P L D 2013 Islamabad 49
Before Muhammad Anwar Khan Kasi, J
MUHAMMAD RAZA and others---Petitioners
Versus
JAMMU AND KASHMIR CO-OPERATIVE HOUSING SOCIEITY, and others-
--Respondents
Writ Petition No.1777 of 2011, decided on 28th May, 2012.
(a) Capital Development Authority Ordinance (XXIII of 1960)---
----Ss. 12 & 13---Constitution of Pakistan, Art. 199---Constitutional petition---Housing
Schemes---Duties and obligations of the Capital Development Authority in relation to
housing schemes/societies---Petitioners were residents of the respondent Housing
Society and impugned the deviation from approved layout places and conversion of
open spaces into residential and commercial plots---Contention of the petitioners was
that such actions of the respondent Housing Society were illegal and against their
rights---Validity---Capital Development Authority (CDA) had admitted that the
Housing Society committed violations of the approved layout plans and the report of
the Development Authority stated that the Housing Society had not completely
developed the society within the prescribed period and had converted open parks into
plots without approval---Capital Development Authority was under an obligation to
take action against defaulter Society for not completing the scheme within time and for
violation of approved plans----Land specified for a particular purpose cannot be used
for any other purpose---High Court directed the Chairman of the CDA to take action
against the respondent Housing Society and to ensure that the Housing Society acts
strictly in accordance with the approved layout plan---Constitutional petition was
allowed, accordingly.
Residents' Welfare Society, Sector G-13 Islamabad through President v. Federal
Government Employees' Housing Foundation through Director General and another
2010 CLC 1663 ref.
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Alternate remedy---
Maintainability of constitutional petition during pendency of a civil suit on the subject
matter---Scope---Plea of pendency of civil suit lost force where there was a clear
violation of rules and where an authority acted in a manner altogether unwarranted by
law, and in such a scenario, the remedies provided under the law need not be exhausted
before having recourse to the constitutional jurisdiction of High Court.
Qazi Ghulam Dastgir for Petitioners.
Muhammad Ramzan Chaudhary, Muhammad Abdur Rafeh and Tariq Mehmood Mirza
for Respondents.
Date of hearing; 24th April, 2012.
JUDGMENT
MUHAMMAD ANWAR KHAN KASI, J.---The petitioners are the residents of AJK
Co-operative Housing Society and have approached this Court in the form of a public
interest litigation with the grievance that deviation from the approved layout plan of
the society and conversion of open public spaces into residential/commercial plots is
absolutely illegal and the negation of their natural rights.
2. It is the case of the petitioners that the respondent-Society had launched a Housing
Scheme which was approved by CDA (respondent No.4) and according to its approved
layout plan; the respondents 1 and 2 are under legal obligation to provide all the basic
amenities and utilities like open spaces, green areas, public parks, graveyards, school/
college plots, dispensary and STP etc. to all the residents of the Housing Scheme. The
petitioners have given the following details of the violations of the plan and illegal
utilization of plots, reserved for specific public purposes:--
(i) The first area is the one reserved for public parks in G-15/1 which has been
converted by the respondent Nos.1 and 2 into residential plots.
(ii) The second area relates to Schools/colleges adjacent to the Jamia Mosque G-15
Markaz, which have been specified in the layout plan but these areas/plots have been
converted into commercial plots.
(iii) The third area is reserved for Library in G-15 Markaz which has also been
converted into commercial/residential plots.
(iv) The fourth area is specified in the original layout plan for Health Centre in G-15
Markaz but the respondents Nos.1 and 2 have converted it into commercial plot.
(v) The fifth area is reserved for Sewerage Treatment Plan (STP) in G-15/1, but the
residents of the society were deprived from this facility by converting the area into
residential plots.
3. It is also alleged that the open area reserved for graveyard in G-15/4 has also not
been demarcated which is creating difficulties for the residents of the society. It is
contended that the society has received cost of land along with full development
charges from its members and, therefore, non-provision of all the amenities is illegal
while the violation of CDA Building Bye-laws by erecting fivf e storey buildings have
created inconvenience among the general residents of the society.
4. Learned counsel for the petitioners relied upon a case-law titled as "Residents'
Welfare Society, Sector G-13 Islamabad through President v. Federal Government
Employees' Housing Foundation through Director General and another" reported in
(2010 CLC 1663 Lahore), wherein it was held that the land specified for specified
purposes cannot be used for any other purpose to multiply revenue for the Housing
Society and open spaces are the common property of the residents and a heritage for
the posterity. It was further held that constitutional jurisdiction can be invoked where
the authority acts in a manner altogether unwarranted by law and in such cases
alternate remedies need not be exhausted before approaching the court under Article
199 of the Constitution.
5. The petition was vehemently contested by the respondents 1 and 2 through written
comments whereby maintainability of the petition was challenged on the ground of
pendency of a civil suit before the Civil Court on the same cause of action between the
same parties. It was further submitted that factual controversies are involved in the
petition which cannot be decided under the writ jurisdiction and since there is no
violation of the approved plan, writ petition cannot proceed further and the petitioners
are liable to be proceeded under section 476 read with section 195(b), Cr.P.C. for
submitting false evidence.
6. On merits, it is submitted that every action has been taken according to approved
layout plan and not a signal plot has been converted into commercial or allotted to any
other member.
7. On the other hand, the CDA i.e. respondent No.4, through report and parawise
comments dated 7-9-2011 admitted that some changes have been made by the society
at some points and the open space/public parks have been changed with residential
plots while size of school plot has been reduced and replaced with commercial plots.
8. It was also admitted that the areas reserved for Library and Health Centre in the
approved plan have been changed with commercial plots and the Sanitary Treatment
Plant (STP) has been shifted to some other site replacing the approved site with
residential plots.
9. It is verified by the CDA that 56 kanal land, allocated for graveyard in approved
layout plan of the scheme, has not been demarcated/developed at site and graveyard is
readily not available for the residents of the society while the development period of
the scheme is valid up to 13-5-2011. The respondent CDA, however, mentioned that
the society has submitted the revised layout plan incorporating the abovementioned
changes which is under process in CDA and observations were conveyed to the society
vide letter dated 17-3-2011.
10. The respondent No.4 in the same report also stated that on the complaint of some
residents, the issues were conveyed and discussed with the society in a meeting in
CDA on 5-5-2011 and the society had committed to redress grievances of the
complainants. According to para wise comments of CDA, the society was again
advised on 29-6-2011 to redress the grievance of the complainant and submit
compliance report to CDA but said report is still awaited. In para 10 of parawise
comments, it is verified by CDA that Society had made deviations from the approved
layout plan, however, revised layout plan of Scheme, incorporating the said changes,
has been submitted by Society which is under process.
11. The CDA also verified that land used, prior to approval of the authority, is illegal.
The respondent CDA also placed on record a copy of letter dated 29-6-2011 written by
the Director Housing Society to the respondent Society whereby following issues were
conveyed to the Society with the direction to submit compliance report within 15
days:--
(a) Non-availability of graveyard
(b) Non-construction of Sewerage Treatment Plant (STPA)
(c) Construction of Ground+5 Storey Commercial Plazas in G/15 Markaz
(d) Creation of Commercial Plots in school site in G-15 Markaz
(e) Conversion of Amenities Plots like Health Centre, Post Office, Telephone and
Telegraph, Guest House in G-15 Markaz, into Commercial.
Astonishingly CDA took a summersault by submitting additional reply on 29-2-2012
through which it was prayed that writ petition may be dismissed. The reply is
reproduced as below:--
"The respondent No.4, CDA under the direction of this Honorable Court has reviewed
Jammu and Kashmir Co-operative Housing Scheme in Sector G-15/F-15, Zone-II,
Islamabad and to submit that:-
Layout plan of the housing scheme named "Khayban-e-Kashmir-I" over an area
measuring 3482.62 kanals was approved by CDA vide letter No.CDA/PLW-UP-
(90)/JKCHS/93/1284 dated 25-4-2002 (Annex-I) and NOC was issued vide Letter
No.CDA-LD-UP-(90)/JKCHS/93/3847 dated 13-5-2004 (Annex-II) M/s Jammu and
Kashmir Cooperative Housing Society submitted another scheme over an area
measuring 991.86 Kanals which has been approved in principally vide letter No.CDA-
PLD-HS(90)/JKCHS/Phase-II/2012/252 dated 9-3-2011 (Annex-III). The two schemes
are adjacent and share the public amenities.
The land use plans have been approved in accordance with the Planning standards
provided for Residential, Educational, Open spaces and Amenity plots etc.
Under the circumstances, it is most respectively prayed that the Writ Petition may
kindly be dismissed".
12. According to additional reply, which was not asked for, it is stated by Mr. Ashiq Ali
Ghori, Director (Housing Societies) Planning Wing, CDA that CDA under the direction
of this Court reviewed "Jammu and Kashmir Co-operative Housing Scheme".
However, no such direction of this court is available on record and Mr. Aashiq Ali
Ghori, Director (Housing Societies) seems to have given a wrong statement to mislead
the court which amounts to contempt of court and he is directed to be careful in future
regarding statements in the courts.
13. Heard and record perused.
14. It is admitted by the respondent CDA that the society has made changes without
approval of the CDA and till the expiry of Scheme development period i.e 13-5-2011,
the graveyard was not developed/ provided and STP was shifted in violation of
approved plan. The meeting of CDA with the respondent society and issuance of letters
for redressal of grievances is sufficient to establish that violations to approved layout
plan were committed. As far as additional reply of the CDA is concerned, it is shocking
that the said reply is a sheer attempt to mislead and misguide the court because it states
nothing about the revised layout plan of the existing scheme and only states that the
Jammu and Kashmir Cooperative Housing Society submitted another Scheme over an
area measuring 991.86-Kanal which has been approved in principle.
15. The reply clarifies the position that the layout plan is regarding a new scheme
which has got nothing to do with the previous layout plan of the approved scheme over
an area 3482.62-Kanal regarding which it had been admitted by CDA that deviations
and violations were made and it was also verified that graveyard over an area of 56-
Kanal has not yet been demarcated/developed.
16. Record and report of CDA verify the facts that the respondent-Society within the
prescribed period i.e. up to 13-5-2011 had not completed/developed the Scheme and
had made changes and also converted open parks into plots and reduced the size of
school plot without any prior approval of the Society. As far as revised approved layout
plan is concerned, it has got nothing to do with the present scheme because it is about
another scheme over an area measuring 991.86-Kanal which was approved by CDA
vide Letter No.CDA-PLW-HS (90)/JKCHS-Phase-II/2010/252, dated 9-3-2011.
17. The CDA, under the Rules, was under obligation to take an action against the
defaulter Society for not completing/developing the scheme within time and for
violation of the approved plans. There is no cavil to the proposition that land specified
for a particular purpose cannot be used for any other purpose.
18. The Chairman, CDA is, therefore, directed to initiate legal actions against the
Societies for completing/developing the schemes within time. The Chairman would
also take actions against the Director, Housing Societies sand other concerned staff for
not taking action against the defaulter society. Record also reflects that complaints of
aggrieved persons are not properly dealt with and after issuance of letters to the
Societies; no follow-up is taken by the concerned staff. The Chairman CDA should
evolve a policy where the genuine complaints of the people are properly dealt with and
be followed till some positive results because the state functionaries are under
obligation to listen to the complaints regarding their functions and to resolve them in
accordance with law.
19. As far as objection regarding the pendency of civil suit is concerned, the same loses
force in the present situation because where there is a clear violation of rules and
where authority acts in a manner altogether unwarranted by law, the remedies provided
under the law need not be exhausted before having recourse to the constitutional
jurisdiction of this Court. It is also obvious that housing schemes are announced and
people are attracted in the name of facilities and utility areas i.e. Parks, open spaces
and topography etc. and, therefore, the residents cannot be deprived of these facilities
by the societies due to greed for money.
20. In view of above discussion, the petition is allowed and the respondents are
directed to act strictly in accordance with approved layout plan dated 25-4-2002 of the
Jammu and Kashmir Housing Society. The respondent No.2 CDA shall ensure the
development of Housing Scheme in accordance with said approved layout plan and
any violation shall be dealt with under the CDA rules by the respondent CDA. No
orders as to costs.
KMZ/65/Isl Petition allowe
;
