P L D 2021 Lahore 720 (PLP)

MUHAMMAD QASIM KHAN, C.J.

This Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 "the Constitution" filed by the Petitioner as pro bono publico seeks enforcement of fundamental right to safe and secure life of citizens as guaranteed under Article 9 of the Constitution referring to his utter dismay for the maceration of environmental system being an outcome of sheer disregard to the forest and climate change policies by the respondents which have jeopardized the quality of life for the citizens. It was prayed that the Respondents be directed to restore original status of all those lands which are being used in violation of Lahore Development Authority Land Use Rules, 2014, especially the agriculture lands and the lands falling in green zones for the purpose of disconnection of utility installations thereupon, so long as those are not utilized for prohibited purposes; along with a direction for disciplinary proceedings against those delinquent officials who perpetuated/allowed/ facilitated and illegally protected the owners of such lands in defiance to the prevailing law and rules.

2. Reports and parawise comments were called from the respondents and necessary directions were issued from time to time in order to bring to the fore the actual scenario of the situation regarding procedure of approval for housing societies to be established and constructed upon green belts and provision of civic amenities including space for graveyards for the residents of such societies.

3. Arguments have been heard. Record, respective reports and comments submitted on behalf of the respondents have been minutely perused.

4. Firstly, I would like to address the question of maintainability of instant writ petition from the standpoint that generally a Constitutional petition can be filed by a person who is aggrieved and has got a locus standi. There is no denial to this fact that the present petitioner has brought the issue of violation of LDA laws, rules and regulations, which have a direct bearing on the lives of citizens of the province and run against the fundamental rights provided and safeguarded under the Constitution. It is not far-fetched to delineate that the courts are custodian of fundamental rights of citizens and protector of civil liberties and the Constitution made it imperative upon the Courts to pass orders and issue directions in case of breach of fundamental rights. The question of locus standi from the standpoint of bringing forth the issue of public importance and enforcement of fundamental rights on behalf of the community has always been liberally interpreted by the Courts and such actions have not only been permitted within the purview of Article 184(3) and Article 199 of the Constitution but also appropriate orders have always been passed to ensure that protection of fundamental rights for the citizens must not be breached upon by the executive, in any manner, through its inactions.

5. The Honorable Supreme Court of Pakistan in the case of Moulvi Iqbal Haider v. Capital Development Authority and others reported as PLD 2006 SC 394 expounded the concept of pro bono publico in the following terms:- "The word 'pro bono publico' as defined in Blacks Law Dictionary, Chambers Dictionary and Oxford Dictionary generally means `for the public good' or `for -welfare of the whole' being or involving uncompensated legal services performed especially for the public good. `Public interest' in the Black Law Dictionary, has been defined as the general welfare of the public that, warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large, which they are bound to provide under the relevant laws." Similarly the Honorable Supreme Court in the case of Javed Ibrahim Paracha v. Federation of Pakistan and others reported as PLD 2004 Supreme Court 482 laid down the same principle, as follows:

10. No doubt with the development of new concept of public interest litigation in the recent years, a person can invoke the Constitutional jurisdiction of the superior Courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the general public. The word 'pro bono publico' as defined in Black Law Dictionary, Chambers Dictionary and Oxford Dictionary generally means 'for the public good' or 'for welfare of the whole' being or involving uncompensated legal services performed especially for the public good. 'Public interest' in the Black Law Dictionary, has been defined as the general welfare of the public that warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large which they are bound to provide under the relevant laws. Viewing the bona fide of petitioner in the above contest, we are of the opinion that the petitioner has not been able to show that he was aggrieved person within the meaning of Article 199 of the Constitution and can agitate his grievance as 'pro bono publico'. This Court in the case of Sheikh Asim Farooq v. Federation of Pakistan (PLD 2019 Lahore 664) also held that if public interest is brought before the Court with bona fide intention and the same is not tainted with vested interests, then principles of locus standi/aggrieved person are to be interpreted liberally by the Courts. Relevant extract out of the same is reproduced as under:-

22. Public Interest Litigation ("PIL") is a powerful tool for individuals and groups for combating illegalities, injustice and social ills which promotes and protects the larger public interest in case of violation of any fundamental rights. As long as the public interest prayed for is bona fide and not based on any vested interests, the principles of locus standi /aggrieved person are to be interpreted liberally by the Courts. Reliance in this regard is placed on "Province of Sindh and others v. Lal Khan Chandio and others" (2016 SCMR 48), "Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others" (2011 SCMR 1621), "Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others" (1999 SCMR 2883), "Mian Shabir Asmail v. Chief Minister of Punjab and others" (PLD 2017 Lahore 597), "District Bar Association, Rawalpindi v. Federation of Pakistan and others"(PLD 2015 SC 401), "Ms. Imrana Tiwana and others v. Province of Punjab and others" (PLD 2015 Lahore 522), "Habibullah Energy Limited and another v. WAPDA through Chairman and others" (PLD 2014 Supreme Court 47), "Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others" (PLD 2013 Sindh 236), "Javed Ibrahim Paracha v. Federation of Pakistan and others" (PLD 2004 Supreme Court 482), "Iqbal Ahmad Dhudhi v. Federation of Pakistan and 5 others" (2014 CLC 1348), "Muhammad Qahir Shah and others v. Federation of Pakistan, Ministry of Railways, through Secretary, Islamabad and others" (2014 YLR 2571), PLD 2010 SC 759 -- Human Rights Case Nos.1111 of 2006, 1111 of 2007 and 15283- G of 2010. The Respondents are under a Constitutional obligation to protect the Fundamental Rights of the public at large as per judgment of Hon'ble Supreme Court reported in "Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others" (PLD 2012 SC 132). The Superior courts bound to protect the Fundamental Rights of citizens in exercise of jurisdiction conferred via Article 199 or 184 (3) of the Constitution. Reliance is placed on (2011 PLC (C.S.) 1076). In the matter of: SUO MOTU CASE NO. 24 OF 2010 (Regarding Corruption in Hajj Arrangements in 2010), hence petition on behalf of public for violation of fundamental rights can be entertained by this Court.

6. In view of the precedent law quoted hereinabove, it is manifestly clear that the petitioner has put forth a pervasive concern which is rampant in its impact, raised an issue, which has a direct bearing on citizens. fundamental right of enjoyment of life well enshrined and protected under Article 9 of the Constitution and also directly affects the conditions and quality of living for the people residing within the province and therefore his petition being well within the scope of pro bono publico is maintainable in its present form. Even otherwise admittedly the petitioner is residing within the territorial limits of LDA and while breaching the rules and regulations of LDA thereby using the agricultural land and green belts area for development of the colonies, life of all the citizens including the petitioner has been and can be materially affected and for the same reason for enforcement of the fundamental rights of all the citizens, which are also available to the petitioner, he is an aggrieved person and competent to file this petition in his personal capacity, as well.

7. Now, adverting to the point of concern that came up during the course of proceedings and unveiled rather a bleak and sorry state of affairs concerns the provision of either insufficient or complete lack of basic amenities in private housing societies and colonies for general public which divulges blatant defiance and failure on the part of respondents to implement the law and rules in this regard. The most painful and intense fact surfacing on the record is shocking revelation that most of the private housing societies do not have dedicated appropriate piece of land as graveyard for the residents despite the fact that law and rules of LDA unequivocally make it obligatory.

8. Housing society is formed with the object of providing its members with dwelling houses on conditions to be determined by its by-laws. Housing Cooperative Societies are intended to provide better and cheaper houses especially to the low and middle income groups who, otherwise, cannot afford to own houses through individual efforts. They are functioning on the cooperatives principles of self-help, self-finance, mutual aid and self-governance. In addition to the above, Housing colonies or housing societies developed by the land-developers/ government/ semi-government institutions/ autonomous bodies are meant to provide better living places to the citizens equipped with fully civic necessities and for this purpose they make offers for its sale by different modes of advertisements and agreements highlighting the facilities which will be available to the allottees/purchasers so they are bound to fulfill their obligation.

9. It goes without saying that there are settled laws and rules which govern the modus operandi for establishing a housing society/colony as to how the land has to be acquired/purchased; but as an ill-luck would have it, the housing colonies/societies are being allowed to run their affairs without proper sanction. Although in some of the cases it is claimed that the procedure has been adopted but in those matters too, by-laws have not been adhered to stricto sensu rather those are being trampled upon apparently for ulterior gains. This is evident from the fact that in most of the cases agricultural land is being converted into setting up housing societies/colonies, as well as, the green belts are being permitted to be crushed in the name of providing houses to the public. There is no denying the fact that green belts are one of the prime requirements for healthy atmosphere pre-requisite for better living standards. The green belt designation is a planning tool and the aim of green belt policy is to prevent urban sprawl by keeping land permanently open. A green belt development helps in removing particulate matter from the air and reduces the intensity of sound. Trees can either deflect, refract or may absorb sound to reduce its intensity. The green belts also help in soil erosion control and aid in containing water run offs. However, despite these irrefutable facts the green belts are being crushed for ulterior gains under the umbrella of providing houses to the public.

0. In our society ordinarily, we come across the complaints levelled against the administration of housing societies that the plots given to the purchaser after making full payment are different (locality wise) from what were shown to them at the time of agreement. This oftenly happens when the agreement (pre-requisite regarding sale/ purchase/transfer of property) is not registered with the Sub-Registrar rather different other modes which do not require registration such as transfer letter, allotment letter, agreement to sell and other similar documents, are used. This is somewhat a typical attempt at the part of developers of private housing societies to save stamp duty, registration fee and capital value tax (CVT), etc. By doing so the developers not only cause financial loss to the Government exchequer but they also keep the allottees in dark as they never feel secured in terms of their ownership with reference to authentic official record. While dealing this aspect august Supreme Court of Pakistan in a celebrated judgment reported as Messers Pak Gulf Construction Company (Pvt.) Ltd. Islamabad v. Federation of Pakistan through Secretary Finance, Ministry of Finance, Islamabad and others (2020 PTD 336) had observed as under: - "However, during recent years with the development of co-operative housing societies and statutory authorities engaged in the business of development and sale of real estate, a methodology of transferring immovable property has evolved, whereby properties are transferred privately without involving the Registrar of Documents. Such private transfers are designed to avoid transactional costs, taxes and duties which in turn lead to higher turnover of such properties for investment purposes. Such societies, statutory authorities and even limited liability companies (such as the petitioner) adopt various modes of undertaking such transfers including issuance of transfer letters, allotment letters, agreements to sell and other similar documents which do not require registration. Although such mode of transfer is not a legally recognized ode of transfer of immovable property, a practice has evolved over the past few decades whereby such properties change hands on the basis of allotment letters, agreements to sell, transfer letters etc. This method has obvious financial benefits by way of saving Stamp Duty, Registration Fee and CVT. The sum combined effect such savings comes to substantial amounts of money in addition to being convenient and less hasslesome." Hence, in view of pronouncement of the Hon'ble Supreme Court referred to above it is directed that the developer of any housing society/colony/co-operative society while entering into agreement with the purchaser shall adopt all pre-requisites necessary for transfer of immovable property. In this regard complete abuttals of the plot should be made part of such agreement in order to rule out any possibility of deception. Such agreement must be registered in the relevant record of the concerned department. It is, however, made clear that LDA or any other alike authority itself competent to register, while launching housing schemes shall be exempted from such practice.

11. With the global surge in the density of urban population, policy makers and planners have been paying significantly more attention to the trials and methods designed to promote sustainable development so as to improve the quality of life in the urban environment. To meet with such standards in Punjab Private Housing Schemes and Land Sub-division Rules, 2010, it has been made compulsory that 7% space must be allocated for green belts while 2% space necessarily be allocated for the graveyard. The rule 10 of ibid rules is reproduced herein-below for ready reference:- "

10. Planning standards for a housing scheme.

(1) A Town Municipal Administration, a Tehsil Municipal Administration or a Development Authority shall ensure that a housing scheme is planned and sanctioned in accordance with the National Reference Manual on Planning and Infrastructure Standards, Prepared by Ministry of Housing and Urban Affairs, Environment and Urban Affairs Division, Government of Pakistan. (2) Notwithstanding the generality of the foregoing (1) above, the developer while planning a housing scheme shall adhere to following requirements: (a) open space or park, seven percent and above; (b) graveyard, two percent and above; (c) commercial area, fixed five percent; (d) public buildings from five to ten percent; (e) maximum size of residential plot one thousand square yards; (f) approach road in five City Districts not less than 60 ft and approach road in other Districts not less than 40 ft; (g) internal roads with minimum forty feet right of way; (h) accommodation of roads proposed in master plan; (i) a ten marla plot for solid waste management up to one thousand plots and ten marla plot for every additional one thousand plots; (j) 20 % of the plots in a housing scheme shall be reserved/ planned for plots upto 5 marlas for low income group; (k) Location of a tube well, overhead reservoir, pumping station and disposal station to be provided if required by WASA and other agencies; (l) Site of grid station to be provided if required by WAPDA or other agencies responsible for electricity; and (m) Green strip under high tension electricity line as per requirements of WAPDA or other agency responsible for electricity." It is apathetic on the part of respondents that despite settled legal standards, not only allocation of space for green belts is being overlooked rather green belts available in the city area are being ruined. So much so, nobody is paying any heed towards allocation of specified land for graveyard, which brings the situation to a sorry state of affairs and needs imminent measures with utmost promptitude.

12. It is paradoxical to note that Rule 56 of the ibid Rules makes it incumbent upon the respondents to take appropriate actions against any developer who violates the requirement of these rules, relevant Municipal Administration or Development Authority. For the sake of ready reference, the rule is reproduced below:-

56. Action against violations.

A Town Municipal Administration, a Tehsil Municipal Administration or a Development Authority shall take appropriate action against a developer in case any provision of these rules is violated. The action shall be taken as provided in the law, rules and regulations framed there under.

13. Even otherwise, provision of basic civic amenities is mandatory requirement and in a way is the sole purpose for which a housing society must have been established. People are not supposed to pay heavy prices only for a chunk of land but the prices are certainly paid for a piece of land situated in a secure perimeter wherein basic amenities which are necessary for enjoying a peaceful life as provided and guaranteed under Article 9 of the Constitution, are essentially provided. This aspect was deliberated in a recent judgment of august Supreme Court of Pakistan handed down in the case of D.G. Khan Cement Company Ltd. v. Government of Punjab through Chief Secretary, Lahore and others reported as 2021 SCMR

834. Similar view was held in a salutary judgment of the apex Court reported as PLD 1994 Supreme Court 693 titled "Ms. Shehla Zia and others v. WAPDA".

14. In sequel to what has been discussed above this Court is persuaded to issue a Writ of Mandamus with the following directions:- i) Right of life includes oxygen and pollution free society. Right of life co-exists with forest and green areas. Therefore concerned authorities/legislative bodies should examine and make laws/ rules/regulations to bound the developers that while establishing private housing colonies and societies, co-operative societies and even colonies developed by the DHA, along with the roadside there must be green belts separate to foot-paths and on these green belts trees of indigenous species must be planted to protect the environment and also to attract the birds. ii) Although considering the area of the colonies/societies there is requirement in laws to maintain green belts and parks but considering the increasing pollution in Lahore particularly and in all other big cities of the province generally, it is necessary that within the cities, housing colonies which are yet to be approved in future at least 1% of total area (excluding already fixed for green belts and parks) be fixed for mini-forests and in this respect authorities shall proceed further to introduce new legislation or bring amendments in the existing rules/regulations of LDA or other relevant bodies. (a) During the hearing of this case a list was provided by the Commissioner and other authorities showing the area of Forest Department near the Lahore City available for the development of forest and as per stance of the officials, government is trying to develop forests, but this exercise may take years to do the needful. In this respect the concerned officers of administrative bodies, Director General, LDA or officers of Local Government Department and Forest Department shall ensure completion of these projects as early as possible by joining hands with the people of locality and they can also establish public-private partnership and in these forests walking tracks for the citizens and picnic places may also be established and for this purpose again private-public partnership can be engaged and even the respectable citizens known for their charity also be involved to come forward to secure the environment of the cities. In this respect big organizations of businessmen like APTMA, Chamber of Commerce and Industry, Anjuman Tajran and individual businessmen may also be taken on board for this pious purpose and national cause. (iii) To preserve the agricultural land the authorities must initiate a campaign on media including the social media to attract the people for high-rise buildings to avoid extra use of agricultural land for the purpose of residences/colonies or commercial plazas and necessary legislation be carried out and reasonable area be fixed for every housing society, where developers shall construct high-rise buildings/flats and provide all civic facilities in those buildings surrounded by beautiful green environment. The Court has no data in this respect, however, it is suggested that in future at least 30% area of every housing society/colony be fixed for high-rise buildings for the purpose of residence, alone. (iv) In the wake of establishing housing societies, we are in fact erecting concrete stoned buildings thereby ignoring greenery whereas on the other hand already existing green sites are being ruined rapidly. We are straightway losing sight of the fact that in this way the damage being caused to the atmosphere is ultimately bound to affect the humanity. To cater with this situation it is directed that where government deems it necessary proper plants must be installed on road-sides ensuring that plantation be made according to the status of the land keeping in view the chances of effective and rapid growth. (v) Since by every passing day we are facing acute water shortage, therefore such plants must be chosen which may require/consume minimum water for their growth. Moreover, the plants to be selected for this purpose must be of long height belonging to indigenous species, which may attract the local birds also. (vi) LDA, Metropolitan Corporations, Town Committees, shall locate the government land available within the cities and shall ensure the development of mini forests in thickly populated areas within the towns, cities, Metropolitan Corporations to minimize the impact of pollution. (vii) The concerned government authorities shall endeavour to ensure availability of green belts around the ring-roads being built/future projects where trees including fruit plants shall be planted to attract the birds, which are necessary for a healthy atmosphere. Lahore Ring Authority shall also make adequate arrangements for this purpose. (viii) During the course of proceedings, it has been highlighted, as also referred above that lot of agricultural land has been or is being converted into housing colonies/societies either with the approval of the authority or without requisite sanction. Undoubtedly general public purchases the plot for residence by spending the whole life saving. Such societies squarely lack civic amenities. However, it is also an admitted fact that these illegal housing societies have attracted hundreds and thousands of general public while it has been conceded by the respondent-authority that ousting of inmates of such illegal housing colonies at this stage is next to impossible. Hence, this Court is constrained to pass a direction to all concerned departments to ensure provision of all adequate civic facilities in such like housing societies by the persons who develop these societies/colonies, however, if the developers avoid their responsibility then all the civic facilities be provided by the concerned government authorities and the amount occurred thereupon be recovered from the persons who develop the society/colony. (ix) During the course of proceedings in another case, the Court was apprised that masterplan of Lahore City is being prepared and the same is likely to be completed by December this year. The master-plan is the basic necessity for the development of the city and for saving the agricultural land and green area and also to ensure that people will be treated alike without any discrimination it is necessary that this master-plan be prepared as early as possible and in this respect Director General Lahore Development Authority is directed to minutely observe the progress of the preparation of new master-plan. He may join a team of officers with him for this purpose. The Director General shall not be transferred before the December 2021, the date on which the master-plan is expected to be completed. The authority shall consider for consistency of policy and for taking effective measures the tenure of key posts in Lahore Development Authority like Director General, other members from private sector must be three years and necessary steps be taken for amendment in relevant laws. It will not only facilitate them to work with full interest rather because of protective tenure in office they will be able to effectively deal with mafias without any political pressure or outside influence. (x) If the Committee devising masterplan faces hindrance in performance of its obligatory functions, it may move to this Court. Moreover, monthly report shall be submitted by the Director General LDA through Additional Registrar (Judicial). (xi) During the hearing of this case the learned Law Officer and government officials apprised the Court that an Ordinance has been promulgated by the name of 'The Punjab Commission for Regularization of Irregular Housing Schemes Ordinance 2021'. At this stage as the issue of this Ordinance is not before this Court, hence while seeking guidance from the dictum of law laid down by august Supreme Court of Pakistan in the cases of Mian Irfan Bashir v. The Deputy Commissioner (D.C.) Lahore and others (PLD 2021 SC 571) and Jahanzaib Malik v. Balochistan Public Procurement Regularotry Authority through Chairman Board of Directors and others (2018 SCMR 414), this Court is persuaded to show judicial constraint thus I refrain from discussing the legality, formation, jurisdiction and so other factors about this Ordinance, however, prima facie it appears that the penalty provided in this case could not act as deterrence to avoid the development of illegal colonies and societies on agricultural lands or misuse of green area and other area preserved for civic facilities. It is an admitted fact that agricultural lands are available to the land developers on much cheaper rates, as compared to pari urban/urban land. On the other hand the quantum of penalty for this illegality is too low to avoid future development of residential colonies on agricultural land. Similar is the case with regard to violation of masterplan and other relevant laws, by the developers. Hence, fine/penalty must be equal to the difference of price between the agricultural land and pari-urban/urban land for the nearby agricultural land. In this regard, this observation be placed before the Chief Minister, Provincial Cabinet and also before the Provincial Assembly at the time when this Ordinance will be placed before it for legislation. (xii) The Chief Secretary, Government of the Punjab, shall ensure that directions passed by this Court are circulated to all concerned for compliance in letter and spirit and adhered to in future without fail. A report in this regard shall be submitted before this Court within fortnight through Additional Registrar (Judicial).

15. It is made clear that the instant writ petition is mandamus in nature while the object of the writ of continuing mandamus is to ensure that orders of the courts are implemented and are not fallen victim to official recalcitrance. The Doctrine of continuing mandamus serves several functions especially in a case where the executive does not carry out its functions effectively and either does not implement a statutory function/duty or does not exercise its discretion wisely. Socio-economic rights, for instance, propose a major challenge to the judicial and legal system where coercing state action is at times, an insurmountable task. The superior courts on number of occasions while exercising powers under Article 199 or 184(3) of the Constitution have held supervisory jurisdictional role. In the recent past in Panama Case judgments reported as PLD 2017 SC 265 and PLD 2017 SC 692 the Hon'ble Supreme Court of Pakistan in addition to passing directions, requested for appointment of a Monitoring Judge before whom periodical reports were submitted. In the foregoing facts and circumstances the matter is disposed of with a clarification that at any subsequent stage, if any person (citizen) feels that the direction(s) issued by this Court are not adhered to by any government functionary or the housing society, he will be at liberty to move this Court.

16. Before parting with the judgment this Court deems it essential to appreciate the assistance rendered by learned amicus curiae as well as Research Officers, Research Centre, Lahore High Court, in deciding the issue in hand which may help to articulate policy guidelines for the Provincial Government beneficial to the public at large. MH/M-131/L Order accordingly.