2017 CLC 113 LAHORE
2017 C L C 113
[Lahore]
Before Amin-ud-Din Khan and Shams Mehmood Mirza, JJ
AHSAN JAVED----Appellant
Versus
LAHORE DEVELOPMENT AUTHORITY through Director-General and 16 others----Respondents
I.C.A. No.888 of 2014, heard on 27th April, 2016.
(a) Constitution of Pakistan---
----Art. 9---Scope and ambit of Art.9 of the Constitution---Security of person---Right to life---Civil amenities---Civic amenities constituted a basic right of the citizens and said right had to be upheld on the touchstone of Art.9 of the Constitution.
Shehla Zia and another v. WAPDA PLD 1994 SC 693; New Garden Town Welfare Society (Registered) Lahore v. Lahore Development Authority and others 2001 CLC 1589; Human Right Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 and Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 rel.
(b) Constitution of Pakistan---
----Arts. 9 & 199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional jurisdiction of High Court---Security of person---Right to life---Civic amenities---Factual controversy---Scope---Intra-court appeal---Appellant's constitutional petition impugning conversion of an open space designated as a park to another use, by the authorities was dismissed, inter alia, on the ground that the Constitutional petition involved disputed questions of fact---Validity---Civic amenities constituted a basic right of citizens and said right had to be upheld on the touchstone of Art.9 of the Constitution---Authorities had no power or authority under law to convert use of the open space and raise construction thereon, as the same had been in continuous use as a park, and had been maintained as such---High Court observed that it had been established that the status of the area which was the subject matter of the constitutional petition was for use as a park and said position was reinforced by various orders of the High Court in previous rounds of litigation, as well as by the stance of authorities in the said cases---Nature and existence of the park was therefore an undisputed fact, and thus it was disingenuous for the authorities to now take a contrary position---Finding recorded in the impugned order regarding disputed questions of fact, was therefore not valid, as the nature and existence of the park had been established by judicial orders and statements of the authorities---Impugned order was set aside, and authorities were directed to preserve and maintain the open space as a park, which was not to be converted to any other use under any circumstances---Intra-court appeal was allowed, accordingly.
Shehla Zia and another v. WAPDA PLD 1994 SC 693; New Garden Town Welfare Society (Registered) Lahore v. Lahore Development Authority and others 2001 CLC 1589; Human Right Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 and Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 rel.
Shahid Hamid for Appellant.
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Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017L205
JUDGMENT
Waqar A. Sheikh for Respondent No.1.
Date of hearing: 27th April, 2016.
SHAMS MEHMOOD MIRZA, J.--- This Intra Court Appeal filed under section 3 of the Law Reforms Ordinance, 1972 calls into question judgment dated 12.08.2014 passed by a learned Single Judge of this Court whereby the appellant's Writ Petition No.1414 of 2007 was dismissed.
2.The facts of the case in brief are that Housing and Physical Planning Department, Government of Punjab, Lahore implemented a residential scheme known as Shadman-II, Lahore (hereinafter the 'Scheme'), which Scheme was subsequently transferred to Lahore Development Authority (LDA)/respondent No.1. The Scheme included a park covering an area of 20 Kanals, which park was allowed by LDA to be taken over by Punjab Institute of Mental Health for its extension. In lieu of the conversion of the said park, LDA developed parks in two open spaces with one larger park over an area of 16 Kanals and a smaller triangular park covering an area of 2 Kanals, 3 Marlas, 165 Square Feet. As per the parawise comments submitted by Parks and Horticulture Authority (PHA) in the writ petition, these parks were transferred by LDA to it in 1998 and are since been maintained by it. An effort was made by LDA for conversion of the parks into residential plots whereupon the residents of the area filed Writ Petition No.8351 of 1994 challenging the action of LDA. The said writ petition was allowed by this Court on 26.01.2004 declaring that LDA had no lawful authority to change the use/nature of the park. LDA sought to challenge the said order in appeal by filing ICA No.95 of 2006 titled "LDA v. Sh. Abdul Aziz etc.", which was dismissed in limine by a learned Division Bench of this Court vide order dated 20.07.2006. Civil Petition No.990-L of 2006 filed by LDA was also dismissed by the Hon'ble Supreme Court through order dated 07.11.2006. Despite the passing of these orders, LDA once again sought to raise unauthorized structure in the Triangular Park against which contempt petition bearing Crl. Org. No.822-W of 2008 was filed. By order dated 06.11.2008, LDA as well as the Punjab Institute of Cardiology (PIC)/respondent No.4 were restrained from taking any steps in violation of the judgment of this Court. LDA once again allowed PIC and Communication and Works Department to begin construction in the larger park. This action of the LDA was again challenged by the appellant and others by filing Writ Petition No.1414 of 2007 (the decision whereof is under challenge in this appeal) in which a stay order was granted on 16.02.2007. However, the said stay order was subsequently modified on 09.03.2007 whereby PIC/respondent No.4 was allowed to raise construction at its own risk and cost subject to final decision of the writ petition. The writ petition was finally dismissed by learned Single Judge in Chamber vide order dated 12.08.2014, hence this appeal.
3.Mr. Shahid Hamid, the learned senior counsel appearing for the appellant on instructions submitted that the appellant will not challenge the conversion of the larger park on which construction is being raised by the PIC in view of the larger public interest that PIC serves and promotes. He, however, submitted that the appellant's interest is now confined to ensuring that the status of the triangular park is preserved and maintained and that its conversion for any other purpose be disallowed. The learned counsel argued that the appellant and other residents of the area have the right to enjoy the amenity of the park, which was established 45 years ago. He furthermore, drew the attention of this Court towards the order passed by the Hon'ble Supreme Court (order dated 07.11.2006 dismissing the petition filed by LDA) and the orders passed by this Court (26.01.2004, 20.07.2006 and 06.11.2007), which had upheld the residents' right to enjoy the triangular park and had held that the same cannot be converted to any other use. He also contended that the said orders clearly establish that the appellant and other residents of the Scheme cannot be deprived of their vested right under law to the beneficial use of the triangular park.
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4.The learned counsel for LDA/respondent No.1, on the other hand, supported the impugned order. The other respondents have not appeared despite service of notice and are, therefore, proceeded against ex parte.
5.We have heard the learned counsel for the parties and have perused the record with their able assistance. Civic amenities constitute a basic right of the citizens and the Hon'ble Supreme Court as well as this Court through series of judgments have time and again upheld the said right on the touch stone of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 which guarantees the fundamental right of life to all the citizens of Pakistan. In a judgment reported as Shehla Zia and another v. WAPDA PLD 1994 SC 693, the Hon'ble Supreme Court held as under:
The word 'life' is very significant as it covers all facts of human existence. The word life has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally …. under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighbourhood or at a far off place, he is entitled to seek any injunction and also claim damages, but the constitutional rights are higher than the legal rights conferred by law be it municipal law or the common law…
6.In another case decided by this Court through judgment reported as New Garden Town Welfare Society (Registered) Lahore v. Lahore Development Authority, etc. 2001 CLC 1589 challenging the conversion of a LDA amenity into residential plots this Court held:-
"By virtue of Section 48 of Lahore Development Act provisions of Lahore Improvement Trust Act are applicable unless and until the same are inconsistent with the provisions of the Lahore Development Authority Act, 1975. Therefore, Sections 13 and 14 and other provisions of Lahore Improvement Trust Act, 1992 are applicable. The aforesaid provisions cast duty upon the Respondent No.1 for the purpose of change in the Scheme the respondent had to invite objections. In arriving to this conclusion I am fortified by Sh. Ahmad Din's case (1984 CLC 3304). It is admitted fact that in the present case no objections were invited in terms of the aforesaid provisions. Therefore, per se alleged the conversion of the earmarked plots for school and welfare center and public hall for residential purpose is illegal and contrary to the lay out plan of the LDA on the well known principle when a thing is to be done in a particular manner, it must be done in that way and not otherwise. In arriving to this conclusion I am fortified by the judgments of the Hon'ble Supreme Court in (PLD 1971 SC 61) Atta Muhammad Qureshi's case and 1991 SCMR 483 (Dr. Abdur Rauf and others' case). In view of the aforesaid discussion and principles laid down by the Superior Courts it is not a case of re-allocation of the scheme but it is a case of radical change/modification in the original schemes. Therefore action is not in consonance with the spirit of law".
7.The Hon'ble Supreme Court in a judgment reported as In the matter of Human Right Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 disallowed use of even a part of the approved park for commercial restaurant by holding as under:
However, since violation of legal provisions noted hereinabove also entails consequences because the park is wholly to be used for the purpose for which it has been established and not for running a business/trade.
8.In the case titled Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 the Supreme Court held as under:
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Admittedly a public park, if is earmarked in a housing scheme, creates a right amongst the public and that the right includes their entry in the park without any obstacle, being fundamental right enshrined in Article 26 read with Article 9 of the Constitution. It may be noted that liberty of a person, to have access or utilize a right available to him, cannot be taken away by converting such facility into commercial one, for the purpose of extending benefit a third person, because instant case considerably a big plot of land, measuring 5 acres, has been handed over to respondent No.2 at throwaway lease money, causing huge loss to the public exchequer, therefore, taxpayer have right to inquire from CDA as to how a right of life and liberty can be denied to them.
9.We are, therefore, quite clear in our mind that LDA has no power or authority under the law to convert the use of an open space which has been in continuous use as a park and has been preserved and maintained as such by PHA/respondent No.3 since 1998. There is no doubt regarding the status of the open space being used as a park. The Director (Horticulture) in his parawise comments categorically stated that "The park was established by Directorate of Horticulture during the tenor of LDA and since then is being maintained by PHA". This position is reinforced by the various orders passed by this Court in the previous rounds of litigation. Order dated 06.11.2008 passed in Criminal Original No.822-W of 2008 reflects that the Director planning and Development made a categorical statement before the Court that a park was included in the Scheme which was now being maintained by PHA after taking it over from the LDA. It is also quite clear that LDA in the previous round of litigation took the stance that it had the right to change the site plan of the Scheme thereby conceding the stance of the appellant that the park existed in the Scheme.
10.In the face of the undisputed fact regarding the nature and existence of the park as established by the various orders passed in the earlier round of litigation, it is disingenuous on the part of the LDA to take a contrary position. Be that as it may, the appellant has waived his right to challenge the conversion of larger park for becoming part of PIC and the challenge at present is restricted to the triangular part built over land measuring 2 Kanals, 3 Marlas, 165 Square Feet. In view of the clear and unambiguous stance taken by PHA that the open space was a park and is being maintained as such by the PHA, the LDA has no authority in law to convert and change its use as the same is now under the control of PHA. The findings of the learned Single Judge in Chambers regarding the presence of disputed questions of fact in this case are not warranted by the judicial orders passed in the previous round of litigation and the stance taken by PHA in its parawise comments.
11.We, therefore, allow this appeal and direct the PHA to preserve and maintain the open space measuring 2 Kanals, 3 Marlas, 165 Square feet as a park, which shall not be converted to any other use under any circumstances.
KMZ/A-95/LAppeal allowed.
[Lahore]
Before Amin-ud-Din Khan and Shams Mehmood Mirza, JJ
AHSAN JAVED----Appellant
Versus
LAHORE DEVELOPMENT AUTHORITY through Director-General and 16 others----Respondents
I.C.A. No.888 of 2014, heard on 27th April, 2016.
(a) Constitution of Pakistan---
----Art. 9---Scope and ambit of Art.9 of the Constitution---Security of person---Right to life---Civil amenities---Civic amenities constituted a basic right of the citizens and said right had to be upheld on the touchstone of Art.9 of the Constitution.
Shehla Zia and another v. WAPDA PLD 1994 SC 693; New Garden Town Welfare Society (Registered) Lahore v. Lahore Development Authority and others 2001 CLC 1589; Human Right Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 and Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 rel.
(b) Constitution of Pakistan---
----Arts. 9 & 199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional jurisdiction of High Court---Security of person---Right to life---Civic amenities---Factual controversy---Scope---Intra-court appeal---Appellant's constitutional petition impugning conversion of an open space designated as a park to another use, by the authorities was dismissed, inter alia, on the ground that the Constitutional petition involved disputed questions of fact---Validity---Civic amenities constituted a basic right of citizens and said right had to be upheld on the touchstone of Art.9 of the Constitution---Authorities had no power or authority under law to convert use of the open space and raise construction thereon, as the same had been in continuous use as a park, and had been maintained as such---High Court observed that it had been established that the status of the area which was the subject matter of the constitutional petition was for use as a park and said position was reinforced by various orders of the High Court in previous rounds of litigation, as well as by the stance of authorities in the said cases---Nature and existence of the park was therefore an undisputed fact, and thus it was disingenuous for the authorities to now take a contrary position---Finding recorded in the impugned order regarding disputed questions of fact, was therefore not valid, as the nature and existence of the park had been established by judicial orders and statements of the authorities---Impugned order was set aside, and authorities were directed to preserve and maintain the open space as a park, which was not to be converted to any other use under any circumstances---Intra-court appeal was allowed, accordingly.
Shehla Zia and another v. WAPDA PLD 1994 SC 693; New Garden Town Welfare Society (Registered) Lahore v. Lahore Development Authority and others 2001 CLC 1589; Human Right Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 and Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 rel.
Shahid Hamid for Appellant.
1 of 42/22/2018, 12:07 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017L205
JUDGMENT
Waqar A. Sheikh for Respondent No.1.
Date of hearing: 27th April, 2016.
SHAMS MEHMOOD MIRZA, J.--- This Intra Court Appeal filed under section 3 of the Law Reforms Ordinance, 1972 calls into question judgment dated 12.08.2014 passed by a learned Single Judge of this Court whereby the appellant's Writ Petition No.1414 of 2007 was dismissed.
2.The facts of the case in brief are that Housing and Physical Planning Department, Government of Punjab, Lahore implemented a residential scheme known as Shadman-II, Lahore (hereinafter the 'Scheme'), which Scheme was subsequently transferred to Lahore Development Authority (LDA)/respondent No.1. The Scheme included a park covering an area of 20 Kanals, which park was allowed by LDA to be taken over by Punjab Institute of Mental Health for its extension. In lieu of the conversion of the said park, LDA developed parks in two open spaces with one larger park over an area of 16 Kanals and a smaller triangular park covering an area of 2 Kanals, 3 Marlas, 165 Square Feet. As per the parawise comments submitted by Parks and Horticulture Authority (PHA) in the writ petition, these parks were transferred by LDA to it in 1998 and are since been maintained by it. An effort was made by LDA for conversion of the parks into residential plots whereupon the residents of the area filed Writ Petition No.8351 of 1994 challenging the action of LDA. The said writ petition was allowed by this Court on 26.01.2004 declaring that LDA had no lawful authority to change the use/nature of the park. LDA sought to challenge the said order in appeal by filing ICA No.95 of 2006 titled "LDA v. Sh. Abdul Aziz etc.", which was dismissed in limine by a learned Division Bench of this Court vide order dated 20.07.2006. Civil Petition No.990-L of 2006 filed by LDA was also dismissed by the Hon'ble Supreme Court through order dated 07.11.2006. Despite the passing of these orders, LDA once again sought to raise unauthorized structure in the Triangular Park against which contempt petition bearing Crl. Org. No.822-W of 2008 was filed. By order dated 06.11.2008, LDA as well as the Punjab Institute of Cardiology (PIC)/respondent No.4 were restrained from taking any steps in violation of the judgment of this Court. LDA once again allowed PIC and Communication and Works Department to begin construction in the larger park. This action of the LDA was again challenged by the appellant and others by filing Writ Petition No.1414 of 2007 (the decision whereof is under challenge in this appeal) in which a stay order was granted on 16.02.2007. However, the said stay order was subsequently modified on 09.03.2007 whereby PIC/respondent No.4 was allowed to raise construction at its own risk and cost subject to final decision of the writ petition. The writ petition was finally dismissed by learned Single Judge in Chamber vide order dated 12.08.2014, hence this appeal.
3.Mr. Shahid Hamid, the learned senior counsel appearing for the appellant on instructions submitted that the appellant will not challenge the conversion of the larger park on which construction is being raised by the PIC in view of the larger public interest that PIC serves and promotes. He, however, submitted that the appellant's interest is now confined to ensuring that the status of the triangular park is preserved and maintained and that its conversion for any other purpose be disallowed. The learned counsel argued that the appellant and other residents of the area have the right to enjoy the amenity of the park, which was established 45 years ago. He furthermore, drew the attention of this Court towards the order passed by the Hon'ble Supreme Court (order dated 07.11.2006 dismissing the petition filed by LDA) and the orders passed by this Court (26.01.2004, 20.07.2006 and 06.11.2007), which had upheld the residents' right to enjoy the triangular park and had held that the same cannot be converted to any other use. He also contended that the said orders clearly establish that the appellant and other residents of the Scheme cannot be deprived of their vested right under law to the beneficial use of the triangular park.
2 of 42/22/2018, 12:07 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017L205
4.The learned counsel for LDA/respondent No.1, on the other hand, supported the impugned order. The other respondents have not appeared despite service of notice and are, therefore, proceeded against ex parte.
5.We have heard the learned counsel for the parties and have perused the record with their able assistance. Civic amenities constitute a basic right of the citizens and the Hon'ble Supreme Court as well as this Court through series of judgments have time and again upheld the said right on the touch stone of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 which guarantees the fundamental right of life to all the citizens of Pakistan. In a judgment reported as Shehla Zia and another v. WAPDA PLD 1994 SC 693, the Hon'ble Supreme Court held as under:
The word 'life' is very significant as it covers all facts of human existence. The word life has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally …. under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighbourhood or at a far off place, he is entitled to seek any injunction and also claim damages, but the constitutional rights are higher than the legal rights conferred by law be it municipal law or the common law…
6.In another case decided by this Court through judgment reported as New Garden Town Welfare Society (Registered) Lahore v. Lahore Development Authority, etc. 2001 CLC 1589 challenging the conversion of a LDA amenity into residential plots this Court held:-
"By virtue of Section 48 of Lahore Development Act provisions of Lahore Improvement Trust Act are applicable unless and until the same are inconsistent with the provisions of the Lahore Development Authority Act, 1975. Therefore, Sections 13 and 14 and other provisions of Lahore Improvement Trust Act, 1992 are applicable. The aforesaid provisions cast duty upon the Respondent No.1 for the purpose of change in the Scheme the respondent had to invite objections. In arriving to this conclusion I am fortified by Sh. Ahmad Din's case (1984 CLC 3304). It is admitted fact that in the present case no objections were invited in terms of the aforesaid provisions. Therefore, per se alleged the conversion of the earmarked plots for school and welfare center and public hall for residential purpose is illegal and contrary to the lay out plan of the LDA on the well known principle when a thing is to be done in a particular manner, it must be done in that way and not otherwise. In arriving to this conclusion I am fortified by the judgments of the Hon'ble Supreme Court in (PLD 1971 SC 61) Atta Muhammad Qureshi's case and 1991 SCMR 483 (Dr. Abdur Rauf and others' case). In view of the aforesaid discussion and principles laid down by the Superior Courts it is not a case of re-allocation of the scheme but it is a case of radical change/modification in the original schemes. Therefore action is not in consonance with the spirit of law".
7.The Hon'ble Supreme Court in a judgment reported as In the matter of Human Right Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 disallowed use of even a part of the approved park for commercial restaurant by holding as under:
However, since violation of legal provisions noted hereinabove also entails consequences because the park is wholly to be used for the purpose for which it has been established and not for running a business/trade.
8.In the case titled Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 the Supreme Court held as under:
3 of 42/22/2018, 12:07 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017L205
Admittedly a public park, if is earmarked in a housing scheme, creates a right amongst the public and that the right includes their entry in the park without any obstacle, being fundamental right enshrined in Article 26 read with Article 9 of the Constitution. It may be noted that liberty of a person, to have access or utilize a right available to him, cannot be taken away by converting such facility into commercial one, for the purpose of extending benefit a third person, because instant case considerably a big plot of land, measuring 5 acres, has been handed over to respondent No.2 at throwaway lease money, causing huge loss to the public exchequer, therefore, taxpayer have right to inquire from CDA as to how a right of life and liberty can be denied to them.
9.We are, therefore, quite clear in our mind that LDA has no power or authority under the law to convert the use of an open space which has been in continuous use as a park and has been preserved and maintained as such by PHA/respondent No.3 since 1998. There is no doubt regarding the status of the open space being used as a park. The Director (Horticulture) in his parawise comments categorically stated that "The park was established by Directorate of Horticulture during the tenor of LDA and since then is being maintained by PHA". This position is reinforced by the various orders passed by this Court in the previous rounds of litigation. Order dated 06.11.2008 passed in Criminal Original No.822-W of 2008 reflects that the Director planning and Development made a categorical statement before the Court that a park was included in the Scheme which was now being maintained by PHA after taking it over from the LDA. It is also quite clear that LDA in the previous round of litigation took the stance that it had the right to change the site plan of the Scheme thereby conceding the stance of the appellant that the park existed in the Scheme.
10.In the face of the undisputed fact regarding the nature and existence of the park as established by the various orders passed in the earlier round of litigation, it is disingenuous on the part of the LDA to take a contrary position. Be that as it may, the appellant has waived his right to challenge the conversion of larger park for becoming part of PIC and the challenge at present is restricted to the triangular part built over land measuring 2 Kanals, 3 Marlas, 165 Square Feet. In view of the clear and unambiguous stance taken by PHA that the open space was a park and is being maintained as such by the PHA, the LDA has no authority in law to convert and change its use as the same is now under the control of PHA. The findings of the learned Single Judge in Chambers regarding the presence of disputed questions of fact in this case are not warranted by the judicial orders passed in the previous round of litigation and the stance taken by PHA in its parawise comments.
11.We, therefore, allow this appeal and direct the PHA to preserve and maintain the open space measuring 2 Kanals, 3 Marlas, 165 Square feet as a park, which shall not be converted to any other use under any circumstances.
KMZ/A-95/LAppeal allowed.
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