ASIM HAFEEZ, J. Petitioner, being the Cantonment Board Sargodha, established under the provisions of Cantonments Act, 1924 and represented through the Executive Officer, assails judgment and decree dated 4.5.2019, whereby learned appellate Court dismissed petitioner's appeal, and affirmed judgment and decree dated 2.2.2019 of learned trial court, in terms whereof respondents' suit, seeking declaration and permanent injunction, was decreed.
2. The pivotal question, calling for adjudication, is whether petitioner was legally obligated to issue No Objection Certificate ("NOC") to the respondents and permit raising of construction of residential structure on a plot, declared and reserved as amenity plot in the Housing Scheme.
Contesting respondents claimed having proprietary rights in the property, evidenced through registered sale deed(s) dated 14.1.2005 and 21.7.2008, comprising of Plots Nos.104, 108 and 109, falling in Defence View Housing Society Sargodha Cantt. ('Housing Scheme') [presently, the controversy extends to Plot No.104 only]. Petitioner denied issuance of NOC on the premise that no construction can be allowed to be raised on Plot No.104, being designated as Amenity Plot in the approved schematic map of the Housing Scheme - exhibited as Exh-D.1. The master plan/map was duly approved by the Cantonment Board vide Resolution No.14 dated 28.3.2003. Aggrieved of denial of request for NOC, respondents approached Civil Court and sought declaration and injunction. In the wake of contesting pleadings, issues were framed by the Court and parties were directed to produce evidence. After recording of evidence, learned trial court decreed the suit of the respondents, which decree was affirmed by the appellate court. Hence, this Civil Revision, against concurrent findings/judgments. Various issues were framed; however, issue No.9 calls for determination, which reads as "whether the plaintiffs (respondents) are entitled for the decree of declaration along with permanent injunction as prayed for in the plaint".
3. Learned counsel, appearing for the Board, precisely contends that no permission can be granted for raising residential construction upon the Plot in question, which was earlier declared and reserved for Civic Amenities, in terms of approved master plan / map of the Housing scheme. Adds that permission granted would, by default, would imply conversion of an amenity plot into residential one, an action being illegal and otherwise likely to prejudice the residents of the Housing Scheme. Further submits that master plan was duly approved by the Board in terms of Resolution No.14 dated 23.3.2003, which plan remained intact, without any subsequent revision/alteration therein.
4. Conversely, learned counsel for the respondents submits that at the time of purchase of plots, representation was made by the developer, demonstrated in shape of plan of the Housing Scheme - placed on record as Mark-A, in terms whereof Plot No.104 and area underneath were not reserved or classified for Civic amenities. Adds that sale deed(s) were duly executed and registered accordingly, copies whereof were provided to the Board and available in its record. Further submits that request made by the respondents, for issuance of NOC, was responded by way of issuance of letter by the Board to the developer, wherein request was made for provisioning of alternate plot(s) to the respondents, which conduct per se constitutes an acknowledgment of the rights of the respondents. Learned counsel referred to Mark-A, plan showing that plot No.104 was not an amenity plot. Lastly submits that Board has not taken any action against the alleged violations by the developer, regarding alleged conversion of plot.
Submissions by learned counsel for the respondents are misconceived. Primary question is that whether amenity Plot No.104 could be converted into a residential plot, when it was earlier declared as amenity plot in master plan / map - (Exh-D-1) duly approved by the Board with respect to the Housing Scheme. At the outset, the most critical fact that is that approved master plan/ map was not confined to the drawing boards but roiled out to the public, which engaged into sale and purchase of plots in the Housing Scheme. It is convincingly established that master plan/map - (Exh-D. 1) -, besides being duly approved by the Board was also acted upon. Sale deed(s) made basis of the declaratory suit were executed subsequent to the approval of master plan / map - Exh-D.1. Mere execution of the sale deed(s) would not extend any right unto respondents to claim conversion of amenity plot into residential when master map / plan of the Housing Scheme remained unrevised / unaltered. Respondents cannot claim alleged rights, better than what was available to the developer, post-approval stage. The encumbrance created, by way of identifying plot as amenity plot in the master plan / map, would not erode or wane merely upon execution of sale deed(s), favouring respondents. Limitations prescribed / defined in the master plan would have preference, irrespective of the sale deed(s) - which do not, by any stretch of imagination would extend absolute rights unto the respondents, giving them the privilege to claim conversion of amenity plot to residential one. It is apparent that developer has already committed to transfer amenity plots to the petitioner, in terms of approval letter dated 4.4.2003 - (Exh.D-3). Rights allegedly claimed on the basis of alleged representation by the developer have no basis in law, in the context of present controversy. Copy of the alleged site-plan, presented by the respondents - and placed on record as Mark- and on the basis whereof alleged rights are claimed - was not an approved plan of the Housing Scheme - drawing no legal sanctity. The document, being a private document, was not brought on record as per requirements of Qanun-e-Shahadat Order, 1984, which is per se inadmissible. Respondent No.1 appeared as PW-3, who admitted that Mark-A was not approved. Record keeper of Cantonment Board appeared as PW-4, who, upon being asked, stated that mark-A was not part of the record of the Cantonment, and only (Exh.D-1) was available on record. It is strange that neither the developer was impleaded as party to the proceedings nor same was produced as witness to prove alleged representation - which conspicuous failure alone suggests an element of complicit inter-se respondents and absentee developer. None of the residents were impleaded as party to the suit, whose interests are intertwined with the determination of the controversy. No action was initiated by the respondents against the developer, if any misrepresentation was made. Further, mere issuance of letter by the Board to the developer, calling for compliance of terms and conditions of approval -seeking transfer of amenity plot in the name of the Board to ensure continuity of its status as amenity plot and / or asking the developer for an alternate plot for the respondents, cannot be construed as acquiescence on the part of the petitioner qua alleged rights, claimed by the respondents.
Board is not obligated to effect extinguishment of amenity area by allowing conversion to residential area, which per se is the /violation of the master plan / map and also prejudicial to the rights of the residents. Refusal of the petitioner to issue NOC is in line with the ratio of judicial pronouncements, cumulatively iterating provisioning for and preservation of amenity areas / plots in housing scheme(s), wherein numerous declarations were made objectively to ward off predatory attempts to encroach upon amenity areas / plots, either by indulging in china cutting techniques or purported use of such areas /plots for securing personal gains, at the expense of the residents. Reference is made to the celebrated decisions of the Apex court in the case of "Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others" (1999 SCMR 2883) and "Maulvi Iqbal Haider v. Capital Development Authority and others" (PLD 2006 SC 394), where conversion of declared amenity plots was held contrary to the lay-out plans and detrimental to the interests of the residents/public. I lay my hands on another judgment of Hon'ble Supreme Court of Pakistan in the case of "Mansoor Sharif Hamid and others v. Shafique Rehman and others" (2015 SCMR 1172) where re-location of amenity plot was held not detrimental to the public, as lay-out plan being still on the drawing board, at preparatory stage, and commercial sales and purchase had not commenced. Decision in the case of "Mansoor Sharif Hamid" (supra) is distinguishable on facts. In the instant case, upon approval, Housing Scheme was launched, commercial sale/purchase commenced, and permanent settlements sprung, whereafter declared amenity plot cannot be effacted/ removed from the master plan, without adopting the procedures, if so, provided in law for alteration of plan(s) / map(s).
6. In view of the above, no F enforceable right could be claimed by the respondents for seeking conversion of amenity plot into residential plot, and to raise construction of residential structure thereupon. Respondents, in view of the facts on record and evidence available, are not entitled to seek decree of declaration and injunction. Both the Courts below committed material irregularity and erred in law while decreeing declaratory suit, being oblivious to the jurisprudential principles regarding sanctity of master plan / map in the context of the rights of the residents in the vicinity - and, in particular, when plans / maps were actualized and enforced. Concurrent findings are not sustainable in law.
7. This Civil Revision is allowed, and judgments and decrees of the courts below are set-aside and consequently the suit of the respondents, seeking declaration and injunction, is hereby dismissed.
No order as to the costs.