"Use of public park for commercial purpose"

 S. 2 (s)--"Public park",

Scope--"Public park" would include a park or space reserved for use as a public park and notified by the government as a public park.

If any person had intention to use a public park for any purpose other than the normal use, he should make an application to the Authority---If intended use would affect the rights of the neighbours or residents of the area in general, authority should invite objections from residents of the area.

Said objections should be decided before taking a decision by the Authority.

Authority should not grant permission for conversion of plot if the intended use would affect the rights of the neighbours or residents of the area to the free and uninterrupted use of the roads abutting the public park or changes the general outlook of the locality.

Authority could grant permission of using a public park for provision of food, playing facilities, sale of plants, horticulture equipments or books or such other purpose on payment of fees if the said permission did not adversely affect the general outlook of the public park.

2016 M L D 481 [Lahore]

Before Masud Abid Naqvi, J

TAHIR MUNIR MALIK---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Local Government and others---Respondents

Writ Petition No.15516 of 2010, decided on 9th January, 2015.

(a) Parks and Horticulture Authority Act (XLVII of 2012)---

S. 10 (3)---Constitution of Pakistan, Art. 199---Constitutional petition---Use of public park for commercial purpose.

Scope---If any person had intention to use a public park for any purpose other than the normal use, he should make an application to the Authority.

If intended use would affect the rights of the neighbours or residents of the area in general, authority should invite objections from residents of the area.

Said objections should be decided before taking a decision by the Authority.

Authority should not grant permission for conversion of plot if the intended use would affect the rights of the neighbours or residents of the area to the free and uninterrupted use of the roads abutting the public park or changes the general outlook of the locality---Authority could grant permission of using a public park for provision of food, playing facilities, sale of plants, horticulture equipments or books or such other purpose on payment of fees if the said permission did not adversely affect the general outlook of the public park---In the present case, northern side of the park was reserved as a football ground and was being so used by the public at large whereas rest of the park was lying vacant for the use of other recreational activities.

Entire park was not being solely used for playing football.

Area other than playing football was permitted by the Authority for use by the public though subject to resolution of objections if any filed by the local inhabitants.

If objections so filed were found justified, Authority was bound to decline the request for conversion.

Dispute raised, in the present case, related to the land owned by the people of Pakistan, legal title thereof might vest in the government but such title did not confer unbridled right in the government or the local authority to exercise the same against the public interest or the law applicable thereto.

Playgrounds were required to be maintained for public access and use and were not for running business or trade.

Authority was bound itself to develop and maintain public park and playing field and could not be allowed to violate the laws or regulation by awarding lease/licence to private parties for the purpose not permitted by law.

Statutory authorities were bound to discharge their functions strictly in accordance with law otherwise the inaction being contrary to law should not be sustainable.

Court had to consider whether the Authority which was granting permission had acted legally, fairly, transparently, judiciously and above board.

Such like places could not be used for any other purpose by the Authority without inviting, considering and deciding the objections from the general public.

Area reserved for a public park could not be used for other object.

Financial gain by the Authority at the cost of public welfare had never been considered as legitimate purpose how laudable be the objective.

Conversion of public park into a commercial park by the Authority would violate the Fundamental Rights enshrined in the Constitution.

Park in question was not being leased out, allotted or permanently converted into commercial area rather it was being allowed for temporary use by the public on their request after paying fee for holding ceremonies.

Orphans, widows and low paid retired/serving government servants were granted free bookings.

Marriage halls were not easily accessible to a citizen having limited resources.

High Court observed that social or other recreational activities as permissible under the law were also part of routine life but inflated charges of ceremonial halls made this facility unaffordable for low paid citizens.

Parks were the only option left for them to organize ceremonies.

Natural environment could have various benefits which would affect children as well as adults' development.

Playing activities were natural part of life that would begin in infancy and continue throughout childhood, adolescence and adulthood.

Sport was believed to have many health benefits from physical fitness to cognitive development to emotional well-beings.

Playground safety standards were based on reasonable expectations for preventing accidents and injuries.

Play was essential for children's emotional, cognitive, social, physical and educational development.

High Court directed that health friendly environment in parks should be maintained.

Parks were generally established for sustenance of physical and mental health of the local inhabitants or general public.

Parks should be used for specified purposes.

Football ground situated at northern side of the park should be used only for playing football by the inhabitants of the vicinity, exclusively and said ground should be maintained by the Authority.

Rest of the park should remain at the disposal of the Authority for holding public functions etc without compromising convenience, safety and welfare of the inhabitants of the area.

Authority was further directed to act in accordance with the provisions of Parks and Horticulture Authority Act, 2012 in order to permit ceremonial use of the park in question as per declared policy---Order accordingly.

            Suo Motu Case No.10 of 2009; 2010 SCMR 885; Human Rights Cases Nos.4668-2006, 1111-2007 and 15283-2010 PLD 2010 SC 759 and Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394 ref.

            Shehri-CBE through General Secretary and 15 others v. Lahore Development Authority through Chairman and 6 others PLD 2012 Lah. 362 rel.

(b) Parks and Horticulture Authority Act (XLVII of 2012)---

S. 2 (s)---"Public park"---Scope---"Public park" would include a park or space reserved for use as a public park and notified by the government as a public park.