1. ' S. AHMED SARWANA, J.---Sindh Road Transport Corporation, a statutory body established under section 70 of the Motor Vehicles Ordinance, 1965 (Respondent No,3/the Corporation) for the purposes of providing efficient, adequate, economical and properly coordinated system of road transport service to the citizens of the province. Under Rule 137(j) of the Motor Vehicles Rules, 1969 the Corporation is empowered to acquire and hold such property, both movable and immovable, as the Corporation may deem necessary for the purpose of any of the said activities including the power to lease, sell or otherwise transfer any property by it. During the course of its business, the Corporation acquired lease land among others, in the Divisions of Hyderabad, Sukkur, Larkana and Mirpurkhas where it established Bus Depots, Workshops, Terminals, Bus Stands and Training Schools. The Corporation did not function economically and was ultimately ordered to be wound up. It is alleged that the Corporation does not have sufficient funds to meet its various liabilities including the dues of its employees consisting of Gratuity, CPF, Leave Encashment, Golden Hand Shake Payment etc. ' On 6-12-1999 Transport Department, Government of Sindh (Respondent No,3) executed an Agreement with the CBA Action Committee, and the officers Associations of the Corporation therein it admitted its liability to pay the above referred dues to its employees by 6-12-2000 failing which it agreed to pay Mark-up thereon at the rate of 15 per cent per annum for delayed payment.
2. In order to liquidate its liabilities and meet its commitments made to its employees, the Corporation decided to dispose of several plots situated in the four Divisions of the Province of Sindh referred above. Consequently, the Corporation published an advertisement, among others, in Daily Dawn of 21st September, 2000 for auction on various dates its properties consisting of Bus- Stands/Bus-Deports/Plots/Colonies in Hyderabad, Sukkur, Larkana and Mirpurkhas Divisions.
3. Clause Nos.4 and 11 of the Terms and Conditions of the auction of the properties relevant for the purpose of this Petition read as follows: "4. The properties referred above can be used for any Commercial/Residential purpose or otherwise as per rules/policy of the local administration.
11. The terms and conditions of Building Departments/zoning rules/regulations prescribed shall be followed by bidder."
4. ' On 12-10-2000 Petitioner No,1, a Non-Governmental Organization registered under the Societies Registration Act, 1860 and Petitioners Nos.2 to 10, as public-spirited citizen interested in preserving the natural and built environment in the urban areas of Sindh and ensuring the fundamental Constitutional right to life of all citizens to live in peaceful and good environment filed the present petition against the Government of Sindh (Respondent No,1), Transport Department (Respondent No,2) and Sindh Road Transport Corporation (Respondent No,3) seeking, inter alia, the following reliefs: "(a) declare that SRTC amenity land/transport workshops and terminals are being disposed of not only contrary to the interest of the public as the same is being done without a proper development scheme or any legally notified amendment thereto,
(b) declare that conversion of established land-use of transportation depot/ terminal/workshop amenity land to industrial/ commercial/ residential use effected in violation of law, regulations and town-planning principles in the Province of Sindh is illegal, and in violation of the Petitioners and citizens' fundamental rights,
(c) direct the Respondents and their subordinate officers (Divisional Commissioners, SRTC officials, etc.) to stop the auction of the SRTC amenity plots immediately and refund any monies that may have been taken as bid securities or initial deposits, as the aforesaid location and proposed land use conversion is being effected in violation of the law,
(d) restrain the Respondents and their subordinate officers from parting with physical possession of the SRTC amenity plots or creating any third party interest therein,
(e) direct the Respondents and their subordinate officers to utilize the designated transportation amenity plots and solely for the benefit of the citizens and the travelling public, by setting up means for the private-sector to use the amenity plots as bus/coach deposits, terminuses, workshops, and other related facilities,
(f) grant such other relief as this Hon'ble Court deems just and proper in the circumstances."
5. ' On 17-10-2000 the Court issued Pre-Admission notice to the Advocate General, Sindh and the Respondents for 25-10-2000 and meanwhile restrained the Respondents from conducting the auction of the Corporation's plots or handing over their possession to the persons who may have purchased such properties pursuant to the advertisement, referred to above. The Interim Order was extended from time to time. Respondent No,3 filed its Counter Affidavit/Parawise Comments wherein several factual and legal pleas were raised including the maintainability of the Petition, however, at the time of hearing all the Counsels agreed that the entire petition may be heard and decided at the Katcha Peshi stage as tile issue involved was important and the Respondent No,3.
6. Was in urgent need of finance to liquidate its liabilities.
7. ' Mr. Naimur Rehman, learned counsel for the petitioner, submitted that all the plots described in the advertisement, dated 21-9-1999 were amenity plot which were being used by the Corporation for the benefit of the public and they could not be sold as properties which can be used for commercial, residential or for any purpose other than the purpose for which they were being used by the Corporation i.e, the use of the land described in the advertisement could not be changed as it would deprive the citizens of their rights to live in a peaceful and healthy environment which fundamental right is guaranteed by the Constitution. He submitted that the respondents should not be permitted to convert the use of the plots for commercial or other purpose as it would be detrimental to the physical and mental health of the citizens. He added that because of the unplanned construction and breaches of the Building Control Laws, cities like Karachi, Hyderabad and Sukkur have already created unhygienic living conditions of the citizens and it is imperative that all planning and change in the use of land in future must be done strictly in accordance with the provisions of the Town Planning Act, 1915 and in light of the guidelines laid down in the case of Abdul Razak v. Karachi Building Control Authority PLD 1994 Supreme Court 512 at 528. He also urged that the public servants owe a duty to the State and the citizens of this country to follow the law and work for the betterment of the State and its citizens and must always exercise their powers in a manner which is not detrimental or adverse to the rights of the citizens guaranteed by the Constitution.
8. ' Mr. Talmiz Burney, learned counsel for the Corporation submitted that his clients had acquired the properties mentioned in the advertisement from private parties which were not amenity plots and referred to Annexure R-2 of the Counter Affidavit filed by the Corporation in this behalf. He urged that under Rule 137(J) of the Motor Vehicle Rules, 1997 the Corporation has the power to acquire and sell movable and immovable property without any restriction; however, he added that his client would sell the properties in question subject only to legal restrictions applicable at the time of sale.
9. ' Mr. M. Sarwar Khan, learned Additional Advocate General submitted that the case of the Karachi Transport Company was distinguishable from the case put forward by Mr. Rehman in the Petition and that KTC was providing transport facilities in the city of Karachi while the Corporation was providing facilities outside Karachi and its terminals were generally situated outside the cities. He added that it is a debatable question whether Sindh Local Government Ordinance, 1979 was applicable to the properties in question. He also submitted a copy of a letter, dated 12-12-2000 of the Secretary, Government of Sindh, Labour and Transport Department addressed to the Advocate General stating that the prospective/successful purchasers of SRTC/lands/plots in open auction shall abide by the applicable Laws of the Government/authorities in accordance with the land use of the area/site already approved by the Local Government or authority whichever may be the case.
10. ' We have considered the arguments advanced by Mr. Naimur Rehman, learned counsel for the petitioner. Mr. Talmiz Burney, learned counsel for the Corporation and Mr. M. Sarwar Khan, learned A.G. For the Government of Sindh.
11. ' To appreciate the arguments advanced by Mr. Naimur Rehman, learned counsel for the petitioner, it would be advantageous to refer to the observations of the Supreme Court in the case of Abdul Razak v. Karachi Building Control Authority, PLD 1994 Supreme Court 512 at 528 wherein the Hon'ble Supreme Court quoted a passage from Encyclopaedia Britannica, 1963 Edition, relating to city planning in the following words: "Goals of Modern City Planning. - The ultimate goals were social, although the plans themselves related to physical things. They were deeply involved with intermediate economic objectives. The expression of the goals was, of course, coloured by the culture of the society seeking them. In the U.S. And countries following Western European traditions, the ideal turban environment would reconcile the maximum opportunity for individual choice with protection for the individual from the adverse effect of the actions of others.
12. ' Within this philosophy, city planning would probably seek (1) the orderly arrangement of part of the city residential, business, industrial etc., so that each part could perform its functions with minimum cost and conflict (2) an efficient system of circulation within the city and, to the outside world, using to the maximum advantage all modes of transportation; (3) the development of each part of the city optimum standards, as of lot size, sunlight and green space in residential area, and parking and building spacing in business areas, and parking and building spacing in business areas; (4) the provision of safe, sanitary and comfortable housing in variety of dwelling types to meet the needs of all families (5) the provision of recreation, schools and other community service, of a high standard of size, location and quality, (6) the provisions and economical water supply, sewerage, utilities and public services."
13. ' The Supreme Court thereafter observed as follows: "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 part 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 ensuring 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 naturally result in discomfort and inconvenience to others."
14. ' In this respect there already exists a statute in the Province of Sindh known as "The Town Planning Act, 1915" which was enacted for making and executing the town planning schemes so that the development of certain areas should be regulated with the general object of securing proper sanitary conditions, amenity and convenience to the persons living in such areas. Section 3 of the said Act requires that a town planning scheme shall make provisions, inter alia, for: "(d) the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets and public purposes of all kinds;
(i) the imposition of conditions and restrictions in regard to the open space to be maintained about building the number, height and character of buildings allowed in specified areas and the purposes to which buildings or specified areas may or may not be appropriated."
15. ' Section 8 of the Town Planning Act, 1915 provides as follows: "8(1) A town planning scheme may be made in accordance with the provisions of this Act in respect of any land which is in course of development is likely to be used for building purposes.
(2) .
(3) The expression "land likely to be used for building purposes" shall include any land likely to be used as, or for the purpose of providing open spaces, roads, streets, parks, pleasure or recreation grounds, or for the purpose of executing any work upon or under the land incidental to a town planning scheme, whether in the nature of a building work or not, and the decisions of the Provincial Government as to whether land is likely to be used or building purposes or not shall be final." (Underlining added).
16. ' In keeping with the spirit of the Sindh Town Planning Act, 1915 the President of Pakistan promulgated President Order No,V of 1957 (KDA Order 1957) the preamble of which reads as follows: "WHEREAS it is expedient to make provision for the development and improvement of certain areas in the Karachi Division by opening up congested areas, laying out of altering streets, providing public amenities like parks, gardens and playgrounds, executing works for water supply and sewerage or by demolishing, improving or constructing buildings, for the acquisition of land for such development or improvement, including the re-housing of persons affected thereby and certain other persons, for the preparation and execution of development or improvement schemes, building research schemes and similar other schemes, and for matters connected therewith or incidental thereto."
17. (Underlining added).
18. ' Section 29(n) of the KDA Order states that an improvement scheme may provide, inter alia, for "parks, playing grounds and other open spaces for the benefit of persons residing in any area comprised in the scheme or any adjoining area and the extension of existing park. Playing ground and other open spaces and approaches to the same.
19. ' Section 52-A of the KDA Order relating to the conversion or changes in the scheme stipulates that: "The Authority shall immediately after any housing scheme is sanctioned by or altered with approval of, Government submit to the Commissioner the details including the survey numbers, area and location of each plot reserved for roads, hospitals, schools, colleges libraries, playgrounds, gardens, parks, community centre, mosque, graveyard or such other purpose and the Commissioner shall notify such detail in the official Gazette." (Underlining added).
20. ' We are informed that several statutory bodies have been established in the Province of Sindh for the development of various cities and towns in the Schemes of which similar provisions relating to parks, gardens and open spaces have been incorporated for the benefit of the general public.
21. ' The importance of open spaces, parks, greenery in a city was highlighted by one of us: namely, S. Ahmed Sarwana, J., in the case of Dr. Zahir Ansari and others v. KDA. PLD 2000 Karachi 168 at 177 in the following words: "It would not be out of place to mention here that open spaces, parks and greenery are not only soothing to the eyes and the mind but also for the spirit. They are necessary ingredients of town planning as they help in maintaining the physical and mental health of the residents of the town. It is often said by medical doctors and sociologists that if you take away open spaces, parks and greenery from the residents of a town, besides other adverse effects, the incidence of hypertension and crime rate in the population will go up in the area. It is, therefore, imperative that open spaces and amenities be not reduced by converting them into residential or commercial plots but retained at their original location in the Zonal Plan Scheme to safeguard a pleasant environment where healthy bodies and minds flourish and the members of society do not go berserk. No person, how high he may be, can or should, therefore, be permitted to change the use of such area without exceptional reason in the public interest and that also after strictly following the procedure required therefor."
22. ' Maulana Mufti Muhammad Shafi in his famous Commentary of the Holy Qur'an "Maariful Qur'an"., Volume 3, page 98 with reference to "the Sacred Lands" referred to in Surah Al-Maida 5, Ayat 21 has commented as follows: "According to some interpreters of Holy Qur'an, the term sacred land refers to Jerusalem while according to others it refers to the city of Jerusalem and Eilya, while some others say it refers to the city of "Areeha" which was located between the river Jordan and Jerusalem and is regarded as the oldest city in the world. Its ruins exist till today and its greatness and majesty during the time of Hazrat Moosa (A.S.) has been acknowledged by historians.
23. ' According to some narators, the city of Areeha hid 1000 wards and every ward had 1000 gardens in it"
24. (Translated from Urdu to English by us)
25. ' The above note shows that the people of the city of Areeha which existed more than 3,000 years ago, recognized the importance and necessity of gardens and greenery in a human habitat and planned their cities accordingly. In this respect it would be advantageous to refer to the observation of the United State Supreme Court in the case of Samuel Berman v. Andhrew Parker, 348 US 26,99 L ed 27, 75 S Ct 98 which reads as follows: ' Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.
26. ' The concept of the public welfare is broad and inclusive The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well- balanced as well as carefully patrolled."
27. ' It would also not be out of place to refer here to the Oath of the Athenian City State which has been reproduced in the book entitled. "The Urban World" by J. John Palen, published by Mc Graw Hill Book Company, New York which is as follows: "We will ever strive for the ideals and sacred things of the city, both alone and with many, we will unceasingly seek to quicken the sense of public duty, we will reverse and obey the city's laws, we will transmit this city not only not less, but greater, better and more beautiful than it was transmitted to us."
28. 'At this juncture, we may state that in our opinion, the right to life guaranteed by the Constitution includes the right to live in a clean and healthy environment. It is, therefore, the duty of the legislature to enact laws and of the Government to enforce them in a manner which promotes the achievement of high intellectual and spiritual goals and happiness in life by the citizens.
29. ' From the above survey of law and history we can safely conclude that sociologists, medical doctors and judges are all unanimous on the point that open spaces, parks and gardens are necessary for the physical and mental health of a society and if these facilities are not mandatorily made available to the residents of a city, it would create problems of mental health, rise in crime rate and degradation of moral values of the inhabitants. It is, therefore, essential that the Government and all persons responsible for town planning and the use of land in the Province of Sindh be directed to follow the provisions of Town Planning Act, 1915 and the Guidelines . Laid down by the Hon'ble Supreme Court of Pakistan in its various illuminating judgments while preparing town planning schemes and/or changing the use of any land especially from an open space to residential, commercial or industrial one, so that the land of the oldest civilization in the Sub- Continent may provide a pleasant environment for the enviable growth of physical and mental health of its citizens. It is imperative to do so because all public servants owe a duty to the citizens of this country to follow the law, work for the improvement, development and betterment of this country and its citizens and always exercise their power and authority for the achievement of this end. Mr. Talmiz Burney, learned counsel for the Corporation, has stated that his client shall sell the properties in question subject to the legal restrictions of use of land applicable at the time of sale.
30. Mr. Sarwar Khan, learned Additional Advocate General also stated that the Government of Sindh, Labour and Transport Department shall abide by the applicable laws relating to land use of the area already approved by the local Government or any other relevant authority. However, none of them sated that the open spaces being used by the Corporation for Bus Depots. Workshops, Bus Terminals, Bus Stands and Training Schools would be kept as they are and the said open spaces as existing today would not be changed to residential commercial or industrial use without a properly prepared scheme. For reasons discussed above, it would be proper to direct the respondents to take all future action in relation to the use of land in the Province of Sindh in general and the lands in question in particular under proper Town Planning Schemes so that haphazard structures of concrete and steel may not corp up like wild mushrooms without any application of mind of the relevant authorities which would deprive the citizens of their fundamental rights to live in a healthy and harmonious environment. The petition is accordingly allowed in the following terms:
(i) The Corporation is at liberty to sell land dispose of its land comprising Workshops, Bus Depots, Terminals, Bus Stands and Training Schools described, inter alia, in the Public Notice published in Daily Dawn of 21-9-2000 or the Brochure issued by the Commissioner, Mirpurkhas Division Hyderabad (Annexure 5 of the Petition) or any other similar document relating to the disposal of the land in question issued by the Corporation or the Government of Sindh, Department of Labour and Transport.
(ii) All the lands/plots of the Corporation described above would be sold, leased, transferred or disposed of subject to the condition that the buyer/bidder shall not use the land for purposes other than those specified in the rules/policy of the local administration and the terms and conditions of Building/ Zoning Rules and Regulations prescribed in the Town Planning and Development Schemes for the area concerned.
(iii) The Government of Sindh shall prepare appropriate Town Planning and development Schemes under the provisions of the Town Planning Act, 1915 where these lands are situated and shall ensure that these open lands/plots are not converted into commercial, residential or industrial use without a proper plan or scheme.
31. ' In the circumstances, there shall be no order as to costs.