Shahid Jamil Khan, J:- Petitioners are resident owners of houses around a park known as "Jasmine Garden " in Block-Z, Phase-III, Defence Housing Authority ("DHA "), Lahore. They are aggrieved of change in Master Plan whereby the Jasmine Garden has been converted into residential plots without any consent or opportunity of being heard, which caused detriment to rights/interest appurtenant to the immovable properties purchased by them.
In written reply to the petition, the impugned conversion was not denied, however , it was asserted that the Jasmine Garden, from day one, was designated as a marriage lawn/community center , howeve r, on receipt of some complaints of inconvenience from the some residents of the areas, the impugned decision was taken. It was apprised that an alternate park has been established for the inhabitants which is just 120 meters away from the plots/ houses of the petitioners.
2. Learned counsel for the petitioners argued that price of the plots, owned by the petitioners, was determined keeping in view the ambiance and amenities sanctioned through Master Plan of the Housing Society .
Comparatively higher price was paid by the petitioners owning houses/plots facin g the park/ Jasmine Garden . He asserted that such an arbitrary change in the Master Plan, in absence of any consent from the petitioners (Members of the Housing Society), is against the law and prejudicial to the interest and rights of the petitioners and other owners. He has placed reliance on judgment New Garden Town Welfare Society (Registered) through President v . Lahore Development Authority and 2 others` (2001 CLC 1589 ).
Learned counsel for the respondent/DHA opposed the submissions, contending that the change in Master Plan was in accordance with law. He explained that Executive Board is competent to bring any change in the Master Plan keeping in view the requirements/c onvenience of the inhabitants/owners and in interest of the society . On Court' s quarry , it was not denied that the powers of Executive Board are still unstructured as rules or regulations for exercising these powers were never framed. It is also an admitted position that resident owners in the vicinity of park/ Jasmine Garden were not associated in the process, through notice or otherwise, before taking the impugned decision.
3. Heard. Record perused.
4. By now it is a trite law that an interest/right accrues in favour of an owner , particularly when he opts to purchase the immovable property keeping in view the available amenities.
This right was first recognized by Supreme Court of Pakistan in Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 S.C. 223); Sale and conversion of a plot, from market to a mosque, was challenged. Real and substantial interest of a resident, who purchases a plot on representation of sanctioned plane, was recognized, holding that constitutional jurisdiction of High Court could be availed for enforcement of such interest/right. Relevant excerpt is reproduced:- "In support of this contention learned counsel has also placed strong reliance upon the observations contained in a judgment of the High Court of West Pakistan in the case of Montgomery Flour and General Mills Ltd. v. Director , Food purchases (PLD 1957 Lab. 914) by Kaikaus, J. (as he then was) :- "It is true," observed the learned Judge, "that a petitioner must have some right if he applies to the Court for a direction or order under Article 170 (now Article 98 of the Constitution of Pakistan) but he need not have a right in that strict sense of the term which is mentioned above. Whenever an enactment empowers a public officer to pass orders that benefit or harm a citizen, the citizen gets a right that in a matter in which he is concerned an order be passed in accordance with law. This too is a right that can be enforced by the Court in the exercise of its jurisdiction under Article 170 of the Constitution of Pakistan. If the officer concerned, passes an order that is not in accordance with law, any person whose interests are affected by the order can maintain a petition for a writ or direction under Article 170. All orders of executive officers are subject to challenge by those affected by the orders, and a person would be "affected" even if he loses some benefit or advantage which he would have gained if the order was in accordance with law. A public officer passing an order on an application submitted to him does not grant the applicant a favour. He is only granting the applicant his right in the sense that he has a right to have the matter determined in accordance with law and justice. It will be observed that even a fundamental right may not be a "right" in the strict sense of the term. A right to acquire or hold property, a right to carry on a profession, a right to move about freely, etc. are not rights in the strict sense because they do not cast any corresponding duties on any person. They are what writers on jurisprudence call "liberties". In a wider sense these too are recognised as rights by jurisprudence and they can form the basis of a writ petition."
This decision was approved by this Court in the case of Ikram Bus Service v: Board of Revenue (PLD 1963 SC 564) where this Court stated that; "Even an administrative body such as an R. T. A., is under a legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged, in accordance with the law ."
It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or is performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtail ment of a privilege or liberty or franchise. " [emphasis supplied] In support of this right, Halsbury's Laws of England (Volume 25, Third Edition, p. 389) was referred to cite a judgment from English Jurisdiction. Relevant excerpt is reproduced:- "This principle was propounded by all the Judges in England in their unanimous opinion on the Islington Market Bill (L R (1880) 14 Ch. D 458) referred to them by the House of Lords. They opined that if "after having once appropriated a particular site for the use of the public as a market place, he (the grantee) afterwards employs or permits it or part of it, to be employed for other purposes" he cannot prevent others from selling outside the market, for, he owes a duty towards the members of the public to provide sufficient space for the legitimate purpose of selling within it. This is, because, "an obligation is cast upon him by his acceptance of the grant, to provide convenient accommodation for all who are ready to buy and sell in the public market." Furthermore that a failure on the part of the grantee to discharge this public duty would not only entail a forfeiture of the grant but also give a right of action to any private individual who should have received any special injury thereby."
[emphasis supplied] Though the appeal was dismissed, on the basis of the provisions of law relevant at that time, yet it was enunciated that the modification in master plane, if completely and radically alters the sanctioned plan, would amount to fraud.
The enunciation is reproduced:- "In addition to this I would like to add that if the modification is such that it completely alters the nature of the Scheme or so radically changes it as to render the sanctioned Scheme materially different, then notwithstanding section 43 the modification must be republished upon general principles, for, otherwise it would amount to a fraud upon the statute itself."
5. In New Garden Town Welfare Society' s Case (supra ), relied upon by petitioner's side, learned Single Bench of this Court went a step ahead to enforce this interest/right by declaring the conversion of plots, earmarked for schools, welfare center and public hall, as illegal being contrary to the lay out plan. The conversion was termed as radical change/modification in the original scheme. The findings, based on law laid down by Apex Court, are reproduced:- "In Abdul Razzaq's case PLD 1994 SC 512 and the relevant observations are as follows:-- "We may point out that even under, the order, the K.D.A. is not authorised to change the use of any amenity plot without inviting objections and without obtaining the order of the Government.
It may be stated that in spite of presence of the above unambiguous Article in the Order the successive Provincial Governments overlooked the above Article and converted amenity plots into commercial or residential plots and thereby denied to the residents of Karachi inter alia parks and playgrounds which contributed towards environmental pollution in the city. A tendency has also developed to convert the use of a residential plot into commercial or instead of constructing residential units in the form of bungalows to erect flats.
From the above-quoted passage from Encyclopaedia Britannica, it is evident that the concept of modern city planning inter alia envisages the orderly arrangement of parts of the city - residential, business and industrial etc. so that each part could perform its functions with minimum cost and conflict. The paramount object of modern city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities referred to hereinabove. It must, therefore, follow that a public functionary entrusted with the work to achieve the above objective cannot act in a manner , which may defeat the above objective. Deviation from the planned scheme will naturally result in discomfort and inconvenience to others."
In Ardeshir Cowasjee's case 1999 SCMR 2883 and the relevant observation is as follows:-- "We may point out that even under the Order, the K.D.A. is not authorised to change the use of any amenity plot without inviting objections and without obtaining the order of the Government."
By virtue of section 48 of Lahore Development Act provisions of Lahore Improvement Trust Act are applicable unless and until the same are inconsistent with the provisions of the Lahore Development Act, 1975: Therefore, sections 13 and 14 and other provisions of Lahore Improvement Trust Act, 1992 are applicable. The aforesaid provisions cast duty upon the respondent No.1 for the purpose of change in the Scheme the respondent had to invite objections. In arriving to this conclusion I am fortified by Sh. Ahmad Din's case 1984 CLC 3304. It is admitted fact that in the present case no objections were invited in terms of the aforesaid provisions. Therefore, per se alleged the conversion of the earmarked plots for school and welfare centre and public hall for residential purpose is illegal and contrary to the lay-out plan of the L.D.A. on the well-known principle when a thing is to be done in a particular manner, it must be done in that way and not otherwise. In arriving to this conclusion I am fortified by the judgments of the Honourable Supreme Court in Atta Muhammad Qureshi's case PLD 1971 SC 61 and Dr. Abdur Rauf and others' case 1991 SCMR 483. In view of the aforesaid discussion and principles laid down by the superior Courts it is not a case of re-allocation of the scheme but it is a case of radical change/modification in the original schemes." [emphasis supplied]
6. In recent past, similar proposition was dealt with by a Full Bench of this Court in Shehri-CBE through General Secretary and 15 others v. Lahore Development Authority through Chairman and 6 others (PLD 2012 Lahore 362). The case was fixed on direction by Supreme Court through judgment in Sheri-CBE and others v. Lahore Development Authority and others (2006 SCMR 1202). Conversion of a playground, commonly known as "Doongi Ground", into a cinema theater, shopping arcade and bowling alleys was in question. Relevant part from judgment in Shehri-CBE's Case (supra) is reproduced hereunder:- "10. The aforesaid makes it clear and obvious that in any development scheme at its inception if a particular area is designated as a park/playground, and upon such representation, the properties in the vicinity are acquired by inhabitants, a vested right is created in their favour and the public at large in respect of such park/playground. This right in fact is a necessary appendage to the right to life as enshrined in Article 9 of the Constitution and right of leisure as referred to in Article 39 of the Constit ution. Thus in the original plan of the respondents to convert the Doongi Ground to any other use would have offended against the rights of the petitioners. "[emphasis supplied] The law laid down, ibid, by Superior Courts, shows that the interest of the owners of immovable property in amenity plots, reserved for convenience and comfort of the residents, is a right enforceable by invoking constitutional jurisdiction of this Court. A sanctioned Master Plan, showing such amenity plots/ area, cannot be altered without inviting objections or obtaining No Objection Certificates ("NOC ") from the residents. Any modification in the plan, which alters or radically changes the sanctioned scheme, to take away the comfort or convenience provided through amenity plots/area, is a fraud upon the residents, who purchased the immovable properties on a representation through sanctioned plan.
The impugned conversion is found to be in violation of the laid down law. Admittedly, petitioners were not associated by inviting objection or seeking NOC. The park/Jasmine Garden was earmarked for public purpose in the sanctioned plan and the impugned conversion has radically altered the scheme, depriving the petitioners and other residents in the vicinity from a public amenity. Names of the inhabitants complaining inconvenience were not disclosed. And lastly, no rules were framed for alteration in Master Plan or to structure the discretionary powers available to the Executive Board, as has been ordained in Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance Islamabad (PLD 1990 S.C. 1092).
7. Even if the framed rules, regulations or law authorizing such alteration would be ultra vires, being in conflict with the right to life under Article 9; right attached with immovable property under Articles 23 and 24 read with Article 26 of the Constitution. The Article 26 ensures right to access to places of public entertainment.
Places earmarked, in an urban scheme, for public utility are meant to bring comfort and ensure healthy life for the inhabitants, which lead to a healthy society and nation. Conversion of such places for commercial purpose would certainly defeat this object. Provision for places of the public utility is compulsory on this premise under the law relates to town planning. Taking away such amenities to achieve commercial benefits would certainly prejudice the quality of life, hence is against Article 9.
A citizen, who purchases a property in exercise of his fundamental right under the Article 23 has been ensured under Article 24 that he shall not be deprived of the property unlawfully. The amenities available to such property are necessarily appurtenant to the property, because value of a property in terms of its purpose would diminish if those are removed through alteration. To deprive a citizen from the purpose of property, for which it was purchased on representation through sanctioned plan, would amount to partial deprivation of the property.
Safeguard to the purpose of property is inclusive in Article 24, to ensure which, laws like The Easements Act, 1882 and condition, under town planning laws, to obtain NOC from the neighbouring owners before allowing commercialization of a residential plot. The right to purpose of a property is an incorporeal right, which is enforced beyond boundaries of the property, by restraining any act, which might remotely defeat the purpose of the property. If appurtenant amenities of a residential plot are removed, it shall remain a plot but not for the purpose of residence. Hence, removal of amenities being detrimental to the purpose of a property is against the right ensured under Article 24.
8. For the reasons noted above, the impugned action of converting the park/garden into residential plots is declared to be against the rights of petitioners and a result of an arbitrary exercise of power, therefore, is set aside.
The respondents are directed to restore the Jasmine Garden to its original position and in accordance with the sanctioned plan of this area.