IN THE
HIGH COURT OF SINDH AT KARACHI
SUIT
NO.1072/2015
Plaintiff : Delhi
Mercantile Muslim Co-operative Housing Society Limited,
Defendants : Federation of Pakistan and others.
……………..
SUIT
NO.1848/2015
Plaintiff : Qamar Shahid,
Defendants : Federation of Pakistan and others.
……………..
SUIT
NO.1862/2015
Plaintiff : Muhammad
Saleem Farooqi,
Defendants : Federation of Pakistan and others.
……………..
For
plaintiffs:
M/s.
Haider Waheed and Ahmed Masood advocates for plaintiff in Suit No.1072 &
1848 of 2015.
Mr. Mansoor Ali Ghanghro advocate for
plaintiff in Suit No.1862 of 2015.
For
defendants:
Mr. Abdul Rehman advocate for
defendants No.4 to 10 in Suit No.1072/2015, for defendant No.3 in Suit No.1848
& 1862 of 2015.
M/s.
Khalil Ahmed Siddiqui and Asif Javed advocates for defendant No.3 in Suit
No.1072, 1848, 1862 of 2015.
Mr. Abdul Jalil Zubedi, A.A.G.
Date
of hearing : 8th April & 15th
August, 2016.
Date
of announcement : 2nd September, 2016.
Plaintiffs
have filed applications under order 39 rules 1 and 2 CPC read with section 94
CPC (in Suit Nos.1072, 1848, 1862 of 2015) seek injunction in respect of
construction work and creating third party interest on plot No.25/26, Block 3,
Delhi Co-operative Housing Society Ltd, Karachi, till pendency of suit.
2.
Plaintiff of Suit No.1072/2015 is a
registered Cooperative Housing Society while Suit Nos.1848 and 1862 of 2015
have been filed by members and allottees of Delhi Mercantile Cooperative
Housing Society, defendant No.2 is regulatory body for town planning and
building laws while defendant No.3 is Housing Society; defendants No.4 to 7 are
owners of subject property bearing Plot No.25/26 and defendants No.8 and 9 are
their attorneys; that earlier in 1960 KDA amalgamated subject plots and
subsequently defendant No.3 executed Form A sub-license No.2 in favour of Mst.
Ameer Begum under registered deed followed by execution of Form B Lease in
favour of said person in 1962 when the plot was residential and could only be
developed for such purpose; later on subject property was gifted to defendants
No.4 to 7 and mutated in favour of defendant No.1 with rider that subject plot
would not be used for any other purpose than residential without prior
permission of Ministry of Housing and Works. It is also pleaded that in 2004
City District Government Karachi (CDGK) issued Change of Land Use Policy and
Master Planning Byelaws 2003, twenty-two roads alongwith Tariq Road were
notified/declared to be commercial in nature, outcome whereof is that
properties previously residential in nature would become available for
commercialization and such properties will not ipso facto stand commercialized.
Plot No.25 faces residential area and is facing a 50-feet wide road while Plot
No.26 faces commercial area (road commercialized) and facing a 100-feet wide
road; that upon Tariq Road being commercialized, defendants No.4 to 7 through
attorneys applied for commercialization of subject property submitting
undertaking that no commercial construction will take place on the plot facing
residential area being plot No.25; however defendants No.4 to 10 started
construction meant for commercial use with project namely Dilkusha Heights on
plot No.25 in violation of their undertaking and other mandatory statutory
requirements thus plaintiff lodged protest with defendant No.3 Society vide
letters dated 22nd September and 20th October 2014 thereby
defendant Society informed the plaintiff that the Society granted NOC for
commercialization with a condition that commercial construction shall not be
raised on the plot No.25 facing residential area. It is further pleaded that
process for change of land use from residential to commercial is mentioned in
Regulation 18-4 to 18-5.1.1 of Karachi Building and Town Planning Regulations
(hereinafter referred to as ‘KBTPR’), according to Regulation 18-4.2.1 of KBTPR
no residential plot can be converted into commercial without approval of Master
Planning Group Office (MPGO) upon the recommendation of ‘concerned authority’
that is defendant No.1 as per Serial No.5 of Schedule 1A of KBTPR, it is denied
that any NOC is obtained and in case if defendants No.4 to 10 have fraudulently
obtained NOC from defendant No.1 such has been obtained illegally as public
objections and other requisite formalities have never been solicited; that as
per section 17 of the Sindh Environmental Protection Act, 2014 no commercial
construction can take place, specially a high rise can not be built without
approval/NOC of Environmental Protection Agency while defendants NO.4 to 10 are
raising construction on subject property in absence of such approvals; the
construction being raised is without any Structural Approval required by Table
3.2 of KBTPR which envisages a two staged approval; impugned construction will
severely affect living conditions for members of Delhi Mercantile Muslim
Cooperative Housing Society Ltd resulting insufficiency of amenities, over
burdening of already burdened sewerage system, affecting pardah of
families residing opposite to commercial building. Plaintiff insists that even
if it is assumed that approvals were obtained by defendants No.4 to 10, said
defendants cannot construct for commercial use on property facing residential
area even after being amalgamated with a property facing commercial area, that
statutory regulators are acting in active collusion with defendants No.5 to 10
hence this suit with following prayers:-
1) That
this honourable Court may be pleased to declare that the plot bearing No.25-26
Block 3, Delhi Co-operative Housing Society, Tariq Road, Karachi is a
residential property, and has not been converted into a commercial property
legally or even otherwise;
2) That
this honourable Court may be pleased to restrain the defendants No.4-10 from
raising/ continuing/ altering any construction on the property bearing
No.25-26, Block 3, Delhi Co-operative Housing Society, Tariq Road’
3) That
this honourable Court may be pleased to restrain the defendants No.4-10 from
any commercial use and/or creation of any such third party interests on the
property bearing No.25-26, Block 3, Delhi Co-operative Housing Society, Tariq
Road;
4) That
this honourable Court may be pleased to issue a mandatory injunction directing
the defendant No.2 to properly perform its statutory functions and demolish any
commercial structure on property No.25-26, Block 3, Delhi Co-operative Housing
Society, Tariq Road.
In
the alternative:
A) That
this honourable Court may be pleased to declare that the plot No.25 (facing
residential area) forming part of the amalgamated plot bearing No.25-26, Block
3, Delhi Co-operative Housing Society, Karachi, cannot be used for commercial
purposes;
B) That
this honourable Court may be pleased to restrain the defendants No.4-10 from
raising/ continuing/ altering any construction on the property bearing No.25,
Block 3, Delhi Co-operative Housing Society, Karachi;
C) That
this honourable Court may be pleased to restrain the defendants No.4-10 from
creating any third party interest in the property bearing No.25, Block 3, Delhi
Co-operative Housing Society, Karachi;
5) Grant
the cost of the instant suit
6) Grant
any other / further order this honourable Court make thing fit and proper in
the circumstances of the present case.
3.
Defendant No.8 in his counter
affidavit to stay application, stated that lease executed between Ministry of
Housing and Works and predecessor in interest of defendants No.7 to 10
specifically contained a clause which permits change of land use with consent
of lessor, that the right to plan the area has always remained with K.D.A being
predecessor in interest of K.M.C, right to plan at all times and at present
being vested in Sindh Building Control Authority which has converted the lease
of the subject property from residential to commercial in accordance with law,
that the concerned Union Council has issued its NOC dated 09.09.2014 for
conversion of subject property from residential to commercial, Master Plan
Department has converted the subject property to commercial on 30.10.2014, the
lessor by its letter dated 23.12.2014 categorically stated that it has no
objection to conversion of the property that is owned by defendant No.4 to 10.
It was stated that mutation document cannot in any manner restrain conversion
of subject property from residential to commercial, it was denied that at
relevant time provision for commercialization was required to be in accordance
with regulations 18-4 to 18.2.1.1 of KBTPR 2002; that after amalgamation only
one plot exists that is touching Tariq Road. It is denied that defendants have
commercial construction on the subject property in violation of law and pleaded
that defendants have legally commercialized the subject property after complying
with all requirements of law and approval for construction in accordance with
law, it is a fact that as per approved plan no shops/godowns are being
constructed on the back side of the plot which is solely dedicated to a ramp to
access parking; it is denied that defendants No.4 to 10 are constructing a
building for commercial purpose in violation of law; that KBTPR 2002 no
application in respect of conversion of subject property as it has already been
declared commercial by Change of Land Master Plan Byelaw 2003; that
commercialization having been declared prior to promulgation of Sindh
Environmental Protection Act 2014 cannot be retrospectively applied to subject
property, Sindh Environmental Protection Agency is not party to Suit
NO.1072/2015; that defendants No.4 to 10 have obtained demolition permission
dated 15.10.2014, excavation permission dated 23.10.2014, architectural
approval dated 21.04.2015, structural approval dated 08.07.2015, NOC for sale
dated 15.05.2015 from Sindh Building Control Authority; it was denied that
construction will endanger residents of area in any manner or will affect
living conditions of members of plaintiff society. Thus instant application merits dismissal.
4.
Plaintiff filed Rejoinder to Counter
Affidavit of defendant No.8. Defendant S.B.C.A also filed counter affidavit to
application in hand, stating that on the basis of required documents and NOCs
issued and after completion of all technical and legal formalities, the
competent authority granted final approval of building plan for construction
vide letter dated 18.07.2015 and submitted that there is no violation of any
law on their part.
5.
M/s. Haider Waheed and Mansoor
Ghanghro advocate for plaintiffs have argued that twenty-two roads alongwith
Tariq Road were declared to be commercial in nature, thus properties previously
residential in nature became available for commercialization, such properties
did not ipso facto stand commercialized; plot No.25 faces residential
area while Plot No.26 faces commercial area Tariq Road; defendants No.4 to 10
without obtaining mandatory approvals, started construction of a project on
subject plot namely Dilkusha Heights which is a multi-storey building for
residential cum commercial use in violation of mandatory statutory requirements
thus plaintiff lodged objection with defendant No.3 Society vide letters dated
22nd September and 20th October 2014 but to no avail;
learned counsel pointed out per Regulation 18-4.2.1 of KBTPR no residential
plot can be converted into commercial without approval of Master Planning Group
Office (MPGO) upon recommendation of ‘concerned authority’ that is defendant
No.1 as per Serial No.5 of Schedule 1A of KBTPR, however in present case no NOC
was issued and if same was issued it was illegal as public objections and other
requisite formalities have never been complied; learned counsel has also
referred section 17 of the Sindh Environmental Protection Act, 2014 and argued
that no commercial construction or a high rise building can be raised on
subject plot without approval/NOC of Environmental Protection Agency; learned
counsel mentioned Table 3.2 of KBTPR while arguing that construction being
raised is also without any Structural Approval as required. He contended that
impugned construction is bound to severely affect living conditions for members
of plaintiff Society including shortage of amenities, over-burdening of
sewerage system, affecting pardah of families residing in neighborhood;
no construction can legally be made for commercial use on property facing residential
area even after being amalgamated with property facing commercial one; this is
a case of violation of easmentary rights as well causing nuisance. He referred
section 5 of Co-operative Societies Act; contended that balance of convenience
is in favour of plaintiff. Learned counsel relied upon PLD 2012 Sindh 92, 2010
YLR 2624 @ 2638, 2006YLR 3209 @ 3212, PLD 1949 Lahore 8, 2013 SCMR 1665, 2014
CLD 1279, 1999 CLC 66, 2001 CLC 1589, 2002 MLD 1406, PLD 1993 Karachi 631, 2006
CLC 912, 2007 CLC 912, PLD 2011 Lahore 61, 1997 CLC 962, 2006 YLR 2537, SBLR
2009 Sindh 1015 and 1992 CLC 2540.
6.
Mr. Abdul Rehman advocate for
defendants No.4 to 10 in Suit No.1072 and for defendant No.3 in Suit No.1848
& 1862 of 2015, has argued that lease executed between Ministry of Housing
and Works and predecessor in interest of defendants No.7 to 10 specifically
contained a clause which permits change of land use with consent of lessor, the
right to plan is vested in Sindh Building Control Authority which has converted
the lease of the subject property from residential to commercial in accordance
with law, that the concerned Union Council has issued its NOC dated 09.09.2014
for conversion of subject property from residential to commercial, Master Plan
Department has converted the subject property to commercial on 30.10.2014, the
lessor by its letter dated 23.12.2014 categorically stated that it has no
objection to conversion of the property that is owned by defendants No.4 to 10;
that mutation of document cannot in any manner restrain conversion of subject
property, no provision for commercialization was required to be followed under
regulations 18-4 to 18.2.1.1 of KBTPR 2002, He argued that after amalgamation
only one plot exists that is touching Tariq Road; defendants have legally
commercialized the subject property after complying with all requirements of
law and approval for construction in accordance with law, as per approved plan
no shops/godowns are being constructed on the back side of the plot dedicated
to a ramp to access parking; the lessor has given its no objection to
conversion of subject property; there is no application of KBTPR 2002 in
instant case; that commercialization having been declared prior to promulgation
of Sindh Environmental Protection Act 2014 cannot be retrospectively applied to
subject property; Sindh Environmental Protection Agency is not party to Suit
No.1072/2015; that defendants No.4 to 10 have obtained demolition permission
dated 15.10.2014, excavation permission dated 23.10.2014, architectural approval
dated 21.04.2015, structural approval dated 08.07.2015, NOC for sale dated
15.05.2015 from Sindh Building Control Authority; that the construction does
not pose any endanger to residents of area in any manner nor would affect their
living conditions. Learned counsel
relied upon 2007 YLR 3113, 2005 CLC 759, PLD 2010 Karachi 374, 2006 YLR 2537,
2015 YLR 1303, 2015 SCMR 1739, 2016 YLR 3209 and 2009 YLR 1896.
7.
I have heard learned counsel for
respective parties as well learned A.A.G and perused the record.
8. At
the very out-set, I would like to touch the root of the subject matter. The
perusal of the record shows that in the instant matter there were two
independent plots i.e plot no.25 and 26. One of them bearing plot no.25 faces
residential area while the plot no.26 faces the notified road but same undisputedly
stood amalgamated in year 1960 as shall stand evident from the para-4 of
the plaint itself which reads as:
“That as way of a background, in the
year 1960 the Karachi Development Authority vide letter No.DOL/II/C-24/59/734
dated 13-02-1960 as intimated by the Karachi Co-operative Housing Societies
Union Ltd. Karachi vide No.322(7-E)/60 dated 29th February 2960, amalgamated
the plot No.25 and 26, Block-3, that is, the plot forming the subject-property.
Thereafter, on the 12th of January 1961, the defendant no.3 executed
a Form ‘A” sub-license No.2, in favour of Mst. Ameer Begum w/o Noor Ahmed
Allawala, under a Deed registered at the Office of the District Registrar,
Karachi, and subsequently form ‘B’ Lease was executed in favour of the said
person in the year 1962. It is pertinent to note that at the time of
amalgamation of the subject-plot and the execution of ‘A’ and ‘B’ Leases, the
same was residential in nature and could only be developed for such purpose,
Clause 7 of the Form ‘B’ Lease reads as follows:
‘The said plot and the building or
erections built thereon from time to time shall be used for residential
purposes only, and shall not be used for
any other purpose except with the previous consent in writing of the Lessor.’
Hence, in light of the above, the
land use of the subject property could not have been changed without the
previous consent of the Lessor (and the permission included therein) in
addition to the statutory requirements for such change of land use.”
Further, the amalgamation per Karachi Building
& Town Planning Regulations 2002 (KBTPR) is defined as:
‘Regulation 2-6: ‘Amalgamation’
means the joining of two or more adjoining plots of the same
land use into a single plot in accordance with these
Regulations.
The meaning of the amalgamation being
self-explanatory needs no much debate and I can safely say that after
amalgamation (joining) of two or more plots it becomes one for all purposes.
9. It is a matter
of record that the plaintiff does not claim to be ignorant of factum of amalgamation
of the said plots nor at any time amalgamation thereof
was ever challenged / questioned by the plaintiff before quarter
concerned. Not only this,
the defendant no.3 even admits such fact in para-6 of its
written statement wherein admitting as:
‘That
the contents of para no.7 are admitted. It is submitted that the Plot No.25 and
26 were amalgamated in year 1960 much before the appointment of the present
management by the Karachi cooperative Housing Society Union,
hence both plots have the same lease document and are treated as one plot. It
is submitted that according to the Nazir’s report, both Plot No(s).25/26 , Block No.3 of D.C.H.S are situated and located on main
Tariq Road, Karachi’.
Therefore, the present plaintiff or defendant no.3 which
includes its members are not legally justified
to question the legality / validity of such a long standing ‘amalgamation’.
10. Now, examining
the record in light of the arguments of respective sides what prima facie floats
on the surface is that subject property is located on ‘Tarique road’ which
undisputedly stood notified as ‘commercial in nature’. I, without
a slightest hesitation, would say that such notification by itself was
sufficient to change the status of such property (facing notified road(s) )
from ‘residential’ to ‘commercial’ even without any formal
move / application from owner thereof because such ‘notification’ by
itself is an ‘order’ for this purpose. Such legal position stands
shouldered from the case of Arshad Abdullah v. Government of Sindh 2006
YLR 3209, relied by the counsels for the plaintiffs wherein it is held
that:-
“The petitioners seek commercialization of
four plots, which they claim to have been amalgamated as one plot. The
amalgamated plot of which commercialization is sought, if revived to its
previous position, would reflect that only sub-divided plots No.24/1,24-1/A and
24/2, were facing Shahrah-e-Faisal and sub-divided plot No.24/5 did not have
any access to Shahrah-e-Faisal Karachi. Therefore, we are of the opinion that
the original plots of petitioners i.e Plots Nos.1 and 2 , (now sub-divided in
Plots Nos.1-A, 1 and 2) Delhi Muslim Cooperative Housing Society Limited,
measuring 2137 and 2141 square yards already stood commercialized on the basis
of our judgment delivered in C.Ps No.D-771, 936 and 1122 of 2004. Therefore, the petitioners in
respect of the said plots are not required either to approach the City District
Government, Karachi or any other authority for seeking permission of conversion
from residential to commercial use and the petitioners would be free to
construct a commercial building on said two (now three) plots after necessary
approval are obtained by them from the relevant authorities. However,
in regard to sub-divided plot No.24/5, which now petitioners claim to form part
of amalgamated Plot No.1, cannot be given benefit of commercialization as the
said sub-divided plot is not facing Shahrah-e-Faisal and therefore, cannot be
included in the same category as the plots facing Shahrah-e-Faisal.
Thus, I would conclude that plots, facing notified commercial
area, would ipso facto become commercial and owners thereof would be free
to construct a ‘commercial building’ however formal permission can be sought without any legal
objection for such commercial use of the property, therefore, I find no
substance in the arguments of the learned counsel for the plaintiff that
declaration/notification of a road shall not ipso facto declare the
property, facing such declared / notified road as ‘commercial’. It is
also a matter of record that act of amalgamation is not challenged by
the plaintiffs to be illegal or otherwise as shall stand evident and
clear from the prayer clauses of the suits. Further, it is not the case of the
plaintiff that amalgamation of the plots in question is not in concurrence
with MPGO. I have no hesitation in adding that without challenging or
disputing amalgamation, the plaintiffs legally cannot seek a restraining
order for commercial use of such amalgamated property which after amalgamation
does face the notified road.
I would however add that the
exception to settled principle that plot, facing declared / notified commercial
road shall not require moving / paying any thing for commercialization of such
property, in a matter of long standing and legal amalgamation of two or
more would only burden the owner to follow the procedure and payment of
requisite charges for ‘commercialization’ of those amalgamated portions
not facing the declared / notified road which the authority normally should
not decline or delay else it shall not only fail the purpose and object of
lawful ‘amalgamation’ , permitted by the law itself but also
shall not be within spirit of conversion of use of land which otherwise is
not prohibited by the law. To be more
specific, I would say that the relevant Rules, Laws and regulations nowhere prohibits
conversion of residential property into commercial or
residential-cum-commercial as shall stand clear from the case of Arshad
Abdullah supra wherein it was held as:
…….Nevertheless, as
the petitioners have applied sometime ago for its commercialization, the
said request of the petitioners for the said sub-divided Plot No.24/5 would be
processed by the concerned authorities at the rate prevailing at the time when
such application was made as this issue has already been decided by us
in our judgment passed in the other three Constitution petitions, referred to
herein-above.
In another case of Nighat Jamal v. Province of Sindh
& Ors 2010 YLR 2624, relied by the counsels for the plaintiffs, it
is held that:
‘The process of commercialization
undertaken by the KDA throughout remained a subject of dispute before this
Court as well as the supreme Court and the Apex Court in the case of Jawad Mir
Muhammadi v. Farooq Mirza (PLD 2007 SC
472) has concluded that a residential plot can be converted into a
commercial-cum-residential in accordance with the provisions of Karachi
Development Authority order, Ordinance and the Regulations. The apex Court in
the said case after examining its earlier pronouncement in the case of Abdul
Razak v. Karachi Building Control Authority (PLD 994 SC 512) Multiline
Associates v. Ardershir Cowasjee and 2 others PLD 1995 SC 423 and Ardeshir
Cowasjee and 10 others v. Karachi Building Control Authority (1999 SCMR 2883)
has drawn following inferences or deductions from the said judgments. The
relevant portions of the judgment reads as follows:-
(i)….
(ii) that a residential plot can be
converted into a commercial or commercial-cum-residential in accordance with
the provisions of KDA Order, Ordinance and the Regulations as there is no
specific bar of such conversion in all the said laws/ regulations;
(iii)
that there is no impediment in the construction of high rise building on a plot
after change / conversion of its use from residential to commercial or
residential-cum-commercial provided that the provisions relating to the
conversion of plot and commercialization contained in the laws / regulations
referred to hereinabove are complied with and the concerned authorities
undertake to provide new infrastructure for provision of enhanced water supply,
electricity, gas, provide better sewerage system, roads and ensure enjoyment of
peaceful life to the residents of the locality;
iv) that constructions of a high rise
building not strictly in accordance with the provisions of law and suffering
from irregularities can be regularized by compounding the irregularities and
payment of composite fee provided that there is no violation of the laws /
regulations and further that the violations are of the nature which can be
regulated.
This leaves no doubt that till the
exercise of commercialization of a plot or an area reserved for residential
purposes in Zonal Plans was undertaken by KDA under Order 1957, this Court as
well as the Apex Court has held such commercialization, of course when effected
after permission from the lessor and in accordance with the provisions of
Order 1957 and the Regulations made thereunder to be legal.
Now, I can safely conclude that conversion of a
residential plot into commercial is not prohibited but it (conversion) requires
i) permission from lessor & certain procedure to be
followed which lasts on allowing such request or decline thereof by
competent authority.
11. Let’s proceed
further on said touch-stone with regard to the plot originally not
facing the declared / notified commercial road. In this regard I would
refer to The Sindh Regulation & Control (use of plots & construction of
buildings) Ordinance 2002 defines the procedure for conversion of plots as:
‘Section-4.
Conversion of plots.—No plot shall be used for any purpose
other than the purpose for which it was granted except with the approval
of the authority which granted the plot on the conditions and on payment
of the fees as may be prescribed.
Though from above proviso, the term ‘authority’,
approval whereof is required, needs no much debate. This however is
defined by Rule-2(a) of Sindh Regulation & Control (Use of Plots and
Construction of Buildings) Rules, 2002 which reads as:-
‘competent
authority’ means the authority which granted
the plot.’
In the instant matter, it is not disputed that defendant no.1
is the ‘lessor’ and it was it (defendant no.1) who granted the
plots in question therefore, approval / permission for such purpose within
meaning of said proviso was required from the defendant no.1 alone whose
‘NOC/approval’ is very much available. The defendants (owners) also paid
the requisite fee for such conversion. This seems to have served the purpose of
Section-4 of Ordinance.
12. Now what else
is to be seen is following the procedure. In this regard the perusal of the
record prima facie reflects that the Defendant No.8 and other co-owners
applied for change of land use in respect of the plot no.25; public notices
were duly issued in leading newspapers; subsequently NOC for change of land use
by defendant no.3 for commercialization of the plot in question. In consequence
of such process the competent authority i.e Master Plan Development issued NOC
for such purpose. It is not a disputed position that the defendant no.3 or any
other person did not challenge the process of commercialization of the plot in
question within prescribed time rather defendant no.3 itself given ‘NOC’.
There can be no denial to the legally established position that the defendant
no.3 is not the ‘authority’ to accord or decline the request for ‘commercialization’
but it is the MPGO whose decision in this regard, per
KBPT Regulations, is ‘final’. This position shall stand clear and
evident from a referral to Rule 3-1.1.4 of Chapter-3 which reads as:
‘A copy of the notice shall be submitted
to the Concerned Authority which may have referred the matter or under whose jurisdiction
the land falls.’
Worth to add that the defendant No.3 or
any other person interested in objecting to such conversion may and
should submit ‘objections’ in response to the ‘public notice’ which
however shall not prejudice to the competence of ‘authority’ either
to grant or decline such conversion; the criterion for such decision should
only be the satisfaction of law, equity and good conscious.
The case of Muhammad Siddique v.
Federation of Pakistan (2013 SCMR 1665), referred by the learned counsel for
the plaintiff, is also not applicable because in that case too the
conversion of land from residential to commercial was not held to be illegal
but following the procedure was insisted which includes the ‘publication’
in the Newspapers (One English and one Urdu) which in that case was not
followed. The relevant portion of the judgment is referred hereunder:
‘…However, the local body, housing society
or the private developer
has to apply to the Commissioner for the change of land use or conversion for
any other purpose for the plots reserved for the purpose as mentioned above
with full justification and details. Thus, it also includes the change of land
use, may be for the commercial purpose from the residential purpose and for
such purpose, under section 3(b), on receipt of application, the Commissioner
is bound to invite objections from the general public through notices to be
published in one English and one Urdu leading local
newspaper. Period for filing of objection with the Commissioner shall be 30
days from the date, who shall dispose of the same, subject to conditions laid
down therein. Learned High Court on having seen the publication had not agreed
in respect of fulfilling the conditions laid down in clause 3(a), (b), (c), (e)
and (f) of the Schedule D of Regulation 26 of KBTPR, 1979 as
the publications were not made in one English and one Urdu leading daily
newspaper.
In the instant matter the procedure of ‘public notice’ was
also followed by getting such ‘public notice’ flashed in daily newspaper
“JISARAT’ and “THE NEWS” i.e one Urdu and one English which was also having NOC
from the ‘lessor’ hence the said case, without prejudice to its
legality, is not applicable.
13. Now, to properly
respond, the plea of construction merely on basis of IEE (initial
Environmental examination) ,
it would be proper and relevant to refer the Section 17 of Sindh
Environmental Protections Act, 2014 which is:
’17.(1) No
proponent of a project shall commence
construction or operation unless he has filed with the Agency an initial
environmental examination or environmental impact assessment,
and has obtained from the Agency approval in respect thereof.
(2) The Agency shall—
(a) review the initial environmental
examination and accord its approval, subject to such terms and conditions as it
may prescribe, or require submission of an environmental impact assessment by
the proponent; or
(b) review the environmental impact
assessment and accord its approval subject to such terms and conditions as it
may deem fit to impose or require that the environmental impact assessment be
re-submitted after such modifications as may be stipulated or decline approval
of the environmental impact assessment as being contrary to environmental
objectives.
(3) Every review of an environment impact
assessment shall be carried out with public participation and, subject to the
provisions of this Act, after full disclosure of the particulars of the
project;
(4) The Agency shall communicate its
approval or otherwise within a period of two months from the date that the
initial ….
(5) The provisions of sub-sections (1),
(2), (3) and (4) shall apply to such categories of projects and in such manner
as prescribed.
(6) The Agency shall maintain separate
registers for initial environmental examination and environmental impact
assessment projects, which shall contain brief particulars of each project and
a summary of decisions taken thereon, and which shall be open for inspection to
the public during office hours.
The bare reading of the above provisions shows that the role of
the proponent is that of filing an IEE or EIA with the Agency.
The use of ‘or’ in between IEE and EIA in Section 17(1) is sufficient to
make the intention of the legislature clear that filing of either of two
i.e IEE or EIA would be sufficient for proponent to discharge its obligation.
Further, sub-rules of Section 17 of the
Act would show that the Agency ‘shall’ review the IEE and accord its
approval subject to such terms and conditions as it may prescribe or per
17(2)(a):
i)
require submission of an environmental
impact assessment by the proponent;
From the above, it is clear that compliance of Section 17(1) supra
does not necessarily earn an ‘approval’ but the ‘Agency’ continues
to be under a mandatory obligation to approve the same or to require
submission of an EIA. The moment ‘agency’ require submission of
an EIA while reviewing IEE within mandatory
obligation of Section 17(2)(a) , the provision of
Section 17(2)(b) comes into play which includes :
i)
require re-submission of EIA
after necessary modification as may be stipulated; or
ii)
decline approval of the EIA only
if is contrary to environmental objectives;
Now, I can conclude that the ‘agency’ cannot be said to
be left with no option but to approve an IEE even if, at the
end of the day (procedure u/s 17(2(a) it is fount contrary to environmental
objectives. Further, the IEE ,
available on the record, issued by Environmental Protection Agency is titled
as ‘Decision on initial Environmental Examination (IEE)’ which
speaks conscious examination and decision by it so is evident from
opening of such approval which reads as:
“After careful
review of the Initial Environmental Examination (IEE) report,
the Environmental Protection Agency (EPA), Sindh accord its approval subject to
the following conditions’:
Thus, approval of IEE by Agency without requiring the proponent
to submit EIA legally cannot be taken against the proponent. The
view in the case of Pakistan Defence Officers Housing Authority v.
Federation of Pakistan & Ors (2014 CLD 1279 ) is
in conformity wherein it was held that:
‘This provides that an IEE
may either be approved or the Agency may require an EIA
to be submitted. However, the IEE cannot be outright
reject.’
Now, reverting to the merits of the case, it is pertinent to
mention that the proponent prima facie made compliance of all other
required formalities, as demanded by the Agency therefore, solely on count of
failure of ‘agency’ to properly exercise its jurisdiction, vested by
Section 17(2)(a) and (2) it would not be appropriate to declare all
superstructure as illegal when prima facie fault is not upon the proponent
particularly when a final order passed can well be challenged before the Tribunal
as is evident from the Section 28(1) of the Sindh Environmental Protection
Act, 2014 which reads as:-
“28(1) Any person aggrieved by any final order or by any sentence
of the Environmental Protection Tribunal passed under this Act may, within
thirty days of communication of such order or sentence, prefer an appeal to the
High Court.
which course was / is
not resorted to without a plea that ‘Tribunal’ is not functioning or
does not exist. Thus, approval of IEE in place EIA would not ipso facto be
taken as fatal to declare the project as illegal because in the case of
Pakistan Defence Officers Housing Authority, relied by counsel for the
plaintiffs, the project was not declared to be illegal nor ‘approval of IEE
for a project requiring an EIA was held fatal rather
submitting of an EIA was instructed to be processed with complete liberty to ‘agency’
to accord approval if so found. Since, within meaning of Section 19 of the
Act the Agency continues under mandatory obligation for ‘arranging
environmental monitoring’ therefore, the authority shall also keep in
view that proponent while dealing with its project does nothing contrary to environmental
objectives which is the sole ground for decline of an EIA. Not only this, but approval of the IEE is
subject to certain conditions), which is not limited, but includes
:
‘i) The
mitigation measures provided in the IEE report and implementation of
Environmental Management Plan will be strictly adhered by the proponent to
minimize the impacts on physical and biological environment.’
This and other conditions seem to have brought the proponent
and Agency under a constant obligation / duty to ensure that till
completion of the cons project there accrues no serious ‘physical and
biological’ environmental impact upon neighbours. The responsibility to
keep monitoring over the project and examine its raising strictly within four
corners of law and procedure continues upon the quarter concerned which duty
never relaxes till completion of the project strictly as per its
approved design, scheme and object. Therefore, I am not inclined to hold that
plaintiffs have made out a case for injunction. I find support in my view with
the case of Sheri C.B.B v K.B.C.A (2003 YLR 1086), wherein it was held:
‘9. After hearing
the learned counsel and perusal of the record, the admitted position which
emerges is that the construction has been raised I accordance with the approved
building plans; no additional construction in violation to the building plans
has been raised; the defendant no.6 is already enjoying the title under duly
executed document; the property is situated on a main road already commercialized
to a good extent though the plaintiffs are residents of the same society
they are not the immediate neighhbours; the regularization plan has
already been submitted. The case law citied by learned counsel for the
plaintiffs pertain to unauthorized structure raised without approved building
plans which is not attracted to the facts and circumstances of the present case
and are distinguishable as in the instant case the provisions of law has not
only been complied with but in pursuance of the objections. The construction
was sealed on more than one occasion. It was only after a detailed inquiry and
consideration that it was desealed even during construction stage
and the plaintiffs were fully aware of the conversion of the plot throughout
but allowed significant time to elapse. In view of the foregoing
considerations, I am of the humble opinion that by allowing present application
to restrain the defendants from exercising the powers conferred upon them under
the law would be contrary to the public purpose for which the special law i.e
The Sindh Building Control Ordinance, 1979 has been enacted.
10. The
facts lead to the conclusion that the defendants have from time to time
complied with the objections and have raised construction according to the
approved building plan except for minor deviation, not of a significant nature that
are pending consideration in the shape of absence of partition walls for which
a revised plan has been filed. Main road on which the property is
situated is also subject to commercial activities and there is no likelihood of
irreparable losses to the plaintiffs calling for interference.
Worth to add here that the above view was
not disturbed in the case of Navid Hussain v. City District Government (2007
CLC 912). Thus, an aggrieved person can
approach the Agency for removal / correction of any such impact even if it
is attempted at later stage of construction.
14. Since, the
proponent prima facie seems to have complied with all requisite
formalities and there are NOCs / approval from quarter concerned therefore, a prima
facie case & balance of convenience flows in favour of the proponent
and not in favour of the present plaintiffs who even is not resident of
adjoining plots but residing back-lane of project in question.
In
addition to above discussion, here, to examine the prima facie &
balance of convenience in favour of defendant no.8 or plaintiff it would be
relevant to refer the operative parts of written statement, filed by the SBCA
which are:
“9) That on the basis of all said
documents and NOCs and after completion of all technical and legal formalities,
the competent authority was pleased to grant final approval of building plan
for construction of Basement (Air Raid Shelter) +Ground(showrooms)+1st
floor(showrooms)+2nd and 3rd floor (Parking)+4th
floor(Parking & Recreation area) +5th to 16th floor
(flats) only in the name of Mr. Manzoor Ahmed, vide letter dated 18.07.2015
(Photocopy annexed as “A”)
10) That on the basis of approved building
plan, the owner started construction work, which is still at initial stage as
per approved building plan.
VIOLATION.
No violation.
ACTION
TAKEN.
Not required.
PRESENT
POSITION.
The construction work is at initial stage
as per approved plan.
From above, it can safely be concluded that prima facie
case and balance of convenience flows in favour of the defendant no.4 and not
in favouor of the plaintiff.
As regard ‘irreparable loss / injury’ , the
defendant no.8 has come with categorical stand as is evident from Para12 of his
counter-affidavit filed against injunction application wherein it is stated
that:
“That, the contents of paragraph
no.10…….It is submitted that plaintiff has legally commercialized the Subject
Property after complying with all the requirements of law and has been acco4ded
approval for construction in accordance with law. It is a fact that as per the
Approved Plan no Shops / godowns are being constructed on the back side of the
Plot which is solely dedicated to a ramp to access parking.
This, also seems to have
served the undertaking of the defendant no.8 which has been insisted by
the plaintiff in pleading as:
“ no
commercial construction will take place on the plot facing residential area
being plot No.25”
Thus,
such stand of the defendant no.8 also appears to have lightened the grievance
of the plaintiff which would have force if ‘commercial shops’ would have
been facing the 50 feet vide road. An injunction cannot be granted unless the
person, seeking such interim relief fails to establish co-existence of
all three ingredients. Reference may be made to case reported as 2004 SCMR
1092 wherein it is held:
’21.
No doubt an injunction is a form of equitable relief and is to be issued in aid
of equity and justice, but not to add injustice. Form grant of such relief, it
is mandatory to establish that in order to obtain an interim injunction, the applicant has not only
to establish that he has a prima facie case, but he has also to show that the
balance of convenience is on his side and that he would suffer irreparable
injury / loss unless he is protected during the pendency of suit.
The perusal of the record also shows that the present plaintiff
has not sought a specific relief with regard to its (his) personal
grievance or personal rights but focus is made for a restraining order
regarding commercial use of the subject property which, in absence of declaration
of its/ his rights, interests and legal character, legally cannot
advance the plea of ‘irreparable loss / injury’ because such plea is
always a question of fact requiring a ‘declaration’ after due
adjudication. I find strength in such conclusion with the case of Ilyas
Ahmed v. Muhammad Munir & 10 Others (PLD 2012 Sindh 92), relief by
counsel for plaintiff wherein it is held:
“I have reached to an irresistible
conclusion that in the event of non-creation of any vested right no relief can
be sought under section 42 of Specific Relief Act a person entitled to
any legal character or to any right to property can institute a suit for
declaratory relief in respect of his title to such legal character or right to
property. The expression, legal character has been understood as
synonymous with the expression status. Section 42 of the Specific Relief Act
applies only to a case where a person files a suit claiming entitlement
is denied by the defendants or in denying which the defendants are interested.
It cannot apply to a case where the plaintiffs do not allege their entitlement
to any legal character or any right to property or its denial by the defendants.
As a necessary corollary it can not apply to a case where only the
entitlement to the legal character or the property of the defendant is denied
by the plaintiff. Section 42 would be attracted to a case in which the
plaintiff approaches the court for the safeguard of his right to legal
character or property but where right to his own legal character or property is
not involved the suit is not maintainable. In the present suit, the
plaintiff has not approached this Court for a declaration of his own right to
property or his right to a legal character but has challenged the defendant
pretension to a legal character and to right to property. Section 42
does not permit an unrestricted right of institution of all kinds of
declaratory suit at the will and pleasure of the parties, right is strictly
limited. Suit for mere declaration aliunde is not permissible under the law,
except in the circumstances mentioned in Section 42 therefore,
the suit in question is also barred by Section 42 of the Specific Relief Act.
In result of above discussion, I find no substance in the
instant applications for grant of injunction which are accordingly dismissed.