CH. IJAZ AHMAD, J.- The brief facts out of which the present writ petition arises are that the petitioner is resident of Mohallah Khatkana Multan Cantonment. The respondent started to construct the Plaza just in the side of the Quaid-e-Azam Center on the place, which was reserved for green belt. The respondent has no authority to convert the land plot into Plaza. The action of the respondent is injurious of the inhabitants. The learned counsel of the petitioner contended that respondent has no authority to change master plan and the plot over which the respondent wanted to construct a Plaza for Shopping Center which is reserved for green belt and the petitioner as well as inhabitants of the area are enjoying the facilities of green belt since the creation of the Cantonment. He further contended that the green belt has become the part of the life of the petitioner and other inhabitants. The action of respondent is not only harmful for the petitioner but it is also for the public at large. He further argued that construction of a Plaza of a double story disfigures the beauty of Quaid-e-Azam Center Multan Cantt. The petitioner requested the respondent that they should not raise the Plaza but they refused to accept the request of the petitioner. He further contended that the construction of a plaza on the site is not in the interest of public and for public purpose. The respondent's counsel contended that petitioner is not resident of the locality and his house is at a distance of one Kilometer from the plaza, therefore, he is not aggrieved person and has no locus standi to file this writ petition. He further argued that writ petition is not maintainable by virtue of Section 91 of CPC. He further urged that writ petition is not maintainable, in violation of mandatory provisions of CPC. He further contended that disputed question of facts cannot be decided in writ petition as the petitioner contended that the area of green belt was included in the plaza whereas, the. Learned counsel for the respondent contended that it was not a part of green belt. The leamed counsel of the respondent urged that cantonment Board Multan floated a proposal for the construction of shops on self finance basis at Survey No. 262 alongwith outer wall of Base Supply Depot Quaid- e-Azam Road, Multan Cantonment in the month of August, 1996. The Board vide this Resolution No. 42 dated 5-8-1996 considered the proposal and approved the same. The competent Authority granted the sanction. After completion of the legal requirements the tenders for execution of construction were considered by the board in its meeting held on 24-12-1996 and the tender of Ittehad\ Enterprises being lowest was approved.
On 24-12-1996 auction was conducted by the respondent and highest of bid of premium on non- refundable basis were considered and approved by the Board vide its meeting held on 28-12-1996.
He further contended that huge expenditures were incurred by the respondent on the said project and the same is utilized for construction and the detail of which is as follows:- "That as per terms and conditions laid down by the Board the successful bidders have deposited 50% of the premium amounting to Rs. 2,11,06,000/- out of which the Cantonment Board has invested an amount of Rs. 6,50,000/- for the completion of the project, the construction of which has started at the spot. The Cantonment Board has also paid ah amount of Rs. 14,45,276.773. To the Sui Northern Gas Company for the shifting of its pipes which were underlying beneath the land on which the construction was proposed and likewise an amount of Rs. 3,696/- was paid to the Pakistan Telecommunication Corporation for shifting of its telegraph lines which was being affected by the construction. As such the Cantonment board has spent an amount of Rs.
20,98,972.73 on the project. The auction took place in December, 1996 and immediately thereafter the removing of gas pipes started and it was known to all that the Shopping Center was being constructed.
That the concerned Shopping Center is a single storey project and is in continuation of the planning of the Board to establish such markets on the comers of the roads and for that purpose the Cantonment Board has already constructed such shopping centers on Sher Shah Road. Qasim Road, Nusrat Kamchatkan Road and other such like points."
He further contended that the respondent did not violate stay matter plan and did not include area of green belt in the construction of said plaza. The action of respondent is in good faith in accordance with law. The leamed counsel of the petitioner in rebuttal contended that map attached with the report and para wise comments are not in accordance with the correct facts existed at the spot. He submitted his own map. He further contended that the constructions of the Plaza is in violation of the mandator provisions of law and injurious to the health of public at large especially the inhabitants of the area. He further contended that this is the only main road in Multan which will be destroyed on account of the construction of this plaza and the whole traffic of the Multan City will be blocked.
2. I have given my anxious consideration to the contention of the leamed counsel for the parties and perused the record myself with the assistance of the learned counsel for the parties. The preliminary Objection of the leamed counsel for the respondent is that the petitioner is not aggrieved person has no force on the basis of the law laid down by the Hon'ble Supreme Court of Pakistan in Fazal Din's case (PLD 1969 SC 223) - Mian Fazal Din v. Lahore Improvement Trust. I am fortified by the judgment of Hon'ble Division Bench - Ardeshir Cowasjee, Karachi and 4 others v.
Messrs Multiline Associates, Karachi and 2 others (PLD 1993 Karachi 237) and the relevant observation is as follows:- "It could not be said that the petitioners who resided in the same locality had no interest in the subject-matter of the petition. Construction of high rise buildings can cause nuisance to the neighbours or persons living in the same locality. In absence of supporting infrastructure, the residents of the locality can object on the ground that the proposed building would interfere with their amenities. Deprivation of such a facility would confer a sufficiently valuable right upon the residents of the scheme to "enable them to maintain an application for forcing the Authorities to discharge its obligation of executing the scheme as sanctioned by the Government. So in the present case, deprivation of any amenity would confer a right on the residents of the locality to maintain a writ petition. "
Similar view has been taken in Addl Razzaq's case 1992 MLD 527:- "The petitioners in this case have claimed that their rights of enjoyment of their property is being violated by respondent No.1 because the respondent No.2, the Authority under statute, has failed to perforin their statutory duties. The petitioners under the circumstances can competently pursue their remedy through the present Constitutional petition. This view is supported by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the case of Mian Fatal Din v. Lahore Improvement Trust, Lahore, reported in (PLD 1969 SC 223) in this respect. The first contention of Mr. Umar Yousuf Deda, Advocate for the respondent No.1, cannot, therefore, be sustained."
It is pertinent to mention here that Abdul Razzaq's case was up-held by the Hon'ble Supreme Court of Pakistan reported- in PLD 1994 SC 512.
3. The learned counsel of the respondent has raised an objection that writ petition is not maintainable in violation of Section 91 of the CPC also has no force. No doubt the provisions of the CPC is applicable in the writ proceedings as is held by the Hon'ble Supreme Court of Pakistan in reported judgment PLD 1970 SC page 1. The provisions of Section 91 CPC has no application to the Constitutional petition which has been filed for the involvement of statutory duties caused upon Statutory Corporation under the Statute. I am supported by the reported judgment 1990 CLC 83.
4. The nature of controversy between the parties to the petition particularly whether the plot in question is a part of green belt or not? Both the parties raised conflicting stand in the pleadings as well as at the time of arguments which cannot be resolved in Constitutional jurisdiction. I am fortified by the Supreme Court's Judgment (1993 SGMR 618) Muhammad Younus's case. It is consistent view of the Supreme court of Pakistan that the cases in which factual controversy is involved, Constitutional petition is not proper remedy, therefore, petitioner may agitate the matter before competent Court.
5. Since the respondent has incurred huge amount for Construction on the plot, demolition of building could not be ordered for million of rupees, would go wastage, which were spent in constructions of such huge building. I am fortified by the reported judgment of Ahmad laved Shah's case (1996 CLC 748). The para wise comments of the respondent reveal that Cantonment Executive Officer vide letter dated 12-8-1996 requested the Director General Military Lands & Cantonment, Govt, of Pakistan Ministry of Defence, Pak. Sectt. No. II Rawalpindi Cantt, who finally granted the approval of the project.
6. Let a copy of this writ petition be sent to Director General, Military Lands and Cantts. Govt, of Pakistan,. Ministry of Defence Rawalpindi, who shall look into the contents of the writ petition and pass an appropriate order strictly in accordance with law, without influencing from the above said observations.
With these observations this writ petition is disposed of.