' IJAZ AHMAD CHAUDHRY, J.--- Through this judgment we intend to dispose of I.C.As. Nos.108 of 2002, 112 of 2002, 116 of 2002, 117 of 2002, 118 of 2002 and 119 of 2002 together as all these appeals have arisen out of the same judgment, dated 11-6-2002 passed by the learned Single Judge of this Court by which he has dismissed Writ Petitions Nos.7019 of 2001, 9714 of 2001, 7680 of 2001, 1385 of 2002, 2619 of 2002, 3620 of 2002 and 3632 of 2002 jointly.
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2. The brief facts of these appeals are that M.D.A. Had established a Housing Scheme in the name of Shah Ruken-e-Alam Colony, Multan in 1980 wherein the appellants had purchased the plots and after paying the development charges, taking over its possession and raising constructions of houses thereupon are residing now-a-days therein. According to the appellants a plot measuring 28 acres of land in Block "F" was reserved and earmarked as an amenity park in the name of "Jinnah Park". Till 1995 there was no development in the said Park and on the move of the residents of the locality the National Bank of Pakistan had arranged an amount of Rs,10 millions for the development of jogging tracks and grassy lawns in the said Park alongwith lighting arrangements.
The appellants claim that they were enjoying amenities alongwith other residents of the locality but they and other members of the locality are aggrieved by the action of M.D.A. Which has entered into an agreement with respondent No,4 on 7-11-2000 whereby the Park has been leased out to respondent No,4 on Building Operate and Transfer (BOT) on a monthly lease rent of Rs,50,000. Its possession has already been delivered to respondent No,4, which has started the establishment of various amusements and recreational facilities, in the Park in the shape of swimming pools, water slides and restaurant etc. Near to completion. The appellants/petitioners in the writ petitions have challenged the action of both M.D.A. And respondent No,4 and the use of the Park on commercial basis by respondent No,4 in pursuance of lease agreement.
3. Learned counsel for the appellants contends that the impugned judgment is liable to be set aside as the learned Single Judge has erred in holding that the writ petitions are hit by laches as in cases of public importance any persons feeling aggrieved can agitate the matter whenever there is some violation of the rights of the general public. Also contends that the agreement entered upon between the MDA and respondent No,4 was not in accordance with law for various reasons.
According to the appellants Minister had no power under the Punjab Development of Cities Act, 1976; the Authority has been defined but the Minister figures nowhere hence the letter issued for the approval of the Minister on 20-10-2000 and the grant of permission by the Minister on 24-10-2000 was not sufficient to enter into an agreement with respondent No,4; that on 7-11-2000 the Minister though had approved and also directed to hold a meeting yet no meeting of the Governing Body was held and agreement was executed while meeting of the Governing Body was held on 30-3- 2001. It is contended that when the Minister had no authority to allow the permission for entering into an agreement and it is the basic principle that when the foundation is illegal and unlawful, the whole superstruture laid thereon will fall on the ground. Relies upon Ahmad Khan v. Member (Consolidation), Board of Revenue Punjab, Lahore and others PLD 1990 SC 1.070. Also contends that the MDA had no authority to lease out the park as it was not the owner of the said property. Relies upon AIR 1922 Lah. 292 and AIR 1935 Lah.
95. Also contends that the land once earmarked for a park cannot be altered and its use cannot be changed except its use as of park and its change into commercialization is illegal and unlawful.
Relies upon judgment reported as Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCM R 2883. It is also contended that the water slides installed at the height of 90 feet amount to interference in the privacy of the residents of the locality which is protected under Article 14 of the Constitution of Islamic Republic of Pakistan, 1973.
Also contends that the Lease Agreement is also in violation of the commercialization policies of MDA as only the Commercialization Committee could allow the use of any plot for commercial purposes and it is mandatory for the owner of a property intended to be used for the commercialization purpose to obtain "No Objection Certificate" first from the neighbourers but no such NOC was ever issued by the neighbourers hence Lease Agreement is liable to be struck down.
It is also contended that under Rule 17 of Multan Development Authority Building Rules, 1987, no land or building can be used in contravention with master plan. Also contends that execution of the Lease Agreement only on the stamp paper of Rs,100 has deprived the Government of an amount of Rs,3,50,000. Relies upon PLD 1983 Pesh. 2 and PLD 1970 Azad Jammu and Kashmir page 66 to contend that private party is not exempted from payment of duty and it should be impounded as per Rules. It is further contended that the advertisements issued in the year 1997-98 were not in the knowledge of the residents of the locality and no limitation runs against the void orders/actions hence the question of laches has wrongly been held applicable in the present case by the learned Single Judge. It is also contended that the price of the Park was included in the development charges paid by the allottees of the Scheme at the time of allotment of plots to them, hence MDA had no authority to lease out the said plot to respondent No,4. It is also contended that the construction was to be completed within three years but it has been completed within eight months by respondent No,4, intentionally to flout the purpose of writ petitions and the I.C.As. And the constructed building can be removed as was held in the case of Ardeshir Cowasjee (supra).
4. Sh. Muhammad Faheem, Advocate, learned counsel for the appellant in I.C.A. No,116 of 2002 and I.C.A. No,117 of 2002 has adopted the arguments of the learned counsel for the appellants in I.C.A.
No,108 of 2002 but further supplemented that it is a public interest litigation and can be challenged any time. Relies upon 2001 YLR 2430. Also contends that the Town Planning necessity of Park and open places cannot be changed by MDA and this park was reserved for the use of 35000 to 40000 people, the price of which has also been paid by the residents. It is also contended that the competent authority has not leased out the said plot as the members of the National Privatization Commission were not included in the said Governing Body which even otherwise is nowhere defined in the Act for running the business of the authority. It is emphasized that there is no mention of the water slide in the advertisement which is being relied upon by the MDA wherefor Tubewell has been installed which has affected the water level of the surrounding area besides causing sewerage problem.
5. On the other hand Mr. Muhammad Rafique Rajwana, learned counsel for respondent No,4 supports the judgment on the ground that the Preamble of Punjab Development of Cities Act, 1976, requires arrangement to improve the condition for the residents of the locality and Lease Agreement has been entered upon between the MDA and respondent No,4 as the Park could not be developed due to the shortage of funds for the last more than twenty years, which even otherwise has been leased out only for twenty years to respondent No,4 on payment of a considerable amount which will be income of the Authority in order to meet its expenses and it is also in the benefit and interest of the residents of the locality as these facilities will not only be enjoyed by the residents of the locality but by the public at Multan and the surrounding area too, while in fact it has not been converted into commercial building but its use is for the purpose of Park. It is also contended that the writ petitions were filed with a considerable delay and have been rightly held hit by laches. Reliance is placed on 1999 SCMR 2908. It is also contended that respondent No,4 has acted bonafidely, who after taking the possession has almost completed its job by investing about two crores of rupees and it cannot be said that there was any mala fide on the part of the respondents in leasing out this property. It is also contended that the Park is the property of the Authority and it has been leased out for the same purpose, hence the judgment of the learned Single Judge being based on valid reasons and supported by the documents is maintainable. It is further contended that out of 28 acres of land, only 14 acres of land has been leased out to respondent No,4 whereas other land is still available for providing other amenities to the residents of the locality free of costs and development has been made only in 14 acres of land, the photographs whereof have been shown by the learned counsel for respondent No,4, for ready ,reference to contend that the construction work is almost complete. It is also vehemently contended that after twenty years respondent No,4 has to hand over its possession in the same condition to MDA and thereafter MDA can generate money from this Park; which will be used for the welfare of the people. It is further contended that under Act of 1976, as defined under subsection
(4) of section 4, the Minister is the Chairman of the Authority and he has rightly granted approval for leasing out the property, hence there was no illegality. It is also contended that the competent authority has entered into the Agreement whereas allegations are incorrect and under section 7 no act or proceeding can be declared as invalid or illegal only due to the non-attendance of any of the members of the Authority while two Directors who were duly delegated the powers had signed the Agreement. It is also contended that the charges from the general public for the use of the said portion of the park including the amenities installed therein will be reasonable and if there is any dispute the appellants and other residents of the locality can approach the MDA, which will be in a better position to direct respondent No,4 to make the rates reasonable.
6. Learned counsel for the MDA also opposes these appeals on the ground that the property is being used for the same purpose while appellants cannot be termed as owners of the said land and MDA being owner of the said land was competent to lease out the same in order to generate funds to meet the expenses which also include salaries of the staff. Contends that the impugned judgment, is liable to be maintained.
7. We have heard the arguments of the learned counsel for the parties and also perused the impugned judgment. It is an, admitted fact that the land measuring 28 acres was reserved for Jinnah Park by MDA in Shah Rukan-e-Alam Scheme developed in 1980. The appellants and others were handed over the possession of the plots purchased by them and after payment of price and constructing houses, they arc residing there since long but no work was done to develop the said park due to the insufficiency of the funds with the MDA and on the move of the respondents the National Bank of Pakistan had arranged an amount of Rs,10 millions for the) development of the park whereupon jogging tracks and grassy lawns were developed, besides lights were also installed. This park was leased out to respondent No,4 in order to provide more amenities to the public in the shape of water slides, swimming pool and other amusements etc. The learned Single Judge has rightly held that the park in such circumstances is bound to be used for the same purpose for which this land was earmarked. Even otherwise only 14 acres of land has been handed over to respondent No,4 on which he has allegedly invested about two crores of rupees to develop this area for providing amusements and other facilities for enjoyment of the public. As huge amount is being invested by respondent No,4 which is a private company, not responsible to provide these facilities to the locality of the residents of Multan cannot be said to commit any illegality by charging fare for use of the same. MDA has leased out this plot in order to provide the facilities to the residents of Multan in the shape of development of water sliding etc. Hence it cannot be said that the establishment of Suzo Park by respondent No,4 was in violation of the basic master plan of the said Scheme and the learned Single Judge has rightly held that the case reported as 1999 SCM R 2883 (supra) does not support the case of the appellants as out of the total area of 28 acres, 5 acres in the shape of open lawn has been reserved for free access of all without any restrictions. Similarly, an area of 4 acres consisting of open lawns, jogging tracks and tuck shops also can be used by everybody there being free access to it without charging any fee. The use of amusement and recreational facilities like water games and swimming polls etc., on the payment of fare charges is not sufficient to hold that the Park is being used for commercial purpose, when the MDA itself had advertised that due to the insufficiency of the funds this portion of the Park was being leased out in order to meet its expenses, hence we do not find any reason for upsetting this finding of the learned Single Judge. The learned Single Judge has rightly said that the writ petitions filed in the quarter of years 2001 are hit by lathes. We have also perused the advertisement published in the year 1998 in the daily "Nawa-i-Waqt", Multan and other newspapers for renting out of the Park for its development. No objection was ever raised by the appellants or any of the residents of the locality when the possession was handed over to respondent No,4 and the work was started by it. First time an application was moved by some ladies and subsequently these writ petitions were filed when the construction work had already been started by respondent No,4. In such circumstances when about half portion of the 'Park is being used for the same purpose by providing certain facilities of amusements to the residents of the whole area by installing modern equipments, it cannot be said that the residents of the area have any cause of action to challenge the same and moreso when it was not challenged at the time the process for leasing it out was initiated, it has been rightly held that the writ petitions were hit by lathes. Both the parties have relied upon 1999 SCMR 3883 (supra). The facts of the said case are entirely different from the facts of the present case. In the cited case Karachi Development Trust had developed a Housing Scheme and earmarked the land measuring 132 acres for park in the name of Bagh-e- Ibne Qasim. Subsequently on the formation of Karachi Development Authority, this Scheme was renamed as Karachi Development Scheme No,5. In the said Scheme 132 acres of land was provided with amusement parks, recreational facilities and on 1-4-1976 the land for the Park was revised, whereby the plot was carved out and was reserved for a revolving restaurant only, and it was leased out in favour of Messrs Marvi Investments for 24 years through allotment order. From the facts narrated above it is crystal clear that the said plot which was subject-matter of the abovesaid case decided by the Supreme Court of Pakistan was leased out for another purpose for the revolving restaurant. In the same case it has been duly mentioned in the facts that for the Park 132 acres was to be provided with amusement parks, recreational facilities, restaurants, refreshment stalls, ponds, sea-shell shops, swimming pools, Lilly ponds, rocky garden, formal garden, antique shops, fountains, telescope corner, picnic spots, band stand, skating rinks, terrace garden etc. The present park also has been leased out to respondent No,4 where respondent No,4 has developed two swimming pools besides other recreational facilities and the construction of water slides cannot be said beyond the purpose for which the land was reserved. In the cited case the construction of revolving restaurant and the building was declared not in accordance with the basic scheme. We do not find any change in the use of Park in the present case hence this case does not favour the appellants due to its different facts. We are not inclined to overlook the delay of years in filing the writ petitions by the appellants as the advertisements were consistently published in the daily newspapers for leasing out the Park in the year 1997-98. The appellants earlier never approached the MDA or any other authority against the said advertisements and even did not approach this Court when the agreement was executed or work was started but when some construction was already raised by respondent No,4, the appellants had approached this Court. The grant of relief in Constitutional jurisdiction is purely a discretionary relief and we do not find that its refusal to the appellants would be inequitable keeping in view the conduct of the appellants. As regards the contention of the appellants that the park is being used for commercial purpose, we are of the view that the plot is being used for the same purpose but as respondent No,4 has spent a huge amount for the development of the Park he has a right to charge for the use of the facilities by the visitors. However, sufficient land of the park is still available for its use by the residents of the locality without payment of any charges. In the peculiar circumstances of the present case when the Park was not developed for about 15 years and the National Bank of Pakistan had spent some money in the year 1995, this Park has further been developed by giving it on rent to respondent No,4 who has to leave the affixture, according to learned counsel for respondent No,4, in the same conditions at the expiry of twenty years' lease period, whereafter it will be available for the use of the public under the control of MDA, giving of the said portion of land on lease to respondent No,4 has become a source of development for the Park. The conduct of the appellants is also noteable that admittedly about 3 acres of land out of the total land of park is still in the illegal occupation of encroachers but the appellants had never taken any steps for the eviction of these illegal encroachers from the said site and if they are interested and keen in the use of the said Park as a facility for the residents, why they had failed to take any step is not ignorable and only when the steps have been taken by the MDA for the development of the said Park by renting out some portion of land to respondent No,4, they have raised the objections and that too not at the stage when the process was initiated but at the time when the process had already been completed and the construction started, which was near to completion. In the peculiar circumstances of this case when the MDA claims that due to insufficiency of funds this Park has been leased out which is the property of the MDA and the MDA can lease out the same for its benefits, we think that the appellants have no case in their favour.
8. As far as the contention that the competent person has not signed the agreement, the learned Single Judge while discussing all the aspects of the case, has rightly held that the two Directors who have signed the contract were duly delegated the powers for the signing of the contract with respondent No,4. As far as the contention of the appellants that the Park cannot be used for commercial purpose unless NOC is obtained from the residents of the surrounding locality, we find that the present site was not owned by them, but is the property of the MDA which was reserved for Park and the purpose of renting out of the said Park is not in contravention with the purpose for which the land was earmarked. We do not find that any NOC was required from the residents of the locality before leasing out the land to respondent No,4. The appellants can approach to the relevant forum for impounding of the proper duty and the relevant authority can decide the issue after hearing all the concerned parties in accordance with law. We will not dialate upon this question in write jurisdiction, as the petitions were filed for declaring the use of park other than the purpose for which the land was earmarked as illegal.
9. For what has been discussed above, we do not find any illegality or improbability in the impugned judgment and all these appeals having no merit are dismissed with no order as to costs.