P L D 2012 Lahore 362 (PLP)

SH. AZMAT SAEED J.

Through this order, we propose to dispose of Writ Petitions 1226-2006 and 2111 of 2006 emanating from common questions of law and fact. Dispute in both the captioned Constitutional Petitions revolves around a park/playground situated in Gulberg Scheme No. II Lahore commonly known as Doongi Ground. Petitioners 2 to 11 in Writ Petition 1226 of 2006 are residents of Gulberg II Lahore while petitioner No. 1 is a society registered under the Societies Registration Act 1860. The above petition has been filed to call in question the decision of the respondents to convert the said park/playground space and to utilize the same for cinema theatre, shopping arcade and bowling alleys, for which purpose, respondent No.2 company had been established. Whereas, Writ Petition 2116-2006 is a public interest litigation filed to assail the same acts and omissions of respondents of converting the said park/playground as aforesaid. In pith and substance it was the case of the petitioners in both the above said petitions that area in question had been earmarked in the Town Planning Scheme of the Master Plan way back in 1951 as a park and used as a playground by the residents of vicinity for the last about 55 years. Upon establishment of the LDA in 1975, the said area came under its control and consequent upon establishment of PHA (Parks and Horticulture Authority) the said area stood transferred to the latter as a park/open space. It was also the case of the petitioners that act of the respondents was not only in violation of petitioners' fundamental rights but also offends against sections 4 and 5 of the Disposal of Land by Development Authorities (Regulation) Act 1998 as well as LDA's Regulations, 1984, LDA Buildings Regulations of 2005. It was also canvassed that section 12 of Environmental Protection Act 1997 has also been violated.

2. Pursuant to notice issued by this Court, respondents have entered appearance and contested the above cited petitions by inter alia taking up the plea that area in question was in fact not a park and never designated as such, hence, no Law, Rules or Regulation stood violated. Great emphasis was laid on the advantages of setting up a cinema theatre, shopping arcade and bowling alleys at site. A learned Judge of this Court after hearing the arguments of the parties at the limine stage, vide detailed and well reasoned order dated 23-2-2006 admitted these petitions to regular hearing and directed that status quo be maintained at the site. Respondents assailed the said order before this Court through I.C.A. No. 45 of 2006 and a Division Bench of this Court by means of order dated 9-3-2006 suspended the operation of the status quo order dated 23-2-2006 of the learned Judge of this Court. Being aggrieved, the Writ Petitioners invoked the jurisdiction of the honourable apex Court by way of C.P.L.A. No. 522-L-of 2006, which was converted into appeal and accepted through order dated 14.4.2006 and detailed reasons thereof are reported in 2006 SCMR 1202 Sheri CBE and others v. Lahore Development Authority and others, whereby, on the one hand, the impugned order of the Division Bench of this Court was set aside and status quo order passed by the learned Judge of this Court vide order dated 23-2-2006 was restored, and on the other hand, various legal issues involved in the case and arising from the contentions of the parties were identified.

3. Subsequently, C.M. No.1006 of 2010 was filed on behalf of respondents, wherein, it was stated that in order to resolve the issue, two Committees headed by Messrs Shafqat Mahmood and Kamran Shafi were constituted which submitted their respective reports, and on the basis thereof, the proposal for establishing the cinema theatre, shopping arcade had been abandoned, and therefore, it was prayed in the said CM that these Constitutional Petitions be disposed of as having borne fruit, however, it was contended that underground car parking lot had already been constructed and some construction had been raised above the ground at the site. In the above backdrop it was contended that since a large sum of public money had been expended on the construction already raised at the site, efforts should be made to utilize the said construction for some useful purpose, so that public money is not be wasted. In the above context, a proposal was also submitted to this Court by the respondents by virtue whereof it was represented that the underground car parking be permitted to be retained and used as such. And the construction already raised above ground should be permitted to be completed to be used as a public library, gymnasium and bowling alleys.

4. It is apparent from the contents of C.M. No.1006 of 2010 of the respondents, petitioners have abandoned the original plan of converting the site into cinema theatre etc, hence, the controversy requiring adjudication has narrowed down. Thus a significant number of legal issues which had floated to the surface, and/or were identified in the order of the honourable Supreme Court of Pakistan in the captioned case reported as 2006 SCMR 1202 ibid, as well as in the admitting note of the learned Judge of this Court dated 23-2-2006 need not be adjudicated upon especially as it is no longer really in dispute that the site in question is in fact and in law a park/playground. The primary issue now left for determination is the prayer of the respondents in C.M. No.1006 of 2010 to be permitted to retain the underground parking space and to complete the construction raised above ground to be used as a public library, gymnasium and bowling alleys. In the above perspective, Mr.Salman Akram Raja, Advocate Supreme Court, learned counsel for the respondents contends that total amount of money spent at Doongi Ground is Rs.156.72 million, out of which, Rs.70.652 million has been spent on the underground car parking which consists of three basements and approximately Rs.32.468 million has been spent on the superstructure of the incomplete building raised above ground. He apprised the Court that the car parking is entirely underground and the ground level is proposed to be covered with grass and therefore will be used as a park. It is added that the incomplete building above the ground which requires to be completed roughly covers about 18% of the total area of the park and is proposed to be used for a non-commercial public purpose of a library, gymnasium and bowling alleys, if necessary limited for the use of ladies only. It is also contended that the building will be constructed in a manner so as to blend in with the park. Learned counsel also added that Doongi Ground abuts on MM Alam Road which is a commercial center dotted with restaurants, showrooms and shops attracting a large number of clientele and customers resulting in a dearth of parking space thereby causing traffic congestion, thus the designated parking lot will serve a useful public purpose and will also ease traffic flow. In the above scenario, learned counsel states that since huge amount of public money has already been spent on the construction, hence, every effort should be made to utilize the same even if original expenditures were unauthorized or illegal. In support of his contentions, learned counsel relies on PLD 2010 SC 759 Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 1283-G of 2010.

5. It was also the case of the respondents that merely because a particular area is designated as a park, it does not imply that no construction on any insignificant portion thereof cannot be raised, as libraries, restaurants and toilets etc. exists inside the other parks the world over including in the city of Lahore.

6. Whereas, the learned counsel for the writ petitioners have controverted the assertions being raised on behalf of respondents. It was strenuously argued that the area in question, namely, Dungi Ground is essentially a park, hence, cannot be allowed to be used for any other purpose, inasmuch as, if the construction is allowed to be raised thereat, it will cease to be a park/playground. It was added that if the respondents intend to set up a public library, they can do so at any other site available to them without destroying Doongi Ground park. The learned counsel also took exception to the underground parking contending that any other place for said purpose can be found and utilized by respondents without interfering with the integrity and sanctity of the park.

7. Heard. Record perused. The facts gleaned from record are that a housing scheme, i.e., Gulberg Scheme II was apparently approved by the erstwhile Lahore Improvement Trust in exercise of powers conferred under the Town Improvement Act 1932. It was never the case of the respondents that in the scheme as originally framed, the site in question was designated or earmarked for residential, commercial or industrial purposes. The site in question is situated adjacent to and in fact was surrounded by residential areas, and inhabitants thereof had acquired their respective residential plots/houses on the representation of the respondents that the site in question is an open area and is not earmarked for residential, commercial or industrial purposes implying that it will not be built upon. There can be no escape from the fact that during decades that followed the site was used as a playground which attained greater significance due to rapid urbanization of Gulberg II Scheme. The said use continued for almost 55 years till the instant litigation commenced. The existence of park and playgrounds are an integral and necessary part of the modern urban life, and their existence creates a right in favour of the inhabitants of the locality who can demand that such park/playground be not converted to any other use or be built upon. Such right has been recognized by the Courts in Pakistan for more than four decades. In this behalf, reference may be made to judgment reported as Mian Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223 which dictum of law was followed and reiterated in the subsequent judgments including PLD 1979 Lahore 79 (Saeen Muhammad and 2 others v. The Government of Punjab and 3 others) 1983 CLC 3091, (Muhammad Sharif and others v. Muzaffar lqbal and others), 1991 SCMR 483 (Dr.Abdul Rauf and others v. Sh. Muhammad Iqbal and others).

8. With the passage of time what had initially been recognized as a private right of the inhabitants of the locality to claim that park/playground shall not be converted evolved into fundamental right emanating from Article 9 of the Constitution of Islamic Republic of Pakistan i.e., the right to life. In the above, the honourable Supreme Court of Pakistan in the judgment reported as Iqbal Haider v. Capital Development Authority (PLD 2006 SC 394) and others held as follows: "Admittedly a public park, if is earmarked in a housing scheme, creates a right amongst the public and that right includes their entry in the park without any obstacle, being fundamental right enshrined in Article 26 read with Article 9 of the Constitution."

9. Reference in the above context can is also made to the judgments of the honourable Supreme Court reported as PLD 2006 SC 514 Suo Motu Case No.3 of 2006 (Cutting down of trees in Jahangir Park, Sadar Karachi) and 2010 SCMR 885 Suo Motu Case No.10 of 2009 (complaint regarding establishment of Makro-Habib Store on Playground).

10. The aforesaid makes it clear and obvious that in any development scheme at its inception if a particular area is designated as a park/playground, and upon such representation, the properties in the vicinity are acquired by inhabitants, a vested right is created in their favour and the public at large in respect of such park/playground. This right in fact is a necessary appendage to the right to life as enshrined in Article 9 of the Constitution and right of leisure as referred to in Article 39 of the Constitution. Thus in the original plan of the respondents to convert the Doongi Ground to any other use would have offended against the rights of the petitioners. However, the original scheme has since been abandoned. It is now the case of the respondents that unfortunately large sum of public money has been expended on the project, and even if such expenditure is illegal or un-authorized or ill advised, every effort should be made to utilize the construction already erected for some useful public purpose. And it is in the above context, a proposal has been submitted to this Court on behalf of respondents in terms whereof, the respondents have expressed their intention to retain the underground parking lot to provide parking facilities to the adjacent commercial areas around MM Alain Road. It is also the declared intention of the respondents to complete the construction raised above ground into public library, gymnasium and boweing alleys. In this behalf the learned counsel for the respondents has relied upon judgment of the Supreme Court reported as PLD 2010 SC 759 supra.

11. This Court is and has always been sensitive to the fact that public money should not be wasted. And the sensitivity of this Court in this behalf cannot be overemphasized. However, we cannot allow the respondents to present this Court with a fait accompli at the expense of or to the prejudice of the rights of the petitioners or public at large. In the instant case as has been mentioned in C.M. No.1006 of 2010 about 70% of the expenditure has been sunk into the basement for the creation of parking lot. We are informed that the entire parking lot is totally underground and will have a green grass top, can thus be utilized as a park/playground. In modern urban centers construction of parking lots under public parks is not unknown, and such a course of action is often necessitated by paucity of space. Thus, the existence of the underground car parking lot does not entirely destroy the essential feature of the site as a park/playground. In the circumstances we are persuaded to allow the respondents to complete and utilize the underground car parking as long as it remain entirely the underground and has a green grass top thereby 70% of the expenditure already incurred will be put to some use. Whether the car parking lot will be used by citizens of Lahore is entirely up to them. However, we hope that the respondents will not permit the same to become a haven for drug addicts and vagrants.

12. Apparently, there is also an incomplete structure above ground which we are informed covers about 18% of the total area of the park/playground in question which the respondents propose to complete and convert into a library, gymnasium and bowling alleys.

13. A perusal of C.M. No.1006 of 2010 makes it clear and obvious that decision in this behalf is not motivated by realization of the respondents that another public library or gymnasium is needed, but is in fact a desperate effort to try and save the investment ill advisedly already made. The rights of the petitioners and the public at large with regard to the park in question cannot be sacrificed at the altar of political and bureaucratic insensitivity and incompetence. No doubt some construction can always be raised in parks for providing facility or the benefits of the public. Such construction is ordinarily upon minuscule portion of the park and is usually tucked away in an obscure corner thereof. A massive construction over a measurable portion would violate the sanctity and integrity of the park. We are afraid if 18% of the park/playground as proposed is allowed to be constructed upon the site, it will lose its essential feature as a park/playground, and shall stand converted at best into a public building with lawns, which would for all intents and purposes amount to conversion of the park/playground to the prejudice of the rights of the petitioners and other inhabitants of the locality which cannot be permitted, therefore, we direct that incomplete structure above ground cannot be allowed at site and must be removed. Needless to say that car parking lot has been permitted to be retained subject to respondents to obtaining/retaining the requisite consents, permissions, sanctions, approval from all concerned authorities, and if necessary seeking the amendment of the scheme in accordance with law.

14. Before parting with this judgment we are constrained to observe that even as per the case of the respondents themselves the original proposal of setting up Cinema Theatre and shopping arcade was commercially not viable. The manner in which the entire proposal was conceived and executed was not above board and leaves many questions un-answered. Some of such questions have been identified by the honourable Supreme Court in its judgment subject matter of ICA reported as 2006 SCMR 1202 supra. The said acts and omissions have resulted in loss to the public ex chequer, therefore, we would direct that respondent No.1 shall ensure that detailed inquiry is conducted and delinquent person(s) is/are identified and appropriate action is taken against them in accordance with law.

15. Petitions accepted in terms enumerated ibid with no order as to costs. S.A.K./M-201/L Order accordingl