2024 PLP 1401 (MLD)

Muhammad Sajid Mehmood Sethi, J.

Petitioner is aggrieved of conversion / allotment of Community Centre of New Muslim Town, Lahore to respondent-LWMC for its office.

2. Learned counsel for petitioner submits that as per LDA Master Plan, the plot in question was designated for public utility building and even the LDA does not have the authority to unilaterally alter the said Master Plan at its own whims. He adds that in view of section 14 of the Lahore Development Authority Act, 1975, any amendment or modification in the scheme could only be undertaken by following the same procedure as stipulated for preparation of a new scheme. He further submits that that provision of Community Centre within the area was a long standing demand of the residents of the locality, and once a public building / area is given to public, the same cannot be revoked. He contends that if offices of LWMC are allowed to operate then heavy machinery i.e. dumper, bulldozer excavators etc. will create hurdles and cause nuisance for people of the locality. He argues that impugned allotment is in clear violation of provisions of the Management and Transfer of Properties by Development Authorities Act, 2014, as procedure of open auction has been bypassed. He maintains that respondent-LWMC is a company established under the Companies Act, 2017, and is not a government agency in any manner. He further adds that impugned allotment has been made on a thrown away price and the bidding process in terms of provisions of the Public Utility Sites of LDA Regulations, 2019 ("LDA Regulations, 2019") has not been adopted, thus, the impugned action is liable to be declared as illegal and without lawful authority. He has relied upon Syed Mansoor Ali Shah and 4 others v. Government of Punjab, through Housing, Physical and Environmental Planning Department and 3 others (PLD 2007 Lahore 403), Shahnawaz Mallah and 2 others v. Raza Muhammad Brohi and 8 others (2013 CLC 792), Haji Lal Muhammad v. Federation of Pakistan through Secretary, Ministry of Interior Division, Islamabad through Deputy Attorney General at Peshawar and 4 others (PLD 2014 Peshawar 199), Barrister Waleed Khanzada v. Federation of Pakistan through Secretary Ministry of Defence and another (2014 CLC 903), Muhammad Aqil Asim and 2 others v. Cantonment Board Clifton through Chief Executive Officer (2018 MLD 440) and Mrs. Farkhanda Farouq and others v. Defence Housing Authority and others (2019 CLC 695).

3. Contrarily, learned counsel for respondent-LDA submits that plot No.239-A, was reserved as a "public building" in the approved scheme plan and no alteration was made therein. He adds that "public building" includes local government offices as per definition provided in LDA Building and Zoning Regulations, 2019. He further submits that allotment of a Public Utility Site; which includes 'public office' was made to respondent-LWMC - a government agency - under the LDA Regulations, 2019. He argues that respondent-LDA is fully empowered to allot a Public Utility Site to other governinent agency i.e. LWMC against the reserve price determined in terms of Regulation 3 of LDA Regulations, 2019, and due process as per applicable law and procedure was adopted. He further argues that the public building in question remained under the absolute and exclusive ownership and management of the LDA since its construction and it is a fundamental right of the owner to hold a property or to use the same or sell out the same in accordance with law. He further submits that building was constructed from own resources of respondent-LDA to facilitate LDA employees in particular and the public in general; that petitioner's request to hand over control of the public building to Executive District Officer, Community Department was rejected by the competent authority; that no alteration to the public building was made by the LDA and all its affairs were being managed by the LDA through its own functionaries; that the public building was leased to M/s Kashmir Grill from 06.06.2014 to 05.08.2018; and that the public building had been vacant for the last 05 years and generating no funds / benefits for the LDA rather its condition was deteriorating with the passage of time. In the end, he submits that petitioner has no locus standi - he does not live in the vicinity - to impugn the allotment in question rather the matter was a past and closed transaction in view of dismissal of earlier petition i.e. W.P.No.14549 of 2009 vide order dated 05.06.2014, for lack of instructions. Learned counsel for respondent-LWMC submits that as per the Punjab Government Rules of Business, 2011, LWMC is under the administrative control of the Local Government and Community Development Department. He adds that LWMC is a sole service provider entity to develop an integrated system of solid waste management to ensure efficient collection, transportation, recovery, treatment and disposal of the waste generated in Lahore and the rules of I,DA allows such transfer of the premises in favour of respondent-LWMC as per applicable law. He has referred to Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others (PLD 2015 Supreme Court 6).

4. Arguments heard. Available record perused.

5. For determination of the controversy, it is crucial to envision the actual status of the site in question: whether it was designated as Community Centre or Public Building / Office at the time of approval of the Lay Out / Master Plan of New Muslim Town Housing Scheme, Lahore. The plans / maps, presented by both the parties before this Court, clearly indicate that site in question has been earmarked as "Public Building", which has been defined in LDA Building and Zoning Regulations, 2019, as follows:- "Public Building: means a building designed for public use and includes dispensaries, post offices, police stations, bus/wagon stands, railway station, airport terminals, town halls, libraries and premises of social agencies such as hostels, local government offices and educational institutions, hospital and clinics, mosques, fire stations and rescue centers etc. (emphasis supplied) Another term "Public Utility Site", defined in Regulation 2(h) of the Allotment of Public Utility Sites of LDA Regulations, 2019 - framed under Section 21 of the Management and Transfer of Properties by Development Authorities Act, 2014 - covers and includes both the entities: Public Office and Community Centre, which reads as under:- "Public Utility Site" includes dispensary, hospital, clinic, police station, educational institutions, mosque, public office, graveyard, bank, community center, parking area and such other public utility sites / use as may be determined by the Authority; (emphasis supplied) Regulation 3 of the I,DA Regulations, 2019 provides that every Government Agency is eligible for the allotment of a Public Utility Site against reserve price mentioned therein, which is as follows:- "

3. Allotment and Reserve Price: Every Government Agency is eligible for the allotment of a Public Utility Site on the following Reserve Price: (a) 1/3rd of the Reserve Price shall be applicable for the Government Agency as provided in Regulation 2(f(i); and (b) Full Reserve Price shall be applicable for the Government Agency as provided in Regulation 2(f)(ii)." Notably, under Regulation 4, Non-Governmental Organizations have been held ineligible for the allotment on the reserve price except the mosque site. The term "Government Agency" is defined in Regulation 2(f) of LDA Regulations, 2019, which is reproduced hereunder for ease of reference:- "Government Agency" means and include any of the following two (2) categories: (i) a department, attached department of the Federal Government or any other Provincial Government, and (ii) a local government or a body corporate or an autonomous body, owned or controlled by the Federal, a Provincial or a local government ; (emphasis supplied) Now, for allotment of a Public Utility Site to respondentLWMC, its status as Government Agency is to be seen. Perusal of List of Departments provided in the First Schedule of the Punjab Government Rules of Business, 2011, reveals that the respondent LWMC has been mentioned at serial No.27 as Company under attached department i.e. Director General Local Government & Community Development, Punjab, and under Secretariat Department i.e. Local Government and Community Development Department, thus, for the purposes of allotment of Public Utility Sites under LDA Regulations, 2019, respondent LWMC is a Government Agency. The next question is that whether allotment of site in question to respondent-LWMC was to be made through auction or against reserve price. The procedure for allotment of Public Utility Sites is detailed in Regulation 5 of LDA Regulations, 2019, which for convenience is reproduced below:- "

5. Procedure of Allotment of Public Utility Sites: (i) The Public Utility Sites reserved for: (i) Health and education shall be disposed of through open auction; or offered by the Committee, upon receipt of request, to the concerned Government Agency, mentioned in Regulation 2(f) on payment of the Reserve Price, as mentioned in Regulation 3; (ii) Mosque sites shall be allotted by the Committee, on the recommendation of the District Mosque Committee free of cost; (iii) Public office sites such as post offices, police stations etc. shall be allotted by the Committee to the concerned departments at the Reserve Price under the terms of these Regulations; (iv) Bank sites shall be disposed of through open auction under the Act and subject to Regulation 8; (v) Community Center sites shall be disposed of through open auction under the Act and subject to Regulation 8; and (vi) Graveyards may be transferred by the Committee to the Tehsil Municipal Administration or, as the case may be, the Town Municipal Administration concerned, free of cost. (2) On recommendation of the Committee, the Director Estate Management (Concerned) shall place the cases of Public Utility Sites for allotment on the Reserve Price before the Authority for final confirmation." (emphasis supplied) It is evident from above that public office sites shall be allotted to the concerned department by the Committee - defined in Regulation 2(c) comprising of officials of LDA - at the Reserve Price, whereas allotment of community center sites shall be made through open auction.

6. In the instant case, the site in question was not labeled as Community Centre site at the time of approval of plan of the scheme, which requires allotment through open auction within the contemplation of Regulation 5(v) of LDA Regulations, 2019, rather it was categorized as public building, which comes within the purview of public office sites and public utility sites, in terms of LDA Building and Zoning Regulations, 2019 and Allotment of Public Utility Sites of LDA Regulations, 2019, and finally finds its place within pool of sites to be allotted through Reserve Price in terms of Regulation 5(iii) read with Regulation 3.

7. Petitioner has not produced any document which may prove that the subject area of public building was officially and lawfully converted into and designated as Community Centre. It is a matter of record that respondent-LWMC requested the respondent-LDA for shifting of its head office at the site in question, in pursuance whereof the matter was placed before the Price Assessment Committee of LDA for fixation of reserve price, which was accordingly fixed and conveyed to respondent-LWMC. The Governing Body / Authority of LDA also granted approval and respondent-LWMC accepted the reserve price. Learned counsel for petitioner has not pinpointed any illegality or procedural defect in the process of allotment. The case law, cited by learned counsel for petitioner, being on distinguishable facts is not attracted to the peculiar facts and circumstances of this case.

8. In view of the above, instant petition being devoid of any merits, is hereby dismissed. MH/M-16/L Petition dismissed.