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Petitioner: Muhammad Umais VS Respondent: Cantonment Board Rawalpindi and others
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Muhammad Umais vs Cantonment Board Rawalpindi and others Case No.: Writ Petition No. 1355 of 2021 Date of Judgment:2021-06-09 Reported As: PLD 2022 Lahore 148 Result: Petition dismissed
JUDGMENT
What is the argument on the other side? Only this, that no case has been found in which it has, been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both. Lord Denning in Packer v . Packer [1954] P . 15 at 22 JUDGMENT JAWAD HASSAN, J.---Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution "), the Petitioner has called in question the conversion of a public way i.e. "Hospital Road " into "Food Street" from Haider Road to Bank Road, Rawalpindi (the "Food Street ") and its closing for vehicular traf fic during the peak hours of the evening from 7:00 P .M. to 12:00 A.M. I. BRIEF BACKGROUND 2. Brief facts for the disposal of this petition are that the Petitioner , who is resident of Rawalpindi and an Advocate by profession, has filed this writ petition as public interest litigation for the enforc ement of fundamental rights of general public. It is averred in the petition that he came to know that from Haider Road to Bank Road, Rawalpindi the road was blocked by the Respondents by establishing a food street . In the area, the commuters get stuck in long queues of traffic during the peak hours of the evening, which even create s difficulties for the rescue and emergency services vehicles to move towards the Cantonment General Hospital, Rawalpindi. During COVID-19 pandemic when the public gathering is being discouraged by the State, establishment of a food street by the Respondents ignoring all health and safety warnings is against law and the Constitution. Hence, this petition. 3. Pre-admission notice was issued to the Respondents on 21.04.2021, whereupon the Respondents filed their report and parawise comments on 27.04.2021. On 29.04.2021 this writ Petition was admitted for regular hearing with the direction to the Respondents to file their written statement, which was filed on 18.05.2021. II. PETITIONER'S SUBMISSION
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4. Mr. Kashif Ali Malik, Advocate Supreme Court submits that Petitioner is an Advocate by profession and has challenged the closure of a section of Hospital Road by the Respondents during the peak hours of the evening for vehicular traffic and further converting it into a food street, which infringed his fundamental rights i.e. right of dignity , right to movement, right to life and Right to access to public places guaranteed under Articles 9, 14, 15 and 26 of the Constitution. Learned counsel in support of his contentions that an "Advocate" can bring Public Interest Litigation, relied on the judgments of this Court cited as "Sheikh Asim Farooq v. Federation of Pakistan and others" (PLD 2019 Lahore 664),"Muhammad Tahir Jamal v. Government of Pakistan and others" (PLD 2020 Lahore 407) and "Muhammad Ahmad Pansota and others v. Federation of Pakistan and others" (PLD 2020 Lahore 229). Further submits that at a time when the third wave of COVID-19 pandemic has shaken the entire world, the. Respondents instead of facilita ting easy access to the hospital, have blocked a section of hospital road which leads to Cantonment General Hospital and other areas during the peak hours of the evening causing great inconvenience not only to the emergenc y and rescue services but also to those visiting Cantonment General Hospital. Adds that the site in question is a public road/street meant only for the collective use of the public and vehicular movement, therefore, the same cannot be put to any other use let alone commercial and no one can put stall, fence, launch a project and create obstruction or make encroachment of any kind on a public street. Further averred that Article 8(1) of the Constitution declares that "any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights---shall, to the extent of such inconsisten cy, be void". Furthermore, adds that Article 2A of the Constitution provides that the principles of democracy , freedom, equality , tolerance and social justice, as enunciated by Islam, shall be fully observed. Protection and advancement of the said principles is an integral objective and an essential feature of the Constitutional order . Learned counsel relied on "Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary v. Federation of Pakistan" (PLD 2012 SC 681) and "Jurist Foundation through Chairman v. Federal Government through Secretary , Ministry of Defence" ( PLD 2020 SC 1 ). 5. Mr. Kashif All Malik, ASC further states that access of every citizen to all the roads constructed for general public to travel is fundamental right protected under . Article 15 of the Constitution and no one can make any restraint. In this regard he relied on the judgment of this Court reported as "Muhammad Tahir Jamal, Advocate v. Government of the Punjab and others" ( PLD 2020 Lahore 407 ), wherein it has been held that: "19. Universally the freedom of movement envisages access of every citizen to all the roads constructed for public to travel including motorways subject to condition of toll tax or other taxes imposed by government under the law and any unreasonably protracted obstruction of the road or its prolonged non functionality on the pretext of a construction work which is taken out in a sluggish manner tantamount to restriction and infringement of fundamental right to movement of commuters/ passengers/travellers provided and protected under Article 15 of the Constitution." It was further held that: "The Hon'ble Supreme Court of Pakistan in case law reported as "Moulvi lqbal Haider v. Capital Development Authority " (PLD 2006 SC 394) has approved public places of entertainment and resorts as fundamental rights by elaborating Article 26 of the Constitution in the following manner: "Under Article 26 of the Constitution, it is fundamental right of the citizens to have access to public places of entertainment or resorts." It was also observed in the said judgment in paragraph No.27, that: "............failure on the part of the State and Authorities acting on behalf of the State including local administration to provide the same is not only violative of Article 14, which provides right to digni ty as well as pose obstruction in exercise of fundamental right of movement provided and guaranteed under Article 15 of the Constitution and of Article 26 of the Constitution, which provides that every citizen has a fundamental right to access to public place for entertaining and resort...." 6. Mr. Kashif Ali Malik, ASC on the point of establishment of Food Street/Outdoor Cafs states that the authority which is vested with the function to maintain public street, does not become owner of the site or the soil over which the street existed. He adds that no public street, road, thoroughfare or footpath could be allowed by authorities to
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be used for any commercial or any other purpose because those were meant for the use and enjoyment of general public. He placed reliance on the judgment of this Court cited as "Begum Khurshida Shorish and another v. Province of the Punjab"( PLD 2004 Lahore 744), whereby this Court has declared the action of the Respondent/Parks and Horticulture Authority for establishing a Food Street/Sit Out Cafe, to be without authority . The relevant paragraphs are reproduced as under: "11. A word about the' aesthetic aspect. The project in hand is one of the several projects undertaken by respondent No. 3 to beautify Lahore. This project, however , strikes a discordant note. The argument being canvassed in its defence is that "a sit out cafe is a worldwide concept i.e. Europe and South East Asia", well, it is an enlightened approach to learn from abroad what is good in any filed i.e. scientific educational, architectural, aesthetic or cultural. But while doing so, we have to keep in mind the objective conditions and empirical realities, of our own setting. In the context of the issue in hand, we have to bear in view, the climate, the public hygiene, and on top of it, the locale, where the project is sought to be established. It is right in front of the Lahore High Court building. I cannot recall such a sit out cafe on a service road in front of a Superior Court building anywhere i.e., in front of the Royal Courts of England or of the Supreme Court building Washin gton D.C. In the circumstances alluded to in the preceding lines, it would be affront to the people's aesthetic sense to say that such a sit out cafe, to be built by encroachment, would add to the beauty of the city . 12. The issue raised in these petitions have, another dimension. The impugned project has the potential of being both a private and public nuisance. To establish a sit out cafe on a portion of the service lane of a thoroughfare (Shahrah-e-Quaid-e-Azam, Lahore), besides obstructing the way of pedestrians and residents of the area would be a place where food and drinks would be served in open, exposed to the dust and to the injurious smoke of the vehicles passing nearby as also of the vehicles to which would be parked on the service lane in the event of establishment of such a "sit out cafe". Cars, Motorcycles, Vans and Rickshaws would be parked on the service lane, as there is no other parking space around. This parking would not only be a. cause of annoyance for the residents but also for those who would like to use the service road for the purpose for which such roads are provided. An activity , which' causes obstr uction or injury to the right of entry to such service lane/road or causes inconvenience or discomfort is injurious to health, would be a nuisance. It was further observed in the said judgment by this Court that: "A "public nuisance" could be of various types. In the content of the instant case an interference with the use of a public street resulting in annoyance to public would constitute a "public nuisance". As rightly observed, "the Public is entitled to the use of the full width of the public street, however wide it may be. Whoever appropriates any part of the street by building over it infringes the" right of the public quo ad the part built over. The act must necessarily cause obstruction to persons who may have occasion to use their-public right over the part encroached upon. Where the owners of houses or shops occupied by the applicants have built certain platforms in front of them to enable the shopkeepers to sit on them for selling their goods and the platforms cause any common injury , danger or annoyance to the public or to the people in general, the persons who built the platforms are guilty of an act which ex hypothesis amounts to a public nuisance". (page 804, Vol 1 of the commentary on the Pakistan Penal Code by Shaukat Mahmood). An individual has a right to pass along a public street. Prima facie, the proposed activity falls within the ambit of what is described as "anticipatory nuisance". The argument that proposed project would be a "sit out cafe" and not a food street, is of no avail because on account of the location the effect and consequence in either case would be the same. 13. For what has been discussed above both the writ petitions, mentioned in para. 1 above, are allowed, the impugned action of the respondent Parks and Horticulture Authority for establishing a Food Street/Sit Out Cafe, is declared to be without authority , with no order as to costs." 7. Learned counsel Mr. Kashif Ali Malik, ASC lastly submits that even the Responde nts have admitted in their report and parawise comments that the area including some portion of Hospital Road and some portion of Bank Road was marked and named it as Food Stree t. It was also admitted that only vehicula r traffic has been restricted from sunset to late night. In support of his contentions learned counsel placed reliance on the judgments reported as "Muhammad Ashraf and another v. Faisal Cantonment Board and another " (2017 YLR 2091 ), "Roshan
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Khan and 2 others v. Karachi Cantonment Board and 3 others" (2007 CLC 693), "Sajjad Ullah Qureshi v. Taluka Municipal Officer, Sukkur" (PLD 2012 Sindh 250), "Ch Muhammad Ishaque Advocate v. Cantonment Executive Officer, Chunian, District Kasur and another" (PLD 2009 Lahore 240),"Madina Electric Market v. City District Government, Karachi" (PLD 2009 Karachi 309) and "Ghulam Hussain v. Government of Sindh" (2004 MLD 1936 ). III. RESPONDENTS' SUBMISSION 8. Conversely , Mr. Waqar-ul-Haq Shaikh, ASC at the outset objects to the maintainability of this petition on the ground that the Petitioner has no locus standi to file the same. The present petition has been filed on the basis of personal vendetta and to undo a bona fide esthetic effort of the Respondent/Cantonment Board (the "Board ") to recreate our cultural heritage. He adds that the areas consisting of Bank Road, Adam Jee and Haider Roads, Rawalpindi are the main business hub and these roads are interconnected with other roads namely Station Road, Police Station Road, Saddar Road, Kashmir Road, Canning Road and Murree Road, therefore, with the passage of time a small food street consists of small restaurants, ice cream parlors, juice corners, Bar-B-Q centers, etc. was established. Further submits that gathering of general public in the Food Street caused blockage in smooth running of traffic, therefore, in order to facilitate the public at large, to avail the facility of good food in a cordial and to secure atmosphere with good sitting facility the flow of vehicle traffic was regularized and the food street was marked as "Pedestrian Zone/W alking Street" from sunset to midnight. Also states that the general public is appreciating and enjoying the food street. Adds that under Section 108 of the Cantonment Act, 1924 (the "Act") all streets and the pavements appertaining to streets are provided and maintained by the Board, therefore the food street is under its management and control. He averred that under section 116(e) of the Act, the Board is empowered to remove any undesirable obstructions from the roads and under Section 117 (c) of the Act the Board can reclaim unhealthy localities. Section 117(k) of the Act also empowers the Board to take any measures to promote safety/convenience of the inhabitants of the Cantonment. Mr. Waqar-ul- Haq Sheikh, ASC further states that the version of the Petitioner that the Board has closed/temporary closed the food street is absolutely against the facts. For a short span of time the vehicles are restricted in the aforesaid street but the pedestrians are allowed and they have full freedom of movement, therefore, the Respondents have not violated any fundamental right of the general public. 9. Mr. Waqar-ul-Haq Shaikh, ASC further argued that the Board has never established a food street as claimed by the Petitioner as there is no Notification/Order regarding establishment of a food street rather vide Board Resolution No.210 dated 17.09.2014 a very small portion of Saddar Road lying in between the Bank Road and Haider Road has been declared as Pedestrian Street/walking street from sunset to midnight. Further averred that the Board neither named nor established any food street, however , due to eating cultural food in the said area the General Public named the area as " Food Street ". IV. MOOT POINTS 10. After hearing learned counsel for Parties on 02.06.2021, the following Constitutional moot points were framed: 1. Whether the Respondent/Rawalpindi Cantonment Board (RCB) can invoke Section 117(k) of the Cantonments Act, 1924 (the "Act") for temporary restriction of the vehicle on the path in question? 2. Whether due to such restriction for temporary purpose, the right of movement of public at large is being infringed? 3. Whether this writ Petition is maintainable in the absence of any notification/order regarding establishment of Food Street? 11. Arguments heard. Record perused. V. DETERMINA TION BY COURT UNDER ARTICLE 201 OF THE CONSTITUTION 12. After framing of issues on constitutional moot points, this Court has narrowed down the law points and determined the fundamental rights of the Petitioner but while rendering judgment, the constitutional petition filed under Article 199 of the Constitution, if the writ petition is admitted for regular hearin g, and after perusing the record from the report and parawise comments, the Court has to render a decision strictly as per Articles 199 and 201 of the Constitution. The decision or order could be a judgment or an order passed on the constitutional petition filed
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under Article 199 of the Constitution but those decisions are made under the established law of precedent under Article 201 of the Constitution, to have a binding effect and its principles have to be followed later. Article 201 of the Constitution states that a decision of High Court if (i) it decides a question of law or is (ii) based upon or (iii) enunciates a principle of law be binding on subordinate Courts. In this case, writ petition was filed on 21.04.2021 and after hearing the parties on 28.04.2021, the Court while admitting the writ petition directed the parties to file written statement. Thereafter , written statement was filed by the Respondents and perused by this Court, hence, before proceedings further , the Court framed moot points in order to render a judgment under Article 201 of the Constitution. It is a settled norm that the decision on a question of law can only be made if question of law is framed and highlighted from the pleadings. In this case the Court on 02.06.2021 framed the constitutional moot points, mentioned above, in order to render a judgment, while keeping in mind the principles of law already established by the Superior Court, relied by both the counsel for the parties, then passed its decision on it to be called a decision or a judgment. Accordingly , the judgment then passed will consists of ratio decidendi, facts, arguments of the parties, moot points involved, and stare decisis and obiter dicta . The Constitution clearly empowers the Courts in Pakistan to render on these parameters regarding the question of law or based on question enunciated a principle of law. As every judgment of the Supreme Court is binding on all Courts under Article 189 of the Constitution, the same words are used in Article 201 of the Constitution but subject to Article 189 to follow its principle for consistency . (i) Maintainability of probono public interest litigation 13. The Petitioner , an Advocate by profession, brought before the Court a common grievance relating to alleged violation of fundamental rights provided under Chapter I of Part II of the Constitution particularly of those provided under Articles 9, 14, 15 and 26, and sought a curable' intervention of the Court under Article 199 of the Constitution for the enforcement thereof. In order to vindicate his locus standi to file instant Petition, he relied upon various judgments of this Court wherein it has been ruled that an Advocate can bring Public Interest Litigation on behalf of the community . The concept of pro bono litigation has gained much significance over the decades and oftentimes it brought forward many climacteric issues of public importance before the Constitu tional Courts which resulted in pronouncement of some of the notab le judgments of far reaching implicati ons regarding enforcement of fundamental rights in the Country . The Honorable Supreme Court of Pakistan in "Moulvi Iqbal Haider v. Capital Develoment Authority and others" ( PLD 2006 SC 394 ) elaborated the notion of pro bono publico as follows: "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." 14. This Court in "State v. M.D., WASA and others" (2000 CLC 471), commented upon the genesis of public interest litigation in the developing world by observing that:- "the rationale behind public interest litigation in developing countries like Pakistan and India is the social and educational backwardness of its people, the dwarfed development of law of tort, lack of devel oped institutions to attend to the matters of public concern, the general inefficiency and corruption at various levels. In such a socio-economic and political milieu, the non-intervention by Courts in complaints of matters of public concern will amount to abdication of judicial authority ." In the case of "Government of The Punjab through Secretary Food, Punjab Secretariat, Lahore and 4 others v. Naeem Sarwar" (2011 YLR 3087 ) a Division Bench of this Court held that:- "In case of the litigation, probono publico, a very strict interpretation of the term, an aggrieved person is not appreciated. Any person interested in performance of the functions by the concerned authorities in a lawful manner , may move the Court." Moreover , the August Supreme Court in "Javed Ibrahim Paracha v. Federation of Pakistan and others" (PLD 2004 SC 482) categorically held that a pro bono petition before the superior courts is maintainable subject to establishing the fact
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that it is in the public interest, public good and for the welfare of the general public. It was held by the Court :-"a person can invoke the Constitutional jurisd iction 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." 15. This Court in the case of "Sheikh Asim Farooq v. Federation of Pakistan and others" (PLD 2019 Lahore 664) also laid down that if public interest is brought forward before the Court with bona fide intention, free from personal vested interests, then principles of locus standi/aggrieved person are to be interpreted liberally by the Courts. It was held:- "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." 16. In view of above, the Instant Petition being filed pro bono publico by the Petitio ner to raise an issue relating to violation and enforcement of fundamental rights of the public is thus maintainable. Further reliance can also be placed on "Muhammad Tahir Jamal v. Government of Pakistan, and others" (PLD 2020 Lahore 407), "Muhammad Ahmad Pansota and others v. Federation of Pakistan and others" (PLD 2020 Lahore 229), "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 SC 47), "Salahuddin Dharaj v. Province of Sindh through Secretary , Local Government Department and 4 others" (PLD 2013 Sindh 236), "Iqbal Ahmad Dhudhi v. Federation of Pakistan and 5 others" (2014 CLC 1348 ) and "Muhammad Qahir Shah and others v. Federation of Pakistan, Ministry of Railways, through Secretary , Islamabad and others" ( 2014 YLR 2571 ). 17. Now, adverting to the main point of controversy , raised and sought to be resolved by the.…
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