2010 PLP 1663 (CLC)

IJAZ AHMAD, J.

It is contended by learned counsel for the petitioner that the petitioner is a registered welfare society of the inhabitants of the area; and that the respondents have deviated from the original plan and converted public utility areas into commercial and residential plots. The point raised needs consideration.

2. This case is admitted to regular hearing.

3. As a short matter is involved in the instant case; the parawise comments have already been submitted by respondent No.1; the respondent side is ready to argue the case, with the concurrence of the parties let this case be heard and decided today.

4. Learned counsel for the petitioner in Para-II of his petition has pointed out that five areas reserved for specific public purposes have been converted for being used for altogether different purposes. The area is the one reserved for the Hill Park. In the written reply submitted by respondent No.1, it has been admitted that in respect of the first area, that out of the Hill Park, 18-residential plots have been carved out. This has resulted in shrinking of the Hill Park. The second issue relates to the plot reserved for school. It is admitted by the respondent No.1 that 10-plots, each measuring 50x90 square feet have been carved out from the school. The issue relating to the third and fourth areas that pertains to the space reserved for `Markaz' is given up by the petitioner. The fifth area is a public park in Sector G-13/3, Islamabad. It is also admitted by respondent No.1 that the depression measuring 20 to 30 square feet along with the site of `Nullah' has been filled up with earth and has been converted into residential area.

5. It is contended by learned counsel for respondent No.1 that the petitioner is not an aggrieved person and the area of the already existing residential plots has not been changed; and that the petitioner was supposed to have resorted to the arbitrator, as provided under Clauses 23 and 24 of the Brochure, which is now made part of the record as Annexure-C-A. It is further submitted by the learned counsel for respondent No.1 that the site plans referred to by learned counsel for the petitioner, as Annexures C and D are provisional and may be subjected to alterations in order to cater to the needs of the inhabitants of the housing society. However, learned counsel for respondent No.1 owns and relies on the site plan annexed with the written reply as Annexure-F.

6. I have heard learned counsel for the parties and have gone through the record.

7. This court. cannot determine the factual controversy between the parties, however, it is admitted by both the sides that 18-plots were carved out from the Hill Park situated in Sector G-13, Islamabad, resulting in shrinking of the Hill Park and of the public utilities for the inhabitants of the locality. The plot reserved for the Secondary School measuring 3.87 acres has also been reduced. 10-plots, each measuring 50x90 square feet have been taken out from the land reserved for the school. Open spaces reserved in a housing scheme have to be used for the specified purpose only. The provisional site plans can be subjected to minor changes only to increase the utility of the area. Any public utility cannot be converted into commercial or residential area just to multiply the revenue of the housing society or to add to the fortune of its developers. The open spaces are the common property of the inhabitants of the locality and also the heritage of the generations to come. The conversion of the open spaces into commercial and residential areas is just like tearing away the pages of history, which once torn cannot be replaced. The shrinking of the `Nullah' which works as a drain for the rainy water is also not admissible under the law. Earth-filling of the depressions that serve as the natural outlets of the rainy water has always brought havoc by inundation of the settlements and habitats of the people during rainy season. The petitioner has well placed reasons to apprehend that the reduction of the area of the 'Nullah' will adversely affect the safety of the residents of the area.

8. As already observed that the land specified for a purpose cannot be used for any other purpose just in order to multiply revenue for the housing society, the conversion of the lands in all three mentioned cases for financial benefits of the housing society or for proliferation of the riches of the organizers is illegal and cannot be allowed to perpetuate. As far as the objection of learned counsel for respondent No.1 that the petitioner did not, in the first instance, has recourse to the arbitration, the same loses force in the present situation. Where the authority acts in a manner altogether unwarranted by law, the remedies provided under the law need not be exhausted before having recourse to the constitutional jurisdiction of this court.

9. Those who select a particular area or a housing scheme for their settlement, always have the available public utility area, the parks, the open spaces and topography of the area in their minds. The petitioners having these characteristics of the scheme in their consideration cannot be deprived of it on account of lust for wealth accumulation of the estate developers.

10. The petition succeeds. The respondents are perpetually restrained from converting the public utility areas into residential and commercial places. A.R.K./R-46/L Petition accepted.