' TANVIR AHMED KHAN, J.---This order shall dispose of Civil Petitions Nos.3772-L of 2001 and 3170-L of 2002 as the facts and the law involved therein are the same.
2. Leave to appeal is sought in both these petitions against the judgments dated 20-11-2001 and 22-8-2001 whereby Intra-Court Appeal as well as civil revision filed by the respective petitioners were dismissed.
3. Facts in both these petitions are the same. The petitioner in Civil Petition No,3170-L of 2002 is having a Shop No,177, situated in Arshad Cloth Market, Jhang Bazar, Faisalabad, which was earlier allotted to his late father Ch. Nawab Din in the year 1962 by the then Lyallpur Improvement Trust.
According to the averment made in his petition, the width of the main entry/exit gate of the market was 75 feet. The respondents-functionaries of the Faisalabad Development Authority (hereinafter referred to as F.D.A.) auctioned six shops, three on the each side of the main entry/exit gate by which the width thereof had been reduced to 30 feet.
4. The petitioner Muhammad Mehmood Chaudhry filed Writ Petition No,10373 of 2001 taking exception to the auction by the respondents-functionaries of F.D.A., which was dismissed alongwith an other identical Writ Petition No,213 of 2000 being not maintainable on the ground that the controversial facts were involved. After dismissal of the same, the petitioner filed a declaratory suit in his representative capacity taking exception to the auction of the shops and consequent reduction in the width of the main entry/exit gate. Alongwith the suit, an application for interim relief was also filed. The learned Civil Judge refused the interim relief through his order dated 28-1- 2002 on the ground that this Court in the connected Civil Petition No,3772-L of 2001 had already through order dated 10-12-2001 did not issue restraint order and allowed the auction-purchasers to raise construction at their own risk and cost. The said order is in the following terms:- ' "In case, the respondents construct any shop over the land in dispute, they shall do at their own risk and costs and if ultimately, the petitioner succeeds in this case, the respondents shall demolish the construction raised by them at their own costs and shall not be entitled to any compensation for that."
5. The petitioner filed first appeal which was dismissed by the learned Additional District Judge, Faisalabad through his order dated 24-7-2002. Civil Revision No,184 of 2002 filed against the same also met the same fate as it was dismissed by the learned Single Judge of the High Court, through his order dated 20-8-2002.
6. In Civil Petition No,3772-L of 2001, the present petitioner, as President, Arshad Cloth Market Association, Jhang Bazar, Faisalabad, filed Writ Petition No,213 of 2000 taking exception to the action of the respondents-functionaries of F.D.A. In auctioning the shops by making changes in the master plan which has resulted in reducing the width of the main entry/exit gate causing difficulties to the public at large. In this writ petition, as reflected from the documents, the legal advisor of the respondent (F.D.A.) filed para-wise comments on 11-3-2000 with his signature through covering Letter No,1186/FDA/EM/2000 dated 11-3-2000 from the Director-General, F.D.A.
(respondent No,1) signed both by him as well as respondent No,2, Director Estate Management, addressed to the Assistant Registrar, Lahore High Court, Lahore. In the said comments it was admitted in para.2 thereof that the width of the main entry/exit gate was 70 feet in the original layout plan of the market.
7. The learned Single Judge of the Lahore High Court, Lahore, in view of the comments confirmed the restraint order on 13-6-2000. Surprisingly, the respondents Nos.1 and 2 (F.D.A. Authorities) again submitted parawise comments without the signature of their learned Advocate on 1-5-2000.
However, in the said comments the width of the main entry/exit gate as earlier mentioned in the parawise comments was not pointed out. The learned Single Judge took up this matter on 13-11- 2001 and held that in the earlier comments dated 11-3-2000 the width of the main entry/exit gate was mentioned as 70 feet whereas this fact had not been mentioned in the subsequent parawise comments dated 1-5-2000. He accordingly, dismissed the Constitutional petition through his order dated 13-11-2001 holding that the parawise comments are contradictory in nature involving disputed question of facts. The petitioner filed I.C.A. Which was dismissed through order dated 20- 11-2001 by the learned Division Bench holding that as the disputed questions of facts are involved regarding the width of the main entry/exit gate as such the Constitutional petition would not be maintainable. Hence these petitions for leave to appeal in both the aforesaid cases.
8. We have considered the contentions raised by the learned counsel for the parties and have gone through the documents appended with these petitions. The sole point involved in these petitions is whether the subject-matter of these petitions was such which could not have been determined without entering into the questions of facts. The stance of the petitioner in this case is that under the master plan which was made as far back as in the year 1962, i.e, 40 years earlier by the then Lyallpur Improvement Trust, the width of the main entry/exit gate was more than 70 feet.
During all this period not only the population has increased manifold but the number of shops inside the market have also swelled. The construction of six shops whereby the width of the main entry/exit gate has been reduced to 30 feet would certainly cause great difficulties to the user of the market which action could not be justified on any score.
9. The Director-General as well as Director Planning, F.D.A. Entered appearance in response to the Court's call. None of them has refuted the claim of the petitioner that the width of the main entry/exit gate is more than 70 feet in the master plan made forty years earlier in 1962. However, their main plank of argument was that since the F.D.A. Has got the authority under the law to make amendments in the master plan as such the shops have been auctioned on each side of the main entry/exit gate after complying with the same. However, in spite of repeated questions none of them could advance any justifiable reason for auctioning these six shops curtailing the width of the main entry/exit gate which admittedly has resulted in causing difficulties to the public at large.
10. The Punjab Development of Cities Act, 1976 (Act 1976) (hereinafter referred to as the Act) was promulgated on 16-12-1976. Under section 3 thereof, this Act was made applicable to the then Lyallpur (now called as Faisalabad). Thereafter, the F.D.A. Was established which has taken all the functions and liabilities of the erstwhile Lyallpur Improvement Trust. According to section 13 of the Act, the F.D.A. Is competent to make amendments in the scheme which is as under:-- "13. Any scheme prepared under this Act, may at any time, be amended, modified or abandoned by the Authority, in such form and in such manner as may be prescribed."
11. The reading of this section demonstrates that the respondents-functionaries of F.D.A. Have been given discretion to make amendments or modify the earlier scheme made by the Authorities. The scheme of the Arshad Cloth Market was admittedly made in the year 1962 by the then Lyallpur Improvement Trust and according .To its master plan the width of the main entry/exit gate was more than 70 feet. As already stated the respondents functionaries of F.D.A. Have failed to point out any justifiable reason for curtailing the width of the main entry/exit gate and auctioning the six shops on its each side when already the market had got about 400 shops. While exercising this discretion, they have not taken into consideration the requirements of the modern city planning. It would be appropriate to reproduce the objectives of the Modern City Planning from a Chapter from Encyclopaedia Britannica, 1963 Edition, quoted by the learned Judges of this. Court in the case reported as Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512, which are given as under:- "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 urban environment would reconcile the maximum opportunity for individual choice with protection for the individual from the adverse effects of the actions of others. Within this philosophy, city planning would probably seek;
(1) the orderly arrangement of parts 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 to optimum standards, as of lot size, sunlight and green space in residential areas, and parking and building spacing in business areas;
(4) the provision of safe, sanitary and comfortable housing, in a variety of dwelling types to meet the needs of all families; (5) the provision of recreation, schools and other community services, of a high standard of size, location and quality; (6) the provision of adequate and economical water supply, sewerage, utilities and public services.
' In any community, these goals might be supplemented by special goals, such as the preservation of a historical area, or the protection of property values, or the efficient conduct of Government. On occasion, the goals of some powerful special interests might be inconsistent with those of others; e.g. The preservation of slum property values and the provision of adequate housing. Furthermore, the statement of ideal goals required the use of relative terms, such as "adequate," "high standard", etc., which are relative rather than absolute, and change from time to time. Therefore, inherent in the concept was the recognition that an ideal is not a fixed objective, but itself will change; that the ideal city can be striven toward, but never achieved.
20. 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."
12. The preamble of this Act has also mandated to achieve such-like objectives as enumerated above. Apart from this, the Arshad Cloth Market is included in the controlled area of F.D.A. Special attention has also been provided in the Act to keep up the environmental conditions of such areas which is in the following terms:- "17. The Authority may issue in respect of a controlled area such directions as it considers fit and appropriate and do all such things as may be necessary for the prevention of haphazard growth, encroachments and unauthorized constructions in such area."
13. Similarly, sections 7(2)(v)(b) and (vi) have also enjoined upon the Authority to take certain measures so as to carry out the purpose of the ACE. They are as under:- "(b) ensure compliance with the development plan after its preparation.
(vi) prepare, implement and enforce schemes for environmental improvements, housing, urban renewal including slums improvement and re-development, solid waste disposal, transportation and traffic, health and education facilities and preservation of objects or places of historical, archaeological, scientific, cultural and recreational importance."
14. The reading of these provisions demonstrates that the power of the Authority to make amendments in the scheme is not unbridled. The discretion under section 13 quoted above has to be exercised so as to achieve these laudable objectives for which this Authority was created. It is pertinent to mention here that the Arshad Cloth Market is situated within the controlled area declared by the F.D.A. Under section 17 of the Act. This section had enjoined further duty upon the Authority to ensure perfection of haphazard growth, encroachments and unauthorized construction in such area. The creation of six other shops through which the width of the main entry/exit gate has been considerably curtailed would be in haphazard exercise which would not only create tremendous difficulties for the public at large but also frustrate objectives of the Authority.
15. The objectives for which the Authority has been created can only be achieved if the public functionaries entrusted with the job, implement the same in letter and spirit in an even-handed manner. In this regard, it would be appropriate to reproduce the determinations of this Court detailing out the manners in which the public functionaries should exercise their discretion in an earlier case of Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14 wherein it was held as under:- ' "A public official who undertakes to perform an act, even an act which is completely discretionary, must do so reasonably and in complete good faith without such delay as would frustrate its ultimate objective. One who accepts a public office does so cum onere, or with the burden, and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all Constitutional and legislative provisions relating thereto and undertakes to performs all the duties of the office, and while he remains in such office the public has the right to demand that he performs such duties. The acceptance of every public office implies an agreement on the part of the officer that he will execute its duties with diligence and fidelity. The duty of a public officer to fulfil the obligations of his office should take precedence over all other matter Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect. In other words, he is bound, virtue officii, to bring to the discharge of his duties that prudence, caution, and attention which careful men usually exercise in the management of their own affairs."
"Structuring discretion means regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality of justiceThe seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents, and fair informal procedure.... When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. The movement from vague standards to definite standards to broad principles to rules may be accomplished by policy statements in any form, by adjudicatory opinions, or by exercise of the rule- making power.When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules.'"
16. It appears that in the present case, the respondents-functionaries of the F.D.A. Had exercised their discretion in amending the master plan which was made 40 years earlier in an arbitrary manner without attending to the present day needs of the market due to influx of the population whereby expansion of the road has become very necessary.
17. The question for determination in these cases as already stated was whether the dispute could have been resolved without entering into the realm of the facts. The answer to this question is in affirmative. In the present cases, admittedly the master plan was made in the year 1962 and as admitted by the functionaries of F.D.A. The width of the main entry/exit gate therein was more than 70 feet. This being so, there was no reason for the learned Judges of the High Court to non-suit the petitioner simply on the ground that the disputed question of facts were involved in the matter when this issue could have been resolved by simply having a glance of the master plan and the exercise of discretion by the F.D.A. In amending the same after 40 years. In this regard we are fortified by an earlier decision of this nature reported as Anjuman-eAhmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639 wherein the Deputy Commissioner, Sargodha recommended allotment of 4 Kanals of land comprising Khasra Nos.98/1/2, 99/1/5/2 and 292/96/1/4 to the Anjuman-e-Ahmadiaya, Sargodha. However, in the formal letter of sanction issued by the Commissioner's office and the schedule certain mistakes were made. Instead of Khasra No,98/1/2 Khasra No,91/1/2 was written and similarly instead of Khasra No,99/1/5/2 it was written as 99/1/52. The functionaries cancelled the allotment holding that the Anjuman was having possession of wrong Khasra numbers. Thereupon the Anjuman was constrained to approach the High Court through Constitutional petition which was dismissed as being not maintainable simply on the ground that the disputed questions of facts were involved. However, this Court came to the conclusion that there was no involvement of disputed questions of facts as the same could be decided upon the evidence and preceding correspondence and the deed of grant. In that case according to the Court there was simple question of performance of public duty. Accordingly, this Court remanded the case to the High Court to determine whether there was a valid grant. It would be appropriate to reproduce the determination of this Court in the aforesaid case which is in the following terms:-- ' "Applying these tests to the present case we cannot help observing that what the appellant really wanted was the performance of a public duty, namely, that the Authorities seeking to cancel its grant should proceed in accordance with law, namely, the provisions of the Colonization of Government Lands Act, 1912, under which the grant was made. The main question in issue between the parties in this case was as to whether a valid grant of the land in dispute had been made to the appellant. The Authorities relied upon a misdescription in the deed of grant to substantiate their case that there was no valid grant at all. On the other hand, the appellant contended that this misdescription in the conveyance and in the letter of sanction issued by the Commissioner was only in respect of one of the Khasra numbers although the land demised was delineated correctly in the plan annexed to the deed and, as such, there could not possibly be any doubt or mistake as to the identity of the land demised. The relevant correspondence leading to the grant, which were filed as annexure to the petition moved in the High Court, showed that throughout the parties had proceeded on the basis that the land of which the grant was to be made was comprised in Khasra No,98/1/2 and was one which was situated opposite to the truck stands and adjoining the land earmarked for the ladies park. No oral evidence was necessary, in our view, to determine this question as to whether there had been a valid grant of the land in dispute to the appellant. It could be decided upon the evidence of the preceding correspondence and the general rule of construction of deeds that a mere misdescription of the land demised does not invalidate the demise if the land is otherwise clearly identifiable.
' In these circumstances, we are clearly of the view that this was a fit case for the grant of relief under Article 98 and that a suit could not be considered to be an adequate alternative remedy for disentitling the appellant from getting this relief, for all that the appellant sought was the performance of a public duty in accordance with law."
18. We would have also remanded the case but since there was no dispute qua the width of the main entry/exit gate of the Arshad Cloth Market, as such, as already held, the functionaries of the F.D.A. Have failed to exercise their public duty in an appropriate manner. The construction of these six shops would not only shorten the main entry/exit gate to a considerable extent but would also cause, as already stated, tremendous difficulties to the market users/goers when there are already about 400 shops. The interest of the auction-purchasers who succeeded in securing the allotment in their favour, cannot be given precedence over the rights of public at large. The general public would certainly suffer a lot if this illegal act of construction at the main entry/exit gate is not arrested at the very outset. This is in accord with the consistent policy of this Court that in a situation of competing interests of an individual with that of the public at large, the later shall be given preference.
19. Before parting with this judgment we must note that during the course of proceedings of these petitions, Mr. Maqsood Khawaja, Director-General, F.D.A. Pointed out on 8-4-2003 that the shopkeepers of the Arshad Cloth Market cannot make any grouse qua the construction of the shops at the main entry/exit gate when they themselves have created a number of encroachments which have caused difficulties for the users of the market.
20. The Director-General, F.D.A. Thereupon was directed to clear all the encroachments in an even- handed manner. In this regard, the S.S.P., Faisalabad, was also directed to render full assistance in achieving this objective. We must appreciate the laudable action of the Director-General as well as his team who in very critical situation, with the full cooperation of the shopkeepers have succeeded in clearing all the encroachments from the entire market in an amicable manner.
21. Resultantly, for what has been stated above, these petitions are converted into appeals and allowed. There shall be no cost in the circumstances of the present case.