PLJ 2000 Lahore 218

PLJ 2000 Lahore 218

Present: tassaduq hussain jilani, J. Mian MUHAMMAD JAHANGIR etc.--Petitioners

versus GOVERNMENT OF PUNJAB etc.»Respondents

W.P. No. 6676 of 1998, decided on 30.4.1998.

Constitution of Pakistan, 1973-

—Arts. 4, 23 & 24-Cantonments Act, 1924 (II of 1924), S. 45-Qanun-e-Shahadat, 1984 (10 of 1984), Art. 114--Challenge to construction of Flyover mainly on grounds that the same was violative of Art. 4 of the Constitution; that petitioners having lease hold rights for 90 years were entitled to easement rights relatable to property in question; that Flyover being partly built on cantonment area and partly on Gulberg side, therefore, joint committee for considering such project was imperative; and that respondents, be restrained to raise such construction on principle of promissory estoppel-Validity-Art. 24 of the Constitution imposes constitutional restriction on law of eminent domain and state retains power to acquire property of its subjects for public purpose-Where any project or scheme was actuated by laudable considerations of public welfare, if the same leads to general convenience of public; if project in question, engenders commercial activity to the benefit of public at large; and if its impact, on environment was considered to be positive then said project must have precedence over individual rights-Questions that Flyover was un-necessarily long or that the same had been designed to help particular individual were questions of fact requiring leading of evidence calling for factual inquiry which exsrcise could not be undertaken in Constitutional petition-Question of mala fide though raised in petition has not been explained-General allegations of mala fide could not be entertained in constitutional petition and presumption of regularity was attached to official acts-Joint committee in terms of S. 45, Cantonments Act could not be constituted in as much as S. 45 being enabling provision could not have binding effect and that Cantonment Board had no objection to construction of Flyover in question, being public welfare project-Project in question being actuated by Public purpose could noi be thwarted by invoking principle of Promissory Estoppel-Authority had given undertaking that property for construction of Flyover would aot be acquired without due process of law and that question of adequate compensation would be decided by competent Authority within a month-Constitutional petition against project in question was thus, not maintainable in circumstances.

[Pp. 223 to 227] A to G

PLD 1969 SC 223; 1992 MLD 2259; 1996 CLC 1914; 1994 SCMR 923; PLD 1992 Lah. 462; PLD 1983 SC 243; PLD 1993 Kar. 67; 1991 MLD 1112; 1995 CLC 1012; 1992 MLD 200,1993 SCMR 1451; PLD 1974 SC 151; PLD 1991 SC 546 ref.

Mr. A.K. Dogar and SyedZameer Hussain, Advocates for Petitioners.

Mr. Azmat Saeed, Advocate for L.D.A.

Kh. Muhammad Sharif, Advocate General Punjab and Sh. Anwarul-

Haq, D.A.G. for Cantonment Board.

Dates of hearing: 21, 22, 23, 24 and 28.4.1998.

judgment

This judgment shall dispose of Writ Petitions Nos. 6576/98 and 6080/98 as they challenge the construction of Flyover at Cavalry Ground Railway Crossing, Lahore.

2. In Writ Petition No. 6576/98 petitioners are occupants of some of the shops in the Cavalry Ground Shopping Centre as lessees for 90 years lease for commercial purposes and claim that in terms of the lease-deed and the plan of the commercial area (Annexed with the said lease-deed at page 10 of the petition) they are entitled to enjoy the metalled road and 150 feet open space, the construction of the Flyover and the retaining wall of 50 feet width underneath the Flyover has the effect of reducing the open place,
narrowing the main road and affecting the business of the petitioners adversely. It was contended that the length of the proposed Flyover is approximately 1600 meters which is three times the length of Mian Mir Bridge on the Mall for which there is no justification.

3. In Writ Petition No. 6080/98 petitioners are owners of houses in Gulberg-III and have challenged the construction of the Flyover on the ground that the same is unjustifiably long and that the acquisition of 3.25 feet land on either side of the road from inside the houses of the petitioners is not tenable in law.

4. During the course of arguments a lady (Mrs. Sherin Khalid Qureshi) having a house in the neighbourhood of the petitioners was also heard. She expressed grievance with regard to the Flyover in question which was similar in nature.

5, In support of these petitions learned counsel for the petitioners Mr. A.K. Dogar, Advocate assisted by Syed Zameer Hussain, Advocate have made following submissions—

(i) that the impugned action is violative of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 as the proceduremandated in law is not being followed;

(ii) that the petitioners entered into lease agreement with the Cantonment Board for 90 years and are entitled to the easement rights relatable to the properly in question and those rights cannot be interfered with through the construction of the Flyover,

(iii) that the National Engineering Services Pakistan (NESPAK) had given a plan in which the flyover is 600 meters in length which is acceptable to the petitioners and the length of the proposed construction being 1600 meters is too long and the project on that account is not only more expensive but would have adverse affects on petitioners' vested rights referred to above. He elaborated that by impugned construction the consumers would be deprived of free access from one shopping center to the other through the main road and parking space in front of the parking centres would be reduced from 40 feet to 15 feet;

(iv) that as the Flyover is partly being built on the Cantonment area and partly on the Gulberg side; the former side being owned by the Cantonment Board Constitution of a Joint Committee for considering the project in terms of Section 45 of the Cantonment Act is imperative without which the respondents cannot proceed with the project in hand;

(v) that the construction and design of Flyover is product of malice inasmuch as its length has been increased to benefit of Respondent No. 5 whose son has shop in the Shopping Centre;

(vi) that the respondents may be restrained to raise the construction on the principle of promissory estoppel.

In support of the afore-referred submissions learned counsel relied on the following judgments:--

(i) PLD 1969 SC 223 (ii) 1992 MLD 2259 (iii) 1996 CLC 1914 (iv) 1994 SCMR 923 (v) PLD 1992 Lahore 462 (vi) PLD 1983 SC 243.

6. Learned counsel for the petitioners in Writ Petition No. 6080/98
Sh. ZiauDah Khan, Advocate raised following points—

(i) that by construction of the Flyover in question petitioners' right to live, right to property and right to privacy are being affected;

(ii) that the earlier plan submitted by NESPAK was approved by the World Bank. It is a shorter Bridge and less expenditure.

7. Khawtya Mvihair*mad ffharif, the learned Advocate General while opposing the petitions submitted as under™

(i) that the points raised called for factual inquiry which exercise cannot be undertaken in the Constitutional jurisdiction of this Court;

(ii) that the right to properly is subject to law and that an individual right is subject to the rights of society as a whole.' There was a general demand for the construction of Flyover. The project in hand is a public welfare project and cannot be interfered with on pleas which raise disputed questions of fact He added that every public welfare project entailed some inconvenience at a particular point of time but ultimately it leads to the welfare of the greatest number.

In support of his submissions he relied on the following judgments:—

(i) PLD1993 Karachi 67 (ii) 1991 MLD 1112 (iii) 1095 CLC 1012 (iv) 1992 MLD 200

Coming to the question of compensation the learned Advocate General submitted that the moment the land is acquired the question of compensation would be decided by the competent authority within a month of the initial notification issued for acquisition.

8. Learned counsel for Lahore Development Authority Mr. Azmat
Saeed, Advocate made the following submissions:--

(i) that the petitioners cannot invoke the principle of promissory estoppel in the facts and circumstances of the instant case;

(ii) that the project in hand has been initiated on the demand of general public and on the report of TEPA and no mala fide can be attributed to it;

(iii) that the Cantonment Board in its recent meeting has not opposed the construction of the Flyover, and the entire project is being funded by the Provincial Government and there is no need to constitute a Committee in terms of Section 45 of the Cantonment Board Act;

(v) Referred to the feasibility report submitted by Halcrow Fox and Associates, which was approved by the World Bank in 1993, submitted that it had recommended a width of 27 feet (single road) keeping in view the quantum of traffic at that time whereas the present Flyover has the width of 49 feet (double road) keeping in view the report of the TEPA which was submitted in December, 1997. He added that the length recommended is not 1600 meters but only 790 meters and the project has deigned in terms of the feasibility report submitted by NESPAK in December, 1997. Referring to the height of the project learned counsel for LDA controverted the contention of Mr. A.K. Dogar, Advocate that the height of the project is unusually high. According to him the project has a vertical clearance of 20 feet high and not 34 feet high as contended by the learned counsel for the petitioners. In this connection he referred to Annexure-A of "PC-I proforma for the Construction of Flyover at Cavalry Ground Railway Crossing, Lahore" a copy of which has been placed on record by him. Repelling the allegation of mala fides and any benefit gained by Respondent No. 5 on account of the proposed design, learned counsel for LDA has placed on record an affidavit filed by the Chief Engineer TEPA to the effect that Lt General Javed Nasir was nominated a Chairman of the Technical Committee for the Cavalry Ground Flyover vide Notification No. LDA/PS/CE/TEPA/254 dated 28.2.1998 whereas the PC-I was approved on 9.1.1998 i.e. before Respondent No. 5's nomination as Chairman of the Technical Committee.

9. Sh. Anwarul Haq, the learned Deputy Attorney General who had entered appearance on Court call was directed to establish contact with the Cantonment Executive Officer. Having sought instructions he submitted that the Cantonment Board has no objection to the construction of the proposed project as it is a public welfare project and that being so there is no need for constituting a Committee under Section 45 of the Cantonment Act.

10. I have heard learned counsel for the parties and have also given anxious thoughts to the arguments addressed at tike bar.

11. It is not denied that with the passage of time the traffic had increased manifold necessitating the construction of a Flyover. During the course of arguments learned counsel for the petitioners fairly conceded that the project in hand is a public welfare project. However, their only objection was to the design of the proposed construction as according to them it was unnecessarily long and its height was unjustiably high. In the comments submitted by the respondents it has been clarified that the length is not 1600 meters as alleged by the petitioners in para 4 of the petition (Writ Petition No. 6576/98) but only 979 meters and that the width of the Flyover is 49 feet as there is a double road on the Flyover, that the height of the project is not more than 20 feet (Annexure-A PC-1 Proforma page 33) and that the Flyover is being constructed in terras of the plan approved by the National Engineering. Services Pakistan (NESPAK) which is evident from PC-I Proforma a copy of which has been placed on record as Mark-A and signed by me.

The learned Advocate General and the learned counsel for the LDA submitted during the course of arguments that acquisition of private properly would be minimal and would primarily be on the Gulberg side of the proposed project and that the same would not be acquired without due process of law. Sub-clause (2) of Article 24 of the Constitution imposes a Constitutional restriction on the law of eminent domain and the State retains the power to acquire property of its subjects for a public purpose. Notwithstanding the fair concession on the part of the learned counsel for the petitioners qua the public welfare aspect of the project in hand a bare reading of the PC-I Proforma would show that the authorities concerned had examined the project not only from economic angle (PC-I Proforma for Construction of Flyover at Cavalry Ground Railway Crossing, Lahore, page 71) but also its environmental aspect Highlighting the environmental impact of the project it has been explained (at page 14 of the said Proforma) as under:

"A road/structure is recognized as a vital part of social and environmental system as it is related with the factors which influence life style,, mobility, economic well being, ecology and the social environment. A well designed structure is the best for road users by any traffic criteria or by any useful environmental criteria -Social or Physical.

Environment Interface:

The Flyover is set in urban environment. The area under the environmental influence of the project is primarily urban. Primary impact zone of the Project consists of accessible centers of population and Industrial areas.

In the immediate vicinity of Flyover which will provide accessibility to business centres, light industries and business will be attracted. The slum land use will change into residential and commercial land uses. Land holdings will register a rise resulting in the economic well being of the people.

Change in Pollution:

(i) The Flyover will reduce the local pollution per engine by increasing speed, removing the congestion somewhat further from neighbourhood properties as hydrocarbons diffuse into the atmosphere therefore local effects are much less.

The diversion of traffic to the Flyover facility will reduce traffic intensity on the present alternate routes and remove congestion of traffic from the densely populated areas. It will cause improvement in level of service on the existing routes and relatively improve the environments in the neighbourhood thereof."

if a project or a scheme is actuated by laudable consideration of public welfare, if it leads to general convenience of the public, if it engenders commercial activity to the benefit of public at large and if its impact on

ft environment is considered to be positive then the said project must have precedence over individual rights. In Karachi Building Control Authority vs. Saleem Akhtar Rajput (1993 SCMR 1451) it was observed, at page 1455, as under.

It is now an internationally recognized principle that if there is conflict between a personal right and environment, the personal right must yield in favour of environment"

12. The questions that the Flyover is unnecessarily long or that it has been designed to help a particular individual are questions of fact requiring leading of evidence calling for factual inquiry which exercise cannot be undertaken in a Constitutional petition. It has been further explained in para 5 of the comments (in WP No. 6576/98) that the cost of the construction of the currect project is loss than the earlier proposal submitted. In ground A of the comments submitted (in WP No. 6080/98) it has been submitted that the question of constructing the underpass was also considered and it was found that the estimated cost of the underpass was amounting to Rs. 395 million whereas the cost of the present project is Rs. 283 million. This data about the cost has not been controverted by filing rejoinder on behalf of the petitioners.

13. Coming to the question of mala fides and the allegation that Respondent No. 6 being Chairman of the Technical Committee of the Flyover has got the same extended upto the patrol pump to save his personal interest I find that it has no where been explained in the petition as to how Respondent No. 5 or his son would be benefited by the length of the Flyover. I find that PC-I Proforma for the design was submitted in December, 1997 and the project was approved by the Provincial Development Working arty (PDWP) on 9.1.1998 whereas Respondent No. 5 was appointed as Chairman of the Technical Committee for the Cavalry Ground Flyover vide Notification No. LDA/PS/CE/(TEPA)/254 dated 28.2.1998. An affidavit to that effect has also been placed on record by the Lahore Development Authority. That being so it cannot be said that the length of the Flyover has been extended
for somebody's personal interest General allegations of mala fides cannot be entertained in a Constitutional petition and presumption of regularity is attached to official acts. As held in Federation of Pakistan vs. Saeed Ahmad (PLD 1974 SC 151), at page 170-

"Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan vs. Begum Agha Abdul Karim Shorish Kashmiri (1), mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case.

"Mala fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of law are also mala fides. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by anyone of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken mala fides. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorised by the law but for the personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken."

14. So far as the argument that a Joint Committee in terms of Section 45 of the Cantonment Act should have been constituted is concerned, the same is not tenable for two reasons. Firstly, it is an enabling provision and cannot have a binding effect as expression used in Section 45 of the Act is as under

"45. Joint action with other local authority.--(l) A Board may--(a) joint with any other local authority--

(i) in appointing a joint committee for any purpose in which they are jointly interested and in appointing a chairman of such committee."

Secondly, the learned Deputy Attorney General having contacted the Cantonment Executive Officer has explained that the Project being a public welfare project and funded by the Provincial Government the Cantonment Board has no objection to the construction of the Flyover in question.

15. Learned counsel for the petitioners laboured hard to bring home the point that the petitioners having used the open space for a considerable length of time had acquired easement rights and that the respondents are estopped to build the Flyover on the principle of promissory estoppel. I am afraid the argument is not tenable for following reasons:-

(i) By virtue of Section 108 of the Cantonment Act "(g) all streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements, and things existing on or appertaining to streets" vest in and belong to the Cantonment Board. The said Board has given consent for the project in hand over the street which belongs to it;

(ii) the petitioners who have shops in the Cavalry Ground Shopping Centre and would having parking area (20.6 feet on either side) in terms of the plan. No dimension of the parking area has been spelt out in lease-deed protection of which they could claim as of right (Annex-A in WP 6576/98). Both sides of the Shopping Centres would continue to enjoy the benefit of service road although it has been divided into two parts 30 feet wide on each side;

(Hi) As laid down in Pakistan through Secretary Ministry of Commerce and 2 others vs. (PLD 1991 Supreme Court 546) the doctrine of promissory estoppel is subject to certain limitations, and is not an absolute right.

16. The project in hand being actuated by a public purpose cannot be thwarted by invoking the afore-referred principle.

17. The learned Advocate General has stated in Court that so far no property has been acquired and when need be it would not be acquired without due process of law and that the question of adequate compensation would be decided by the competent authority within a month of initial notification of acquisition. In view of the categorical statement made by the learned Advocate General no further comment is called for with regard to this aspect of the matter.