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Petitioner: MUHAMMAD TARIQ ABBASI and others VS Respondent: DEFENCE HOUSING AUTHORITY and others
Court Name: Sindh High Court Judge(s): Sarmad Jalal Osmany, Nadeem Azhar Siddiqui Title:MUHAMMAD TARIQ ABBASI and others vs DEFENCE HOUSING AUTHORITY and
others Case No.: Constitutional Petition No,D-403 of 2005 Date of Judgment:2007-03-13 Reported As: 2007 CLC 1358 Result: Order accordingly Judgment ORDER ' SARMAD JALAL OSMANY, J.--- The petitioners have impugned the alleged conversion of amenity Plot No,M-56, Beach View Avenue, Phase-V, Defence Housing Authority, into a commercial one. It is their case that such plot was entrusted to respondent No,6, Waseem Ahmed, by the Defence Housing Authority (.D.H.A.) per agreements dated 10-6-2000 and 14-5-2001 for the purpose of construction of a mosque thereon as well as development of a park etc. And consequently the mosque has been constructed along with car parking area where a large number of citizens living in the vicinity offer their prayers etc. So also the park is in the process of being developed. However, now a further agreement has been signed between D.H.A. And respondent No,5 Messrs Minhal (Pvt.) Ltd. On 8-10-2004 for the construction of a multistoreyed official complex and a residential tower along with shopping mall etc. It is also proposed therein that the mosque would be re- constructed on a different location though within the plot in question. It is the petitioner's further case that by converting the park into a commercial high-rise building complex, the petitioners as well as the citizens visiting the beach would be denied access to the same and so also the view of the beach would be totally obstructed. 2. In the counter-affidavit filed by the D.H.A. It has been averred that respondent No,6 Waseem Ahmed who was entrusted with the development of the park in question failed to do so as per the agreement between the parties and consequently the Governing Body of the D.H.A. Redesignated the area for water front development in line with the master plan for the entire Clifton Beach. It is stated that the Governing Body of D.H.A. Is responsible for its management and administration and hence the decision for development of the Clifton Beach was taken in the larger interest of the
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residents of Karachi who regularly visit the said beach on weekends and holidays. It is further stated in the said counter-affidavit that it is virtually impossible to maintain a park/greenbelt given the salt in the atmosphere and the constant splashing of the waives at the shore. Hence the decision of the Executive Committee in favour of the respondent No,6 was superseded by that of the Governing Body, similarly, it is stated that the mosque in question was inadequate for the number of persons using it and hence it is proposed to re-construct it on the same location though with the better facilities etc. Finally, it has been stated in the counter-affidavit that the plot in question was never designated as an amenity one and in fact it has been reclaimed from the sea, hence there can be no question of conversion. Further that it is not the decision of any officer be it the Corps Commander of Karachi to designate any area as an amenity plot but the decision has to be taken by the Governing Body as such in line with the provision of the D.H.A. Order, 1980. In this regard reliance has been made upon the comprehensive plan for the development of the entire Clifton Beach which comprises of seven zones i,e, "A" to "G" and stretches from the Casino along the Beach up to the D.H.A. Golf Course. The Park in question is located in Zone "A" in which the residential towers and office complex along with the shopping mall is proposed to be built. According to D.H.A., the entire area has been developed in a most scientific and modern manner which would cater for the needs of the residents of Karachi as well as tourists and also create employment opportunities for a large number of people. 3. In the counter-affidavit filed by respondent No,7 (Shehri) it is stated that in the city of Karachi there is severe lack of parks, playgrounds and open spaces where ordinary citizens can spend some time for recreation etc. Similarly, the Clifton Beach is the most easily accessible open area in the City of Karachi to the general population where they can go for leisure activities. Hence, the proposal for development of the Beach into high rise commercial and residential towers, clubs, shopping areas and marinas etc., would certainly restrict the fundamental Lights of the common citizens to enjoy the Beach as these areas are meant for the well-to-do population only. It is further submitted that the D.H.A. Has not carried out any study from the town planning point of view in order to ensure that the proposed master plan conforms to the same and caters for the large number of persons who would occupy the Beach front which would create increased traffic flows plus additional requirement of electricity, water and sewerage. In particular, the installation of a desalination plant on the water front has been challenged by Shehri on the ground that this would create immense environmental problems as the waste from the plant would definitely be recycled back into the sea which would further pollute the same. So also certain other issues have been raised by Shehri regarding the ownership of the park and the Clifton Beach which according to it are in dispute between the Port Qasim Authority, Government of Sindh and D.H.A. Finally, it is averred that no permission has been taken from the Environmental Protection Agency under the Environmental Protection Act, 1997 as per section 12 thereof for development of the Clifton Beach. 4. In support of the petition, Mr. Javed Ahmed Siddiqui has firstly submitted that an amenity plot can never be converted into a commercial zone for which proposition be relied upon Ardeshir Cowasjee v. KBCA 1999 SCM R 2883. He has also referred to the Annexure filed to the petition, which would adequately establish that the park in question was designated as Usmani Park by General Muzaffar Usmani, the then Corps Commander of Karachi. Secondly, the proposed shopping mall and office/residential complex in the area reserved for a park would certainly restrict the petitioner as well as the public's right of free access to the beach. According to learned counsel, this is a fundamental right under the Constitution for which he relied upon the case of Shehla Zia and others v. WAPDA PLD 1994 SC 693. Finally, per learned counsel according to section 12 of the D.H.A. Act all schemes launched by the authority should be for a public purpose which is certainly not the case in the present matter as the proposed development would restrict the right of the common people from access to the beach.
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5. Ms. Rizwana Ismail, appearing for Shehri, CBC, has supported the arguments of Mr. Javed Ahmed Siddiqui. She has further submitted that there is ongoing dispute between the D.H.A. And Karachi Port Trust (KPT) as regards the park in question and unless the same in resolved, further construction/development of the Clifton Beach should be stopped. She has also referred to the summary for the Economic Coordination Committee of the Cabinet filed with the petition according to which reclamation of the park land has not been done keeping in view the hydrological impact of the same. In this regard she has also invited our attention to the compromise decree in Suit No,778 of 1998 whereby the Government of Sindh has leased out the Park land in question to D.H.A. Next learned counsel has submitted that under section 4 of the Cantonments Act, all lands to be included in the Cantonment are to be notified through a Gazette Notification which has not been done to date and unless this happens no development work can be carried out on the beach. 6. Learned counsel has further submitted that the proposed development is not proper from the town planning point of view as firstly luxury resorts and high-rise commercial and residential buildings do not cater to the general public at all as these would be beyond their financial reach. Secondly, an oil pipeline is passing below the proposed construction which is certainly hazardous and dangerous. Next, per learned counsel the proposed sewerage plant is not at all feasible from an environmental point of view as it would certainly discharge waste water into the sea, which would upset the ecological balance in the area affecting the mangrove trees and marine life. In this regard she has referred to section 13 of the Environmental Protection Act which prohibits discharge into the sea within 10 miles of estuaries and mangrove trees. She has also referred in this connection to the living planet report issued by World Wild Life Federation attached to Shehri's counter-affidavit which highlights the decline of marine fish resources over the years due to pollution of the sea by discharge of sewerage and waste from factories etc. In support of this contention learned counsel has cited the case of Sheri CBE v. Government of Sindh and others C.P. 455 of 2005. 7. According to learned counsel, beaches parks and open spaces are in the nature of a public trust, and hence to be utilized for the benefit of the public alone. In support of this contention, she has relied upon some cases from the Indian jurisdiction viz. Goa Foundation v. Diksha Holdings (Pvt.) Limited decided by the High Court of Mumbai (Panaji Bench), Bittu Saigal and another v. Union of India, decided by the Supreme Court of India the Goa Foundation v. State of Goa decided by High Court of Mumbai (Panaji Bench) and M.C. Mehta v. Kamal Nath decided by the High Court of Punjab. 8. Regarding conversion of the plot in question, learned counsel has submitted that in the master plan of D.H.A. Prepared in the year 2003 which has been filed along with Shehri's, counter-affidavit the plot in question is not shown; however, in the reverse side Usmani Park is shown in grey whereas other park is shown in green. To the contrary, in the rejoinder filed by D.H.A. a sketch is available showing the location of Usmani Park in a different area which is mala fide as in all previous documents/correspondence, the said park is shown at its original location. In support of the conversino issue, learned counsel has cited the case of Aredesher Cowasjee v. KBCA (supra) and Maulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394. 9. Mr. Makhdoom Ali Khan, appearing for D.H.A. Has firstly submitted that Shehri has vastly enlarged the scope of the petition to challenge the entire beachfront development being undertaken by the Authority. According to learned counsel, the issues raised in this petition are only confined to the conversion of the so-called amenity plot to a commercial one which is readily discernible from the prayer clause. Consequently, the said respondent cannot be allowed to argue beyond the scope of the petition as the principles of C.P.C. Apply to writ petition as well. In support of this submission, learned counsel has relied upon Messrs A.R. Builders (Pvt.) Ltd. v. Faisal Cantonment Board PLD
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2004 Kar. 492 and Hussain Bux v. Settlement Commissioner Rawalpindi PLD 1970 SC 1. In this regard learned counsel has also submitted that Shehri has only been joined as a party and its role is circumscribed vide order dated 1-2-2006 passed in the matter which reads inter alia, as "However, with the caution that at the time of hearing, the proposed intervener shall not be allowed to raise any question *hich may not be pertinent or relatable to the present proceedings". 10. As regards, the development of the beach front, he has submitted that a comprehensive plan has been undertaken by D.H.A. In conjunction with Messrs Minhal (Pvt.) Limited, respondent No,5 which would not only include construction of residential and commercial areas but also promenades, walkways, an aquarium, a marina and water sports areas all along the Clifton Beach, thus, catering for the free access of the public to the same. These areas would be well-lit so as to afford leisure activities to the public even at night time. According to learned counsel, the activities on the beach front would generate jobs for the public-atlarge and hence develop the economy. In fact all over the world beaches have been developed in a manner so as to strike a balance between the principle of free access to the same and the right of the owners to develop them commercially. In this regard learned counsel has submitted that even the beach huts which presently dot Sandspit and Hawkesbay beaches restrict access to the same but this does not mean that the same are being privatized to the determent of the general public. Furthermore, the issue of beach front development should be entrusted to the Environmental Protection Agency (EPA) established under the Environmental Protection Act, section 12 of which provides for prior permission of the EPA before any construction/development etc. Is undertaken which may be environmentally retrogressive. Hence, such permission would be sought by D.H.A. For the proposed development which at the moment is only at the planning stage. Consequently, learned counsel has submitted that the apprehension of Shehri is premature regarding violation of environmental standards. Insofar as reconstruction of the mosque is concerned, learned counsel has submitted that D.H.A. Is prepared not to do so and only develop the existing mosque in order to cater to the religious sentiments of the petitioners. 11. On the issue of the sewerage treatement plant, again per learned counsel, it is only EPA which should decide the feasibility of the same as it is equipped with the technical expertise etc. To deal with the matter. Consequently, such exercise should not be undertaken by this Court particularly in constitutional jurisdiction as complex issues of fact are involved which are technical in nature. 12. As regards the conversion of the plot from an amenity one to commercial, learned counsel has submitted that initially the plot never existed and it has been reclaimed from the sea only recently and hence the same has never been declared as an amenity one in any master plan prepared by D.H.A. After the reclamation of the plot, D.H.A. Entered into agreements with respondent No,6 dated 10-6-2000 and 14-5-2001 for building a mosque and a Park respectively thereon. In fact the satellite image of the area annexed to the counter-affidavit shows it as an open plot without any park etc. Thereafter the governing Body of D.H.A. Per decision dated 20-8-2004, decided to improve the entire Clifton Beach and hence the agreement between the D.H.A. Board of Directors and the respondent No,6 has been superseded as the former cannot displace the decision of the Board. Finally, per learned counsel, in the guide map of D.H.A. The Park in question is shown on a different location. Consequently, there is no question of conversion at all. Learned counsel has distinguished the case of Ardeshir Cowasjee v. KDA (supra) because therein the park in question was shown as such in the KDA master plan and hence its conversion to a commercial use was struck down by the Honourable Supreme Court as this was without sanction of the Government Body as provided in the KDA Order, similarly in Moulvi Iqbal Haider v. Capital Development Authority (supra) as the park viz. Jinnah Park was shown in the master plan, therefore, the Honourable Supreme Court struck down a portion of its conversion fora commercial purpose viz. Mini Golf Course as this without sanction of the Federal Government.
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13. Messrs Anwar Mansoor Khan and Shakeel Z. Lari appearing for respondent No,5, have supported the arguments of Mr. Makhdoom Ali Khan. 14. Mr. Faisal Siddiqui, learned amicus curiae, has relied upon his note which he has filed before this Court. In sum, learned amicus curiae has supported Mr. Javed Siddiqui and Ms. Rizwana Ismail regarding the conversion of the plot in question. According to him undoubtedly the Park has been designated as such by the Executive Board of D.H.A. And given over to the respondent No,6 for development which was perfectly within the powers of the Board as per sections 5 and 9 of the D.H.A. Order, 1980. Such agreement between the respondent No,6 and the D.H.A. Has still not been cancelled and consequently D.H.A's. Stand that its Governing Body has not ratified the agreement is without substance. He has also relied upon the case-law quoted by the other learned counsel on conversion of an amenity plot into a commercial one. 15. Regarding the concept of free access to the beach again learned amicus has fully supported Mr. Siddiqui and Ms. Rizwana. Additionally, he has also cited some cases from the American jurisdiction on the concept of the Public Trust _Doctrine viz Illinois Central R. Co. v. Illinois 146 US 387 (1892), Releigh Avenue Beach Association v. Atlantis Beach Club 185 N.J.40, Glass v. Goeckel 703 N.W. 2d1, Brenden P1 Leydon v. Greenwich 257 Conn. 318. Learned counsel has also referred to an Article entitled "the Public Trust Doctrine Parens Patriae, and the Attorney-General as the Guardian of the State's Natural Resources" Published in Volume 16, Duke Environmental Law and Policy and the policy Report by the Centre for Law in the public interest entitled Free the beach, public access. Equal justice and the California Coast, additionally. Learned amicus has submitted that per section 12 of Environmental Protection Act, 1997, all projects have to be cleared with the EPA before construction of operation is undertaken. Finally according to learned amicus per bye-law No,44 of the Construction Byelaws of D.H.A., commercial buildings are limited to ground + mezzanine + three storeys and residential ones upto ground plus one. Hence, the proposed multistoreyed commercial and residential plazas on Clifton Beach would in violation of the aforementioned Bye-laws. 16. In reply Mr. Jawaid Ahmed Siddiqui has submitted that vide section 12 of D.H.A. Order all Schemes are to be for public purposes therefore the proposed development should also be for said purpose. However, this is not so as the same would definitely restrict the access of the general public to the Clifton Beach learned counsel has further relied upon the Annexures to the petition which would amply establish that the Park existed when the agreements between D.H.A. And respondent No,6 was executed. 17. Ms. Rizwana Ismail in rebuttal has again submitted that the Annexures to the pleading of the D.H.A. Would also establish that in fact the park in question did exist before it was handed for development as such to respondent No,6 and construction of the mosque. With regard to enlargement of the scope of the petition. Learned counsel has submitted that in the order, dated 1- 2-2006, the words "related proceedings" means those which come before the Court as a result of filing of the petition. Per learned counsel, the same is in the nature of public interest litigation and hence this Court has concurrent jurisdiction along with the Honourable Supreme Court as per Khalil Ahmed v. Abdul Jabbar Khan 2005 SCM R 911. According to her, this Court is the guardian of the fundamental rights of the citizens and in fact the right to enjoy parks,. Open places and beaches is a fundamental right i,e, a right to life as incorporated in Article 9 of the Constitution. For this submission, she has relied upon the case of Shahla Zia v. WAPDA (supra). Consequently any violation thereof when brought to the attention of this Court by any party or even a person who is not a party in a pending matter can and should be entertained by this Court. In support of submission she has relied upon Ardeshir Cowasjee v. KBCA 2001 YLR 2430. Consequently, though the petition may initially be confined to the park in question, this Court is bound to take notice of the produced development along the entire Clifton Beach (which has been brought to its attention
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by Shehri) as this violates the fundamental rights of citizens to free access to the said beach. Learned counsel has further submitted that the building bye- . Laws in the Cantonment areas are regulated by the Cantonments Act and the Rules framed thereunder and have nothing to do with D.H.A. Hence, the D.H.A. Is bound by law to take permission of the Clifton Cantonment Board for the proposed development of the Clifton Beach. 18. We have heard all the learned counsel and our conclusions are as under:-- 19. As regard the controversy vis-a-vis the scope of the petition, indeed, it only impugns the conversion of the park in question to a commercial use and demolition of the mosque built thereon. Consequently it has been prayed that the same be declared as illegal and arbitrary. So also per the order, dated 1-2-2006 passed in the matter, though Shehri's application for joinder as a party was allowed this was done with the caution that at the time of hearing the proposed intervenor shall not be allowed to raise any question which may not be pertinent or relatable to the present proceedings. However, having said as much it may also be seen that in the amended petition (which was taken on record by consent except addition of proposed parties vide order, dated 1-2-Z007) it has been averred that the proposed construction of a high-rise commercial and residential projects in the park would deny the right of the general public of access to the Beach. Similarly in ground No,(C) of the amended petition, it has been stated that the entire development of the Clifton Beach as proposed by the D.H.A. With the collaboration of respondent No,5 would be detrimental to the interest of the common public as it would deny them free assess to the beach. It may also be seen that in cases such as the present one which deal with public interest litigation. The Honourable Supreme Court of Pakistan has indeed, widened the definition of an aggrieved person who could approach the High Court in writ jurisdiction for enforcement of fundamental rights guaranteed under the Constitution. In this respect reference can be made to the case of Ardeshir Cowasjee v. KBCA (supra) wherein the Honourable Supreme Court has held that the right to enjoy a public Park was a right to life as employed in Article 9 of the Constitution and hence the appellants therein who reside in close proximity to the park had the locus standi/sufficient interest to move this Court in writ jurisdiction impugning the construction of a commercial complex inside the park. In fact the Honourable Supreme Court went to the extent of observing that even a person who does not live within the vicinity of the park had the right to approach this Court since it is a place of public recreation. Similarly, the Honourable Supreme Court also observed that the concept of locus standi does not mean that the petitioner should have a right in the strict juristic sense, but it is enough if he discloses that he had a personal interest in the performance of a legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty of franchise. Similarly in the case of Iqbal Haider v. Capital Development Authority (supra) the Honourable Supreme Court observed that in the case of public interest litigation a person can invoke the constitutional jurisdiction of the superior Courts as probono publico but subject to showing that he is litigating firstly in the public interest and secondly for the welfare of the general public against various public functionaries who have failed to perform their duties relating to the welfare of the public-at-large. Consequently, in our opinion as admittedly Shehri is an organization which is sensitive to environmental issues and has brought to the attention of this Court the development of the Clifton Beach in the manner as proposed which would allegedly deprive the residents of the city of their fundamental right of free access to the same, it cannot be said that it does not have sufficient interest in the matter or no locus standi, particularly, as we have already held that the amended petition impugns the entire development of the Clifton Beach as proposed. 20. As regards the second issue argued before us viz. The conversion of the park in question for commercial use, it would be seen that this is rather contentious. On the one hand, the petitioners along with Shehri insist that the Park was designated as such by D.H.A, and handed over for
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development and construction of a mosque thereon by the respondent No,6 vide agreements dated 10-6-2000 and 14-5-2001. On the other hand, the D.H.A. Says that such agreement was entered into between the Executive Board which had no authority to do so since only the Governing Body could determine the land use etc. Of plots belonging to D.H.A. And hence the same was superseded…
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