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Petitioner: SALMAN MUJAHID VS Respondent: FEDERATION OF PAKISTAN through Secretary Defence, Rawalpindi and 5 others
Court Name: Sindh High Court Judge(s): Munib Akhtar, Syed Hassan Azhar Rizvi Title:SALMAN MUJAHID vs FEDERATION OF PAKISTAN through Secretary Defence,
Rawalpindi and 5 others Case No.: Constitutional Petition No,D-1211 of 2012 Date of Judgment:2012-09-20 Reported As: 2013 MLD 287 Result: Petition dismissed Judgment ORDER ' SYED HASAN AZHAR RIZVI, J.---Petitioner, claiming himself to be a resident of Flat in Phase-V, Defence Housing Authority, Karachi, has challenged through this Constitutional Petition a registered Agreement No,7615 executed between respondents Nos.2 and 6 for construction of Shopping Plaza/Cinema and from changing the status of amenity --plot bearing No,214-A, Khayaban-e- Shaheen, Phase-VIII, Sector-B, DHA, Karachi as the same is against the public policy and does not have sanction of law. 2. According to the learned counsel for, the petitioner respondent No,2 is a society established for the welfare of armed force officers. Three fold objectives of the society are to act for the welfare of personnel of armed forces, establishment of residential society and lastly to conserve land and setup housing schemes on land purchased from Federal/Provincial Governments/private sectors to develop area according to master plan. As per Clause-10(3) of the master lease, the respondent No,2 is responsible for earmarking areas reserved for public amenities, specifying its usage before approval of Master Plan and after approval of Master Plan respondent No,3 has no right to change purpose of use of public amenities without approval of respondent No,3. He further contended that respondent No,6 is an entertainment company and has acquired Plot No,214 A, Kh-e-Shaheen, Phase-VIII, DHA, Karachi in connivance with the officials of the respondent No,2 in illegal manner, in which respondent No,2 subdivided Plot No,214 reserved for Sports Complex in Master Plan and had changed purpose of subdivided amenity plot to commercial one by allowing construction of cinema cum shopping mall cum roof top restaurant.
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3. Learned counsel for the petitioner contended that respondent No,2 initially marked Plot No,214 admeasuring 40,000 square yards for the purpose of construction of a sports complex to be utilized by the general public for recreational activities and the said plot was meant for amenity to be provided free of cost to general public but respondents Nos.2 and 6, clandestinely entered into a MOU for the bifurcation of the original plot and proposed for the construction of a Commercial Venture to include cinema; shopping mall and roof top restaurant, which have to be run on commercial basis. Respondent No,2 according to the learned counsel for the petitioner subdivided original plot into two plots bearing. No,214-A measuring 2800 square yards and Plot No,214 measuring 37000 square yards vide demarcation letter dated 19-5-2011 and the possession of the subdivided Plot No,214-A has already been handed over on 19-5-2011 to respondent No,6 and in pursuance of demarcation letter boundary pillars have been erected by the respondent No,6. He further contended that besides 2800 square yards area another 1200 square yards area from space of reserved for parking of Sports Complex in the basement of Commercial Venture have already been allotted to the petitioner without any legal authority. 4. It is further urged by the learned counsel for the petitioner that area is densely populated, residents of the area and vicinity have already suffering from traffic jams and if the demised premises is allowed to be used in a commercial manners this will adversely affect the residents of the locality, as the usage with enhanced traffic/parking congestion, air pollution, privacy, increase in crime, nuisance and other civil problems will occur. Learned counsel for the petitioner argued that citizen's fundamental rights to live as enshrined in Articles 8, 9, 14, 23, 24 and 25 of the Constitution of Islamic Republic of Pakistan are being and will further be violated. 5. It is further contended by the learned counsel for the petitioner that the act of the respondents tainted with mala fide and depriving general public from amenities, which are to be provided to them free of cost. Respondents have no atithority to change the purpose of amenity plot, which was originally meant for the construction of Sports Complex to be utilized and used by the general public but the respondent No,2 without any authority converted the amenity plot to commercial plot. 6. He also argued that respondent No,2 entered into a Rent Agreement with the respondent No,6 in violation of Public procurement Rules and open bidding was not carried out and as such caused loss to - public exchequer. He also contended that by letter dated 23-8-1975 an area of 1543.85 acres have been devolved upon the respondent No,2 for amenity purposes viz. Construction of schools, mosques, parks and playgrounds for the benefit of general public and by entering into Rent Agreement with respondent No,6 for commercial purposes respondent No,2 has committed glaring illegality. 7. Learned counsel for the petitioner has referred to Article-9 of the Pakistan Defence Officers Housing Authority Order, 1980 whereby powers, duties and functions of Executive Board of Defence Housing Authority are mentioned. He has also referred to Article 5(3) of the Pakistan Defence Officers Housing Authority Order, 1980 whereby Executive Board shall exercise all administrative, executive and financial powers and do all acts and things which may be exercised or done by the Authority. Learned counsel has placed reliance upon 2009 CLC 1199 passed by the Divisional Bench of this Court. Learned counsel further contended that the respondent No,2 converted amenity plot and entered into an agreement with the respondent No,6 for purely commercial activities without approval of the Executive Board. He has also referred to Article 3(d) of the Building Control and Town Planning Regulations; 2011 of Pakistan Defence Officers Housing Authority, Karachi and in accordance with the definition of amenity plot "A plot allocated exclusively for the purpose, of amenity uses, such as government officers, health, welfare, education, worship places, burial grounds, parking and recreational areas. He further submitted that recreational areas are not defined in the aforementioned Regulation.
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8. Learned counsel for the petitioner has also referred following. Regulations of the Karachi Building and Town Planning Regulations, 2002;-- ' Regulation 2-7 "Amenity Plot" means a plot allocated exclusively for the purpoce of amenity uses as defined in Chapter 19 of these Regulations, such as Government uses in. 19-2.21 Health- and Welfare uses in 19-2.2.2, Education uses in 19-2.2.3, Assembly Uses in 19-2.2.4., Religious uses in 19- 2.2.5, Parks and Play grounds in 19-2.2.7, Burial grounds in 19-2.2.8, Transportation right-of-way in 19-2.2.9, parking in 19-2.2.10 and Recreational Areas in 19-2.2.12. ' 19.2.2.12 Aquatic Recreational Areas; Sea coast, lakes, rivers, ponds, water falls, boating basins, marine promenade, marine clubs, yachting clubs. Urban uses - Non residentiary. ' 19.2.2.4 Assembly Uses; includes all land used for libraries, cinemas, theaters, concert halls, planetaria, aquaria (if outside of zoo), non-sportive clubs, exhibition halls, and exhibition grounds and others. With the exception of exhibition grounds, open areas of these- facilities will be limited by their actual operational needs. ' 19.2.2.8 PLAY GROUNDS (a) All open spaces designated for all indoor or outdoor sports activities of all types whether fully developed or not; and (b) All structures serving sports activities, like sports complex, gymnasia, swimming pools, stadium, race-courses, sports clubs of all kinds, whether they are part of an open space designated for sports activities or are independent structures. 9. Learned counsel for the petitioner has referred to Regulation 100 of the Building Control and Town Planning Regulations 2011, which is as under:-- "Change of Land Use Amenity Plot. No amenity plot reserved for the specific purpose shall be converted or utilized for any other purpose." 10. Learned counsel for the petitioner has referred to the following clauses of Lease Deed dated 11- 11-'1975:-- ' Clause-2 WHEREAS the Lessor has agreed to permit and authorized the Lessees to enter upon the land hereby demised for the purpose of developing it and constructing buildings thereon in the manner with terms and conditions hereinafter appearing. ' Clause-2(c) The reservation of suitable plots or portions of land for public amenities, such as Parks, Play Grounds, Schools, Mosques, Dispensaries, Hospitals etc., according to the standard that may be prescribed by the Lessor. ' Clause-3 The plan submitted by the Lessees for residential, commercial and other plots reserved for municipal services amenities and public utilities such as Schools, Mosques, Playing fields and a community owned Club has been approved by the Lessor. ' Clause-4 As the plan (layout) has been approved by the Lessor the Lessees shall cause a detailed scheme (hereinafter referred to as the Scheme) for the development of the said area to be prepared under the supervision of qualified engineers and/or other qualified agencies approved by the Lessor for this purpose. The scheme shall provide for the following measures, namely:- (a) (b) (c) .. (d) (e) . (0 ------ (g) Allotting land for parks, pay grounds, and other open spaces for the benefit of the inhabitants; (h) The construction of buildings in the plots reserved for public amenities; ' Clause-10(3) PLOTS RESERVED FOR PUBLIC AMENITIES:-
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(a) the Lessees shall cause to be erected and completed in and upon the plots reserved for public amenities the buildings the erection of which has been provided for in the Scheme referred to in these presents and shall not without the previous consent in writing of the Lessor erect or suffer to be erected on any such plot or part thereof any building other than those required under the Scheme. On the due completion of the said buildings, the Lessees shall be entitled to the lease of the said plot on which these buildings stand for a term of. 99 years commencing from 23rd August, 1975 and ending on 22nd August, 2074 A.D. On such terms and conditions as may be laid down by the Lessor. (b) Any plot which is or which may from time to time fall vacant or become in the opinion of the Military Estates Officer available for disposal either due to a default of the Lessees, a sub-lessee or a lessee or by operation of law or otherwise, shall be disposed of in accordance with the provisions of sub-clause (a) of this clause. ' Clause-17 And the Lessees do hereby covenant with the Lessor:-- (a) .. (b) Not to make any alteration in the plan or elevation of the dwelling houses to be erected thereon without such consent as hereafter mentioned nor to use the same or permit the same to be used for any, purpose other than that of dwelling houses. (c) To erect at their/his own cost and finish fit for habitation/use on the premises hereby demised buildings for amenities and dwelling houses together with all necessary out-houses and other appurtenances in accordance with a plan or plans for each allotted plot to be approved in writing by the Cantonment Board under the provisions of the Cantonments Act, 1924.. 11. It is further contended by the learned counsel for the petitioner that no previous consent was taken from the lessor by the respondent No,2..Learned counsel for the petitioner further submitted that Article 3 of the Pakistan Defence Officers Housing Authority Order, 1980 has overriding effect over other laws. He further contended that master lease of the area of Phase-VIII was prepared in 2002. He further contended that according to the clause 17(d) of the Lease Deed DHA has no authority to approve building plan which is authority of the Cantonment Board. He also contended that Article 24(7)(8) provide that:- "Article 24(7) All taxes, fees, rates and cases imposed or levied in the existing Cantonment immediately before the commencement of this Order shall continue to be imposed or levied in the Karachi Cantonment and the Clifton Cantonment until abolished or altered in accordance with the provisions of the Act. (8) All rules and bye-laws made under the Act and in force in the existing Cantonment immediately before the commencement of this Order shall continue to be in force in the Karachi Cantonment and the Clifton Cantonment until they are repealed, amended or modified in accordance with the provisions of the Act. 12. It is contended by the learned counsel for the petitioner that the construction made by the respondent No,6 is illegal and unlawful. He further contended that one type of amenity plot cannot be changed to other type of amenity plot. Learned counsel for the petitioner has further submitted that there are private recreation by a particular person for his own use as farm house, this commercial or recreation and public recreation where general public has free access. According to the learned counsel for the petitioner there is no transparency in awarding contract/ allotment of the part of amenity plot to respondent No,6 for commercial use. He urged that in case of allotment for commercial recreation which is mentioned in the lease that land shall be granted through public auction in transparent manner. He further submitted that the subject plot of land has been illegally allotted from portion of an amenity plot to respondent No,6 to give favour and benefit to a particular person and not a single word of joint adventure has been found in the MOU/alleged Tenancy. Agreement.
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13. Mr. Kh. Shamsul Islam learned counsel for the respondent No,6 submitted that it is not the case of public interest litigation rather personal interest litigation. He argued that the petitioner is non- entity and approached to this Court with unclean hands, for ulterior motives in order to harass and blackmail respondent No,6: Petitioner is not residing at the given address, he is neither owner nor tenant of the flat mentioned in the title of the petition. Flat mentioned in the title of the petition is owned by one Nisar Ahmed Shaikh, who is residing with his family in that flat. Petitioner is not member in any of the category of DHA and is resident of Dastagir Society F.B. Area Karachi Petitioner is the purchase Manager. Of M/s Shaheen Construction Company, who are the competitors as well as rivals of the respondent No,6 and the husband of Proprietor of Messrs Shaheen Construction Company has filed a Constitutional Petition No,1631 of 2012 against one of the Director of the respondent No,6 for registration of the F.I.R. He submitted that tenancy agreement was between respondent No,6 and Pakistan Defence Officers Housing Authority, Karachi, which was exeeuted and registered on 14-4-2011. Almost 80% of the construction works on the subject plot has already been completed and- after almost thirteen months from - execution and registration of aforesaid tenancy agreement present petition has been malafidely filed by the petitioner on 31-3-2012 and by misleading this Court petitioner has obtained prohibitory order. He further submitted that principle of laches is fully applicable in the present case as the petitioner has approached to this Court after thirteen months from execution of registered tenancy agreement for thirty years when almost 80% construction of the project was completed, therefore, present petition is liable to be dismissed. To support his contention learned Counsel has referred to PLD 2003 SC 132 and PLD 2007 SC 472. Learned counsel further submitted that photographs and drawings of the subject property' at different stages of construction have already been annexed along with comments/reply of the respondent No,6 and from which it is manifestly clear that petitioner has illegally trying to harass and blackmail to the respondent No,6 by filing the present petition. 14. Learned counsel for the respondent No,6 further contended that all amenities and utilities are being provided in Phase-VIII of DHA, Karachi by DFIA alone without help of any other agency including Clifton Cantonment Board and DHA is not a cantonment area as clarified, by the Pakistan Cantonment Property Rules 1957, which have been framed by the Federal Government. He has further contended that the Cantonment Board 'Clifton has not at all provided any amenity and facilities in the entire DHA area of Phase-VIII, no metal roads have been constructed by cantonment board and even no parks have been constructed or maintained by the Cantonment Board, on the contrary all such works are being done and facilities are being provided exclusively by the DHA. He further submitted that respondent No,6 is simply a tenant of respondent No,2, respondent No,2 only allowed the respondent No,6 to use subject plot for, constructing the state of art recreational facility/theatre with all ancillary, and mandatory facilities and amenities, besides, the respondent No,6 is also constructing parking space at their own costs and at the end and expiry of the lease, the respondent No,6 has to return back the same without any compensation and shall hand over the entire constructed project to the DHA/respondent No,2. It is categorically argued by the learned counsel for the respondent No,6 that the subject plot is neither allotted to respondent No,6 nor same was acquired by respondent No,6 from respondent No,2/DHA, DHA/ respondent No,2 has given subject plot to respondent No,6 purely on lease through registered agreement on built, operate and transfer (BOT) basis without transferring any ownership right to the respondent No,6. He submitted that the respondent No,6 without any financial assistance from' any DFI or bank has invested more than Rs,40 crores from its own resources and completed 80% of the project but the petitioner has filed the petition in order to harass and blackmail the respondent No,6. Neither any law has been violated by the DHA/respondent No,2 while entering into registered
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lease/tenancy agreement with the respondent No,6 nor any nuisance has been created by the respondent No,6. 15. With regard to the violation of P.P.R.A. Rules learned counsel for the respondent No,6 argued that since inception in all phases of DHA all the plots of like nature, subject matter of present petition as well as other amenity plots submitted their proposal to the DHA/respondent No,2 and the Executive Board of DHA in terms of DHA Order, 1980 made approval of the same. Learned counsel for the respondent No,6 has referred to Rule 42 of the P.P.R.A. Rules; which provides that the procuring agency may utilize certain alternative methods of procurement of goods, service and works (other than open competitive bidding) and then sets forth four different types of methods, which may be permissible and in Clause "C" of Rule 42, which itself deals with direct construction. In the present case tenancy agreement between DHA/respondent No,2 and respondent No,6 is on BOT basis. Learned counsel for the respondent No,6 categorically admitted in his arguments that subject plot was neither allotted nor was acquired by the respondent No,6 therefore, there is no violation of P.P.R.A. Rules. 16. Mr. Khalid Javed Khan learned counsel for the respondent No,2 submitted that DHA is the statutory- body and is governed by the provisions of President's Order No,7 of 1980 (which is equivalent to an 'Act' in terms of Article 270A of the Constitution of -Pakistan, 1973), Pakistan Defence Officers Housing Authority was constituted an Authority. Provisions of lease deed of 1975 as well as 2002 are to be construed in harmony with the provision of the President's Order No,7 of 1980 and in the evident of any conflict the provisions of the latter would prevail. According to the learned Counsel, subject matter of the present petition, is fully covered by Article 9(2)(ii) of President's Order. No,7 of 1980 as well as Clause 10(3)(a) of the Lease Deed 2002. Learned counsel for the respondent No,2 has urged that under regulation 100 of the Building Control and. Town Planning Regulations, 2011 framed by DHA, the 'purpose' referred to is 'amenity' and not different natures of amenities within the predominant purpose which remain the same i,e,, amenity, once plot is earmarked as amenity plot, it shall always remain amenity and that purpose cannot be changed. Thus, while the nature of specific activities within the range of different amenities may change, the dominant purpose of amenity can never be changed. Distinction is to be made in the nature of user within the dominant purpose and the dominant purpose itself, which is defined and meaning in Black's Law dictionary "an objective, goal or end". According to the learned counsel there has been no change of dominant purpose for which subject land was alloAd and the plot remains Salt Mujahid v. Federation dedicated to amenity purpose. He has relied upon the case of Muhammad Alamgir Amjad v. MDA reported in 2004 CLC 964. 17. Learned Counsel for the respondent No,2/DHA contended that Plot Nos.214/214-A, Kh-e-Shaheen, Phase-VIII, DHA, Karachi, the subject matter of the present- petition is part of lease deed dated 21- 2-2002 comprising of about 42,429 square yards meant for 'amenity purposes'. Said plot was earmarked for 'sports complex' in the master plan and DHA Plan to develop sports and other recreational and leisure facilities for public on this plot. Thus stadium, swimming pool, squash complex etc., are developed on about 36.354 square yards. However, keeping in view the changing nature of recreational and sporting activities, DHA felt that the sport complex should also include indoor games and multiplex theatre which is now a major source of recreation for children and teenagers. Thus, in order to provider fore better recreational facilities to this age group, DHA has decided to earmark about 2800 square yards for recreational facilities such as indoor skating, games, theatre, auditorium, food courts and parking space for the visitors. For that purpose Plot No,214-A was carved out of Plot No,214. Learned counsel further submitted that there will be no shopping plaza/mall or other commercial activities on that plot, which is evident from the layout plan and approved building plan already submitted by the DHA along with reply. Learned counsel further contended that the amenity plots in DHA cannot be leased out to any party and the DHA
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itself does not have huge financial resources or expertise to develop the sporting/recreational complex itself, it has caused such projects to be developed by third parties, for that purpose without allotting of that plot to any party DHA entered into a registered tenancy agreement with the respondent No,6 for a period of thirty years, which is extendable on the same terms and conditions for further two consecutive terms of 10 years each except fresh rent to be agreed mutually related to market rental value at that time. He further submitted that Plot No,214-A was and remains dedicated to amenity purpose i,e, recreational and sporting activities for members of the public. There has' neither been any change of purpose of land nor violation of any provisions of President's Order No,7 of 1980 or the Lease Deed. 18. Learned counsel for the respondent .No,2 submitted that in Article 3(d) of the Building Control land Town Planning Regulations, 2011 of DHA in the meaning of amenity plot recreational area are also included, which has to be given contemporaneous meaning and the rule of contemporaneity exposition may be invoked while interpreting the meaning of such term/clauses. The concept of recreation-has evolved with passage of time. It is undeniable fact that in contemporary society indoor games and multiplex theatre provide .a major source of recreational activities for young and teenage persons in particular. This rule of interpretation is also being applied while construing the clauses of the Lease Deed. He has relied upon the case of Senior Electric Inspector v. Laxminarayan, AIR 1962 SC 159 and Amrelli Steels (Pvt). Ltd., v. F.O.P. 2004 PTD 2930. Learned Counsel for the respondent No,2 further submitted that amenities like schools, hospitals, sporting facilities, parks, zoo etc., do not lose their recreational/amenity character merely because those charged for. Amenities can only maintain standard, if those are managed on the basis of viable economic principles. There is a clear difference between amenity and charity. 19. Learned counsel for the respondent No,2 urged that Public Procurement Rules are not applicable in the present case as the DHA was acting as land owner while entering into tenancy agreement with respondent No,6 in respect of Plot No,214-A. Cost of development of the…
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