P L D 2013 Lahore 663 (PLP)

UMAR ATA BANDIAL, C J.

The petitioners are owners and residents of a house located in the residential zone of Block-Z of the respondent No.1 Defence Housing Authority, Lahore ("DHA"). Along the western side of the petitioners' plot there is a large open space measuring 8 kanals or so which is placed at the corner junction of two main roads in Block Z. This open space is designated as a parking area in the master plan of Block Z, DHA. As there are no offices or shops in the vicinity of the parking area and hence no commercial activity many years have passed but the DHA have .not received any offer from private investors to build a parking plaza in the said open plot. Therefore, the Executive Board of the DHA decided to convert a part of the parking area into a commercial plaza comprising six office units having basement plus three storeys. Such action is challenged in the present petition for committing illegal conversion of an amenity plot to a commercial use.

2. According to the DHA Construction and Development Regulations, 2007 ("Regulations") a parking space may be a covered or open space. Ordinarily a parking space is meant to adjoin and serve commercial establishments but in the present case there are no commercial establishments or buildings alongside the disputed parking area. There are amenity buildings like mosque and a school but these are across the road on the other side. The parking space is abutted by residential houses on its sides and at the back. Prima facie the disputed parking space is located in a residential area.

3. According to the Regulation 2(jj), a residential area may have buildings of public use as, for instance, single storeyed 'sector shops'. Evidently such buildings must conform specifications according to building byelaws and regulations that protect the character of the surrounding residential area.

4. Learned counsel for the petitioner submits that the disputed parking area is an amenity plot that cannot be converted to commercial use. Reference has been made to case-law pertaining to Section 52A of the Karachi Development Authority Order, 1957 ("KDA Order") and Section 5 of the Punjab Disposal of Land by Development Authorities (Regulation) Ordinance, 1998 that prohibit the conversion of amenity plots to other use. With reference to the KDA Order, amenity plots have been interpreted to include parks, gardens, schools, hospitals, mosques or such other places of public use. The learned counsel for the petitioner submits that the subject parking area in the instant case is a place of public use. It must therefore be treated as an amenity plot,- the use whereof cannot be converted. He relies on Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers' Housing Authority and 2 others (2010 MLD 1267).

5. In Municipal Committee, Chakwal v. Ch. Fateh Khan and others (2006 SCMR 688) the Hon'ble Supreme Court treated the village common, that is, shamlat land, to be an amenity plot in which commercial construction for private interest could not be undertaken without the permission of the other owners in the revenue state. The ruling resonates with the principle that an area of common public ownership or use cannot without adequate safeguards be converted to private use.

6. Learned counsel for the respondent DHA and the private respondent No.4 bank have taken the plea that Article 7(1)(j) of the Defence Housing Authority Lahore Order 2002 empowers the Executive Board of the DHA to "cancel or re-plan any housing, commercial or amenity unit". Therefore, the conversion of the parking space to commercial use is legally valid. Be that as it may, it is also contended that the Regulations permit construction on the disputed parking space and therefore the same cannot be treated as an open space according to the master plan. He submits that a commercial building can lawfully be erected on such space because the use of a parking plaza also involves commercial activity reflected in the payment of parking fee. Therefore, such space cannot, by any means, be classified as residential area.

7. The parking area in question is located in a residential area. It has no commercial buildings connected with it in terms of the definition of 'parking space' contained in Regulation 2(y). However, it can accommodate. the overflow of traffic from the nearby mosque and school. It is open for use by the public. Equally, if a parking plaza is constructed on the said space it would be a public convenience facility that promotes accessibility of its area for visitors. Therefore on account of its availability for public use the parking space is an amenity plot. Secondly, the parking space does not as such host any trade, commercial or business activity. In the light of the Regulations and the law the parking area is not a commercial plot and cannot be converted to full-fledged commercial use.

8. However, the Regulation 2(jj) does visualize construction for parking purposes to be raised on land reserved for parking space. Accordingly, DHA cannot be obliged to keep the disputed parking space as an open level space for all times. The power under Article 7(1)(j) of the DHA Order, 2002 may be exercised in a manner consistent either with design and characteristics of a parking plaza or of a residential building. However, the statutory power may not be exercised to convert an amenity plot to a construction and use that violates the safeguards implicit in the plot's dedication as a parking area.

9. The Regulations do not lay down the permissible structural specifications for the construction of a parking plaza on such land. However, it is not disputed that no trade or commercial activity takes place in a parking plaza. As such issues of invasion of privacy, congestion, littering do not arise. In the present case a commercial structure is intended to be erected rather than a parking plaza. On a reasonable interpretation of the Regulations, it is fair that such construction in a parking area in a residential area should be prevented and the same be made to conform the rules and standards applicable to construction of buildings in a residential zone. Otherwise the structural harmony, privacy, security and tranquility of the residential neighbourhood available in the presence of a parking area, may be harmed. Therefore, any structure built in the parking area in question ought to be limited to the building setback, height and occupation limits imposed for residential buildings in the area.

10. The abovenoted proposition necessarily excludes the impugned construction of a building comprising a basement plus three floors on the subject parking area. This is because the land in issue is not a commercial plot, the construction to be erected thereon must respect the building byelaws of the zone in which such land is located, as in the case of sector shops. Since the disputed parking area is situated in a residential area, therefore, the type of construction that may be erected thereon should conform the byelaws for construction in a residential area.

11. In view of what has been held above, this petition is allowed to proscribe the commercial construction that has been authorized by DHA on the parking area in question. However, the DHA is at liberty to consider and authorize other suitable construction on the said land that complies the limitations outlined above and to permit such user of the structure erected on the parking area that does not violate the safety, privacy and tranquility of the neighbourhood to the extent that these conditions are assured by the Building Byelaws and Regulations of DHA. KMZ/Z-21/L Petition allowed.