Sajjad-ul-Haq vs DG PDA

2013 C L C 893

[Peshawar]

Before Rooh-ul-Amin Khan and Mrs. Irshad Qaiser, JJ

SAJJAD-UL-HAQ----Petitioner

Versus

DIRECTOR-GENERAL, PESHAWAR DEVELOPMENT AUTHORITY and 6 others---- Respondents

Writ Petition No.3115 of 2010, decided on 18th December, 2012.

(a)Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Laches--- Educational institution---Allotment of amenity land/plot for construction of a University---Delay in impugning allotment of land--- Effect---Past and closed transaction relating to allotment of land---Scope---Petitioner, who was an inhabitant of the town where land in question was situated, impugned its allotment to the University/allottee on the grounds that it would narrow a watercourse which would endanger the life and properties of the local inhabitants; that it would also cause great inconvenience to the inhabitants; that allotment was made without any auction, and that land was allotted to the University for very meager consideration---Validity---Development Authority of the area bedded the watercourse with fragments of broken rocks to eliminate any danger of flooding---By constructing retaining walls and embankment in the town, Development Authority made land in question useful, which was otherwise a dry watercourse---University had submitted an application before the competent authority for allotment of amenity land/plot for construction of University, which application was processed in accordance with the rules and law---Proper summary was prepared and placed before the competent authority for approval---After allotment University administration deposited the sale consideration and thereafter constructed a building-- -Allotment regulations of the town did not provide that amenity plot for a school or university had to be allotted on auction basis---Despite being aware of the allotment of land and construction of University building on it, petitioner filed present petition after an unexplained delay of about one year and eight months, thus under principles of laches alone, present petition merited dismissal----Allotment of land in favour of University had become a past and closed transaction, therefore no action could be taken against allottee at a belated stage---Petitioner failed to bring on record any instance to show that Development Authority had given any undue benefit to the University in terms of the sale consideration---Constitutional petition was dismissed in circumstances.

(b)Allotment---

---Allotment of amenity land for school, hospital etc.---Procedure---Amenity plots for school, hospitals etc. were never allotted through auction.

Bilal Ahmed Durrani for Petitioner.

Tariq Javed for Respondents Nos.1 to 4.

Waqar Ali, A.A.-G. for Respondents Nos.5 and 6.

Syed Mudassir Amin(???) for Respondent No.7.

Date of hearing: 18th December, 2012.

JUDGMENT

ROOH-UL-AMIN KHAN, J.--- Through this writ petition the petitioner seeks indulgence of this Court with the following prayers:---

"It is, therefore, respectfully prayed that on acceptance of this writ petition this Honorable Court may very graciously be pleased to set aside/cancel the allotment of plot being without lawful authority, illegal and of no legal of effect".

2.Brief, but relevant facts as enumerated in the writ petition are that the petitioner hails from Hayatabad Township Peshawar. The said Township was planned and developed for good environment and atmosphere having civic utilities and demarcated marked lands for the residential houses, parks, areas and commercial areas etc. In the said Township the inhabitants have either purchased the property from individuals or have been allotted plots or have purchased the property through open auction in lawful manner. It had very limited recreation places and parks for the locals. Out of the very few recreation areas, specially meant for recreation purpose is Bagh-e-Naran Phase-II being one of the left places. That the said Township has only one Sports Complex, which too has become congested and original sketch of the same has time and again been encroached upon by changing the basic design of the same by providing place for a Restaurant, a Nazim Office; which too was meant for indoor games activities for the inhabitants of Hayatabad Township Scheme, but the same was converted into an Office, which is clear violation of the original plan and purpose. That in between Bagh-e-Naran and Sports Complex Gandow Khawar runs, which has been squeezed and has been made narrow by the embankment, which will endanger the life and properties of the local inhabitants of Hayatabad Township. That in the Masterplan of the Township the Administration has allocated plots for Offices, Schools and Hospitals in all the seven Sectors and any allotment contrary to the Masterplan would create great inconvenience for the inhabitants. The petitioner mainly aggrieved by allotment of 20 Kanals of land situated between Sports Complex and Bagh-e-Naran Phase-II near Gandow Khawar to respondent No.7.

3.We have heard the learned counsel for the parties and considered their points in the light of their submissions.

4.Due to insignificant increase in Urban properties, and shifting of inhabitants from surrounding Districts to Peshawar for Business, Education and other civic available facilities in Peshawar, the City had become congested, thus in 1970 the Provincial Government launched a Mega Residential Project equipped with all modern facilities. For this modern Suburb huge chunk of land was acquired on the Western side of Peshawar city, adjacent to the main Highway, which connects Pakistan with Afghanistan. On Western side of this Project, gigantic Mountains of Khyber Agency are situated. This Township was named as "Hayatabad" giving resemblance with the name of the then Governor of the Province, namely Hayat Muhammad Khan Sherpao. Initially the Provincial Government devised a comprehensive plan that the Town shall be used for residential purposes, but after some time a complete Sector was allocated for establishment of Industrial Estate.

5.Since the area allocated for Hayatabad Township was lying in the foot of Koh-e- Hindukash (Mountainous Range of Khyber Agency) and rains in the ancient time had paved watercourse in the descending area; one of the same deep and large, but dry, creek existed in the Township. This watercourse was lying dry in between Bagh-e-Naran and Sport Complex, which was far away from the Residential Area, therefore, was not developed at initial period and was not included in Masterplan.

6.In the year 2008-2009 the Peshawar Development Authority constructed retaining wall and embanked the creek with dyke. The watercourse was bedded with fragment of broken rocks to eliminate and vanish any danger of flood etc. By constructing the retaining walls, and embankment, the Peshawar Development Authority brought into return a suitable land measuring 25 kanals, situated between Bagh-e-Naran and Sports Complex.

7.Primarily the respondent No.7 i.e. "Iqra University" had been established in a rental Bungalow in thickly-populated area of University Town. This Court while deciding the Writ Petition No. 1102 of 2009 titled Asia Management Institute of Iqra University v. Administration and others, declared the running of University in Residential Area as contrary to law. Consequently respondent No.7 submitted application to the respondents for allotment of amenity land/plot for construction and establishment of the University. The application was processed in accordance with the prevailing Rules and Law. A proper summary was prepared and placed before the Competent Authority i.e. Chief Minister of the Province for approval. The Chief Minister accorded proper sanction and approved the allotment of 20 Kanals out of 25 kanals reclaimed land to respondent No.7 for construction of "Iqra University", on the terms and conditions embodied in the allotment letter dated 11-2-2009. After allotment the respondent No.7 deposited the sale consideration and thereafter, constructed a huge building, and have started imparting Education in different subjects. The plot allotted to the University, on approval of the Chief Minister could not be nullified on the ground that the same has been allotted without any auction. We have gone through the record and allotment regulations of Hayatabad, which do not provide that the amenity plot for School be allotted on auction basis. We have also observed that the amenity plots for School, Hospital etc. have never been allotted through auction.

8.Allotment of plot in favour of respondent No.7 has become a past and closed transaction, as he had made payment and had become lawful owner thereof, thus no action could be taken against the allottee at such a belated stage. It is also evident from record that at present about 1300 students have been admitted in the University and different Departments have started

imparting Education in its respective subjects. Moreso, the, plot was allotted to respondent No.7 in the month of February, 2009, while the instant writ petition was filed on 10th August, 2010.

9.Despite the fact that petitioner was well-conversant with the allotment and then huge construction on the plot, but has filed this writ petition with an unexplained long delay of about one year and eight months, thus under the principle of laches alone, this petition merits dismissal.

10.The argument of the learned counsel for the petitioner that the plot alloted to the "Iqra University" was not the part of Masterplan is self-contradictory, flimsy and unconvincing. The Masterplan of Hayatabad Township has been designed by the Provincial Government in the year 1970, while the subject plot was reclaimed in the year 2009, thus the question of including the reclaimed area in Masterplan does not arise.

11.Another arguments of the learned counsel for the petitioner that the 20 Kanals area has been transferred to the University against a very meagre amount are also unpersuasive. Certain allotment orders available on record divulges that a plot of Land measuring 15.85 Kanals situated in Sector P-2 was allotted for University Public School against a sale consideration of Rs.1,10,000/- per Kanal, vide letter dated 28-10-1989. Another plot measuring 8.68 Kanals was allotted to Principal Shah Public School at the sale price of Rs.1,10,000/-. On the same price plot of 8 kanals area was alloted to Forward High School, CECOS Data Institute, Mrs. Rukhsana Iqbal for Education Institution and Mr. T. Mehboob. In the year 2009 land measuring 35 kanals was allotted for construction of Neuro Sciences Institute Neuro Rehabilitation Center and Liver Institute in Office Enclave Phase-V Hayatabad Township Peshawar against sale price of Rs.80,0000/- per kanal.

12.We could not find from the record, and even the petitioner also failed to bring on record a single instance, where the PDA has allotted any amenity plot on a higher rate than the respondent No.7, from which it could be inferred that he has been given undue benefits.

In wake of the above discussion, we found no merit in the instant writ petition, which is hereby dismissed with no order as to costs.

MWA/47/P Petition dismissed.