MUHAMMAD NASIR MAHFOOZ, J.---- Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners seek the following relief:- It is, therefore, humbly prayed that on acceptance of the writ petition, the responde nt may graciously be directed to stop the construction.
It is further prayed that the impugned plan of construction and its approval from the relevant respondent (Authority) may also be directed to be cancelled.
It is furthermore prayed that any other relief which has not been sought and which is deemed fit in the circumstances may also be granted.
2. Brief facts of the case as per contents of the writ petition are that the petitioners are living close to Golf Club from decades. It is alleged that the petitioners were never disturbed by the authorities but all of a sudden, the respondents started construction in front of the residences of petitioners but they were not taken into confidence and no notice for construction was given to them Adjacent to the disputed area, there is vast land ownership of the respondents where the same construction for the same purpose can be initiated. The disputed construction is meant for erecting a huge Cinema Hall and a Plaza of sufficient height so the petitioners tried to get knowledge/purpose of the construction and to get the record of the sanction and sketch/drawing of the construction in question but their request was not acceded. The basic and Fundamental rights guaranteed by the constitution of Islamic Republic of Pakistan 1973 have been violated, so respondents were not only requested to stop the construction but to cancel the proposed Cinema Hall, Mall in front of the houses of the petitioner but they refused.
Feeling aggrieved therefrom, petitioners, having no other alternate, adequate and efficacious remedy , have filed the instant constitutional petition.
3. In their comments, the respondents have raised different questions as well as challenged the locus standi of the petitioners in filing the instant writ petition. It is mentioned that there are no plans for erecting any commercial plaza or Cinema Hall but multipurpose haIl that will be used by the golfers and for routine training of caddies and staff and would be reserved for members. It is denied that any fundamental rights of the petitioners have been violated.
4. As regard comments of respondent No.5, it is mentioned that the area is under the Management and control of the office of Military Estate Officer, Peshawar and they are not in possession of any sketch/drawing of the proposed construction.
5. The learned counsel for the petitioners has taken us through the relevant provision of Cantonment Land Administration Rules 1937 to assert his arguments that the area which falls within the precincts of Golf Club has been classified as Class "A" (1) and "A" (2) as provided under Rule-5 and the Federal Government shall divide Class "A" land or by any authority as may be empowered in this behalf. He relied on judgment passed by Hon'ble Supreme Court of Pakistan in case titled Muhammad Aslam Siddiqui v. Federation of Pakistan (PLD 2020 Supreme Court 142) and submitted that no such construction can be raised on such land that it could not be used for any commercial activities. He also produced photographs showing large scale construction on the site which was denied by the respondents to be meant for cinema hall or plaza.
6. The learned counsel for private respondents and learned DAG rebutted the arguments of learned counsel for the petitioners. They submitted that the purpo se of construction is to build facilities to train different golfers and it would be neither used as Cinema Hall nor for any commercial activities and totally dis-owned advertisement titled "Invitation of Proposals for Commercial Activity " in the daily newspapers dated 22.12.2019 issued by PAF Golf Club, Peshawar .
7. We have heard arguments of learned counsel for the parties and have perused the documents available on the file.
8. The classification of land is meant for the purpose of fortifications, barracks, stores, arsenals, aerodromes, bungalows for military officers which are the property of Government, parade grounds, military recreation grounds, golf courses etc. Class "A" (2) land is not actually used or occupied by the Military Authorities but for the use or occupation for any other purposes subject to specific military objection. The management of Class "A" (2) land shall vest in the Military Estate Of ficer.
9. Challenging the new construction i.e. raised by the respondents in the premises of the Golf Club as revealed from the drawing appears to be multi-storey as huge vast area has been brought under construction. The copy of contract agreement dated 29.5.2020 between the PAF Golf Club and TS Build er reveals (a) Construction of Building 1-Members Building (b) Construction of Building 2-Driving Range (c) Renovation of Building 3-Existing Club House for a total sum of Rs.1 19,650,210/-.
10. Indeed with the passage of time the number of members of the PAF Golf Club may have increased that would require additional entertainment facilities and necessities but as the advertisem ent for using it for commercial purposes reveal the true intents and this was perhaps a good reason for the petitioners to seek remedy under Article 199 of the Constitution and it was not mere apprehension as the learned counsel for the respondents submitted. It is not a case of first instance that plots of land in residential area are being used for commercial purposes or the parks are converted to some commercial use as this court in Writ Petition No.663-P/2019 recently declared commercial activities in the University Town, Peshawar as unlawful, besides the judgment rendered by august Supreme Court of Pakistan, wherein, such like activities have been decla red unconstitutional, illegal and against the basic purpose of developmental commercial activities. To cite few cases, the same are as follows:- In case reported as PLD 2020 SC 142 ; it was directed as under: - This document in its very para No.2 clearly describes essential commercial activities to be carried out on A-1 land is specifically confined it to meet the requirement and serve the residents of respective garrison.
Thus, very policy of the government seems to be very clear that no commercial exploitation of A-1 cantonment land is permissible and if any commercial activity is to be carried on same is confined for meeting the requirement and service of the residents of respective garrison and not the outsiders. It was admitted before us that the Global Marquee is being run as a commercial venture for all general public in letter in that the Global Marquee is not essential carrying out commercial activities required to serve the residents of the respective garrison.
In case of Naimatullah Khan, Advocate v. Federation of Pakistan and others reported as 2020 SCMR 1474 , Hon'ble Supreme Court has initiated action in following words;
(c) Constitution of Pakistan-- ----Art. 184(3)---Matter regarding a private school operating on an amenity plot in Kidney Hill Park--- Legality---Amenity plot could not be used for commercial purposes or for the use of a private school, as it was against the mandate of law---Sup reme Court directed the administration to remove the structure (of private school) from the amenity plot and handover the plot to the authorities of Kidney Hill Park or the concerned education society for running a school by the society itself---Applications were disposed of.
(d) Constitution of Pakistan--- ----Art.184(3)---Matter regarding encroachment upon land belonging to Hill Park and construction of houses thereupon--- Subject plots had been carved out from the hills of Hill Park---Plot being within the land area of Hill Park could not have been allotted by the surrounding Housing Society (PECHS) to the allottees--- Said plots did not belong to the said Housing Society rather such plots were under the control of Karachi Metropolitan Corporation (KMC)---All encroachments in Hill Park were patently illegal and void and the same were liable to be removed--- Similarly , in case titled Ghulam Habib Jadoon v. Karachi Watch and Care Society and 03 others reported as 2004 SCMR 91 1, illegal constructions were removed with the observations quoted below:- ----S. 6---Constitution of Pakistan (1973), Arts.185(3) & 199---Constitutional jurisdiction of High Court---Non- Governmental Organization, locus standi of ---Probono Publico Principle--Applicability--Construction in violation of approved building plan--Petition filed by respondent, a non-go vernmental organization, was allowed by the High Court and the authorities were directed to demolish the unlawful construction raised by the petitioner---Contention of the petitioner was that the non-governmental organization had no locus standi to file the petition---V alidity---Case had the characteristics of public interest litigation and the non- governmental organization was probono publico, as such, had locus standi to file the petition and High Court had the jurisdiction to entertain the matter---Construction raised by the petitioner being in violation of the approved plan, therefore, demolishing order passed by the High Court was in accordance with law and no exception could be taken to it---Leave to appeal was refused.
Likewise, in case titled Wafi Associates (Pvt.) Limited v. Farooq Hamid and others reported as 2010 SCMR 1125, the apex Court held;
22. As evident from order sought for to be reviewed this Court did not assume functions and jurisdiction of the LDA rather; in the larger interest of the general public and the persons visiting the Plaza in question etc., and for the protection of the lives and properties of the persons occupying the building in question, cognizance in respect of high-rise Buildings was taken for reasons referre d to hereinfore. The order in question was passed in view of the categoric statement made by the learned counsel that owner shall himself cause the demolition of 11th Floor of the Plaza for which purpose reasonable time was allowed to the owner by the Court. The case of Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 cited by the learned counsel for the intervener , to the extent of the judgment in case of Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 was held to be not reflecting the correct legal position, overruled in the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883 .
11. The learned counsel for the petitioners also laid stress on the factual aspect that the foundation of the construction reveals that it is a multi-storey building and windows have been opened facing his house, this on the one hand is alien to the provision of Land Administration Manual-Rules and on the other hand, it seriously affects privacy right of the petitioners who is residing there for many . decades. We have also been informed that the road leading to the PAF Golf Club passes through residential area of Shami Road, Peshawar and residences surround the Golf Club, so any such like high storey building would certainly affect the privac y right of the residents. Keeping in view the legal and factual aspect of the matter , we feel that after disowning the advertisement for using the premises of Golf Club for commercial purposes by the respondents, the said construction could be allowed to be used for providing additional facilities to the golfers only .
12. Any slight indication for conversion of the building into commercial use would definitely be a ground for accrual of cause of action to the petitioners or any other residents of the area, to invoke jurisdiction of this court, so that the present proceedings are not mis-interpreted as to allow commercial use.
13. Even, the learned counsel for the respondents. stated at the bar and made a commitment that no commercial activities would be carried on in the premises of Golf Club, so they would honour their commitment but the construction shall not any manner violate the privacy right of the residents of the area. In case, any window has been opened facing the residential area, the same must be closed and if possible the respondents may avoid large scale gatherings.
We would, therefore, dispose of the instant writ petition in view of the observations made hereinabove.
C.M.No.955-P/2020 Applicant has filed this C.M. for placing on record some additional documents which are duly supported by an affidavit on the ground that the same are necessary for just disposal of instant appeal. In the circumstances, this C.M. is allowed.