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Petitioner: Syeda ABIDA HUSSAIN IMAM and others VS Respondent: The PROVINCE OF PUNJAB JUDGMENT
Court Name: Lahore High Court Judge(s): Shahid Karim Title:Syeda ABIDA HUSSAIN IMAM and others vs The PROVINCE OF PUNJAB
JUDGMENT
Reported As: 2015 YLR 1522 Result: Petition dismissed Judgment JUDGMENT ' SHAHID KARIM, J.---This Constitutional petition, at its heart, lays a challenge to the use of 26-FCC, Syed Maratab Ali Road, Gulberg IV, Lahore (disputed property) as commercial instead of as institutional which according to the petitioner is not the permitted use of the said area according to the reclassification undertaken by the Lahore Development Authority (LDA) in respect of Gulberg Scheme. This, and other challenges, constitute the panoply of the petitioner's attack to the construction of the disputed property. The Relevant Facts: 2. The facts lend themselves fortunately to some simplification. The properties of the petitioners are either contiguous to or in the close neighbourhood of the disputed property. The disputed property measures 8.6 Kanals and construction is being carried out by respondent No,11 for building the head/corporate office of respondent No,10. The sanction for the construction plan was granted on 30-4-2014. It is submitted by the learned counsel for the petitioner that the provenance of the land use is a Notification No, TP/LDA/590-S/C M P/152 dated 1-2-2012 issued with regard to the Gulberg Scheme and in that Notification titled "Land Use Re-classification Plan of Gulberg Scheme" certain areas in the Gulberg Scheme were re-classified from residential to 'institutional' to 'commercial' without following any of the prescribed procedures of the relevant law. The reclassification of land use was given in Annex 'A' to the Notification dated 1-2-2012. The categories were 'residential plots', 'vacant plots', 'commercial plots' and 'industrial plots'. Based on this Notification, the sanction/approval to the disputed property was granted on 30-4-2014. However, according to him, the property in dispute is being used for a commercial purpose which contravenes the
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reclassification made by the LDA in respect of Gulberg Scheme. The learned counsel has referred to page 115 of the petition where at Sr. No,1012, finds mention the disputed property. He has pointed out to the class of land use in respect of the property to be institutional. This, according to him, is the document of the LDA itself. ' According to him, the Coca Cola Corporation has struck a deal for building a purpose-built office for its company and it intends to construct a multi-storey building on the said premises for use as its head office. In order to substantiate his assertion that the land use of the property and the permission granted for the land use falls within the ambit of the 'commercial area' and not the 'institutional area', he has referred to page 18 of the reply filed by respondent No,11 (a letter dated 31-102012 issued by the LDA), which is to the following effect:- "It is with reference to your application No,DCC/TP/1854969 dated 10-10-2013 submitted for the consideration of a commercial building use as prescribed vide Notification No, TP/LDA/590-S/ CMP/152 dated 1-2-2012 on the subject plot. The above cited plot falls in Institutional (Health, Education, Offices etc) zone with maximum height of 70 ' The above cited property is hereby allowed for land use conversion as per Land Use Rules (Classification, Reclassification and Redevelopment) 2009 subject to the following conditions:" ' He has also referred to the approval granted for the said project by the LDA which also mentions it to be a commercial use. He further refers to a letter at page 29 of the reply by respondent No, 11 from the environmental protection department which too refers to the land use as commercial. Last but not the least, he has referred to page 45 of the same reply which is the deed of Lease dated 11-11-2013 between Messrs ANM Properties (Pvt) Ltd. And Coca Cola Beverages Pakistan Ltd. Wherein too it has been mentioned that the permission is recorded as commercial in the record of LDA as also to page 68 where the nature of activity has been described as commercial. The learned counsel submits that he does not seek to challenge the provisions of the Lahore Development Act, 1975 (Act) in this regard or the Rules relating thereto viz the Lahore Development Authority Land Use (Classification, Reclassification and Redevelopment) Rules, 2009 (Rules 2009), however, he questions the land use of the property on two grounds:-- (i) the procedural formalities for issuing the impugned Notification have not been complied with; and (ii) even if the formalities stand fulfilled, the area of the Gulberg Scheme in which the disputed property falls has been reclassified from residential to institutional merely and land use for commercial activities cannot be permitted. ' In respect of the proposition (i) above, he has referred to rules 36 and 38 of the Rules 2009 which must be complied with before any Notification in terms of Rule 42 of the Rules 2009 is issued. He submits that the term 'institutional' has been defined to be included in the term `commercial' mentioned in the such Rules and has not been independently dealt with as a separate category. At best, it can be referred to as a sub-category of the commercial. He has referred to the definition of 'institutional use' given in the Rule 2 (xxiv) which defines the nature of activities which can be undertaken under the classification of 'institutional' and which mentions private office to be included in the category of institutional use. 3. Learned counsel initially relied upon section 13 of the Act for support of the proposition that this is the only provision which deals with preparation of schemes. He also referred to section 14 of the Act to submit that any modification of the scheme has to be done by the Authority under this provision. However, since the learned counsel chose to confine his challenge to the land use of commercial and Institutional and the due importance of these two terms, a reference at present to these provisions may not be relevant for the controversy. Be that as it may, these will be alluded to in the later part of this judgment. However, the primary challenge oscillated from the impugned Notification to the use of the disputed property as commercial which, at best, could be used as
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institutional only. The grounds of challenge shall be dealt with in greater detail in the determination that follows. Respondents' submissions. 4. The charge on behalf of the respondents was led by Mr. Waqar A. Sheikh, Advocate, learned counsel for respondent-LDA on whose shoulder fell the burden to be discharged. Mr. Waqar A. Sheikh submitted that the scheme and its reclassification has a legal pedigree and is based on a study carried out worldwide regarding city business district. He submits that classification of the Gulberg Scheme was done on 29-11-2011, firstly, and then it, was reclassified on 23-2-2012. He has brought forth that more than fifty percent of the Gulberg area has been put to land we under this reclassification and according to him, all these persons are necessary parties to this petition and whose rights would be impinged upon in case the petition is accepted. He has replied to the legal contentions raised by the petitioner's counsel which will be dealt with during the course of this judgment. In a word, he submits that the property in dispute is squarely within the term 'institutional' as given in the Rules 2009 as well as the Lahore Development Authority Land Use Rules, 2014 (Rules 2014). To round off his arguments, he submits that there are three properties on Syed Maratab Ali Road which have been so confirmed for institutional use. He lastly submitted that petitioner No,1 who claims to own '7 FCC' a property opposite to the disputed property has already got three properties of her own converted to institutional use within the Gulberg Scheme. 5. Mr. Ashtar Ausaf Ali, Advocate, learned counsel for respondent No,11 has supported most of the arguments advanced by Mr. Waqar A. Sheikh, Advocate and additionally submits that respondent No,11 has a fundamental right to conduct its lawful business and that the planning permission is within the ambit of Rules 2009 and Rules 2014. He has referred to Annexure `A-1' to submit that the construction was permitted to be raised as an institutional use by the LDA and not as a commercial use. He lastly submitted that the petitioners do not have a sufficient interest in the instant petition in that the petitioner No,1 does not reside at Lahore and petitioners Nos.2 to 7 do not live in the vicinity. 6. Mr. Munawar us &lam Advocate represented respondent No,10 in his brief submissions referred to Rule 6 (b)(viii) of the Rules 2009 to submit that a private office has already bftn catered for in this provision to include the office of a professional not exceeding 25% of the floor area. According to him, the rest of the offices are not to be given a restricted meaning. He has raised the issue of laches and has relied upon Muhammad Rashid v. The State (PLD 1960 Supreme Court (Pak.) 168) for the proposition that the same term used in the same statute at different places ought to be given the same meaning throughout. Determination 7. Three issues of law which would impact the outcome of this petition are encapsulated as under: (i) Whether the Gulberg Scheme is ultra vires for its non-compliance with the mandate of sections 13 and 14 of the Act of 1975? (ii) Whether the Gulberg Scheme has been reclassified in violation of Rules 37, 38, 39 of the Rules, 2009? (iii) Whether in the alternative and in case the foregoing two grounds did not find favour, the structure being raised at the 26-FCC is included in the term 'commercial use' and not `institutional use'? 8. These issues are being dealt with in seriatim. A prefatory: ' In this case this Court is concerned with the policy decision of the government (through its instrumentality, the LDA) regarding planning controls, building regulations, urban design, preparation of development schemes, housing, urban development and related works. A prefatory as to the scope of this Court's assertiveness in such matters can best be illustrated by quoting De
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Smith in Judicial Review (Seventh Edition). This will lend some actuality to the analysis and is stated in the following words:- "Judicial review has developed to the point where it is possible to say that no power-whether statutory, common law or under the prerogative -is any longer inherently unreviewable. Courts are charged with the responsibility of adjudicating upon the manner of the exercise of a public power, its scope and its substance. As we shall see, even when discretionary powers are engaged, they are not immune from judicial review. Discretion has been described as the "hole in the [legal] doughnut", but that hole is not automatically a lawless void. Nevertheless, there are certain decisions which courts cannot or should not easily engage. Courts are limited (a) by their constitutional role and (b) by their institutional capacity." (at p. 19) "The constitutional status of the judiciary should not, however, excuse the courts from any scrutiny of policy decisions. Courts are able, and indeed obliged, to require that decisions, even in the realm of "high policy" are within the scope of the relevant legal power or duty, and arrived at by the legal standards of procedural fairness. The courts display reserve in impinging upon the substance of policy decisions, but even here they may legitimately intervene if the decision' is devoid of reason and not properly justified. Judges always possess the capacity to probe the evidence and assess whether the reasons and motives for decisions are rationally related to their aims. As will be shown in the chapters that follow, public law has rapidly advanced recently from a "culture of authority" to a "culture of justification". (at p. 21) "A second institutional limitation of the courts is lack of relative experience. Particularly as the review of fact, or the merits of a decision, is not routinely permitted in judicial review, there are some matters which are best resolved by those with specialist knowledge. Connected with the issue of expertise is that of risk-assessment. " (at p.24). "Asserting the constitutional capacity of the courts in these situations does not, however, mean that the courts should not recognise both their own constitutional and relative institutional limitations. A's we have already discussed in relation to the question of "justifiability", decisions involving "policy" -the utilitarian calculation of the public good -such as decisions about the levels of taxation or public expenditure are, constitutionally, in the realm of the legislature. In respect of other decisions, the relative institutional capacity of courts and the legislature, executive and other bodies will be relevant to the extent and degree of judicial intervention. Decisions that are polycentric, involving the allocation of scare resources (for example, whether a hospital should provide very, expensive treatments) are similarly not normally suited to decision by courts. Decision taken by experts, and those best able to calculate risk, indicate some measure of institutional respect." (at p. 591). ISSUE No,1 ' The learned counsel for the petitioner has challenged the impugned Notification on the touchstone of sections 13 and 14 of the Act. According to him, for all schemes prepared by the Authority, the approval of the Provincial Government has to be accorded. It is then that the scheme becomes valid and is clothed with legality. On the same token, according to him, a classification or reclassification must follow the same route and an approval by the Provincial Government is a sine qua non. The learned counsel made a flanking rather than frontal attack on the basis of these provisions to the impugned Notification. The sections 13 and 14 of the Act for facility are being reproduced as under:-- Preparation of Schemes.---(1) The Authority shall, in such form and in such manner as may be prescribed, prepare schemes for the area or any part thereof. (2) All schemes prepared by the Authority shall be submitted to the Government for its approval, except those schemes, the provisional estimated cost of which does not exceed such limit [as may be prescribed by rules] or for which no loan or grant is required from the Government."
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"13 Land use classification.---The Authority may, at any time, modify a scheme prepared under this Act by way of change of land use through classification, reclassification or redevelopment in the prescribed manner and shalt publish, in the official Gazette, such modification or change." ' The learned counsel relied on the words 'in the prescribed manner' for the proposition that these words clearly convey a meaning to the effect that the reclassification must also have the approval of the Provincial Government and this is the only meaning that can be assigned to these words. The prescribed manner, according to him, can only be the one given in section 13 of the Act. This argument is a fallacy and should receive a short shrift. Section 13 of the Act itself prescribes that no approval of the Provincial Government shall be required in which the provisional estimated cost does not exceed such limit as may be prescribed by rules or for which no loan or grant is required from the Government. This should put to rest this ground raised by the learned counsel as it has been submitted by the learned counsel for respondent-LDA that in this scheme no loan or grant has been taken from the Government. There is no evidence to the contrary. Further, in the prescribed manner, in my opinion, should be read to mean prescribed in the rules for which the Rules 2009 and now Rules 2014 have been promulgated. It will be seen that the power to modify a scheme by way of reclassification has been conferred on the Authority and if the intent of the law was for it to be approved by the Government, there was no impediment in the way of the legislature for it to be clearly laid down instead of leaving it to suit the reader's fancy. This reminds me of a warning by T.S. Eliot about literary critics who forget that they are dealing with a text and instead find in a work such as Hamlet "a vicarious existence for their own artistic realization." They substitute "their own Hamlet for Shakespeare's." (T.S Eliot, 'Hamlet' (1919), in selected Essays.). Therefore, the impugned Notification is not ultra-vires sections 13 and 14 of the Act. ISSUE No,2 ' The learned counsel in support of this proposition has relied on Rules 37, 38, 39 of the Rules 2009. These rules are reproduced as under:-- "37. Selection of project area.-- (1) The Authority shall select the project area by identifying and prioritizing an urban block or group of urban blocks proposed for reclassification in accordance with the following criteria: (a) trend of changes in the existing land uses; (b) market demand for the change of land use in the area; (c) compatibility with adjoining uses; (d) potential for up-gradation serving road network; and (e) prospects for redevelopment. (2) Notwithstanding anything contained in these rules, the Authority shall not select a planned industrial area as a project area unless the same is scrutinized and recommended by the Industrial. Area Scrutiny Committee as per rule 52. "38. Preparation of reclassification scheme.-- (1) After the selection of the project area the Authority shall prepare a reclassification scheme by: (a) demarcating the boundaries of the project area; (b) undertaking survey of the project area including: (i) a topographic survey; (ii) land use survey; (iii) documentation of the existing infrastructure and design capacities; (iv) assessm ent of existing traffic volumes and design capacity of the road network; (v) enlistment of key stakeholders, including local non-government organizations, community based organizations, public representatives, traders associations; and (vi) collection of secondary data regarding utility services, traffic and transportation; (c)compiling and analyzing the collected data;
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(d) proposing different options of land use reclassification as per Table "C"; (e) comparing and evaluating the land use re-classification options; and (f) selecting the preferred option". "39. Public consultation.-- (1) The Authority shall: (a) invite objections or suggestion by giving public notice indicating salient features of the draft land use reclassification scheme of a project area on its website, to the key stakeholders of the area and in at least two leading national and one local newspaper; (b) arrange public hearing' on a. Specified date, time and place; and (c) maintain record of the proceedings for a minimum period of five years after the approval of draft .Reclassification scheme. (2) The Chief Metropolitan Planner shall sign and stamp the draft land use re-classification scheme prepared after taking into considerations the public objections and suggestions." ' These rules relate to the procedural formalities which have to be complied with by the LDA in the process of reclassification. These steps have to precede that process. The learned counsel for the petitioner has referred to the preamble of the Act which reflects the specific import and purpose of the law. According to him, the conditions specified in the above rules have to be satisfied and put in place before the actual reclassification is put into effect. His precise submission was that between the period of reclassification and the redevelopment plan is put into effect, no permission for land use on the basis of reclassification can be given and this, according to him, is the implication which can be gathered from a combined reading of rules 37 to 41 of the Rules 2009. (The scheme of these rules is different in Rules, 2014). This argument is nuanced and prone to inherent contradictions. Initially, the learned counsel for the petitioner has relied upon the rules 36 to 41 of the Rules, 2009 to canvas the proposition that these formalities have not been complied with. ' However, it seems that he did not, at a later stage in his arguments, want to seriously contest or take issue on this position, in that, neither a lapse in the process was pointed out nor were any facts brought forth which could make the impugned Notification procedurally improperly done. The argument regarding redevelopment to precede any permission was raised as a penumbra to the above argument and the entire emphasis in respect of this issue was to the effect that reclassification and redevelopment must be taken together in tandem with each other and until the redevelopment is complete any permission for land use has to be put on a hold. The learned counsel has, for the purpose, referred to an implementation plan for proposed water and sewerage schemes in Gulberg Scheme by WASA to bolster his argument. He submits that no permission ought to be given till the time this plan by WASA has been undertaken. The legal worth of this argument will be addressed later, suffice to say here that the preparation of the plan by WASA amply demonstrates that the LDA has taken elaborate steps towards the legal formalities to be complied with. This document along with others (such as the Urban Regeneration Study Gulberg, Land Use and Traffic Analysis) provides the empirical data for the reclassification. ' This argument in any case, does not take into account rule 45 of the Rules 2009 which is to the following effect:-- "45. Redevelopment plan.-- The Authority shall prepare a redevelopment within one year after the notification of the land use reclassification scheme." ' Reading Rule 45 with the Rules 36 to 41 of the Rules, 2009, holistically, it becomes apparent that the redevelopment plan has to be prepared within one year after the Notification of the land use reclassification scheme. The rules following then delineate the different contours and proceedings regarding the reclassification and redevelopment plan. There is nothing in the rules to suggest that until the redevelopment plan has been put into effect completely, no permission for land use under the reclassification can be granted and I am not prepared to read anything into the rules to such
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an effect. Be that as it may, the learned counsel for the respondent-LDA has submitted that redevelopment plan has already been prepared and more than 30% has been put into effect and completed. He has made a reference to the re-modeling of MM Alam Road, Hussain Chowk and Kalma Chowk in this regard. He submits that there are only three properties which have been converted to an institutional use on Syed Maratab Ali Road and the subject property is the first on that road which is of such magnitude and, therefore, there is no need at the moment for the redevelopment plan for the said road to be implemented. It will be seen that the learned counsel for the petitioner has implied to be read most of his submissions into the Rules and they cannot directly be culled out through a reading of the rules relied upon by the learned counsel. In fact, the policy of the rules framed with regard to the reclassification and redevelopment seems to be that the two acts, reclassification and redevelopment, shall be initiated and completed as two separate stages of the same purpose yet one, however, is not dependent upon the other nor do the rules place a clog in respect of the grant of permission for land use during the interregnum. Another fact which is bound to exercise a gravitational pull on the said issue is the argument raised by learned counsel for respondent-LDA and it is to the effect that the redevelopment plan can only be implemented from the funds raised for conversion of the land use in consequence of the reclassification. Since this is one of the schemes which is not being funded by the government, the only source from which the funds can be raised is the fee levied for the purpose of conversion of land use. Therefore, the submission of learned counsel for the petitioner is not tenable and does not take into account the ground realities of the functional basis of such schemes. As also it does not take into account the raison-detere of the two functions viz reclassification and redevelopment. I would, therefore, hold that no material has been brought forth to demonstrate a lack of legal formalities in the process of reclassification so as to render it ultra vires on that account. Again cavil was taken to the process of public consultation in respect of reclassification of Gulberg Scheme by the learned counsel on the basis that mere seven days notice was given for the said consultation which is not reasonable. However, Rule 39 of the Rules 2009 does not prescribe any period and, in the…
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