IN THE HIGH COURT OF SINDH AT KARACHI
Before :
Mr. Justice Nadeem
Akhtar
Mr. Justice Fahim
Ahmed Siddiqui
C.P. No. D-867 of
2015
Mrs.
Aneesa Farooqui.
...
..Petitioner
Versus
Federation
of Pakistan and others
..
.Respondents
----------------------------------
C.P. No. D-868 of 2015
Mujeeb-ur-Rehman Khan Jatoi.
..Petitioner
Versus
Federation
of Pakistan and others
..
.Respondents
----------------------------------
C.P. No. D-869 of 2015
Omer
Jafar.
...
..Petitioner
Versus
Federation
of Pakistan and others
..
.Respondents
----------------------------------
C.P. No. D-870 of 2015
Ms.
Lalarukh Hussain Shaikh.
...
..Petitioner
Versus
Federation
of Pakistan and others
..
.Respondents
Date
of Hearing: 01.03.2017
Date
of Judgment: 01.03.2017
Mr.
Shafi Muhammadi, advocate
for petitioners
Mr.
Abdullah Munshi, advocate for respondent No. 4
Mr.
Shah Nawaz, advocate for respondent No. 5
J
U D G M E N T
.-.-.-.-.-.
FAHIM
AHMED SIDDIQUI, J: By
means of these four petitions, the petitioners have sought a direction to the
respondents for commercialisation of their respective residential properties
situated at Khyaban-e-Hafiz, DHA, Karachi.
2.
The petitioners are the
owners of their properties situated at the wayside of famous Khyaban-e-Hafiz of DHA, Karachi. It is a busy road having
several interchanges and Carrefour on it due to which traffic conjunction was a
common phenomenon on it. The authorities felt it necessary to build a flyover
known as Gizri Flyover for a smooth flow of traffic
on the said road. As the said flyover facing their properties; therefore, they
agitated on its construction on the ground inter alia environmental impairment,
and they filed petitions before this Court against the respondents being CP
Nos. D-756/2008 & 2168/2008. Both the petitions were disposed of with directions
to DHA to fulfil the legal requirements as per Section 12 of the Pakistan
Environmental Protection Agency (Review of IEE and EIA) Regulations 2000
including submission of Environmental Impact Assessment before the concerned
Government Agency. The impact of the order of this Court in the aforesaid
petitions was that DHA was allowed to carry out the construction work of
flyover with certain modification. However, the petitioners challenged the
Order of this Court by filing Civil Appeal No. 382-K of 2009 before the
honourable Supreme Court of Pakistan. The said Civil Appeal was disposed of
with nearly the similar observations with directions to continue the
construction work but the same should be in conformity with the findings of the
Sindh Environmental Protection Agency (hereinafter referred as SEPA).
3.
Now, after fulfilling all
the requisite formalities, the said flyover is completed and put into
operation. According to petitioners, at the time of according approval of EIA,
the SEPA, through report dated 15-08-2009, has imposed following conditions
regarding the construction of the aforesaid flyover.
i.
That safe and convenient
access and exit will be ensured from Khyaban-e-Hafiz
to the residents of the bungalow located on corner side of the Khyaban in front of which the flyover has been constructed.
ii.
That for the purpose
mention in (i) above, a dedicated service road shall be constructed after
shifting utility pole.
iii.
That adequate compensation
shall be paid to the owners of the bungalows in view of the depreciation of the
value of these bungalows because of the construction of this flyover.
iv.
That possibility of change
of land use of these affected bungalows from residential to commercial with
inbuilt parking facility may be examined.
v.
That the damage caused to
any civil structure of the residential properties due to construction of
flyover will be compensated.
vi.
That all the public
transport going to and fro, on this main artery i.e. Khyaban-e-Hafiz
and earlier portion falling in commercial area, shall without exception be
diverted onto the constructed flyover, with appropriate and absolute essential
to control concentration of vehicular emission under the flyover.
vii.
That available space under
the deck of the flyover will not be used for any commercial activity, shops,
venders, carts, etc. and the same will be dedicated for parking for cars,
vehicles visiting the commercial area. This area will also not be used to pickup or truck stand.
viii.
That the space under the
deck will be kept clean through an efficient garbage disposal system.
ix.
That strict enforcement
measure will be taken to prevent encroachment below the deck of the flyover as
to control any misuse of the space by antisocial elements, drug addicts and
beggars.
4.
It is the contention of the
petitioners that their properties are severely devalued due to the construction
of flyover and in terms of report dated 15-08-2009, the petitioners filed their
claim for compensation which is not considered by the respondent No. 05 and
they also applied for NOC to respondent No. 04 on the congestion and sanitation
point of view so that they may complete commercialisation process of their
properties. The grievance of the petitioners is that neither the DHA
(respondent No. 05) to compensate the petitioners nor the CBC (respondent No.
04) is ready to issue the requisite NOC., as such the
instant petition was filed. Through the instant petition, they sought the
relief of conversion of their properties from residential to commercial and
also sought directions to the respondents No. 04 & 05 to complete the
formalities in this respect.
5.
The respondent No. 05 filed
their objections in which they denied all the allegations levelled against
them. Regarding compensation, their point of view is that the petitioners are
not entitled to the same besides being the intricate questions of law and fact,
the issue of compensation in any shape is not maintainable under the
constitutional jurisdiction. It is the stance of the respondent No. 05 that the
said flyover has provided ease and comfort is to all the residents of DHA
especially the residents of Khyaban-e-Hafiz, as it
has solved the problem of traffic congestion and traffic jam and it has also
reduced the air and noise pollution in the area.
6.
The learned counsel for the
petitioner submits that as the properties of the petitioners are devalued;
therefore, it is their right to be compensated by declaring their properties as
commercial. According to him, due to construction of the said flyover, the
worth of their properties is badly undermined as residential properties, and by
converting them from the residential to commercial as per report of SEPA, the
petitioners will be comparatively compensated.
7.
The counsel for the
respondents N0. 05 opposes the instant petition by
submitting that the petitioners have no right to raise such claim because of
the construction of flyover. According to him, the petitioners are not entitled
to compensation because the said flyover was constructed to facilitate the
residents of the area including the petitioners and after the construction of
the same, the noise and air pollution are considerably reduced which was
previously caused by vehicular congestion and frequent traffic jam. The learned
counsel for the respondent No. 04 also submits that after construction of
flyover there is no unusual traffic congestion. According to him, conversion of
the properties from residential to commercial is not a viable due to available
municipal facilities in the area; therefore, the respondent No. 04 is not in a
position to issue a NOC.
8.
We have scanned the entire
material available before us in the light of valued submissions made by the
learned members of the bar. The petitioners are trying to fortify their claims
of conversion of their properties from residential to commercial on the basis
of above referred report of SEPA, in which it was suggested that the
possibility of change of land use of affected bungalows from residential to
commercial may be examined. It is worth noting that such suggestion from SEPA
may not create a right for the petitioners to seek such remedy besides it is also
beyond the scope of SEPA to give such suggestion. The function of SEPA is
limited to the protection of environment and under the law,
they have no authority to make any suggestion regarding compensation to the
properties and change of their status. Being the authority in respect of the
protection of environment, SEPA may give suggestion regarding alteration and
re-modification of a project in the light of EIA considering the sustainable
development and even they may declare a project unviable but not beyond the
same.
9.
Karachi as an idea as well
as a space, has not stood still in the decades since
pre-independence days. From its beginning as a small settlement of fishermen,
it has started its growth during British Raj to the post-independence
extravagant multiple conurbation that make up the city
today. The city has experienced the rapidity of change unmatched by any other town
in the country. Being the financial and commercial hub of the country, it has
attracted people from every nook and corner of the country as well as the legal
and illegal migrants from the neighbouring states. The city, which was a small
town a few decades ago, is now a Metropolis with a great diversity of
cosmopolitanism. In such a situation, it is not surprising that the municipal
and development agencies of the city are under great pressure to provide new
infrastructure for the modern urbanisation perched securely on the old foundations.
Thus, they are continuously planning major overhaul and revamping the existing
facilities to meet the modern standard and requirements of expansion and town
planning. They are busy in building new flyovers, bridges, transport
connectivity, parking facilities, improvement and widening of roads,
augmentation of power and water supply and other services. The purpose of
development is not only to provide facilities and amenities to its citizen but
to showcase the nation's commitment to modernity and development. When
different development agencies including DHA are boasting about the development
projects, it is also the responsibility of the citizen of the city to extend
their cooperation and to be ready to sacrifice something for their own betterment
as well as for the eminence of the city and the country.
10.
In the backdrop of the
above, now we see the case of the petitioners. The petitioners are willing to
get their properties converted from residential to commercial on the plea that
due to construction of flyover in front of their properties, the worth of their
respective properties is devalued. It appears that the prime interest of the
petitioners is connected with the value and worth of their properties and now
after construction of flyover, they intend to get the maximum financial
advantages from their properties. It is possible that with the construction of
flyover, the market value of the properties might have been depreciated but the
utility of the property as a dwelling place, may not be disturbed because the
size of the plot is not reduced and considering the distance of the flyover
from wayside, it cannot be said that the same has hindered any easement right
of the petitioners. The development projects, for the betterment of a populace,
cannot be put at halt because the same are causing trouble, suffering and
misfortune to a handful of individuals. Similarly, some individuals may not
come forward with a plea of a unique treatment with them, which otherwise is
not available for the other residents of the area. It will also be immaterial that nearby to their
properties, a commercial area is already in existence. In this respect, we
would like to take reliance from a case of the Honourable Supreme Court
reported as Arshad Abdullah and others v.
Government of Sindh, through Secretary, Housing and Town Planning Department
and others (2006 YLR 3209), wherein the Honourable Supreme Court has
formulated a rule of thumb that in case, a road is notified as commercial, all
the properties facing to the said road will become 'commercial' but the
adjoining properties will not be considered as commercial property. If the
road, on which the properties of petitioners are situated, is not notified as
commercial, their properties cannot be commercialised.
11.
Another aspect also
requires consideration. For declaring some property as commercial, it is
necessary that the surrounding arteries and available amenities are sufficient
to cater the requirement of commercial properties. It is a factual position
that the properties of the petitioners are meant for residential purpose only,
meaning thereby that the surrounding infrastructure and amenities are design
for the residential units, which must not be suitable for commercial buildings
unless the entire infrastructure of the vicinity is restructured and revamped.
As the properties of the petitioners do not fall in a notified commercial area;
therefore, no direction can be given to the respondents for issuing any NOC or
for changing the use of their properties from residential to commercial. Hence,
the instant petitions are dismissed with no order as to cost.
The
above are the reasons for our short order dated 01-03-2017.
JUDGE
JUDGE