounting to defeat the paramount object of the town planning. Any deviation from a planned scheme will naturally result in discomfort and inconvenience to the residents of the locality. In the instant case, the lawyer and officials of SBCA failed to satisfy us regarding shifting of Park and conversion of the land reserved for Park in residential plots. It is settled now that the conversion of amenity plot for residential or commercial use is not permissible in the way it was done. In this respect, reliance may be placed on Abdul Razak v. Karachi Building Control Authority (PLD 1994 SC 512) and Province of Sindh through Chief Secretary (2016 SCM R 101).
13. Pursuant to the reasons and discussion above, we came to conclusion that as the complexion and character of an amenity plot cannot be changed therefore shifting of Children Park of the society to Play Ground is not in accordance with law as such the revised plan No, Deh/C- 57/1974/UD:293/L dated 28.06.2007 is set aside. We further direct all the official respondents to restore the Park and Play Ground on their original location as per the previously approved plan of the society bearing No, Deh/C/74//21 dated 02.01.1976. We also direct respondents Nos, 1 to 6 to dismantle any structure within the amenity plot of Park and to restore and establish the Park in its original position on or before 25.02.2017 and compliance report be furnished to this Court through learned M.I.T. As respondents 1 to 6 are responsible for illegally carving out seven residential plots in the amenity land of park, and if the said seven plots allotted to some persons then those should be accommodated by the respondents Nos, 1 to 6 preferably within the same area. By consent, this petition is disposed of in terms indicated above.