1998 PLP 887 (CLC)

Nasir‑ud‑Ghouri for Respondents (in all the three Writ Petitions). Raees Khuda Bakhsh through Writ Petition No.4084‑97/BWP, Zia‑ud -Din Zia through Writ Petition No.4767 of 1997/BWP and Nizam‑ud‑Din Nizami through Writ Petition No.4235 of 1997/BWP, prayed that a direction be issued to the respondents (Municipal Committee, Sadiqabad) to the effect that the property reserved as Sadiq Garden Park and owned by the respondent, be maintained and used as a Park only and should not be converted into Shopping Centre.

2. The undisputed facts giving rise to these petitions are that the said Park was owned by the State of Bahawalpur and it was transferred in favour of Municipal Committee, Sadiqabad (respondent). In 1986, the respondents planned to convert this piece of land into shopping centre as it was being misused for filth stock and its surroundings were occupied by different persons who had installed 86 Khokhas since long. A resolution No.4 was accordingly passed by the house on 18‑2‑1986 and after going through lengthy legal formalities, the formal approval for settling terms and conditions of rent with the Khokha owners regarding the shops to be constructed instead of Khokhas was given by the Government vide letter, dated 4‑9‑1997. The Khokha owners started construction of the shops when Khuda Bakhsh filed Writ Petition No.4084 of 1997/BWP on 26‑8‑1997 and a status quo order was issued in his favour. Thereafter, the other two petitioners also filed their respective writ petitions with similar prayers.

3. The learned, counsel for the petitioners mainly contended that construction of a Shopping Centre at a place of public park amounted to depriving the public of recreational and healthy atmosphere. It was contended that there was no other park in the vicinity and the inhabitants of the locality would be deprived of a very important civic amenity. It was also contended that the resolution, dated 18‑2‑1986 was with regard to construction of Shopping Centre at the place occupied by the Khokhas, but the respondent/Committee had now consumed whole of the space of the park for this purpose. It was further contended that under section 86 of the Punjab Local Government Ordinance, 1979, it was obligatory for an Urban Local Council to plant trees on public streets and other public places and take steps for the protection of the said trees. The learned counsel further submitted that the respondents had no right to construct a market at a place of public park.

4. Learned Assistant Advocate‑General, on the other hand, submitted a list of seven parks already existing within the Municipal limits of Sadiqabad. A site plan of the said parks is also attached to show their location. He submitted that the so‑called Park in dispute was in fact being used as a filth depot and was surrounded by Khokhas. According to him, respondent/Committee in order to improve the outlook of the said place and also to earn handsome amount in the shape of rent to meet the expenditure incurred in providing civic amenities to the citizens had made the scheme of Shopping Centre on the land given to the Committee under section 125 of the Local Government Ordinance, 1979, which was duly approved by the Government and thus, no violation of any rule or law had taken place. He pointed out that the site in question was rented out to the old Khokha owners who had raised constructions of the shops up to foundations and no park in fact existed on the spot. He also submitted that all these writ petitions were not maintainable for non‑joinder of necessary parties i.e., the persons who were given the place of rent for construction of shops.

5. The park is no longer in existence. There are many persons who have been given the site in question on rent for construction of shops. They are the persons who previously had Khokhas at that place. The Shopping Centre is being constructed under the resolution of the house and is approved by the Government. The writ petitions are bad for non joinder of necessary parties and are liable to dismissal on this sole ground.

6. There is another very important fact which is damaging for the case of the petitioners. Admittedly, the resolution regarding construction of Shopping Centre was passed on .18‑2‑1986, but these writ petitions are filed in 1997 i.e., almost after about 11 years. The petitioners nowhere mentioned that the passing of the resolution and the subsequent proceedings were concealed from them. They also did not mention as to when they came to know about the plan to construct Shopping Centre at the place of the park. These Constitutional petitions are hit by doctrine of laches, which operates as a bar in equity. It is of no use to open this question after such a long period. This view is supported by the judicial pronouncements mentioned below: (1) Azad Government of the State of Jammu and Kashmir through its Chief Secretary and others v. Haji Sumandar Khan and others (1995 MLD Supreme Court (AJ&K) 1350). (2) Multan Khan v. Cantonment Board, Nowshera through Cantonment Executive Officer, Nowshera and 4 others (1995 CLC 1297). (3) Messrs Presson Manufacturing Limited and another v. Secretary, Ministry of Petroleum and Natural Resources and 2 others (PLD 1995 Lahore 15).

7. In view of the above, all these Constitutional petitions are dismissed in limine. A.A./R‑49/L Petitions dismissed