ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition No. D – 7312 of 2015

Date	Order with signature of Judge

Hearing / Priority :

1. For hearing of Misc. No.20169/2016 (U/S 151 CPC) :

2. For hearing of Misc. No.6698/2016 (U/S 94, O XXXIX R 1 & 2 CPC) :

3. For hearing of Misc. No.6699/2016 (Contempt) :

4. For hearing of Misc. No.36176/2015 (Stay) :

5. For hearing of main case :

01.09.2016 : Mr. Salahuddin Ahmed, Advocate for the petitioners.

Rao Sarfaraz Ahmed, Advocate for respondent No.1 / SBCA

a/w Irfan Ahmed Qureshi, Assistant Director, MPD.

Syed Iftikhar ul Hassan, Advocate for respondent No.2 / KMC.

Mr. Abdullah Munshi, Advocate for respondent No.3 / CBC.

Mr. Miran Muhammad Shah, Addl. A.G.

…………

NADEEM AKHTAR, J. – The petitioners have impugned letter dated 12.11.2015 issued to them by the Master Plan Department of respondent No.1 / SBCA whereby NOC for change of land use in respect of their plot was purportedly withdrawn / cancelled in pursuance of show cause notice dated 03.11.2015 ; and, in pursuance of the impugned letter dated 12.11.2015, respondent No.2 / KMC, vide their letter dated 18.12.2015 addressed to respondent No.3 / Cantonment Board Clifton during pendency of this petition, withdrew / cancelled the NOC granted earlier for conversion of the land use of the petitioners’ plot from residential to commercial.

2. The case of the petitioners, as averred in the petition, is that they are the owners of open commercial Plot No.G-19/I, Block 9, Clifton, Karachi, measuring 1,606 sq. yds. (‘the said plot’) ; as the entire area within the vicinity of the said plot on Khayaban-e-Roomi, which is a commercial road, had been declared as commercial, they applied to respondents 1/SBCA and 2/KMC for commercialization of the said plot ; after scrutinizing their application and since no objection was received in respect thereof despite public notice, SBCA issued a challan for Rs.12,848,000.00 towards commercialization fee, which was duly paid by them ; SBCA also issued NOC dated 24.03.2015 to KMC for conversion of land use ; in view of the above NOC, KMC issued letter dated 03.07.2015 for conversion of land use of the said plot ; pursuant to the above, Memorandum of Commercialization Lease Deed was executed and registered by KMC in favour of the petitioners on 27.10.2015 ; on 17.11.2015, the petitioners received the impugned letter dated 12.11.2015 from SBCA stating that the NOC for change of land use of their plot had been withdrawn ; and, the impugned letter of SBCA referred to a show cause notice dated 03.11.2015, which was never received by the petitioners. During pendency of this petition, KMC issued letter dated 18.12.2015, whereby the NOC granted earlier for conversion of the land use of the petitioners’ plot from residential to commercial was withdrawn / cancelled in pursuance of the impugned letter dated 12.11.2015.

3. Learned counsel for the petitioners submitted that the impugned letters were issued by SBCA and KMC in gross violation of the well-settled principles of natural justice as no opportunity of hearing was provided to them. He contended that the alleged show cause notice was never received by the petitioners. Without prejudice to his above contention, he submitted that the impugned show cause notice and letter dated 12.11.2015 were vague as no specific reason for withdrawal / cancellation of NOC was stated therein. He further submitted that the said plot was commercialized through due process of law and after fulfillment of all legal and codal formalities and payment of all requisite charges by the petitioners, and as such the NOC could not be withdrawn / cancelled unilaterally by SBCA and or KMC. It was urged that after execution and registration of Memorandum of Commercialization Lease Deed, such action could not be taken by the respondents in any event.

4. The relevant portions of the impugned show cause notice dated 03.11.2015 and impugned letter dated 12.11.2015 state as under :

Show cause notice dated 03.11.2015 :

“ It has been observed that the abovementioned conditions are not being followed by most of plot owners, who now started construction of their building, resulting into adverse impact on the residents and infrastructure in the vicinity.

In your case, the construction has not yet been started on ground. This is the appropriate time that NOC for change of land use of said plot may be re-examined.”

Letter dated 12.11.2015 :

“Since no response has been received against the Show Cause Notice from the applicant / plot owner, the NOC for conversion of landuse from Residential to Commercial vide NOC bearing No.MPD/COM/2015/639/L, dated 24.03.15 is hereby withdrawn / cancelled with immediate effect, as per applicable bye-laws / rules.”

5. Perusal of the above shows that the impugned show cause notice was issued on the pretext that the conditions stated therein were not being followed by most of the plot owners who had started construction. The other obvious reason for issuing the impugned show cause notice appears to be that the petitioners had not started construction on the said plot and as such it was the appropriate time to re-examine the NOC for change of land use of their plot. Learned counsel for SBCA and KMC concede that no specific violation of the terms and conditions of the change of land use was alleged against the petitioners either in the impugned show cause notice or in the impugned letters of withdrawal of NOC, and only a general assertion was made that the conditions stipulated in the show cause notice were not being followed by most of the plot owners. We are of the view that show cause notice in such vague terms and without any specific allegation against or violation by the petitioners could not be issued and the NOC admittedly granted in favour of the petitioners could not be withdrawn or cancelled on the basis thereof. Learned counsel for SBCA was unable to show us from the record that the impugned show cause notice was actually delivered to or received by any of the petitioners. In such circumstances, we are of the view that the petitioners were condemned unheard by SBCA and KMC before taking the impugned action.

6. It is not the case of any of the respondents that conversion of the land use of the said plot from residential to commercial was illegal. Therefore, it may be observed that after conversion of the land use of the said plot from residential to commercial through due process of law and execution and registration of a deed for commercial use / purposes, the petitioners acquired valuable vested rights of a commercial plot in the said plot which could not be withdrawn, cancelled, revoked or taken away as has been done by SBCA and KMC in the instant case. Learned counsel for SBCA and KMC have not been able to convince us regarding the validity of the impugned show cause notice and withdrawal of NOC.

7. In the above circumstances, the impugned letter dated 12.11.2015 issued by Master Plan Department of SBCA and the subsequent letter dated 18.12.2015 issued in pursuance thereof by KMC, are hereby declared as illegal and of no legal effect. SBCA and KMC will, however, be at liberty to take action against the petitioners strictly in accordance with law in case of violation of any of the terms and conditions of the grant of NOC. The petition and the listed applications are disposed of in the above terms.

J U D G E